N73/3S New York State College of Agriculture At Cornell University Ithaca, N. Y. Library Date Due ^Aug6'^0K| Lihrary Bureau Cat. No 1137 Cornell University Library JS 451.N73B5 1906 Manual for supervisors, counfV a""! 1°*" 3 1924 014 107 084 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924014107084 EDITION OF" I906 FOB Supervisors, County and Town Officers CONTAINING THE COUNTY AND TOWN LAWS IN FULL AND ALL OTHER STAT- UTES OF THE STATE OF NEW YORK, RELATING TO BOARDS OF SUPERVISORS, TOWN BOARDS, COUNTY AND TOWN OFFICERS, AND THE AFFAIRS AND BUSINESS OF COUNTIES AND TOWNS, AS AMENDED TO THE CLOSE OF THE LEGISLA- TURE OF 1906. WITH BEOISIOlSrS, AA^ITOTATIOKS, EXPLANATOKY NOTES, OEOSS-EEFEEENCES, FORMS, AND A DIGEST OF FEES OF COUNTY AND TOWN OFFICERS. By frank b. gilbert Of the Albatny Bar, author of Gilbert's Coie, Gilbert on Domestic Relations, co-Editor of the Village Laws, The Poor, Insanity and State Charities Laws, Commercial Paper, etc. THIRD EDITIO/\. ALBANY, N. Y. : MATTHEW BENDER & COMPANY. 1006. JS Vi"/ COPTBIGHT, 1899. By MATTHEW BENDER. COPYBIGHT, 1903, By MATTHEW BENDER. COPYBIGHT, 1906, By MATTHEW BENDER & CO. PLATED AND PEINTBD BY WILLIAM BOYD ALBANY I>IIEF^CE. The purpose of this manual is to present in a logical manner all the laws of the state pertaining to the transactions of county and town business, and the rights, powers, duties and liabilities of boards of supervisors and county and town officC'rs. As is indicated by the table of contents, the manual is divided into parts, and each part again subdivided into chapters. This arrangement permits of a careful and scientific classification of the laws relating to the topics under consideration. In the chapters devoted to the exclusive powers and duties of the several county and town officers, cross references are made in their proper connection to other parts of the manual, where other duties are prescribed in connection with those of other officers. These references join together the several laws, and parts of laws, so that all the powers and duties of the several ofElcers may be readily ascertained. The editorial notes and citations of authorities, containing frequent extracts from judicial opinions, are included in foot notes, so that the law as enacted by the state legislature may be clearly distinguished. The manual is based upon statute law, for the reason that county and town rights and obligations, and the powers and duties of county and town officers, are of statutory origin. The notes are to aid in the interpretation and application of these statutes and are, therefore, properly subordinated to them. A large number of appropriate forms are appended, with references to them by number in connection with the statutes under which they are to be used. A schedule of the general laws and other statutes contained in the manual is inserted immediately after the table of contents, for the purpose of showing readily the pages where the several sections of such laws and statutes can be found. This manual contains all the general laws and statutes per- taining to counties and towns, the administration of their affairs and the powers and duties of their officers. Statutes relating to (iii) iv Preface. any one county or town oflBcer cannot be considered without refer- ence to other officers, because their powers and duties are inter- laced and dependent, the one upon the other. For instance, a county board of supervisors cannot act intelligently upon a mai> ter pertaining to the highway system without a knowledge of the duties of highway commissioners. It may safely be said that a county or town officer who is familiar with the requirements of his office, must also know, to a certain extent, the rights and duties of other officers. It follows that a complete guide for the use of any one or more county or town officers must contain all the statute law of the state generally applicable to all of such officers. The chief aim has been to make this manual easy for use by county and town officers, who may be business men but not lawyers, and, therefore, not learned in the law. In accomplishing this purpose it would be strange if its value to lawyers has been lessened. The statute law is included as it is; the explanatory notes and comments may be taken at their actual worth ; they are the result of the careful and conscientious labor of the editor, who has had a somewhat extended experience in the consideration of the state statutes. Albany, JST. Y., September 1, 1903. FEANK B. GILBEHT. NOTE TO THIRD EDITION. The second edition of this manual was published in the summer of 1903. Since that time many important amendments to the laws relating to the rights, powers, duties and liabilities of town and county officers have been enacted, and a number of controlling judicial decisions have been rendered bearing upon those laws. A glance at the table of the laws of 1904, 1905 and 1906 which have been included in this edition will indicate the constant changes affecting the administrative laws of towns and coimties. This new edition is published in pursuance of the purpose to prepare and publish a revised edition of this manual at least once in three years. It is believed that town and county officers will find this re- vised edition of the manual useful if not absolutely essential. F. B. G. Albany, September 1, 1906. co:NrTEisrTS. PART I. oouuties; boabds of supeevisoes. Ohaptee. page. I. Counties as corporations 1 II. Organization, meetings and proceedings of board of super- visors 6 III. Audit by board of supervisors; county charges 21 IV. General powers of boards of supervisors; publication of session laws; removal of county buildings; other powers, 44 V. Boards of supervisors as boards of county canvassers 68 VI. Clerks of boards of supervisors 78 PART II. OouNTT Offioees ; Jails and Peisonees ; Loan Commissionees. Chapteb. page. VTI. County treasurer 83 VIII. County clerk 100 IX. District attorneys, county judges and surrogates 107 X. Sheriff and coroners; powers and duties 119 XI. County jails 136 XII. Civil prisoners ; jail liberties 149 XIII. Coroner's inquest 159 XIV. United States deposit fund; loan commissioners 165 XV. Provisions generally applicable to county officers 178 PART III. Towns, Town Meetings and Town Offioees. Chaptbb. page. XVI. Towns ; erection and alteration 187 XVII. Town meetings; election and terms of town officers 196 XVni. Town houses ; lock-ups ; town cemeteries 247 XIX. Town officers; eligibility, oaths of office, undertaking, vacancies, resignations 2.54 XX. Supervisor as town officer ; general duties 273 XXI. Duties of town clerk generally 287 XXII. Justices of the peace; general duties as town officers 204 XXIII. Drainage of low lands ; duties of town officers 299 (V) VI Contents. PART IV, Taxation. Chaptee. page. XXIV. Taxable property and place of taxation 321 XXV. Mode of assessment 355 XXVI. Assessment of special franchises 38>l XXVII. Duties of boards of supervisors as to assessments and taxa- tion; equalization of assessments 394 XXVIII. State board of tax commissioners; equalization by state board; appeals from supervisors 407 XXIX. Collection of taxes 413 XXX. Sales by county treasurer for unpaid taxes and redemption of lands sold 442 PART V. Division Fences; Steated Animals; Dogs. Chaptee. page. XXXI. Division fences ; duties of fence viewers 447 XXXII. Strayed animals doing damage; duties of fence viewers... 454 XXXIII. Dogs, duties of town and county officers relative to 461 PART VI. Relief of Poob,. Chapter. page. XXXIV. Superintendent of the poor ; alms-houses 475 XXXV. Alms-houses; powers of state board of charities 491 XXXVI. Support of the insane, idiots and epileptics 496 XXXVII. Education and support of the blind and the deaf and dumb, 510 XXXVIII. General powers and duties of overseer of the poor in respect to relief of poor 520 XXXIX. Settlement and place of relief of poor persons 533 XL. Support of bastards 546 XLI. Support of poor persons by relatives; absconding parents or husband 658 XLII. Relief of veteran soldiers, sailors and marines 569 XLIII. The state poor 574 XLTV. Distinction between town and county poor and other mis- cellaneous provisions relating to the poor 683 Contents. Vll PART VII. Chapteb. Highways and Beidqes. page. XLV. Highway commissioners and overseers; general powers and duties 591 XL VI. Assessment of highway labor 623 XL VII. County road system ; county supervision 039 XL VIII. Performance of highway labor; duties of overseers; abate- ment of tax 647 XLIX. Laying out, altering or discontinuing highways; commis- sioners ; procedure ; private roads 659 L. Injuries to, use of, and encroachments upon highways 686 LI. Town bridges 697 LII. Duties of boards of supervisors as to highways and bridges, 708 LIII. State aid in the construction of highways 723 LIV. Bicycle sidepaths; use of bicycles and automobiles on highways 737 LV. Railroads crossing highways; street railroads in highways, 7.52 LVI. Special provisions relating to highways 704 LVII. Turnpike, plank road and bridge corporations 778 LVIII. Ferries 798 PART VIII. Chapteb. Town Boaed. page. LIX. Auditing of town accounts; town charges; town finances.. 801 LX. Licenses by town boards 825 LXI. Water, light and sewer systems in towns 833 LXII. Other powers and duties of town boards 850 LXIIL Town board as local board of health 853 PART IX. ScHoos; Duties of Town and County Officees. Chapteb. page. LXIV. Schools and school moneys, duties of town and county ofiBcers in respect thereto 869 LXV. Gospel and school lots 889 PART X. Jueoes. Chapteb. page. LXVI. Grand and trial jurors; commissioners of jurors 893 PART XI. Peovisions Kelating to Counties and Towns. Chapteb. page. LXVII. Actions by and against town and county officers 909 LXVIII. Town and county finances and property 922 LXIX. Penal provisions applicable to towns and county officers . . . 946 LXX. Miscellaneous provisions; weights and measures 951 LXXI. Fees of county and town officers 954 Tabic of Laws of J904, 1905 and 1906 Included in this Edition. Whis table shows the amendments which have been made by tne Legislature since the publication of the 1903 edition of this manual, all of which amendments have been incorporated in this new edition. Laws. Chapter. 1904 35 1904 57 1904 61 1904 68 1904 75 1904 78 1904 83 1904 109 1904 124 1904 ' 153 1904 155 1904 161 1904 174 1904 183 1904 192 1904 277 1904 279 1904 297 1904 298 1904 312 1904 324 1904 337 1904 342 1904 353 1904 382 1904 384 1904 385 1904 387 1904 392 1904 426 1904 428 1904 436 1904 438 1904 443 1904 461 1904 462 1904 478 Page In Description of Act. this edition. Amends Village Law, §§2-5 .282-285 Amends Town Law, §§ 160, 161 803 Amends County Law, § 203 HI Amends Town Law, § 195 250 Amends Drainage Law (R. S., Pt. 3, ch. 8, tit. 16), § 8. 301 Amends County Law, § 202 109 Amends County Law, § 95 141 Amends Highway Law, §§ 110, HI, 113 682 Amends Town Law, § 178 816 Amends Highway Law, § 6 - 602 Amends L. 1896,' ch. 820, § 2 397 Amends Code Civ. Pro., § 3314 907 Amends County Law, §■ 143 91 Amends Highway Law, § 53 637 Amends Highway Law, § 152 685 County Law, § 37a, added. ., 67 Amends Tax Law, § 38 383 L. 1898, ch. 115, § 12a, added 731a L. 1898, ch. 115, § Ha, added 730 Amends Town Law, § 178 816 Amends Highway Law, § 74 . , , 658 Amends County Law, § 222 116 Amends L. 1899, ch. 152, § 9 742 Amends Highway Law, §§ 83, 84, 89, 92 664-673 Amends Tax Law, § 42 389 Amends Code Civ. Pro., §§ 145, 149, 150, 151, 158 153 Amends Tax Law, § 35 378 Amends Highway Law, § 80 '. 662 Amends Public Health Law, § 22 859 Amends L. 1898, ch. 115, § 72 731 Amends Insanity Law, § 64 ; 497 Town Law, § 215, added ,' 945 Tax Law, § 15, added 354 Amends Highway Law, § Ha 609 Amends County Law, § 237 183 Amends State Charities Law, § 94 506 Amends Highway Law, §§ 9, 21, 53, 53a, 71, 105 605, 621 637, 655, 656, 696 (viiia) viiib Table of Laws. Laws. Chapter. 1904 484 1904 495 1904 520 1004 535 1904 540 1904 546 1904 590 1B04 608 1904 609 1904 611 1904 646 1904 688 1904 733 1905 20 1905 61 1905 89 1905 102 1905 108 1905 120 1905 160 1905 244 1905 249 1905 201 1905 273 1905 276 1=905 277 ■ 1905 293 1905 303 1905 325 1905 348 1905 368 1905 391 1905 417 1905 436 1905 439 1905 445 1905 446 1905 447 1905 447 1905 490 1905 496 1905 502 1905 605 1905 342 1905 643 Pagf in Description of Act. this edition. Amends Eublie Health taw, § 20 854 Amends Highway Law, § 02 ' 649 Amends Code Grim. Pro., §§ 839, 915 558 Amends Tax Law, § 152 444 Automobiles (Motor Vehicle Act) 747-751d Amends Town Law, § 178 816 Amends Forest, Fish and Game Law, §§ 225, 226, 228.. 278 Amends L. 1898, ch.115, § 8 , 728 Amends Highway Law, § 55, 55a-55d 640 Amends Highway Law, § 4 596 Amends Highway Law, § 57 641 Amends Highway Law, § 45 633 Amends Election Law, § 16 218 Amends County Law, § 23 14 Amends Tax Law, § 20 357 Amends Tax Law, § 162 807 Amends L. 1899, ch. 441, § 2 -. 901 Amends Highway Law, § 51 635 Amends L. 1899, ch. 594, § 1 795 Amends County Law, § 222 110 County Law, § 12, subd. 19, added 52 Amends L. 1890, eh. 332, §§ 1-5 830 Amends County Law, § 110 462 Poor Law, § 141a, added % 587 County Law, § 141a, added 86 Amends L. 1869, ch. 855, § 4 62 Amends Highway Law, § 53a . 656 Public Health Law, § 30a, added 867 Amends Drainage Law (R. S., Pt. 3, ch. 8, tit. 16), § 29. 311 Tax Law, § 259a, added ' 429 Amepds Tax Law, §§ 222, 237, 240 99 Amends L. 1902, ch. 206, § 2 824 Amends Highway Law, § 10 607 Amends Code Civ. Pro., § 3146 297 Amends Code Civ. Pro., § 145 . . . . , 153 Amends Tax Law, § 151 44I Amends TJx Law, § 4 (subd. 19, added) 339 Amends Tax Law, § 50 395 Tax Law, § 152a, added 444 Amends Insanity Law, § 74 503 Amends County Law, § 19 55 Town Law, § 45, added §52 L. 1899, ch. 152j^ § 13, added 743 Amends To^vn Law, § ITS gjfj Amends Election Law, §§ 5, 58, 59, 130, ?-36, 137, .68-77, 221 Table of Laws. viiic Page In Description of Act. ttiis edition. Amends Highway Law, §§ 4, subd. 5, 21, 33, subd. 6. . . 597 621, 627 Amends Public Health Law, § 21 858 Amends Highway Law, §§ 83, 88 v 664, 668 Amends County Law, § 230, subd. 9 36 Town Law, § 60a, added 259 Amends L. 1901, eh. 348, § 6 846 Highway Law, § 27, added 622 Amends Drainage Law (R. S., Pt. 3, eh. 8, tit. 16), § 1. 300 Amends Highway Law, § 87 629 Tax Law, § 45a, added 392 Amends Tax Law, §§ 100, 150, 151 443, 444 Amends County Law, §§ 129, 131, 133 470 Amends L. 1899, oh. 441, § 4 902 Amends Tax Law, § 7 342 Amends County Law, § 37 02 Amends Public Health Law, § 20 854 Amends Highw ay Law, § 90 672 Amends L. 1890, ch. 291, §§ 3, 4 617 Amends County Law, § 12, subd. 13 49 Amends County Law, § 203 Ill Town Law, § 182a, added 227 Amends Code Civ. Pro., § 3314 907 Amends Tax Law, § 4, subd. 7 336 County Law, § 150, added 99 Highway Law, §§ 27, 28, added 638a Amends Town Law, § 171 834 Amends County Law, § 222 117 Amends Lien Law, § 93 290 Town Law, § 83a, added 289 Amends Highway Law, §§ 9, 19 605, 616 Tax Law, § 28a, added 369 Amends County Law, § 92 139 Amends County Law, § 203 Ill Amends County Law, § 222 115 Amends Tax Law, § 44 391 Amends County Law, § 222 116 Amends L. 1898, eh. 115, §§ 1, 3, 6, 8, 11, 12, 14, 15, 18. . . . 724-731(1 Amends Town Law, § 162 807 Amends L. 1903, eh. 308, § 5 832 Amends Highway Law, § 11a 609 Mortgage Tax (Tax Law, §§ 290-301) 446a-440i Public Health Law, §§ 23a-25d, added 265a Amends Town Law, § 15 .- 236 1906 629 Amends Code Civ. Pro., § 91 32 Laws. Chapter. 1905 672 1906 39 1906 67 1906 74 1906 81 1906 . 85 ICOO 101 1906 115 1906 149 1906 155 1906 189 1906 212 1906 221 1906 248 1906 249 1906 253 1906- 265 1906 311 1906 318 1906 319 1906 331 1906 334 1906 336 1906 362 1906 363 1906 373 1906 377 1906 381 1906 383 1906 423 1906 425 1906 426 1906 433 1906 439 1906 458 1906 463 1906 468 1906 505 1906 .528 1906 530 1900 532 1906 583 1906 584 SCHEDUniLE OF LA."V\^S. (Showing pages of manual where the sections of the laws included may be found.) Page of Page of Law. Manual. Law. Manual. Comstltmtion. Code Civil Procedure. art. 1, § 7 680 § 129 146 art, 2, § 4 229 130 146 art. 3, § 26 6 131 146 art. 3, § 27 7 132 146 art. 6, § 15 112 133 152 art. 6, § 16 113 134 152 art. 6, § 17 232, 294 135 147 art. 8, § 10 930 136 147 art. 13, § 1 . . 180, 254, 257 137 147 Code Civil Proceanre. 138 148 § 28 180 139.... 148 31 38 140.... 148 86 41 141..., 148 91 >. 32 142 148 97 124 143.... 147 98 125 146.... 153 99 125 147.... 154 100 129 148,... 154 101 129 149 154 102 129 150.... 155 103 130 151.... 155 104 130 152 155 105 130 153.... 156 106 131 154.... 156 107 131 155 156 108 131 156.... 157 109 132 157.... 158 110 149 158.... 157 HI 149 159 157 112 151 151 151 182..,. 183 184.... 132 113 133 114 IS.'? 115 . . . . 151 151 185 . . 133 116 186,.,. 134 117 1.52 187 134 118 152 188.... 133 119 152 189.... 134 121 139 256.... 4-2 122 139 257.... 42 123 139 258.... 42 126 145 259.... 43 127 152 260., ,. 43 128 145 934,,.. 293 (ii) Schedule of La.ws. Page of Law. Manual. Code Civil Procedure. §- 941 16 1027 896 1028 897 1029 897 1030 898 1035 896 1036 896 1037 899 1039 899 1040 900 1390 330 1391 330 1392 331 1393 331 1395 331 1925 918 1926 919 1927-1929 920 1930, 1931 921 2471a 282 2484 113 2485 114 2492 114 2493 114 3144 296 3145 296 3146 296 3147 297 3280 815 3312 33 3313 906 3314 906 3315 907 Code Criminal Procedure. § 10(j 941 132 295 484 143 616 35 617 35 662a 32 773 159 775 160 776 160 777 160 778 161 779 161 780 161 781 161 782 162 783 162 784 162 785 162 786 163 787 163 788 163 790 163 838 547 839 547 881 550 Page of Law. Manual. Code Criminal Procedure. § 882 551 886 551 887 810 887a 810 899 561 900 561 901 561 902 561 902, 903 562 905 562 908 142 914 556 915 557 916 558 917 558 918 559 919 560 920 560 921 562 922 563 923 563 924 563 925 564 926 564 Penal Code. § 42 946 43 946 44 946 45 946 46 947 47 047 48 947 49 947 50 947 52 948 53 948 54 948 55 948 56 948 57 948 114 135 115 l.-^^ 116 135 117 12, 949 117a 82, 178 117b 549 137 297 138 2P7 139 297 140 297 141 ::n7 160 145 161 ft-l 162 106 163 loti 164 106 165 29 166 30 377 501 Schedule of Laws. XI Page of Law. Manual. Penal Code. § 384e 828 385 680 396 858 3i)7 858 415a 799 431 687 434 861 449 942 470 949 471 940 472 94 473 950 474 106 475 441 485 385 639, subs. 1,6. 687 640 6S8 652 632, 743 652a 7-13 654a 687, 743 6.57 45G 661 620, 687 672 30 675a 541 702 141 Bevised Statutes. pt. 1, ch. 2, tit. 4, § 58 192 59 193 pt. 1, ch. 12, tit. 2, § 90 110 pt. 1, ch. 15, tit. 4, § 3 889 4 890 5 890 6 890 pt. 3, ch. 8, tit. 16, § 1 299 8 300 pt. 3, ch. 8, tit. 16, § 9 301 10 302 11 304 16 306 25 307 26 307 27 308 28 309 29 310 30 311 31 312 32 312 33 313 34 314 36 315 pt. 4, ch. 2, tit. 4, § 1 893 3 894 4 894 5 894 8 895 9 895 20 895 21 895 22 896 Page of Law. Manual. 1832, ch. 223, § 1 515 2 510 1836, cL. 50i_;, § 1 34 3 18 1845, ch. 280, § 1 56 2 56 4 56 5 57 6 16 1846, ch. 186, § 1 889 1847, ch. 133, § 10 340 1847, ch. 280, § 25 295 1854, eh. 112, § 11 951 1859, eh. 2.54, § 1 35 1859, ch. 289, § 1 48 18C1, ch. 83, § 1 22 1861, ch. 83, § 4 25 1803, ch. 325, § 1 510 2 516 3 517 4 517 1864, eh. 379, § 1 164 2 1^4 3 104 1867, eh. 744, § 1 512 2 513 3 513 13 513 1! 513 15 514 I'i 514 2:i 515 1869, ch. S-.5, § 4 67 1870, ch. liiO, § 3 512 ! 512 1870, eh. 180, § 2 517 3 51S 1870, ch. 311, § 1 656 2 657 3 657 1871, eh. 171, § 1 G27 2 628 1873, ch. 833, § 2 163 3 163 4 164 1875, ch. 215, § 1 690 2 690 1875, ch. 251, § 2 50 1875, ch. 482, § 9 719 1876, oil. 54 § 1 786 1876, ch. 331, § 2 51R 1878, ch. 304, § 1 565 2 566 3 566 4 566 1879, ch. 447, § 2... 94 1880, ch. 347, § 1 584 2 584 3 585 4 585 5 585 xii Schedule of Laws. Page of Page of Law. Manual. Law. Manual. 1880, ch. 347, § 6 586 Railroad Law (i. 1890, ch. 1 586 565). 8 586 § 64 756 9 586 65 757 1880, ch. 549, § 1 589 66 760 1881, eh. 166, § 1 281 67 760 2 281 67a 761 1881, ch. 218, § 1 589 91 761 8 589 1881, ch. 531, § 1 911 Transportation Corpora- 1881, ch. 675, § 1 421 tions law (L. 1890, eft. 566). 2 421 § 81 835 3 421 120 778 4 422 121 779 5 422 122 780 1882, ch. 68, 937 123 781 1882, ch. 326, § 1 316 124 782 2 317 125 782 3 317 126 782 1884, ch. 275, § 1 518 127 783 2 518 128 784 1884, ch. 438, § 2 489 129 784 1885, ch. 490, § 1 811 130 785 1889, ch. 95, § 4 339 131 786 1889, ch. 402, § 1 935 132 787 2 936 133 787 3 936 134 788 4 937 135 790 5 937 136 600, 790 1890, ch. 223, § 1 821 139 791 2 822 140 340 1890, ch. 291, § 1 616 141 792 2 616 142 792 3 617 143 793 4 617 148 793 5 617 149 79i 1890, ch. 332, § 1 829 150 794 2 830 3 830 Highway law (L. 1890, ch. 4 830 568). 5 830 § 2 592 1890, ch. 555, § 1 770 3 593 2 771 4..;:;:;;:; 594 3 771 5 599 4 773 6 601 5 773 7 603 774 8 603 9 605 8 775 10 606 9 776 11 607 10 776 11a 608 11 776 12 609 12 777 13 609 13 777 H 610 15 611 Railroad Law (L. 1890, ch. 16 612 565). n ....'.'.'.'.'.'. 614 § 60 752 18 614 61 753 19 615 62 754 20 617 63 756 21 620 7 775 Schedule of Laws. xlii Page of Law. Manual. Law. Highway taw (L. 1890, , ch. Highway 568). 568). i 22 .... 621 23 .... 622 24 622 25 593 26 .... 594 27 .... 622 27 638a 28 638a 30 .... 624 31...... .... 624 32...... 624 33 625 33, sub. 3... 628 34 .... 628 35: 628 36 629 37 .... 629 38 .... 629 39 630 40 630 41 .... 630 4iJ U31 43 631 44 632 45...... 633 4U 633 47 .... 634 48 634 49 635 5U 635 51 635 52 .... 635 53 .... 636 53a 655 53b .... 638 54 639 55 640 55a .... 640 55b 640a 55o 640o 55d 640d 56 640 57 .... 641 5C 641 59a .... 641 60 .... 647 61 648 62 .... 649 63 .... 650 64 650 65 650 66 .... 651 67 652 68 . . . . 652 69 . . . . 653 70 654 71 655 72 .... 657 73 657 74 . ... 658 80 . . . . 660 81 662 82 .... 662 83 .... 663 84 . ... 665 85 . ... 666 Page of Manual. taw {L. 1890, ch. § 86 607 87 66S 88 6b8 89 6d8 90 670 91 672 92 672 93 673 94 674 95 67.) 96 67ii 97 677 98 (i7 99 07 100 670 101 Oil.J 102 694 103 6!)i 104 694 105 0'.).") 106 679 107 680 108 680 109 CSO 110 681 111 (isl 112 681 113 681 114 082 115 682 116 U,S2 117 683 118 0S3 119 683 120 683 121 681 122 (!Si 123 684 130 697 132 609 133 700 134 7('n 135 - ' 136 70"' 137 70' 138 71- 139 7 140 7^^ 141 7r 142 70 143 7' 144 7'!.- 145 7' 150 6Vt 151 - 152 G: 153 6P' 154 6HS 155 g;.s xiv Schedule of Laws. Page of Page of Law. Manual. Law. Manual. Highway Iiaw (L. 1890 , ch. Town law {L. 1890, ch. 569 ) . 568). § 33 205 § 156 689 34 246 157 690 35 246 158 691 3ti 211 159 692 37.... 213 160 692 38.... 214 161 692 39.... 216 162 693 41.... 23S 163 746 42.... 217 164 696 .43.... 44 ... . 198 208 165 693 45 852 166 748 50.... 254 167 749 51.... 256 168 749 52 202 169 750 53 ... . 2(j;j 169a.... 750 54.... 205 169b 751 56.... 258 170 798 57.... 23-i 171 798 58 ... . 25C 172 799 59.... 201 173 799 60 259 174 799 62 ... . 262 180 642 63 ... . 261 181 642 64 209 182 642 65.... 271 183 643 66.. .. 266 184 644 67.... 272 185 644 80.... 276 186 644 81.... 277 187 645 82.... 277 188 645 83 ... . 287 189 646 84.... 85.... 281 289 Town Iiaw (L. 1890, ch. 569) 86.... 290 i 2 187 100.... 447 3 192 101 448 4 193 102 449 5 195 103.... 450 10 197 104 450 11 199 105.... 451 12 227 106... 451 13 228 107 . . 245, 452 14 231 108.... 452 15 235 109 453 16 236 120.... 454 18 232 121 455 19 234 122.... 455 20 234 123.... 456 21 447 124.... 456 22 246 125.... 457 23 200 120.... 457 24 202 127.... 457 25 203 128 457 26 204 129... 458 27 205 130 458 28 206 131.... 458 29 207 132.... 459 30 207 133.... 459 31 207 134 460 32 . 208 13C 460 Schedule of Laws. XV Page of Law. Manual. Town Law {L. 1890, ch. 569). § 160 805 161 803 162 805 163 808 164 809 165 809 166 816 167 811 168 812 169 816 170 816 171 833 172 817 173 817 1/4 817 175 818 176 818 177 819 178 814 179 816 180 812 182 819 182a 227 183 820 184 820 184 825 185 826 186 828 187 828 188 828, 834 189 945 190 247 191 249 192 249 193 250 194 251 195 251 196 252 197 253 210 944 211 944 212 ._. 944 213 ; 944 214 945 21o 945 1891, ch. 164, § 1 .'... 821 1891, ch. 308, § 1 604 2 604 1891, ch. 310, § 1 317 2 318 3 318 4 318 5 319 1892, ch. 255, § 1 843 2 843 3 844 4 844 1892, eh. 658, § 1 293 Statutory Construction Law {L. 1892, oh. 677). § 19 8 Page of Law. Manual. Public Officers Law (L. 1892, ch. 681). § 3 256 5 230 11 182, 267 12 182, 268 15 269 20 270 23 183 24 184 25 184 25a 270 41 105 Legislative Law (L. 1892, ch. 682). § 48 58 49 58 General Municipal Tu&jv (L. 1892, ch. 685). § 2 930 3 909 4 923 5 924 6 925 7 925 8 . 927 9 928 10 929 11 929 12 422 13 935 14 936 15 938 16 938 17 939 18 940 19 940 20 941 21 941 22 942 23 943 25 850 26 850 27 832 28 827 Conntr law (L. 1892, eh. 686 ) . §§2 1 3 2 4 4 10 7 11 10 12 44 12, sub. 2. . . 21 13 929 14 932 15 52 16 399 17 14 xvi SCHKDULE OF LaWS. Page of Page of Law. Manual. Law. Manual. County Law (L. 1892, eft.. 686). Connty Law (i. 1892, ch. 686). § 18 16 § 102 144 19 53 103 144 20 ;.. 58 110 461 21 68 111 462 22 59 112 463 23 12 113 463 24 28 114 464 25 29 115 464 26 17 116 464 27 18 117 465 28 19 118 465 29 19 119 4C . 30 19 120 466 31 59 121 466 32 61 122 466 33 61 123 467 34 188 124 467 35 190 125 467 36. 191 %:;::::::t ef w 469 67 713 70 717 126 4CS ik. :'.'.'.'.'.'..'. 67 128 469 50 78 129 470 51 79 130 470 52 80 131 471 53 81 132 471 54 81 133 472 61 708 134 472 62 710 135 472 63 699 136 473 64 711 140 83 65 712 141 85 66 712 i4la. •• V . 86 142.: : 90 143., 90 68 713 144.::: ....:: 91 69 715 J45 92 fiOfi 707 146 92 ^^^ '^' 147:. ......... 92 148 ^ 94 71 717 149 ^ 435 72 719 150 99 73 719 160 100 74 720 161 101 75 721 162 103 76 721 163 104 77 721 164 104 78 722 165 105 79 722 180 119 80 722 181 121 81 722 182 122 91 137 183 136 92 138 184 124 93 140 185 126 94 141 186 126 95 141 187 126 96 142 188 127 97 142 189 128 98 142 190 128 99 143 191 128 100 143 200 107 101 144 201 108 Schedule of Laws. Page of Law. Manual. Coimty law (L. 1892, ch. 686). § 202 109 203 109 204 Ill 210 475 211 478 220, subs. 1,2,3 112 221 114 222 115 223 117 230 31 232 41 232 402, 885 233 178 234 109, 179 235 179 236 180 237 181 Agricnltnral Law (L. 1893, ch. 338). § 60 867 1893, oh. 607, § 1 768 2 769 3 769 4 770 5 770 Fnblio Health Law (L. 1893, ch. 661). §§ 20 853 21 854 22 858 23 859 24 8(i() 25: 862 25a 865a 25b . ." 8G5a 2oc 865b 25d 8B5b 26 8U3 28 864 29; 866 30 .^ 866 30a 867 31 867 ' 218a 851 1894, ch. 93, § 1 519 Consolidated School Law^ {L. 1894, eh. 556). tit. 2, § 13 870 14 872 15 872 16 872 17 872 18 873 19 874 20 874 21 875 22 875 23 875 24 876 25 876 26 876 Page of Law. Manual. Consolidated School Laip (L. 1894, ch. 556). tit. 2, § 27 877 28 877 tit. 3, § 1 889 2 889 3 877 4 878 tit. 4, § 1 883 2 883 tit. 5, § 2 882 7 882 8 882 9 883 tit. 6, § 2 880 3 880 4 880 5 881 10 881 11 882 tit. 7, § 72 884 73 884 74 885 75 886 76 887 77 8S7 tit. 15, § 1 887 2 887 3 _ 888 40 510 43a 519 1894, ch. 666, § 1 '. 851 2 851 3 852 ch. 667, § 1 852 ch. 685, § 1 298 1895, ch. 232, § 1 891 2 891 1895, ch. 232, § 3 891 4 891 5 891 6 891 ch. 499, § 1 766 2 766 3 768 Membership Corporations Law (L. 1895, ch. 559). § 146a 832 1895, eh. 611, § 1 764 2 765 ch. 754, § 1 587 eh. 770, § 1 531 2 531 3 53! ch. 792, § 1 93:? 2 933 3 934 4 934 eh. 1026, § 2 137 XVIU Schedule of Laws. Page of Law. Manual. 1895, ch. 1026, § 5 137 6 137 7 138 Iiiqnor Tax Law (Z/. 1896, ch. 112). § 13 95 14 97 Poor Law {L. 1896, ch. 225). § 2 520 3 478 4 482 5 483 6 483 7 484 8 485 9 485 10 486 11 486 12 486 13 488 14 488 20 520 21 522 22 523 23 523 24 524 25 525 26 526 27 528 28 530 30 531 40 533 41 535 42 536 43 537 44 538 45 538 46 539 47 540 48 540 49 540 50 541 51 542 52 543 53 544 54 545 55 545 56 490 57 584 60 546 61 547 62 548 63 548 64 549 65 5J f1 66 549 67 549 68 5S0 69 552 Page of Law. Manual. Poor Law (L. 1896, ch. 225). § 70 552 71 552 72 553 73 534 74 554 80 5u9 81 570 82 572 83 572 84 573 90 574 91 575 92 575 93 576 94 576 95 576 96 577 97 578 98 578 99 578 100 578 101 579 102 580 103 580 104 580 115 491 116 491 117 492 118 493 119 493 120 494 121 494 130 567 131 567 132 567 133 568 134 582 135 583 136 583 137 530 138 487 139 522 141a 587 Domestic Relations Law (L 1896, ch. 272). § 15 291 16 292 17 292 1896, ch. 371, § 1.. ';!;;;;; 826 2 827 Somestio Commerce La^r [h 1896, ch. 376). § 11 951 12 9--^ 13 9.-> 14 238, f)--.^ 16 9,-:i 17 9.-3 Schedule of Laws. Page of Law. Manual. 1896, ch. 423, § 1 765 2 766 3 766 4 766 ch. 464, § 1 765 2 765 Insanity I.aw (L. 1896, ch. 545). § 62 496 64 497 65 497 66 498 67 499 68 500 74 502 State Charities Law (L. 1896, ch. 546). §§ 16 508 45 587 46 587 47 588 68 503 69 504 70 504 94 505 109 506 110 508 111 508 1896, ch. 820, § 1 395 2 396 3 397 Tax law (L. 1896, ch. 908). § 2 321 3 326 4 327 5 341 6 341 7 342 8 343 9 347 Iff 348 11 349 12 350 13 352 14 3!i4 15 354 20 355 21 3.57 22 361 23 362 24 363 25 367 26 367 27 367 28 368 28a 369 29 369 30 370 31 371- 32 374 Page of Law. Manual. Tax I.aw (L. 1896, ch. 908). § 33 375 34 376 35 377 36 378 37 381 38 383 39 383 40 384 41 385 42 387 43 390 44 391 45 391 45a 392 46 392 47 39'^ 50 394 51 397 52 397 53 398 54 401 65 402 56 403 57 405 58 405 59 406 60 400 70 414 70a 415 71 416 72 419 73 420 74 424 75 425 76 426 77 427 78 429 79 450 80 43(1 81 430 82 430 83 4riT 84 432 85 434 86 435 87 436 88 4W 89 437 90 438 «1 438 92 '". 440 93 440 94 441 100 442 150 443 151 443 152 444 152a 444 153 444 154 415 155 44 '> XX S'CHEDULE OF LaWS. Page of Law. Manual. Tax taw {L. 1896, ch. 908). § 156 446 157 446 170 407 171 407 172 408 173 408 174 409 175 410 176 411 177 412 222 98 236 98 237 99 240 99 257 381 258 427 259 428 259a 429 260 433 261 434 262 434 263 ^ 425 264 419 290-301 :446a Eleotion I.aw {L. 1896, ch. 909). § 11 239, 255 13 240 15 203 16 218 18 218, 228 33 229 68 220 59 221 82 222 85 223 86 224 130 68 131 69 132 70 133 71 135 72 136 75 137 76 163 225 164 225 165 225 166 226 182 226 1896, ch. 937, 93 1897, ch. 269, § 1 706 2 706 3 706 4 707 5 707 State Finance law (L. 1897, ch. 413). § 82 165 83 166 84 166 85 167 Page of Law. Manual. State Finance Law {L. 1897. ch. 413). § 86 167 87 168 as 171 89 171 90 171 90a 174 91 174 92 175 93 176 94 176 95 177 VlUage Law {L. 1897, ch. 414). § 2 282 3 282 4 284 5 284 6 285 7 285 8 286 9 286 23 286 Lien Law {L. 1897, ch. 418). § 92 290 93 290 94 291 98 291 114 293 1898, ch. 115, i 1.' '.".'.' .'.'!.'.' 723 2 724 3 724 4 724 5 725 6 72'^ 7 726 8 726 i3:::;:;;:;;m 11 728 11a 730 12 728 12a 731 13 730 14 730 15 7.^0 16 731 17 731 18 731 19 7S1 1898, ch. 141, § 1 828 2 828 1898, eh, 360, § 5 169 6 170 7...- 170 1898, ch. 554, § 1 836 2 836 3 836 4 83fi 5 837 6 837 Schedule of Laws. xxi Page of t^age of Law. Manual. Law. Manual § 7 837 1900, ch. 234, § 1 8o0 8 838 2 851 9 838 1900, ch. 377, 241 10 838 1900, ch. 451, S 1 83«. 11 838 2 839 1898, eh. 636, 273 3 839 1899, ch. 30, 198 4 839 1899, ch. 152, § 1 737 5 839 2 739 6 840 3 7*0 7 840 4 741 8 841 5 741 9 841 6 742 10 841 7 742 11 842 8 742 12 842 9 742 13 842 10 742 14 842 \l lli 15 842 is::::::::?: 743 le 842 1899, ch. 441, § 1 900 1901, ch. 240, 5 1 732 2 900 2 732 3 901 3 732 4 902 4 733 5 902 5 733 6 902 6 735 7 903 7 735 8 903 8 736 9 903 1901, ch. 348, § 1 845 10 904 2 845 11 904 3 845 12 905 4 845 13 905 5 846 14 905 6 846 15 906 7 846 16 906 8 846 17 906 9 847 1899, ch. 443, 154 10 847 1899, ch. 594, ! 1 795 11 847 2 796 12 847 3 796 13 848 4 797 14 848 5 797 15 848 1899, ch. 634, § 1 743 16 849 2 745 17 849 3 745 1901, cK. 584, 117 1902, ch. 206, § 1 822 Forest, Fisk and Game I>aiv 2 82? (L. 1900, ch. 20). 1902, ch. 405, 229 § 114 48 1903, ch. 4, § 2 727 225 277 1903, ch. 308, § 1 831 226 278 2 831 227 278 3 831 228 279 4 832 229 280 5 832 230 280 ]?^RT I. Counties; Boaeds of Supeevisoes. CHAPTER I. COUNTIES AS COEPOEATIONS Section 1. County a municipal corporation. 2. Actions and contracts in corporate name. 3. Disposition of property and apportionment of debts on altera- tion of boundary. § I. County a municipal corporation. A county is a municipal corporation, comprising tli© inhabi- tants within its boundaries, and formed for tbe purpose of exer- cising the powers and discharging the duties of local government, and the administration of public affairs conferrtd upon it by law.' [County Law (L. 1892, ch. 686), § 2; Heydecher's Gen. L. (2d ed.), p. 1200.J 1. A municipal corporation is defined in the General Municipal Law, sec. 1, as including a county, town, city and village, and in sec. 3 of the General Corporation Law it is provided that " a municipal corporation in- cludes a county, town, school district, village, city and any other territorial division of the state established by law with powers of local government." Effect of declaring county u, municipal corporation. The above section of the County Law, malting a county a municipal corporation, has not changed the rule as to the liability of counties for the neglect of county officers to perform their official duties. Albrecht v. Countij of Queens, 84 Kun, 399 ; 32 N. Y. Supp. 473. In this case it was held that the county was not liable for the negligence of the board of supervisors in failing to perform its duty in the maintenance of a bridge, because of which an injury was, occasioned to the plaintiff. The court said: "The theory on which cities and villao-es are held to a liability different from that of a town or county is not merely that they are corporations, but that they obtain upon the request of their citizens valuable franchises, and that in consideration therefor they undertake to perform with fidelity their charter obligations. This may be a fiction, as the legislature can incorporate a city without the consent of the inhabitants, but nevprtheless, the principle is too well 2 Counties; Boards of Supebvisoes. County Law, § 3. § 2. Actions and contracts in corporate name. An action or special proceeding for or against a county, or iot its benefit, and upon a contract lawfully made with it, or with any of its officers or agents authorized to contract in its behalf, or to enforce any liability created, or duty enjoined upon it, or upon any of its officers or agents for which it is liable, or to recover settled in the law to be ignored. This principle is not applicable to coun- ties, which, while the statute may make them municipal corporations, are something more than such. They are political divisions of the state so recognized in the constitution, and beyond the power of the legislature to abrogate. The state doubtless can impose upon counties liability for the neglect of county oflBcers to perform local duties. But we think no such intent should be inferred from the mere fact that in the general revision of the law relating to counties they are declared to be municipal corporations." See, also, Godfrey v. County of Queens, 89 Hun, 18; 34 N. Y. Supp. 1052; Ahem v. County of Kings, 89 Hun, 148 ; 34 N. Y. Supp. 1023. The Court of Appeals, in the case of Markey v. County of Queens, 154 N. Y. 675, 686; 49 N. E. 71, holds a similar view as to the effect of the above section. Judge Gray, in writing the opinion of the court, says : " I think that the principle of our decision must necessarily be this; that as the counties of this state were bodies corporate for certain specific purposes, before the enactment of the County Law of 1892, now that they are de- clared thereby to be municipal corporations, their liability for corporate acts is no further enlarged than what may be clearly read in or implied from the statute. Their becoming municipal corporations in name imports no greater liability, because, by the third section of the law, their liabilitj for injuries is confined by the language to that which was existing. The liability remains as it was, neither greater nor less. No new duty or burden has been imposed upon counties, in respect to the maintenance of bridges over navigable boundary streams; the duty, which always existed for public purposes and for the public benefit, is continued. The work of maintaining the bridge in question was properly charged upon the county; because it could be more advantageously performed by them than by the towns. Towns themselves were not liable for damages arising from de- fective highways and bridges until by an act of the legislature in 1881, the liability which formerly rested upon the commissioners of highways was transferred to them. If it was necessary, in order that towns might be made liable in private actions, that there should be such legislation, it is neces- sary, I think, that there should be some express legislation, in order to impose the liability upon a county which did not previously exist. The object of the County Law of 1892, in my judgment, in declaring the county a municipal corporation, was in order that it might be sued as a legal entity in such cases where, previously, actions Avere maintainable only in the name of the board of supervisors." In the case of Hughes v. County of Monroe, 147 N. Y. 40; 41 N. E. 407 it was held that the doctrine that where power is granted to a municipal corporation as one of the political divisions of the state, not for the im- Counties as Coeporations. 3 County Law, § 3. damages for any injury to any property or rights for which it is liable, shall be in the name of the county.' All contracts or oon- veyanoes, by or in behalf of, or to a county, shall be deemed to be in the name of the county, whether so stated or not in the con- tract or conveyance. \_Couniy Law (L. 1892, ch. 686), § 3; Heydecker's Gen. L. (2d. ed.), p. 1200.] mediate benefit of the municipality, but as a, means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for non-user, nor for mis-user, by the public agents, is applicable to coun- ties, which prior to the County Law were not municipal corporations, but were political divisions of the state, and at most only quasi corporations. It will be seen by an examination of the case of Marlcey u. County of Queens above cited, that this doctrine has not been changed by the enactment of the above section declaring a county to be a municipal corporation. 2. Action by and mgainst a connty. The object of the above section is to permit actions to be brought by or against a. county as a legal entity in such cases where, previously, actions were maintainable only in the name of the board of supervisors. Marlcey v. County of Queens, 154 N. Y. 675; 49 N. E. 71. Corporate capacity is conferred upon each county in the state to sue and be sued, to purchase and hold lands within its limits for the use of its inhabitants; to make contracts and possess personal property, and to dis- pose of and regulate the use of its corporate property; and all suits and proceedings by and against a county in its corporate capacity are directed by the above section to be in the name of the county. In the case of People V. Ingersoll, 58 N. Y. 1, the right of counties to protect their prop- erty and to enforce their rights has been exhaustively discussed. In view of the importance of this ease it may be well to quote the following lan- guage from the opinion of Judge Allen (p. 28) : "Counties are public, as distinguished from private corporations, and they are political as auxiliaries to the government of the state, and they are trustees of the people, the inhabitants within their boundaries. . . . They are trustees only of the property held for public use. They are not the guardians and protectors of private and individual interests or property of the citizen. They may not intervene by action to protect or redress the individual citizen in re- spect to wrongs or injury to his person or property. Their power as well as duty is restricted to the protection and preservation of property pos- sessed by them in their corporate capacity. This trusteeship and corporate power has a pecuniary and fiduciary relation, extends to and embraces not only the tangible property of the corporation, but the franchises and powers conferred for raising moneys and other means for the support of the local government and the use of the inhabitants of the county, and the means realized from the franchises and powers conferred. ... In political and governmental matters the municipalities are the representatives of the sovereignty of the state and auxiliary to it; in other matters relating to property rights and pecuniary obligations, they have the attributes and the distinctive legal rights of private corporations and may acquire property. 4: Counties; Boaeds of Supeevisoes. County Law, § 4. § 3. Disposition of property and apportionment of debts on alteration of boundary. When a county is divided or its boundary changed, its real property shall become the property of the county, within whose limits it lies after the change. The personal property and debts of such county, shall be apportioned between the counties create debts, and sue and be sued^ as other corporations; and in borrowing money and incurring pecuniary olbligations in any form, as well as in the buying and selling of property within the limits pf the corporate powers conferred, they neither represent nor bind the state." In this ease it was attempted to maintain an action brought by the people of the state for the recovery of money realized from the sale of county bonds in excess of the amount authorized by statute, and fraudulently diverted from the county treasury. It was held that the legislature has the power to direct by what agency claims against a county shall be ascertained and adjusted, and by '.vhat officials the bonds of a county authorized to be issued to provide means of payment therefor, shall be attested and issued; but the bonds, when issued, are the bonds of the county for which its credit and revenues are pledged. J. he debt is a debt of the county and not of the state, and the moneys realized upon the bonds are the moneys of the county and not of the state; and when stolen or procured by fraud from the county treasury the county alone can maintain an action to recover the same, subject, however, like other munici- pal rights, to the control of the legislature. Where money was deposited by the decedent with a county treasurer in lieu of bail unlawfully required by a justice of the peace, an action will lie in behalf of the decedent's administrator against the county to recover such amount. T)i's is so although the justice of the peace who fixed the bail was without authority to bind the county, upon the theory that the money can be traced to the county and the county has appropriated and received it for its benefit, thereby creating a liability to respond to the true owner. Sutherland V. St. Lawrence County, 42 Misc. 38, 85 N. Y. Supp. 696. TESect pf section upon audit. It has been held that this section is not intended to do away with the necessity of submitting claims for audit to the board of supervisors, and is only intended to change the law in re- spect to actions for or against the county which were formerly commenced in the name of the board of supervisors. Erhard v. Kings County, 36 X. Y. Supp. 656. But this case seems to have been overruled by the case of Ken- nedy V. County of Queens, 47 App. Div. 250; 62 N. Y. Supp. 276. in which the court holds in effect that the failure of the legislature to re-enaet in the County Law, sec. 4 of tit. 4, eh. 12, pt. 1 of the Revised Statutes, which provided that " accounts for county charges of every description shall be presented to the board of supervisors of the county to be audited by them," and declaring counties to be municipal corporations, and authorizing actions to be brought by and against them in the names of such counties, wos for the express purpose of permitting the maintenance of an action against a county without first presenting the claim upon which the action is based to the board of supervisors for audit. The covirt said: "While it IS true that sections 12 and 24 of the County Law, together with the other provisions thereof relating to the audit of accounts by the board of supervisor.^ are not free from confusion, and a consi-^tent system has not clearly been v/orked out, nevertheless it is reasonably clear that the revisers and the legislature intended to abolish the absolute requirement that acciuuits for county eiiarges of every description must be presented to the board of supervisors to be ^uidite'l by it. and to le^ve it optional with claimants on su;'! account.s either to present them for audit to the Counties as Coepoeations. 5 County Law, § 4. interested, by the supervisors thca-eof, or by the committees of their respective boards appointed for that purpose, subject to the approval of sueb. boards; and the debts sb,all be charged on eaeli county, according tO' such apportionment. [County Law (L. 1892, ch. 66), § 4; Heydecker's Gen. L. {2d ed.), p. 1201.] board of supervisors and obtain voluntary payment by the county of the amounts allowed on such audit, or, without such preliminary presentation for audit to bring an action against the county in the name of the county ' in like cases as natural persons.' By this construction of all the pro- visions of the County Law relating to the subject before us, an orderly system for the judicial determination and enforcement of claims by and against counties is established. The claimant may present his account for audit and voluntary payment, and may still compel audit by mandamus or have the proceedings reviewed by certiorari, or, at his option, he may at once bring action and have the amount of his claim originally determined by the courts, and, if successful, have payment thereof enforced by judgment and the remedies thereon." The court in this case deemed the case of Freel v. County of Qtieens, 9 App. Div. 186; 41 N. Y. Supp. 68, modified and affirmed in 154 N. Y. 661, as a. conclusive authority on the question. In this case a judgment was rendered in favor of the plaintiff upon a contract made by him with the supervisors for the improvement of highways. The appellate division on appeal reversed the judgment. The Court of Appeals modified the judgment of the trial term as to the amount and affirmed the judg- ment as modified. The question as to the right to maintain the action against the county was not raised by the defendant, but it is difficult to believe that the case is not impliedly, at least, an authority in favor of the right of the claimant to sue the county as a corporation. It must be conceded, however, that the question whether a claim must be presented to the board of supervisors for audit before an action will lie thereon against the county, is still an open one. In the case of Alhrecht v. County of Queens, 84 Hun, 399; 32 N. Y. Supp. 473, which arose subsequent to the enactment of the County Law, the court said : " From the earliest period in the history of the state to the present it has been neces- sary to present claims against the county to the board of supervisors for audit. With some unimportant exceptions dependent on special statutes, or where the claim was liquidated by the existence of a county obligation for a specific sum, suits could not be maintained against the county for claims or county charges. The remedy was by mandamus to the board of supervisors. If the claim was fixed by law so as to involve no discretion, a mandamus would lie to audit it at a specific amount. If the claim required the exercise of discretion or judgment, the audit was conclusive unless reversed on review, and could be attacked collaterally. By sec. 12, sub. 2, of the County Law, the same power is vested in the board of supervisors to annually audit all accounts against the county. If the plaintifT has a claim against the county it must be submitted to the board of supervisors." 6 Counties; Boaeds of Supeevisoes. Constitution, art, 3, § 26. CHAPTER II. OBGANIZATIOir, MEETINGS AND PEOCEEDINGS OF BOAEDS OF SUPEEVISOES. Section 1. Conatitutional provisions respecting supervisors. 2. Boards of supervisors; meetings and organization. 3. Penalty for failure of supervisor to perform official duties. 4. Compensation of supervisors as members of the board of super- visors; copying assessment-roll. 5. Acts and resolutions of boards of supervisors; form and con- tents; adoption; publication. 6. Proceedings of board of supervisors to be printed, and dis- tributed; contents. 7. County records, boards of supervisors to have general charge of; copies may be made for public use; cost of copies. 8. Witnesses and county and tovm officers may be examined by ( board; books and papers may be inspected. ' 9. Powers of committee of board of supervisors as to hearings ' and examinations. 10. Adjournment of hearing or examination by board or committee; I discharge of persons arrested for failure to appear. ' 11. Filing and enforcement of undertaking given under preceding section. [§ I. Constitutional provisions respecting supervisors. Section 26 of article 3 of the Constitution provides that: " There shall be in each county, except in a county wholly in- cluded, in a, city, a board of supervisors, to be com,posed of such members and elected in such manner and for such period as is or may be provided by law. In a city which includes an entire county, or two or more entire counties, the powers and duties of a board of supervisors may be devolved upon the municipal assem- bly, common council, board of aldermen or other legislative body of the city." ' 1. Special act relating to Nassau county. The provisions of sec. 5 of L. 1898, ch. 588, that " the supervisors of the said towns of Oyster Bay, North Hempstead and Hempstead, elected at the annual town meetings held in 1898, shall constitute and are hereby declared to constitute the board of supervisors of the said county of Nassau," is not in contravention of the above section of the constitution, in that it undertakes to appoint a board which the constitution says must be elected. It merely prescribes what town supervisors shall constitute the county board of supervisors, all of them being officers elected in their respective towns to act, not only in town affairs, but as members of the board of supervisors of the county to which the town belongs. Matter of Nohle, 34 App. Div. 55; 54 N. Y. Supp. 42. Okganization, Meetings and Proceedings. T County Law, § 10. Section 27 of article 3 of the Constitution provides that: " The legislature shall, by general laws, confer upon the boards of supervisors of the several counties of the state such further powers of local legislation and administration as the legislature may, from time to time, deem expedient." " § 2. Boards of supervisors; meetings and organization. The supervisors of the cities and town in each county, when lawfully convened, shall be the board of supervisors of the county.' They shall meet annually, at such time and place as they may fix, and may hold special meetings at the call of the clerk, on the written request of a majority of the board, and whenever re- quired by law.* A majority of the board shall constitute a Z. An act antborizing boards of supervisors to make local laws for the protection of shell fish is constitutional, Smith v. Levinus, 8 N. Y. 472; Eallock V. Dominy, 7 Hun, 52; as is an act authorizing a board of super- visors to fix the salary of a, county treasurer. Board of Supervisors of Seneca County v. Allen, 99 N. Y. 532; 2 N. E. 459. While the legislature is prohibited from passing a local bill laying out, opening, etc., highways, it may confer such power on boards of supervisors. Town of Kirkwood v. Newlury, 122 N. Y. 571, 576; 26 N. E. 10; People ew rel. Morrill v. Supervisors, 112 N. Y. 585; 20 N. E. 549. 3. Poorer of board as to qnaliflcatiou of its members. When the question which settles the right of the claimant to the office of supervisor of a town has been substantially passed upon in his favor by the Court of Appeals, and he has received the certificate of election and has qualified, and has been awarded by the court, as acting supervisor, the custody of the books in the possession of his predecessor, the county board of supervisors has no power to determine a contest as to his seat and exclude him there- from, and its illegal action in so doing will be set aside. People ex rel. Bradley v. Board of Supervisors, 69 Hun, 406 ; 23 N. Y. Supp. 654. Where, after a supervisor had been declared elected and a. certificate was given to him, a right of mandamus was granted directing the board of can- vassers to make a, re-canvass and count certain paster ballots for his opponent, which was done, and the latter declared elected, it was held that the board of supervisors had no authority to determine that the former was entitled to his seat in the board. Williams v. Boynton, 71 Hun, 309; 25 N. Y. Supp. 60; affd., 147 N. Y. 426, in which case the Court of Appeals held that the supervisor who was seated by the board had no authority whatever to act as a member thereof. He had no right to vote, and a resolution which required his vote for its passage was never legally passed. 4. Meetings of board. Boards of supervisors are required to meet annually, but they may hold special meetings, and adjourn from time to time. People v. Stocking, 50 Barb. 573. 8 Counties; Boards of Supeevisoes County Law, § 10. quorum." They may adjourn from time to time, and their meetr inga shall be public. At the annual meeting they shall choose one of their number chairman for the ensuing year. In his absence at any meeting they shall choose a temporary chairman to serve during such absence. They shall appoint a clerk to serve during their pleasure, and until his successor is appointed, and shall fix his compensation." They may compel the attendance of absent members at their meetings, make rules for the 'conduct of their proceedings/ and impose and enforce penalties for the violation 5. Qnoram of board. Whenever three or more public oflScers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of all such persons or officers at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, may perform and exercise such power, authority or duty, and if one or more of such persons or officers shall have died or have become mentally incapable of acting, or shall refuse or neglect to attend any such meeting, a majority of the whole number of such persons or officers shall be a quorum of such board or body, and a majority of the quorum, if not less than a majority of the whole number of such persons or officers may perform and exercise any such power, authority or duty. Any such meeting may be adjourned by a less number than a, quorum. A recital in any order, resolution or other record of any proceeding of such a meeting that such meeting had been so held or adjourned, or that it had been held upon such notice to the mem- bers, shall be presumptive evidence thereof. Statutory Construction Law (L. 1892, ch. 677), sec. 19. The provision of the statute declaring that a majority of the supervisors of any county shall constitute a quorum for the transaction of busines* cannot be altered by a rule of the board. People ex rel. Burrows v. Brvnker- hoff, 68 N. y. 259. The number necessary to constitute a quorum remains the same even though there be vacancies in the board. Erie B. Co. v. City of Buffalo,. 180 N. Y. 192, 197. 6. Clerk of board. The powers and duties of the clerk of the board of supervisors are prescribed by art. 3 of the County Law. See post, p. 78. It is customary for the clerk of the previous board of supervisors to call the board to order for the purpose of organization, and to hold office until his successor is elected. 7. The rnles of board. By the above section a board of supervisors is authorized to pass rules regulating the business of the board. When it adopts a rule by which it intends to reserve the right to review and recon- sider its action at any time before final adjournment, a reconsideration of its action upon the sheriff's claim, before issue of a certificate allowing it, is valid; and when, upon such reconsideration, the board indicates the specific items which it has disallowed or reduced, the error, if ajiv result- ing from the fact that the previous audit indicated no such items but only Organization, Meetings and Peoceedings. 9 County Law, § 10. thereof, not exceeding fifty dollars for each offense. [County Law (L. 1892, ch. 686), § 10; Heydecher's Gen. L. {2d ed)., p. 1202.J the whole amount at which the bill was audited, is cured. People ex rel. Caldmell v. Supervisors, 45 App. Div. 42; 60 N. Y. Supp. 1122. Appointment of committees. It is customary for boards of super- visors, and bodies of like character, to divide their membership into com- mittees, to whom is given the special charge of the various matters brought before them for examination, and to report to the full board. These com- mittees are the hands and eyes of the board itself. It would be utterly impossible for each and every member to make a special examination for himself of all the matters that are brought before the board, and of each item in bills presented to it. It is not only the customary way, but it is a legal way of discharging their duties. See People ex rel. Caldwell v. Super- visors, 45 App. Div. 42; 60 N. Y. Supp. 1122. Rnles and order of business. The rules as adopted in the several counties vary somewhat in their form and in the language used. The following rules are in force by adoption of the board of supervisors of the county of Chemung, and will be found complete and effective: 1. The annual meeting of the board of supervisors shall be held on the Monday after general election, at 10 a. m. 2. The clerk of the last board shall call the members to order, and they by a majority of their number, shall select a chairman, who shall preside at such meeting, and at all other meetings during the year. In case of the absence of the chairman at any meeting, or in case of a special meeting of such board before the annual meeting, the members present shall choose one of their members as a temporary chairman; and in all cases of the absence of a quorum, the members present shall take such measures as shall be necessary to procure the attendance of absent members. The following standing committees shall be appointed by the chairman at the commencement of each annual session. FiEST. — On Equalization. — Eleven members whose duty it shall be to report on equalization of assessments. Second. — On Poor House and Superintendent's Report. — Five members who shall consider all claims arising from the support of the poor house or the poor of the county. Thied. — On County Officers' Accounts. — Three members who shall con- sider and examine the accounts of the county judge, surrogate and sheriff. Fourth. — On County Clerk and District Attorney's Accounts. — Three mem- bers who shall consider and examine the accounts of the county clerk and district attorney. Fifth. — On County Treasurer and Coroners' Accounts. — Three members who shall consider and examine the accounts of the county treasurer and coroners. Also the condition of the U. S. deposit fund and the accounts of the commissioners. Sixth. — On Coroners' Jury Script and Physicians' Accounts. — Three mem- bers who shall examine and consider the accounts of the physicians' and coroners' jut script. 10 Counties J Ejakds of Supebvisoes. County Law, § 11. § 3. Penalty for failure of supervisor to perform official duties. ±i auy supervisor shall refuse or neglect to perform any of the duties which are or shall be required of him by law, as a mem- Sevbntu. — On County Claims. — Ihree members who shall examine and report on all claims against the county, from any source, not properly brought befoie either of the preceding committees. Eighth. — On Town Accounts. — Three members who shall examine all town accounts, and recommend the appropriations required for highway purposes, poor accounts and town audits. Ninth. — On Justices' and Constables' Accounts. — Three members who shall examine and report all claims of justices and constables against the county. Tenth. — On Special Legislation and Erroneous Assessments. — Three mem- bers to whom shall be referred all matters relating to erroneous assessments and taxation. Eleventh. — On Miscellaneous Accounts. — Five members who shall con- sider and recommend the appropriations required for the payment of the state tax, and other town and county charges. They shall also make a. report of the assessments of corporations as found in the several assess- ment rolls. Twelfth. — Grand Jury. — Three members to whom shall be referred all matters relating to grand jury. Thirteenth. — On Military AfTairs. — Three members to whom shall be referred all claims against the county, arising under the military code of the State of New York. Fouetbenth. — ^Assessment Rolls and Footings. — Three members who shall verify the footings of assessment rolls. Fifteenth. — Supervisors' Accounts. — Three members to whom shall be referred the accounts of the supervisors. Sixteenth. — On County Officer's Bonds. — Three members to whom shall be referred all matters pertaining to the bonds of county officers. 3. Such special committees may be appointed as the board may consider necessary, all of which shall be appointed by the chairman, and consist of three members, unless otherwise specially ordered by the board. 4. Upon the members being called to order, the minutes of the preceding day shall be read, to the end that any mistake shall be corrected, unless such reading shall be waived by the board. 5. At each session the order of business shall be: 1. Reading of the minutes. 2. Presentation of petitions and communications. 3. Resolutions, motions and notices. 4. Report of select committees. 5. Report of standing committees. 6. Unfinished business. 7. Special order of the day. 6. The chairman shall preserve order and decorum, and shall decide all questionR of order, subject to an appeal by the board. He shall have the right to name any member to perform the duties of the chair, but such sub- stitution shall not extend beyond the next adjournment. Oeganization, Meetings aitd Peoceedings. 11 County Law, § 11. ber of the board of supervisors, he shall for every such offense forfeit the sum of two hundred and fifty dollars to the county. For a refusal or neglect to perform any other duty required of him 7. The chairman shall, in all eases, have the right to vote, and when the vote is equally divided, including his vote, the question shall be lost. 8. Every member, previous to his speaking, shall arise from his seat and address himself to the chair. 9. When two or more members arise at once, the chairman shall name the member who is first to speak. 10. No member shall ,speak more than once on any question, or in any case, until every member choosing to speak shall have spoken; nor more than twice without the leave of the board. 11. A member called to order shall immediately sit down, unless permitted to explain. If an appeal be taken from the decision of the chair, the board shall decide the case without debate, and the question shall be stated by the chair to be: "Shall the decision of the chair stand as the judgment of the board?" 12. Persons not members of the board may, by consent, be permitted to speak in regard to matters pending before the board. 13. Every person present when a vote is stated from the chair shall vote thereon, unless excused by the board, or unless he is directly interested in the question, in which case, if he choose, he shall be excused from voting. 14. No motion shall be stated, debated or put unless it is seconded. When a motion is seconded it shall be stated by the chairman before debate, and any motion shall be reduced to writing if the chairman or any member desire it. 15. After a motion is stated it shall be in possession of the board, but may be withdrawn at any time before the decision or amendment. 16. If the question in debate contains several distinct propositions, any member may have the same divided. 17. When a question is under debate no motion shall be received unless on the previous question, to postpone it indefinitely, to adjourn it to a certain day, to lay it on the table, to commit it or to adjourn the board. 18. A motion for the previous question, to lay the question on the table, to commit it until it is decided, shall preclude all amendments and debate of the main question, and the motion to postpone a question indefinitely, to adjourn to a certain day, until it is decided, precludes all amendments to the main question. 19. The previous question shall be as follows : " Shall the main question be put?" 20. A motion to adjourn the board shall always be in order, and be decided without debate. 21. The name of the member offering resolutions shall be entered on the minutes. 22. The ayes and nayes upon the question shall be taken and entered upon the minutes, if required by any member. 23. Select committees, to whom references are made, shall, in all cases, report a state of facts, with their opinion thereon, if required by the board. 12 Counties; Boards of Supeevisoes. County Law, § 23. by law, he skall for every sucli offeaise forfeit a like sum t^ tke town." \_Oounty Law (L. 1892, ch. 686), § 11; Heydecker's Oen. L. (2d ed.), p. 1202.J § 4. Compensation of supervisors as members of the board of supervisors; copying assessment-roll. For the services of supervisors, except in the counties of Al- bany, Broome, Columbia, Erie, Kings, Montgomery, Niagara, Oneida, Onondaga, Rensselaer, Westchester and Richmond, each supervisor shall receive from the county compensation at the rate 24. No motion for reconsideration shall be in order, unless on the same day or the day following that on which the decision proposed to be recon- sidered took place, nor unless one of the majority shall move such recon- sideration. A motion to reconsider being put and lost, shall not be renewed, nor shall any subject be a second time reconsidered without unanimous consent. 25. No standing rule or order shall be rescinded, suspended or changed, or any additional rule or order added thereto, unless by unanimous con- sent without one day's notice being given of the motion thereof, and no motion to that effect shall be in order without such notice. 26. The board shall hold two regular sessions daily — the morning session and the afternoon session — and all of the general business of the board shall be transacted at these sessions when first convened, and all the members shall be present unless excused. When the general business before the board of that session shall be disposed of the chairman shall announce the board adjourned for committee labor, and no further business shall there- after be done until next session. 27. Every motion or resolution before the board shall lie over until the next day, if so demanded by any member, and any member necessarily absent may, at the first session after he shall learn of the adoption of any motion or resolution, have a right to move a reconsideration of the same. 28. At each annual session the chairman of the board shall, before the close of the said session, appoint four members of the board who, together with himself as chaii-man, shall constitute u, committee on all buildings and grounds belonging to the county. Said committee shall have charge and supervision of all the county buildings for the ensuing year, with power to make repairs which may become necessary during the adjournment of the board. 8. Penal provision. Section 117 of the Penal Code provides that, "A public officer, or person holding a public trust or employment, upon whom nny duty is enjoined by law, who wilfully neglects to perform the duty, is guilty of a misdemeanor. This and the preceding section do not apply to cases of official acts or omissions, the prevention or punishment of which is otherwise specially provided for by statute." The penalty imposed by the above section may, therefore, be exclusive of any punishment for a mis- iemeanor under this section of the Penal Code. 0!rganization', Meetings and Peoceedings. 13 County Law, § 23. of four dollars per day for eaclh calendar day's actual attendance at the sessions of their respective boards, and mileage at tte rate of eight cents per mile, for once going and returning from his residence to the place where the sessions of the board shall be held, by the most usual route, for each regular and special session. In the counties of Niagara and Richmond, each supervisor shall receive an annual salary, in the county of Niagara of three hun- dred and in the county of Richmond of one thousand dollars in lieu of any per diem compensation. Each supervisor, except in the counties of Albany, Broome, Columbia, Erie, Montgomery, Niagara, Oneida, Onondaga, Rensselaer, Westchester and Rich- mond, may also receive compensation from the county at the rate of four dollars per day while actually engaged in any investiga- tion or other duty, which may he lawfully committed to him by the board ; except for services rendered when the board is in ses- sion, and, if su.ch investigation or duty require his attendance at a place away from his residence, and five miles or more distant from the place where the board shall hold its sessions, his actual expenses incurred therein. No' other compensation or allowance s'hall be made to any supervisor for his services, except such as shall be by law a town charge,' except that in the county of Niagara elach supervisor, while actually engaged in any investigation, or in the performance of any other duty, which shall h;i\'o been legally delegated to him by the board of supervisors, except when the board is in session, shall be entitled to receive in addition to the compensation hereinbefore provided, his actual expenses in- curred therein, if such investigation or duty require his attend- ance at a place away from his residence, and five Liability for neglect. The supervisor, by voting against allowing a claim which the statute imperatively requires the board to allow, subjects himself to the above penalty; so any supervisor who shall neglect or refuse to perform any duties which are or shall be required of him by law, as a member of the board, whatever may have been the motive which influenced him, is liable to the penalty. Morris v. People, 3 Denio, 381. And where a board neglected to raise money for the erection of pviblic buildings, which money they were required by law to raise, the supervisors were held liable, although previous boards had been guilty of the same neglect. Casivell v. Allen, 7 Johns. 03. Where a supervisor is charged by statute with an absolute and certain duty, in the performance of which an individual has a special interest, he is liable to an action if he refuses to perform it, and he is not relieved from the consequences of his disobedience because it is prompted by an honest belief upon his part that the statute is unconstitutional. Clark v. Miller, 54 N. Y. 528; Hoover i>. Burkhoof, 44 N. Y. 113. 9. Compensation of supervisor as town officer. See Town Law, sec. 178, post, p. 814. A supervisor is not entitled to charge for services or mileage while serving upon a committee of the board of supervisors during the session of the li Counties; Boards of Supervisoes. County Law, § 17. miles or more distant from the place -where the board shall hold its sessions. The board of supervisors of any county may also allow to each member of the board for his ser- vices in making a copy of the assessment-roll, three cents for each written line for the first one hundred lines, two cents per line for the second hundred written lines, and one cent per line for all written lines in excess of two hundred, and one cent for each line of the tax-roll actually extended by him.^" \_Cou.niy Law (L. 1892, ch. 686), § 23, as amended hy L. 1895, ch. 480, L. 1900, ch. 529 and L. 1905, ch. 20; Heydecher's Gen. L. {2d ed.), p. 1208.] § 5. Acts and resolutions of boards of supervisors; form and contents; adoption; publication. Every act or resolution of the board shall require for its pas- sage the assent of a majority of the supervisors elected, unless board, because the statute provides that unless the compensation is speci- ally provided he is prohibited from receiving other compensation than his per diem allowance and mileage for his attendance during the sessions of the board. Board of Supervisors v. Ellis, 59 N. Y. 620; Van Sicklen v. Super- visors, 32 Hun, 62. The constitution provides that the board of supervisors shall not grant any extra compensation to any public officer, servant, agent or contractor. See Constitution, art. 3, sec. 28. Special acts relating to salaries of supervisors. In Albany county, see L. 1871, ch. 887, as amended by L. 1875, ch. 497. In Allegany and Broome counties, see L. 1869, ch. 186. In Columbia county, see L. 1889, ch. 488. In Dutchess county, see L. 1898, ch. 134. In Erie county, see L. 1876, ch. 231, as amended by L. 1888, ch. 364, and L. 1893, ch. 620. In Montgomery county, see L. 1900, ch. 194. In Oneida county, see L. 1876, ch. 250, and in efifect superseded by L. 1901, ch. 34, sec. 6. In Onondaga county, see L. 1887, ch. 30, as amended by L. 1897, ch. 74. In Oswego county, see L. 1897, ch. 290. In Rensselaer county, see L. 1857, ch. 331, sec. 1, as amended by L. 1875, ch. 560. In Schenectady county, see L. 1887, ch. 722, as am'd by L. 1904, ch. 64. In Westchester county, see L. 1902, ch. 342, in effect superseding L. 1894, ch. 563. 10. Extension of assessment-roU. Under section 55 of the Tax Law, post, p. 402, the board of supervisors is required to ]e\-y the taxes for the county, including the state tax, on the valuations of real and personal prop- erty as equalized by it, and to spt down in a separate column in the assess- ment-roll the sums assessed against the real and personal property in each town and ward in the county. Obganization, Meetings and Peocbbdings. 15 County Law, § 17. otherwise required by law." Every act or resolution of such board in the exercise of its legislative powers shall have a title prefixed, concisely expressing its contents, followed by a refer- ence to the law or laws conferring the authority to pass the act or resolution, the number of votes, both for and against its passage, and, when the assent of any supervisor is required, that such assent was given ;" and all acts or resolutions so passed shall be numbered in the order of their passage, and certified by the chair- man and clerk, and within six weeks after the close of each session, published in the newspapers in the county appointed to publish 11. As to powers of majority, see Note 5, ante, p. 8. In a. county in which there were eighteen supei-visors the board, by a vote of those present at a meeting, passed a. resolution for the removal of the county seat, ten voting in favor of the resolution and eight against it. One of the ten had no authority to act as a supervisor, not even de facto; it was held that there was not a, majority of those elected voting in favor of the resolution and that it was not carried, and further, that the purpose of such resolution could not be effected notwithstanding an attempted ratification by the legislature. Williams v. Boynton, 71 Hun, 309; 25 N. Y. Supp. 60. 12. For form of resolutions adopted by boards of supervisors, see Forms Nos. 1, 2, post. Kesolntion authorizing the issue of county and town bonds, see C!ounty Law, sec. 14, post, p. 932. Validity of resolution. A board of supervisors has no power except puch as is vested in it by legislative enactment. Whenever power is so vested in a board and the legislature prescribes the manner in which such power shall be exercised, every substantial requirement or condition in re- gard to such exercise, beneficial to any citizen, must be observed and care- fully complied with, or the action of the board cannot be sustained. Barker V. Town of Oswegatchie, 10 N. Y. Supp. 834. If the board of supervisors has full power to do an act, its performance of such act is not rendered illegal by a mistake in a recital in its resolution as to the source of its power even if the alleged source of its power to do such an act is a repealed statute. Matter of Rockaway Park Improvement Co., 83 Hun, 263; 31 N. Y. Supp. 386. The resolution in question in this ease was for the purpose of creating a fire district outside of an incorporated village under sec. 37 of the County Law, post, p. 62. The resolution referred to an act author- izing the board to create such a district which was repealed by the County Law and its provisions re-enacted with modification in such sec. 37 of the County Law. If the board of supervisors has no seal, the lack of a seal which the statute may direct to be aflixed to the certificate to the resolution, does not impair its validity. People ew rel. Master son v. Gallup, 12 Abb. N. C. 64; 65 How. Pr. 108; affd., 96 N. Y. 628. 16 Counties; Boaeds of Supervisoes. County Law, § 18. the session laws of the legislature." [County Law (L. 1892, ch. 686), § 17; Heydecker's Gen. L. (2d ed.), p. 1205.J § 6. Proceedings of board of supervisors to be printed and distributed; contents. Each board of supervisors shall cause as many copies of the proceedings of its sessions as they may deem necessary, certified by its chairman and clerk, toi be printed as a county charge, in a pamphlet volume, as soon as may be after each session, for ex- change with other boards, and for the members of the board and otber town and county officers. At least three copies of such printed volume shall be forwarded to and filed in each town clerk's office and in the county clerk's office. In counties containing cities of the first class, the publication of the proceedings of the board of supervisors may be ordered to be made in a daily newspaper, the work to be done by contract, let to the lowest bidder, after an opportunity to bid therefor has been given to the proprietors of all the daily newspapers printed 13. Resolution as evidence. Section 941 of the Code of Civil Proce- dure provides that: "An act, ordinance, resolution, by-law, rule ^r pro- ceeding of the common council of a city, or the board of trustees of aij incorporated village, or of a local board of health of a city, town or incorpo- rated village, or of a board of supervisors, within the state, may be read in evidence, either from a copy thereof, certified by the city clerk, village cleric, clerk of the common council, clerk or secretary of the local board of health, or a clerk of the board of supervisors ; or from a volume printed by authority of the common council of the city, or the board of trustees of the village, or the local board of health of the city, town or village, or the board of supervisors." Publication of acts of boards of supervisors. The following sec- tion of the act of 1845, as amended by L. 1892, ch. 71.5, is still in force and applies to the publication of acts and resolutions of boards of supervisors. Such section is as follows: "All acts passed by the boards of supervisors of the several counties of this state, shall be published in two newspapers representing respectively the two principal political parties into which the people of the counties are divided, after such manner, and at such com- pensation as the several boards of supervisors may provide, the same to be a county charge, payable in the manner provided in section five, as amended by this act, provided that the rate of compensation shall not be less than the rate fixed by this act for the publication of laws of a. local nature, enacted by the ln;:i=ilature." [L. 184.5, ch. ^80, § 6, as amended by L. 1892, ch. 715. Pee L. 1845, ch. 280, § 5, as amended by L. 1892, ch. 715, post, p. 57.] OUQANJZATION, MEETINGS AND PeOCEEDINGS. 17 County Law, § 26. in the English language in said county ; such bid may include the printing and binding in pamphlet volumes of such number of copies of the proceedings of such board as may be required, and also the printing of pamphlet copies .thereof for the use of the members of said board at its sessions. Such printed proceedings shall contain a summary statement of all bills against the county, presented to the board and audited and allowed or disallowed, indicating the amount allowed or dis^ allowed. The board of supervisors may as often as it shall deem necessary, cause to be printed and distributed in like man- ner, in the same volume or otherwise, its county laws, combined with suitable forms and instructions thereunder. \^County Law {L. 1892, ch. 686), § 18, as amended hy L. 1899, ch. 203; Hey- decker's Gen. L. {2d ed.), p. 1206.1 § 7. County records, boards of supervisors to have general charge of; copies may be made for public use; cost of copies. Such boards shall have the general charge of the books and records of the county, subject to the legal rights of the officers using or having custody of the same, and shall provide for their safekeeping. They may authorize county officers having the offi- cial custody or control of any such books and records, or of maps and papers, to cause copies thereof to be made and certified for the public use; and it shall be their duty to cause the same to be made and certified whenever by reason of age or exposure, or any casualty, the same shall be necessary. Any officers making such transcripts or copies shall be paid such sum therefor as may be just; but such payment shall not exceed a sum to be certified by the county judge, or a justice of the Supreme Court' of the judicial district, as reasonable therefor. Such board of supervisors shall not accept and pay for any such services, until the work shall be examined and approved as to its manner and form of execution, by such judge or justice; nor shall any board of supervisors order any such work to be done until such judge or justice, after an examination shall certify that such work is necessary for the security and safety of the public records. \_County Law (L. 1892, ch. 686), § 26; Beydecker's Gen. L. (2d ed.), p. 1209.] 18 Counties ; Boards of Supekvisoks. County Law, § 27. § 8. Witnesses and county and town officers may be examined by board; books and papers may be inspected. Any such board may require the attendance of -witnesses and may examine any person as a witness upon any subject or matter within its jurisdiction, or examine any officer of the county, or a town therein, in relation to the discharge of his official duties, or to the receipt or disbursement by him of any moneys, or con- cerning the possession or disposition by him of any property be- longing to the county, or to use, inspect, or examine, any book, account, voucher or document in his possession or under his con- trol, relating to the affairs or interests; of such county or town." {County Law {L. 1892, ch. 686), § 27; Eeydeckers Oen. L. (2d. ed.), p. 1209.] 14. Subpoena and examination of -witnesses. By the above section and section 28 of the County Law immediately following power is conferred upon the board of supervisors or a committee thereof to require the attend- ance of witnesses upon subjects within the jurisdiction of the board and to send for persons and papers. In the case of Matter of Superintendent of the Poor, 6 App. Div. 144; 39 N. Y. Supp. 878, it was held that neither the Supreme Court nor a judge of that court can punish as for a contempt a disobedience of the command of the subpoena. The court said : " A person who fails to obey a subpoena is made liable for the damages sustained by the party aggrieved, and $50 in addition thereto, which may be recovered by action. (Code Civ. Proc, sees. 853, 855.) By section 855 of the code it is provided that in case a person is duly subpoenaed by a board of com- mittee, and fails to attend in obedience thereto, any judge of the court, upon proof by affidavit of the failure to attend, must issue a warrant to the sheriff commanding him to apprehend the defaulting witness and bring him before the body before whom his attendance was required, and by section 856, if the person subpoenaed by such a body refuses, without reasonable cause, to be examined or to answer any legal or pertinent question or to produce a paper or book he may be committed to jail by a judge upon proof of such facts, there to remain until he submits to do the act which he was required to do, or is discharged according to law. But no provision of the code authorizes the punishment of such a witness for a contempt. These provisions of the code establish the present practice, whereby a person may be compelled to attend before an inferior legislative body and give his testimony upon matters within its jurisdiction." Chairman of committee may administer oath. The chairman of any committee appointed by a board of supervisors, is hereby authorized ■to administer an oath to any person presenting an account or claim before such committee to be audited, as to services rendered, and the correctness of such claim. (L. 1836, ch. 506, § 3.) Oeganization ; Meetings and Pboceebings. 19 County Law, §§ 28, 29, 30. § g. Powers of committee of board of supervisors as to hear- ings and examinations. When any such board shall have appointed any member or members thereof, a committee upon any subject or matter of ■which the board has jurisdiction, and shall have conferred upon such committee power to send for persons and papers, the chair- man of such committee shall possess all the powers herein given to, and imposed upon the chairman of the board of supervisors. [County Law (L. 1892, ch. 686), § 28; Heydecker's Gen. L. {2d ed.), p. 1210.] § 10. Adjournment of hearing or examination by board or committee; discharge of persons arrested for failure to appear. Such board or committee may adjourn from time to time, and such committee may hold meetings in pursuance of such ad- journments or on call of the chairman thereof, during the recess, or after the final adjournment of the board of supervisors; but where a warrant shall have been issued as provided by section 855 of the Code of Civil Procedure and not returned, such ad- journment of the board or committee at whose instance it was issued, shall be to a time and place certain, of which notice shall be given by the chairman, to the judge before whom the warrant shall be returnable ; and if the person against whom it issued be arrested, he may, in the discretion of the judge who issued the warrant, be discharged from custody, upon entering into an undertaking to the county, with two sureties to be approved by such judge, to the effect that he will appear and submit to an examination before such board or committee, as required, at the time and place to which it shall have been adjourned, or pay to the county treasurer such sum of money as such judge may direct. [County Law (L. 1892, ch. 686), § 29 ; Heydecker's Gen. L. (2d ed.), p. 1210.] § II. Filing and enforcement of undertaking given under preceding section. Such undertaking shall be filed in the clerk'a office of the county, and if default shall be made in the condition thereof. 20 Counties; Boakds or Supebvisoks. County Law, § 30. the district attoomey of tlie county may sue and collect tike sum therein mentioned, and the money, when received, and all moneys received for fines and penalties before such board or com- mittees, shall be paid into the treasury of the county. [County Law (L. 1892, ch. 686), § 30; Eeydecher's Gen. L. (2d ed.), p. 1210.J Audit J County Chaeges. 21 County Law, § 12. CHAPTER III. AUDIT BY BOAED OF SUPEEVISOES ; COUNTY CHAEGES. Section 1. Power of board of supervisors to audit accounts and charges against the county. 2. Presentation of accounts in certain counties; notice to be pub- lished to file claims; provisions of act may be adopted by board. 3. Accounts to be itemized; verification; may be disallowed in part; accounts to be numbered. 4. Board may make additional requirements as to accounts. 5. Penal provisions respecting the unlawful audit and presentation of accounts against municipalities. 6. County charges. 7. County charges, how raised. § 1. Power of board of supervisors to audit accounts and charges against the county. The board of supervisors shall " annually audit all accounts and charges against the county, due or to become due, during the ensuing year, and direct the raising of sums necessary tO' defray them in full."' [County Law (L. 1892, ch. 686), § 12, sub. 2; Heydecker's Gen. L. {2d ed.), p. 1202.] 1. Audit defined. The term "audit" means to hear and examine; it includes both the adjustment or allowance, and the disallowance or rejection of an account. People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. E. 609; Morris v. People, 3 Den. 381, 391; Matter of Murphy, 24 Hun, 592, affd., 86 N. Y. 627; People ex rel. Hamilton v. Supervisors, 35 App. Djiv". 239, 242; 54 N. Y. Supp. 782; People ex rel. Read v. Town Auditors, 85 Hun, 114, 32 N. Y. Supp. 668; People ex rel. Andrus v. Supervisors, 106 App. Div. 381, 94 N. Y. Supp. 1012. Wliat constitutes an audit. The duty of a board of supervisors in auditing and allowing accounts is : ( 1 ) To examine and determine whether an account is properly verified; (2) to see if it is properly chargeable against the county; (3) to settle or fix its amount; {4) to allow it as thus settled; (5) to provide means for its payment. People ex rel. Sherman v. Super- visors, 30 How. Pr. 173. Jurisdiction of board. Boards of supervisors, in auditing and allow- ing accounts, are limited to the powers conferred upon them by statute. People ex rel. Merritt v. Lawrence, 6 Hill, 244 ; Chemung Oanal Bank v. Supervisors, 5 Denio, 517. And when they transgress these limitations, their acts are void. If, for example, a board should audit a claim which was plainly not a, county charge, its determination would be void for the reason that county charges only are within its jurisdiction. Osterhoudt v. Riqney, 98 N. Y. 222, 233. As was said in the case of Board of Supervisors V. Ellis, 59 N. Y. 620, 624 : " A board of supervisors has no power to audit 22 Counties; Boards of Supeevisoes. L. 1861, eh. 83, § 1. § 2. Presentation of accounts in certain counties; notice to be published to file claims; provisions of act may be adopted by board. The supervisors of the counties of Onondaga, Tioga, Oneida, Fulton, Monroe, Broome, Delaware, Cayuga, Orange, Jefferson, Richmond, Livingston, Chenango, Chemung, Ulster, Dutchess, Steuben, Niagara, Columbia and Herkimer, by their clerks, shall and allow accounts not legally chargeable to their county; and if it attempts to do so, it is an act in excess of jurisdiction, done without power to make it valid, and is null and void. It may be disregarded by other officers of the county, and is not binding and conclusive upon another board." Board acts judicially. In the settlement of disputed claims, or in the audit and allowance of county charges, a board of supervisors acts judicially where the subject of the claim is within its jurisdiction. People ex rel. Canajoharie Nat. Bank v. Supervisors, 67 N. Y. 109, 114. In this case the court said : " The acts which can in any aspect be regarded as judicial, and therefore final and conclusive until reversed, had respect solely to the amounts at which claims under an act should be audited and allowed. Had they been left to determine also whether these claims were or were not county charges, their decision of that question might have been claimed to be judicial and in the nature of a judgment; but the functions of the supervisors, judicial in their character, being limited to ascertaining and determining the amount or amounts, which, when ascertained and deter- mined, the legislature had directed to be raised by tax and paid as other county charges are provided for and paid, a repeal of the acts making the claims a county charge, does not reverse any judgment or judicial determina- tion of the board of supervisors in respect to any matter referred to them." In other words, the board does not act judicially in determining whether or not a claim which is clearly declared by statute to be a county charge is binding upon the county. See, also. Chase v. County of Saratoga, 33 Barb. 603; People v. Supervisors of Livingston, 26 Barb. 118; People v. Stocking, 50 Barb. 573; Supervisors of Onondaga v. Briggs, 2 Denio, 26; Supervisors of Chenango v. Birdsall, 4 Wend. 453; Bank of Staten Island v. City of New York, 68 App. Div. 231, 74 N. Y. Supp. 284. But where it is doubtful and rests upon disputed evidence, whether a claim is a proper county charge the determination is committed to the discretion of the board. Osterhoudt v. Rigney, 98 N. Y. 222, 232. AVlieii board may exercise discretion. Such boards have no discre- tion where the salary of an officer is fixed by law and made a county charge. The amount as so fixed concludes the board in its action. Morris v. People 3 Denio, 381; People v. Stout. 23 Barb. 338; People v. Supervisors of Cort- land, 58 Barb. 139; 40 How. Pr. 53. In passing upon claims where no price has been agreed upon and in auditing claims for legal and other services where no price is fixed by statute, and no sum has been fixed upon by contract as compensation for such services, the board may exercise its discretion in fixing the amount- and where it acts in good faith in auditing and allowing the claim, its action will not be reviewed. People ex rel. Johnson v. Supervisors of Delaware Co Audit; County Chaeoes. 23 L. 1861, ch. 83, § 1. provide boxes -with suitable inscriptions thereon, and ■with open- ings in the top, to be kept in the offices of the clerks of said coun- ties and in their charge, under lock and key, in which shall be deposited by said clerks, all accounts and claims against said counties, duly verified according to law ; and whenever said boards shall severally for themselves order, the clerks of said boards shall take from said boxes all bills and accounts against 45 N. Y. 196; People v. Supervisors of Albany Co., 12 Wend. 257; Feu [tic i. Supervisors of Otsego Co., 51 N. Y. 407; People v. Supervisors of Dulcliess Co., 9 Wend. 508; People v. Supervisors of Cortland Co., 58 Barb. 139; 40 How. Pr. 53. When the law has declared that certain claims shall be a debt of the county, then the supervisors cannot reject the claims upon the idea that they are not valid and legal claims against the county; but if they admit all the facts upon which the claims are legally founded, they must audit and allow them. But where any of the facts material to the existence of the claim are disputed, tlien the point arises at which tlieir judicial discretion is called into exercise, and they cannot be compelled by mandamus to decide this question in any particular manner. People ex rel. Benedict v. Super- ■visors of Oneida, 24 Hun, 413. In reference to charges for services for which no fixed or definite sum is prescribed as a compensation tlie board is vested witli a discretion, and may allow such sum as they deem just. In auditing and allowing this class of accounts they act judicially, and no proceedings can be had a -nin=t them, or against the county, for an erroneous determination in relafon to their acts. Chase v. County of Saratoga, 33 Barb. 603; People v. Stocking, 50 Barb. 573; 32 How. Pr. 48; People ex rel. Sherman v. Supei visors of St. Lawrence Co., 30 How. Pr. 173; Foy v. County of Westchester, 60 App. Div. 412, 69 N. Y. Supp. 887, aff'd 168 N. Y. 180. Audit, lio-nr far conclusive. In the case of Martin v. Supervisors of Greene Co., 29 N. Y. 645, it was held that after a. claim against a county has been presented to tlie board of supervisors for allowance, and has been examined and passed upon by that board, the amount determined to be actually and justly due declared, and its payment provided for in the mode prescribed by law, no action will lie against the county, to recover the same claim, upon the ground that the decision of the board was erroneous in re spect to the amount actually and legally due to V.e pla.nliff. The rule is tliTt the acts of a board of audit, within its jurisdiction, in the absence of fraud and collusion, are final and conclusive, and cannot be questioned in a collateral proceeding. Wliether a claim is a proper county charge, in a case where it is doubtful and rests upon disputed evidence, and what amount shall be allowed, when not fi.^ed by statute, arc questions which the statute commits to the board, and however much it may err in judgment on the facts, so long as it keeps within its jurisdiction and acts in good faHh, its audit cannot be overhauled, but is final both to the claimant and all taxpayers. Osterhoudt v. Rigney, 98 N. Y. 222, 232. And see People v. Supervisors of Livingston, 26 Barb. 118; People ex rel. Vaughn v. Super- visors, 52 Hun, 446; 5 N. Y. Supp. 600. The audit of the board is in the 24 OoTTNTiEs; Boards of Supeevisoes. L. 1861, ch. 83, § 1. said counties, which they shall then file and number, and it shall not be lawful for the' said boards of supervisors, in any one year, to audit as against said counties any other bill or account than such as shall have been deposited in said boxes, or othei^ wise in their possession, upon the morning of the fourth day of the annual meeting of said boards; except bills for the services nature of a judgment. People ex rel. McDonough v. Supervisors of Queens, 33 Hun, 305, 307. As to conclusiveness of audit, see, also. Supervisors of Onondaga v. Briggs, 2 Denio, 26; People v. Stout, 23 Barb. 338; Brown v. Greeirn 46 How. Pr. 302, aflfd., 56 N. Y. 476. Hearing evidence as to claims. In all eases where auditing officers are vested with the right to exercise their discretion in determining the amount to be paid, it is a matter of fair dealing that the claimant should be given an opportunity to be heard in his own behalf, and to furnish evi- dence if he so desires. People v. Supervisors of St. Lawrence Co., 30 How. Pr. 173. But the board cannot be compelled to receive evidence in regard t(. an account where such evidence could not aflfect its decision. People ex rel. White V. Supervisors of Clinton Co., 20 N. Y. Supp. 273; 48 N. Y. St. Rep. 457. And the hearing of counsel in favor of a claim presented for audit, and the writing out of the stenographer's minutes taken at a hearing before a committee, is within the discretion of the board and cannot be compelled. People ex rel. Sutliff v. Supervisors of Fulton Co., 74 Hun, 251; 26 N. Y. Supp. 610. Affidavit as to value of services. Where a, claim for services ren- dered, presented to a board of supervisors for audit, which board has author- ity to exercise its judgment in reference to the amount to be allowed, is sus- tained only by the affidavit of the claimant, the board is not compelled to accept his statement, although it is uncontradicted, but may award such sum as in its judgment seems proper compensation for the services. Matter of Lanehart, 32 App. Div. 4; 52 N. Y. Supp. 671. Manner of auditing. A legal and proper auditing of an account re- quires an examination of the items of which it is composed, and the allow- ance or disallowance of them accordingly as they shall be found correctly or incorrectly charged both in law and in fact. The board must examine each bill in detail and allow or disallow the various items. It would be no proper or just audit of an account made up of numerous items to allow a. gross sum instead of considering and passing upon the items. People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196 ; People ex rel. Thurston v. Board of Auditors, 20 Hun, 150, aflfd., 82 N. Y. 80; People ex rel. Drummond v. Supervisors of Westchester Co., 82 N. Y. Supp. 504 (App. Div., 2d Dept., May 28, 1903. A person who presents a bill for audit consisting of several items is entitled to the judgment of the board on each item. People ex rel. Drummond v. Supervisors, 83 App. Div. 51, 82 N. Y. Supp. 504. For instance, where a claim is presented by a county officer for services performed by him for which he is entitled by statute to a certain per diem compensation, specifying the number of days employed by date, and the particular duty or service performed on each day, and charging for each day Audit; County Chabges. 25 L. 1861, eh. 83, § 1. of supervisors, tlieir clerks and janitors, and except bills for ser- vices or disbursements, rendered or made during the session of the board. [L. 1861, ch. 83, § 1, as amended by L. 1862, ch. 245, § l.J The clerks of the boards of supervisors of the several counties named in this act shall annually give notice, in at least two of BO employed the compensation allowed by law, the board would not be justified in allowing a gross sum without specifying the particular items in the account which are disallowed. See People ex rel. Thurston v. Board of Auditors, 82 N. Y. 80, in which case the Court of Appeals says: "If (in allowing such a claim at a gross sum), they rejected no specific day or days, but allowed them all to stand, then they violated the statute rate of com- pensation. But if, as they claim, they reduced the number of days as a whole without disallowing any specific one, they did not audit the account at all; they merely guessed at the result and offered a compromise. Within the range of their discretion they are sufficiently powerful. The courts may not dictate their conclusion, but may justly require that they arrive at one in a just and intelligent way, and with some reasonable respect for the possible rights of the creditors. In this case the board of auditors, instead of passing on the relator's bill, and allowing or disallowing the items accord- ing to the facts and the law, assumed the right to allow what they pleased, without disputing the facts on the one hand or the law on the other. In other words, acting on the theory that the commissioners were costing the town too much, the auditors cut down the gross amount of the bill to their own arbitrary standard, without regard to the right or wrong of a single item presented for their judgment. It is well to regard economy, but it is better to do fair and complete justice. . . . The amount to be allowed has in no manner been dictated by the courts. That is the duty of the auditors. But they must perform that duty by passing specifically upon the separate charges, so that both claimants and the people may know what has been done. Their conclusion must be, not an arbitrary guess at a- gross sum, but an actual audit of the several charges presented." In the ease of People ex rel. Sutliff v. Supervisors of Fulton, 74 Hun, 251; 26 N. Y. Supp. 610, a sheriff's bill contained numerous items for board of prisoners at the county jail, and for various fees for services performed by the sheriff and his agents in respect to such prisoners. The board passed a resolution auditing and allowing the bill at a greatly reduced gross sum without specif jang the items rejected. The court said: "They must pass upon the items, and should so discharge their duties in that regard that the relator will be able to know which items were allowed and which were dis- allowed. It may not be necessary for the board in their decision to pass upon each item of relator's bill separately. For instance, if they should disallow all " turnkey's " fe'es and all " tub " fees, it would be sufficient to 80 declare without specifying each item. If they should allow the number of weeks' board claimed, but should reduce the price, it would be sufficient to merely state the price per week allowed. But in some way the board 26 .Counties; Boards of Supeevisoes. L. 1861, ch. 83, § 1. the newspapers published in each of the said counties, of the times of holding, the annual meetings of said boards, in each year, to be inserted in said papers at least once in each week, for four weeks previous to such meetings, and requiring all persons having bills or accounts against said counties to deposit the same with the county clerks, duly verified, on or before the third day of the next annual meetings of said boards and in default thereof should pass on and allow or disallow the items of the relator's bill, and in such a way that it may be known what the determination in fact was as to each item. This may cause much trouble, but it seems necessary under the statute and decisions.'' Audit of rejected acconnts. An account rejected by a board upon its merits cannot be audited by a subsequent board. Osterhoudt v. Bigney, 98 N. Y. 222; Board of Supervisors v. Ellis, 59 N. Y. 620. If a claim is dis- allowed for any reason not affecting the merits thereof, it may be audited by a subsequent board. People ex rel. Mason, v. Board of Supervisors, 45 Hun, 62. Power of audit cannot be delegated. The final audit should be by the board as a whole. The examination of accounts may be made by a com- mittee of the board, but the determination as to the allowance or disallow- ance of any part thereof rests exclusively with the board itself. People v. Supervisors, 25 Hun, 131. The power of audit is judicial and cannot be delegated. People v. Hagadorn, 104 N. Y. 516; 10 N. E. 891; Bellinger v. Gray, 51 N. Y. 610. Compelling audit by mandamns. The board of supervisors being vested with jurisdiction to audit all claims legally chargeable to the county, the law imposes upon them the duty of acting on all such claims legally presented to them; and if they refuse to act upon a valid claim, they may be compelled to act by mandamus. People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196; People ex rel. Ball v. Supervisors of New York, 32 N. Y. 473. A claim presented to a board of supervisors, who permitted their session to expire without taking any action upon it, is to be regarded as rejected, for the purpose of mandamus to compel the board to act thereon. People ex rel. Aspinwall v. Supervisors of Richmond Co., 20 N. Y. 252. Where the supervisors of a county have neglected to perform any duty re- quired of them at their annual meeting they may be compelled by mandamus to meet again and perform it. They cannot by their neglect nullify a statute imposing duties upon them. People ex rel. Scott v. Supervisors of Chenango Co., 8 N. Y. 317. The rejection of a claim by a board of super- visors on the ground that the county is not liable therefor, may be reviewed by mandamus as well as by a writ of certiorari. People ex rel. Smart v. Su- pervisors, 66 App. Div. 66, 72 N. Y. Supp. 568. Where a board have once considered a claim and audited and allowed it at a certain sum, the claim being one where they have the right to exercise a discretion in determining the amount, a mandamus cannot issue to compel them to audit tlie claim anew and allow it at a greater amount. People ex rel. Johnson v. Supcroisors of Delaware Co., 45 N. Y. 196. See, also. Matter of Lanehart, 32 App. Div. 4; 52 N. Y. Supp. 671; People ex rel. Morrison v. Supervisors, 56 Hun, 459; 10 N. Y. Supp. 88. Audit; County Chaeqes. 2T L. 1861, ch. 83, § 1. that such bills or accounts will not be audited by said annual meetings. Whenever the board of supervisors of any county of this state shall by resolution declare that the provisions of this act shall be extended and made applicable to such county, the provisions of this act shall thereafter be applicable to such county." \_L. 1861, ch. 83, § 4, as added by L. 1862, ch. 245, § 2.] The action of a board of supervisors in rejecting or allowing a claim pre- sented to it is judicial, and to some extent discretionary; it cannot be reversed for any cause by a subsequent board; it is conclusive as to the proper form and details of the claim presented; and although a peremptory mandamus may issue, compelling the board to act, it cannot direct it how to decide. People ex rel. Brown v. Supervisors of Herkimer, 3 How. Pr. N. S. 241. Revieur by certiorari. Where a claim presented to the board is of such a, character that the board is vested with authority to. exercise its judgment in respect thereto, and requires a determination based upon con- flicting testimony and inferences arising therefrom, whatever right of review exists must be by certiorari, and mandamus is improper. Matter of Lane- ha/rt, 32 App. Div. 4; 52 N. Y. Supp. 671. In the case of People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. E. 609, it was held that not only does an auditing board possess discretionary and judicial power, but its juris- diction over claims which are properly submitted to it is original, and its decision thereon is conclusive until modified or reversed by another court in the manner prescribed by law, that is, in proceedings by certiorari. See, also, People ex rel. Hamilton v. Supervisors of Jefferson Co., 35 App. Div. 239; 54 N. Y. Supp. 782. Where services have been rendered by a physician in making post mortem examinations, the compensation for which is a county charge, and the claim has been presented to and audited by the board of supervisors, the audit is final; and while the amount of the audit may not be the value of the services, and may present a case for review by certiorari, no cause of action therefor arises against the county. Foy v. County of Westchester, 168 N. Y. 180; 61 N. E. 174, affg., 60 App. Div. 412; 69 N. Y. Supp. 887. 2. Presentation of accounts in otber connties. In Albany county the presentation and audit of accounts against the county by the board of supervisors would seem to be controlled by L. 1881, ch. 283. In Montgomery county the presentation and audit of accounts is regu- lated by L. 1859, ch. 390. In Rehsselaer county it is provided by L. 1884, ch. 163, that the board of supervisors shall meet annually between general election day and the fif- teenth day of December following for the purpose of examining and audit- ing accounts against the county, and transacting other business. This act also provides for the presentation of claims and regulates their audit by tha board. In Saratoga county the presentation of accounts is regulated by L. 1855, ch. 190. 28 Counties; Boards of Supbevisoes. County Law, § 24. § 3. Accounts to be itemized; verification; may be disallowed in part; accounts to be numbered. No account shall bo audited by a board of supervisors, or by a committee thereof, or by superintendents of the poor, unless it shall be made out in items and accompanied with an affidavit that the items of such accounts are correct, and that the disbursements and services charged therein have been in fact made or rendered, or are necessary to be made ot rendered at that session of the board, and stating that no part of the amount claimed has been paid or satisfied. But any such account so presented and verified may be disallowed in whole or in part, and the board or such superin- tendents may require any other or further evidence of the truth or propriety thereof." Each such account shall be numbered from one upwards in the order of presentation, and a memorandum of the time of presentation and the name of the claimant, and if assigned, the name of each assignor or assignee shall be entered in the proceedings of the board. No such account, after being so presented, shall be withdrawn without the unanimous consent of the board except to be used as evidence in an action or pro- 3. For form of accounts against county, see Form No. 4, post. The form and verification of accounts against to^vns and counties is also prescribed by sees. 167 and 168 of the Town Law, post, p. 811. Sufficiency of presentation. The board of supervisors may insist upon a compliance with the provisions of the above section. It is not the duty of the board to audit accounts not made out in items and verified as re- quired by the statute. People v. Supervisors of Monroe County, 18 Barb. 567. And the refusal of the board to audit a claim which was not presented in the form prescribed by statute will not be reviewed by the court. People ex rel. Johnson v. Supervisors of Do'.aioare County, 9 Abb. Pr. N. S. 416. And in this case it was also held that neither the report of a, committee of the supervisors, setting forth the itemized claim nor a similar report made by the claimant as a public officer, can be regarded as a presentation of the claim for the purpose of audit. If an account is not properly verified it should be returned to the claimant with notice, so that he may appear and correct it. People ex rel. Sherman v. Supervisors of St. Lawrence County, 30 How. Pr. 173. An affidavit stat- ing that the services claimed for were performed (but not stating that they were rendered for the county), and that, no part of the claim had been paid by the board or any one on their behalf, is not a, sufficient verification. People ex rel. Cagger v. Supervisors of Schuyler County, 2 Abb. Pr. N. S. 78. All claims against the county must be itemized before they can be audited, and a charge for " traveling expenses," and " incidentals," is not sufficiently specific to comply with the requirements of the statute. Matter of Pinney, Audit; County Chaimjes. 29 County Law, § 25; Penal Code, § 165. ceeding, and after being so used it shall be forthwith returned.* [County Law (L. 1892, ch. 686), § 24.] § 4. Board may make addition.al requirements as to accounts. Boards of supervisors may make such additional regulations and requirements, not in conflict with law, concerning the keep- ing and rendering of official accounts and reports of its county and town officers, and the presentation and auditing of bills pre- sented to their board or to the town boards of their county, as they may deem necessary for the efficiency of the service and the protection of the interests of the public. [County Law (L. 1892, ch. 686), § 25; Heydecker's Gen. L. {U ed.), p. 1209.] § 5. Penal provisions respecting the unlawful audit and pre- sentation of accounts against municipalities. Unlawfully auditing and paying claims. A public officer, or person holding or discharging the duties of any office or place of trust under the state, or in any county, town, city or village, a part of whose duties it is to audit, allow or pay, or take part in 17 Misc. 24; 40 N. Y. Supp. 716. And where a claim is presented to the board of supervisors for expenses and disbursements by the board of health of a city, but the accounts presented are in gross sums, being the total amounts paid to various persons, without any items whatever, it was held that the accounts are not sufficiently itemized to entitle them to be audited by the board. People ex rel. Board of Health v. Supervisors of Monroe County, 18 Barb. 567. The fact that the claimant has presented informal bills to the board for audit is not a reason for absolutely rejecting the claim and thus deprive him of that which may be honestly and fairly due him. In a disposition to be just the right to amend will readily be suggested. By permitting an amendment the claimant could present his claim in the form and manner prescribed by the statute, and then the board of supervisors could examine and pass upon the various items embraced therein, doing justice to all parties. People ex rel. Mason v. Board of Supervisors of Wayne County, 45 Hun, 62. 4. The wlthdra-wal of an acconnt is not necessary for the purpose of correcting informalities and defects contained therein. Notwithstanding the above provision of the statute a claimant should be given leave to amend inch an account. People ex rel. Mason v. Board of Supervisors, 45 Hun, 62. The clerk of the board of gupervisora is required to designate upon each account audited the amount allowed, and the items or amount disi- allowed, and to deliver to any person on demand a certified copy of any account on file in his office. County Law, § 50, sub. 5, post, p. 79. 30 Counties; Boards of Supeevisoes. Penal Code, §§ 166, 672. auditing, allowing or paying, claims or demands upon tHe state, or such county, towTi, city or village, ■who knowingly audits, allows or pays, or directly or indirectly consents to, or in any way connives at the auditing, allowance or payment of any claim or demand against the state or such county, town, city or village, which is false or fraudulent, or contains charges, items or claims, which are false or fraudulent, is guilty of felony, punishable by imprisonment for a term not exceeding five years, or by a fine not exceeding five thousand dollars, or by both. l_Penal Code, § 165, as amended by L. 1892, ch. 662.J False auditing and paying claiyns; punishment therefor; for- feiture of office. A person who, being or acting as a public ofiicer or otherwise, by wilfully auditing or paying, or consenting to, or conniving at the auditing or payment of a false or fraudu- lent claim or demand, or by any other means, wrongfully obtains, receives, converts, disposes of or pays out or aids, or abets an- other in obtaining, receiving, converting, disposing of, or paying out any money or property, held, owned or in the possession of the state, or of any city, county or village, or other public corpo- ration, or any board, departmeint, agency, trustee, agent or officer thereof, is guilty of a felony, punishable by imprisonment for not less than three nor more than five years, or by a fine not exceed- ing five times the amount or value of the money or the property converted, paid out, lost or disposed of by means of the act done or abetted by such person, or by both such imprisonment and fine. The amount of any such fine when paid or collected, shall be paid to the treasury of the corporation or body injured. A con- viction under this section forfeits any office held by the offender, and renders him incapable thereafter of holding any office or place of trust. {^Penul Code, § 16 6. J Fraudulently presenting hills or claims to public officers for payment. A person who, knowingly, with intent to defraud, presents, for audit, or allowance, or for payment, to any officer or board of officers of the state, or of any county, town, city or vil- lage, authorized to audit, or allow, or to pay bills, claims or ohargee, any false or fraudulent claim, bill, account, writing or voucher, or any bill, account or demand, containing false or Audit; County Chaeqes. 31 Count7 Law, § 230. fraudulent charges, items or claims, ia guilty of a felony. IPenal Code, § 672. J § 6. County charges. The following are county charges: 1. Charges incurred against the county by the provisions of this chapter ■' 2. All expenses necessarily incurred by the district attorney in criminal actions or proceedings arising in his county ;' 5. The chapter here referred to ia the County Law, and the intent of the above subdivision is to make all charges incurred pursuant to the pro^ visions of the County Law county charges. Connty charges generally. To determine what are county charges reference must be made in each case to the statute authorizing the incurring of the charge. The county cannot be made liable for any claim unless the act upon which the claim was based was authorized by express provision of statute. As was held in the case of People ex rel. Hadley v. Supervisors of Albany County, 28 How. Pr. 22, to charge a coimty with a claim for services or expenses incurred, there must be some statutory authority authorizing them to be rendered or incurred, or directing their payment. Without this the board of supervisors cannot be compelled by mandamus to audit the claim. 6. Expense* in criminal actions. The duty of prosecution for crim- inal offenses committed in a county devolves upon its district attorney, and as incidental thereto, he has the power to do that which is essential to such prosecution. All expenses necessarily incurred by such officer in the per- formance of such duty, or the exercise of the power, are a county charge. The duty embraces whatever is essential to bring a criminal to trial as well as the proceedings on trial; and so, if he is in a foreign jurisdiction, it in- cludes efforts to effect his arrest and custody for the purpose of extradition, in order that he may be brought within the jurisdiction of the court. People ecc rel. Owrdinier v. Supervisors of Columbia County, 134 N. Y. 1; 31 N. E. 322; see, also, Matter of Pinney, 17 Misc. 24; 40 N. Y. Supp. 716. The above subdivision has been held to embrace within its terms the expenses necessarily incurred by a district attorney in procuring the attend- ance of medical experts at the trial of an indictment for murder. People ex rel. Tripp v. Supervisors, 22 Misc. 616; 50 N. Y. Supp. 16. Although a charge for the employment of an expert in making tests and giving evidence upon the trial of an indictment for murder is authorized, without the con- sent of the board of supervisors first obtained, a claim for services so rendered is subject to the adjudication of such board, and that body is not concluded by a contract entered into between the district attorney and the expert, by which the compensation of the latter is fixed. People ex rel. Ha/milton v. Supervisors of Jefferson County, 35 App. Div. 239; 54 N. Y. 8upp. 782; see, also. People ex rel. Sherman v. Supervisors of St. La/inrenoe County, 31 How. Pr. 173. 32 Counties J Eoaeds of Supervisoes. County Law, § 230. 3. The compensation of the county officers, their subordinates and assistant, which are payable by the county ;' 4. The compensation of the criers of the courts of record within the county for attendance thereat, at three dollars per day, and also traveling fees, at the rate of five cents per mile, for going to and returning from the place of attendance except in the county of Queens where the crier shall receive a yearly salary of twelve hundred dollars payable monthly by the county.' ^Thus amended by L. 1896, ch. 439, and L. 1902, ch. 507.] Accounts of district attorney for expenses. A district attorney, who incurs expenses in connection with criminal actions or proceedings aris- ing in his county, should, when presenting his bill to the board of super- visors, specifically state therein the nature ol such expenses so that the board may determine whether they were expenses necessarily incurred by him within the meaning of the above subdivision. A board of supervisors may properly refuse to allow a bill containing items for " expenses " to and at different places within the county on certain dates, where one of the items states the nature of the expenses and only a portion of them specify the matter in connection with which the expenses were incurre>5. Matter of White, 51 App. Div. 175; 64 N. Y. Supp. 726. Tie costs of any commission in Innacy, pursuant to the provisions of the chapter of the Code of Criminal Procedure, relating to an inquiry into the insanity of the defendant, before or during trial or after conviction, are a charge upon the county in which the commission shall have been executed. The commissioners are entitled to such compensation for their services as the court may direct. Code Crim. Proc, § 662a, as added by L. 1903, ch. 129. 7. Compensation of connty officers. Unless otherwise provided by statute the compensation of county treasurers, district attorneys and super- intendents of the poor is fixed by the board of supervisors, and the board also fixes the number, grade and pay of the clerks, assistants and employees in such offices. See County Law, § 12, sub. 5, post, p. 46. 8. Conrt criers. Section 91 of the Code of Civil Procedure, as amended by L. 1895, ch. 946; L. 1901, ch. 387; L. 1903, ch. 601, and L. 1906, ch. 629, in eff'ect September 1, 1906, is as follows: "The county judge of each county, except Kings and Erie, from time to time, may appoint and at pleasure re- move, a crier for the courts of record held in his county, who is entitled to a compensation fixed and to be paid as prescribed by law, except in the county of Westchester, where the compensation of such crier shall be fixed by the county judge, not to exceed the sum of one thousand two hundred dollars a year to be paid in equal monthly payments by the treasurer of Westchester county in full compensation for all services rendered by him, and except in the county of Queens, where the compensation of such crier shall be the sum of one thousand eight hundred dollars a year to be paid in equal monthly payments and to be a county charge. The justices of the Supreme Court residing in the eighth judicial district, together with the county judge of Erie county, or a majority of them, shall appoint, and may at pleasure remove one or more criers for all the courts of record held in the said county of Erie. Such criers appointed for Erie county shall each Audit; County Charges. 33 County Law, § 230. 5. The compensation of the» sheriff for the commitment and discharge of his prisoners on criminal process within the county, and for summoning constables to attend court; 6. Compensation allowed by law to constables for attending courts of record, and the compensation allowed by law to con- stables and other officers, for executing process on persons charged with a felony; for services and expenses in conveying such per- sons to jail ; and for the service of subpcenas issued by the district attorney and for other services in relation to criminal proceed- ings and support of prisoners in transit, for which nO' specific compensation is prescribed by law, and which are noti a. town charge, as prescribed by article seven of the town law ; but no charge for issuing or serving any subpoena in any criminal action or proceedings issued or served on behalf of a defendant shall be allowed, unless otlierwise ordered by the court in which the action or proceeding was pending;" receive one thousand two hundred dollars a year, to be paid in equal monthly payments by the treasurer of Erie county in full compensation for all ser- vices rendered by them." Except as provided in this section of the code the compensation of court criers is fixed by the above subdivision. 9. Compensation of sheriff. In all counties except those where by statute the office of sheriff is made salaried, the fees which the sheriff is authorized to charge for his services belong to him. For list of statutes making office of sheriff salaried, see post, p. 121. For list of fees charge- able by sheriff for services performed by him, see ch. 71, post. The accounts of the sheriff for receiving prisoners into and discharging them from jail, and for their board while confined therein, are properly county charges. The liability of the county extends not only to such offi- cial services in cases strictly criminal, but includes also quasi criminal offenses, such as violations of city ordinances, the only distinction being that in the latter ease instead of the statutory fee, the board of supervisors have power to fix the compensation. People ex rel. Van Tassel v. Supervisors of Columbia County, 67 N. Y. 330; Ross v. Supervisors of Cayuga County, 38 Hun, 20. In the absence of a statute, the expense for stationery furnished to a sheriff is not -a. county charge. People ex rel. Broun v. Oreene, 46 How. Pr. 302; 2 T. & C. 23. 10. Compensation of constables for attending courts. Section 3312 of the Code of Civil Procedure, as amended by L. 1899, ch. 525, and L. 1903, ch. 487, taking effect September 1, 1903, provides as follows: "A constable or a deputy sheriff is entitled, for attending a sitting of a court of record, pursuant to a notice from the sheriff, to the following fees: For each day's actual attendance, in any county in the state, two dollars, ex- 34: Counties; Boards of Supeevisoes. County Law, § 230. 7. The expenses necessarily incurred in the support of persons charged with, or convicted of crimes, and committed to the jails of the county;" cept that in the counties of Albany and Genesee the compensation shall be ';hree dollars, and mileage as allowed by law to trial jurors in courts of record, and except also in the county of Westchester, where the compensa- tion shall be three dollars per day. Those fees must be paid by the county treasurer, upop the production of the certificate of the clerk, stating the number of days that the constable or deputy sheriff attended. But the provisions of this section shall not be applicable to the counties of Kings, New York and Erie. All other acts or section of acts conflicting herewith are hereby repealed." For fees of constables for services rendered in criminal proceedfngs as prescribed by L. 1866, eh. 692, sec. 8, as amended by L. 1877, ch. 89, see post, ch. 71. By E. S., pt. 4, eh. 2, tit. 8, see. 4, the board of supervisors may allow such further compensation for the service of process and the expense and trouble attending the same as they shall deem reasonable; and for such other services in criminal cases, for which no compensation is specially provided by law, such sum as the board of supervisors of the county shall allow. Mileage of constables. By L. 1836, eh. 506, sec. 1, it is provided that ■• whenever a subpoena for witnesses in criminal cases or complaints, con- taining one or more names, shall be served by a constable or other oflBcer, such officer shall be allowed for mileage only for the distance going and returning, actually traveled to make such service upon all the witnesses in such case of complaint, and not separate mileage for each witness, unless the board of supervisors auditing accounts for such services shall deem it equitable to make a further allowance." ■Wben a town charge. The fees of a constable in criminal proceed- ings or actions tried before a magistrate of the town where the offence is charged to have been committed are a charge against such town. See Town Law, sec. 165, post, p. 810. Conveyance of prisoners. The provisions of the above subdivision relating to the compensation of constables for services and expenses in con- veying criminals to jail and for other services in relation to criminal pro- ceedings should be construed in connection with section 165 of the Town Law, post p. 810. In the ease of People ex rel. McGrath v. Supervisors of Westchester County, 53 Hun, 157; 6 N. Y. Supp. 153, it was held that the account of a constable for fees and expenses in conve^nng to the penitentiary prisoners convicted and sentenced in a court of special sessions in his town was a town and not a county charge, so that a refusal of the board of super- visors of the county to audit it as a county charge was proper. But see People ex rcl. Bancroft v. Supervisors of Oranije County, 18 Hun, 90. The fees of sheriffs and other officers for tlie transportation of convicts to state prisons and houses of refuge are fxed by statute and arc to be paid by the state. See L. 1847, ch. 497, sees. 3-C ; L. 1849, ch. 123, sec. 1; L. 1877, eh. 128, extract from sec. 1, p. 138. Audit; County Chakges. 35 County Law, § 230. 8. The sums required by law to be paid to witnesses in criminal actions and proceedings;" Compensation for conveying juvenile delinquents. It is provided by L. 1859, ch. 254, sec. 1, that: "The boards of supervisors in the respective counties of this state are hereby empov?ered, and it shall be their duty, annually to fix and determine the compensation to be allowed and paid to officers for the conveyance of juvenile delinquents to the houses of refuge, and of lunatics to the insane asylums, and no other or greater amount than that fixed and determined shall be allowed and paid for such services." 11. Contracts with sheriffs. The board of supervisors is authorized by sec. 12, sub. 15, post, p. 50, to contract with the sheriff of the county for the board, maintenance and care and custody of prisoners committed to the county jail of his county. Prior to the insertion of this subdivision in section 12 it was held that the board of supervisors had no power to make a contract to pay to the sheriff a fixed weekly rate for the board of each prisoner, determined without regard to the expense incurred. People ex rel. Caldwell v. Supervisors of Saratoga County, 45 App. Div. 42; 60 N. Y. Supp. 1122. It would seem under the ruling in this case that where a contract had not been made with the sheriff for the board of the prisoner, that the sheriff would only be entitled to reimbursement for the moneys actually expended by him in boarding the prisoners. A civil prisoner con- fined in jail under an execution or for a contempt is to be supported at the expense of the county if he makes oath before the sheriff, jailer or deputy jailer that he is unable to support himself during his imprisonment. See Code Civ. Proc, sees. Ill, 112, post, pp. 149-151; People ex rel. Tracey v. Green, 47 How. Pr. 382. As to contracts with sheriff for the support and maintenance of civil prisoners, see Note 16, post, p. 50. 12. Fees of witnesses in criminal actions. The following sections of the Code of Criminal Procedure relate to fees of witnesses in criminal actions : § 616. A witness in behalf of the people in a criminal action in a court of record is entitled to the same fees and mileage as a witness in a civil action in the same court, payable by the treasurer of the county upon the certifi- cate of the clerk of the court, stating the number of days the witness actually attended and the number of miles traveled by him in order to attend. Such certificate shall only be issued by the clerk upon the produc- tion of the affidavit of the witness, stating that he attended as such either on subpoena or request of the district attorney, the number of miles neces- sarily traveled and the duration of attendance. An officer in any state department who attends as a witness under this section in his official capacity, or in consequence of an official action taken by him, and who receives a fixed sum in lieu of expenses, or who is entitled to receive the actual expenses incurred by him in the discharge of his official duties, is not entitled to the compensation herein provided. § 617. In any such action, the court may also, in its discretion, by order, direct the county treasurer to pay a reasonable sum, to be specified in the order, to any witness attending in behalf of the defendant, not exceeding the amount payable to a witness in a civil action in the same court. Upon the produftion of the order or a cevtif^cd copy thereof, the county treasurer must pay the witness the sum specified therein, out of the county treasury. 36 Counties; Boaed of Supeevisoes. County Law, § 230. 9. Tiie moneys necessarily expended by any county ofiScer in executing the duties of his office in cases in which no specific com- pensation for such services is provided by law/^ including in any county where the duties of county judge and surrogate are per- formed by the same officer, except in the county of Herkimer, the actual and necessary expenses of such officer and his clerk, in- curred in holding court, by authority of the board of supervisors, at a place or places other than the county seat or place of residence of such officer or clerk. (Thus amended hy L. 1906, ch. 14:.) 13. Moneys necessarily expended by county officers. Bj this sub- division the necessary expenditures of a county officer in the discharge of his official duties, not otherwise specifically provided for, are made a legitimate county charge. In the case of People ex rel. Hall v. Supervisors of New York, 32 N. Y. 473, 475, the court said: "The import of the words 'necessarily ex- pended ' is sufficiently evident, when we consider the purpose for which they were inserted, and the nature of the subject to which they are applied. They relate not to the necessity of payment as between the officer and the party to whom it is made, — which would be satisfied, perhaps, by nothing short of the power of legal compulsion, — but to the necessity of the expenditures having reference to what is due to the public and the law, iiT the efficient and faith- ful discharge of official duty. . . . Expenditures are to be deemed necessary within the plain intent of the statute, when, as in the present ease, they are not only needful and proper — as contradistinguished from such as are need- less and improvident — but also reasonable, appropriate and customary in the discharge of the particular official duty." The expenditures which are made by the statute a charge against the county are not limited to those of which payment can be covered by civil action against the officer. This proposition is the result of the reasoning of the court in the above case. But the expenditures of the officer must have been made by the officer in the performance of duties which are for the benefit of the county alone. People ex rel. Kelly v. Haices, 12 Abb. Pr. 192; 21 How. Pr. 117. The expense incurred by a superintendent of the poor in the employment of counsel to conduct proceedings in bastardy, the direct object of which is to indemnify the county and protect it from loss, may be allowed to the su- perintendent as an expense necessarily incurred by him in the performance of his duties. Neary v. Rohinson, 98 N. Y. 81, 85. Section 3 of L. 1898, ch. 588, establishing the county of Nassau, which pro- vides that the sheriff of the county shall receive an annual salary of not more thaji $2,500, and that all fees for his services shall be paid into the county treasury, does not prevent the sheriflf from receiving, under the above subdi- vision, traveling expenses necessarily incurred in the execution of process de- livered to him. People ex rel. Wood v. Denton, 41 App. Div. 386; 58 N. Y. Supp. 722. And an expenditure by the county clerk of Kings county in ar- ranging papers which were scattered and mixed by reason of the fall of a large number of cases in his office, without fault on his part, was held to be a proper county charge. Worth v. City of Brooklyn, 34 App. Div. 223 ; 54 N. Y. Supp. 484. Services. In the discharge by a county officer of the duties of his office, it is evident that he will often be compelled to expend moneys for the per- formance of services which he is not required by law to personally perform. The above subdivision refers to disbursements necessarily expended for such services, and not money paid for work which it is his duty to himself per- form. Matter of Walsh v. Supervisors of Albany Co.. 20 App. Div. 489; 47 Audit; County Charges. 37 County Law, § 230. 10. Tha accounts of the coroners of the county for such ser- vices as are not chargeable to the person employing them ;" 11. The accounts of the county clerks, for the services and expenses incurred under the la,w resptjcting elections, other than for militia and town officers;" 12. The sums required, to pay tlie bounties authorized by reso- lution of the bo'ard of supervisors for the destruction of wild animals and noxious weeds, unless the supervisors, by resolution, direct that any such bounties shall be town charges. '[Thus amended by L. 1893, ch. 116:] IB. The compensation of the members of the board of super- visors ;" N. Y. Supp. 35. In this ease it was held that section 3280 of the Code of Civil Procedure providing that: "Each clerk of the court must perform all duties required of him, in the course and practice of the court, without fee or reward except as expressly prescribed by law," was not repealed by the subsequent enactment of the above subdivision, and that therefore a county clerk is not entitled to have allowed to him by the board of supervisors as a county charge moneys which he paid to his assistants for assorting and arranging jury slips. 14. Fees of coroners, generally, see R. S., pt. 4, ch. 2, tit. 8, sec. 10, post, ch. 71; L. 1873, ch. 833, post, p. 163. Coroners are authorized to em- ploy surgeons to make post mortem examinations, and the expense is a county charge. L. 1873, ch. 833, sec. 2, post, p. 163. As to recovery of value of services from county, see People ex rel. Cosford v. Supervisor's of Nmgara Co., 15 N. Y. Supp. 680; 38 N. Y. St. Rep. 964. But coroners cannot em- ploy an expert to make a chemical analysis of the remains of a deceased person, or of other substances in connection with the cause of his death. Doremus v. Mayor, etc., 6 Daly, 121. The expense incurred by the district attorney for such a purpose would be a proper county charge. See sub. 2 of the above section, ante, p. 31. A board of supervisors cannot audit an account of a. coroner unless he presents a, statement of property and money found on the body of a deceased person, as provided by Code Crim. Proc. sec. 788, post, p. 163. 15. Election expenses. The expense of printing and delivering official ballots, sample ballots and cards of instructions, poll books, tally sheets, return sheets for inspectors and ballot clerks, and distance markers, at an election where no town meeting or village election is held at the same time is a charge upon the county. If a town meeting or village election is held at the same time as a general election the expense is to be apportioned by the county clerk upon the county, town and village. See Election Law, sec. 18; Jewett's Election Manual, 1903, p. 22. 16. Compensation of members of boards of supervisors. See County Law, sec. 23, ante, p. 12. 38 Counties; Boaeds of Supeevisobs. County Law, § 230. 14. The charges and accounts for services rendered by justices of the peace in the examination of felons, and in other criminal proceedings, as mentioned in section 165 of the Town Law, when not otherwise provided for;" 15. The expenses necessarily incurred, and sums authorized hy law, or by the board of supervisors, pursuant to law, to be raised for any county purpose ;" 17. As to fees of justices in criminal actions and proceedings, see Town Law, sec. 165, post, p. 810, and notes thereunder. 18. Expenses for any connty purpose. This subdivision seems to authorize generally the charge against the county of any expense neces- sarily incurred by the board of supervisors in protecting the interests of the county. But no such charge will exist unless the act, in connection with which the expense was incurred, was authorized and done pursuant to statute. People ex rel. Eadley v. Supervisors of Albcmy Co., 28 How. Pr. 22. Contingent expenses. Services rendered by an ofScer specially for the benefit of the county, if there is no specific provision of law for payment, constitute a part of the contingent charges of the county, to be audited by the board. Bright v. Supervisors of Chenango Co., 18 Johns. 242; Double- day V. Supervisors of Broome Co., 2 Cow. 533; Brady v. Supervisors of New York Co., 2 Sandf. (Super. Ct.) 460; affd., 10 N. Y. 260. But it would be otherwise where it appears to have been the intention of the legislature that no compensation should be made. Mallory v. Supervisors of Cortland Co., 2 Cow. 531. Discount alloTved to a, bank by an employe of a, county on discounting a claim for services is not a county charge. People ex rel. Johnson v. Supervisors of Ulster County, 43 Hun, 385. Buildings and other county property. The expense of equipping and furnishing a county jail is a county charge. Schenck v. Mayor, etc., of New York, 67 N. Y. 44. The necessary expenses incurred in keeping in repair and in a condition for use, the court rooms which the coimty is required to provide, or any other property of the county, are county charges. People ex rel. McSpedon v. Stout, 23 Barb. 349; 13 How. Pr. 314. Court rooms and furniture. It is provided by section 31 of the Code of Civil Procedure, as amended by L. 1899, ch. 67, that: " Except where other provision is made therefor by law, the board of supervisors of each county, and in the city of New York the municipal assembly thereof, must provide each court of record, appointed to be held therein, with proper and con- venient rooms and furniture, together with attendants, fuel, lights, and stationery suitable and sufficient for the transaction of its business; and, upon an order of the court, for suitable and proper food and lodging and expenses for a jury kept together either during the progress of the trial or after their retirement for deliberation. If the supervisors, or said muni- cipal assembly, shall neglect so to do, the court may order the sheriff to make the requisite provision; and the expense incurred by him in carrying the order into effect, when certified by the court, is a county charge." Audit; County Chaeges. 39 County Law, § 230. 16. The reasonable costs and expenses in proceedings before the governor for the removal of any county ofEcer upon charges preferred against him, including the taking and printing of the testimony therein;" 17. All judgments duly recorded against a county;" 18. All damages recovered against, or ooata and expenses lar^- fully incurred by a county ofEcer in prosecuting or defending an In the case of People ex rel. Westbroolc v. Supervisors of Mon,tgomery County, 34 Hun, 599, it appeared that the board of supervisors of Mont- gomery county had provided a proper and convenient room for the use of the surrogate in the county court liouse at Fonda, and refused to provide one at Amsterdam when requested so to do by the surrogate. Thereupon the surrogate made an order for his office at Amsterdam, and directed the sheriff to furnish a suitable office and furniture therefor at that place. Upon an application to compel the board of supervisors to pay the rent and expenses thereby incurred, it was held that as the board had provided a proper oflSce and furniture, it could not be compelled to pay for any other. Conrt expenses. As there are contingent expenses necessarily incurred in the holding of courts, for which there is no express statutory provision, and as the board of supervisors must provide a fund to be placed in the hands of its county treasurer " to pay such contingent expenses as may be- come payable from time to time," it necessarily follows that a court h 'd in a county must determine what is a, lawful and proper charge upon such fund. People ex rel. Cole v. Supervisors of Greene Co., 15 Abb. N. C. 447; 2 How. Pr. N. S. 483; affd., 39 Hun, 299. 19. Removal of county officers. Section 1 of art. 10 of the constitu- tion provides that the governor may remove a sheriff, county clerk, district attorney and register within the terms for which he shall have been elected ; giving to such officer a copy of the charges against him, and an opm^rtu-ity of being heard in his defense. Sections 23 and 24 of the Public Officers' Law, provide for the removal by the governor of a county treasurer, county superintendent of the poor, coroner or register of a county. See post, p. The costs and expenses of proceedings for the removal of county officers by the governor, are by the above subdivision made a county charge. Such costs and expenses include counsel fees in the prosecution of the charg's. People ex rel. Benner v. Supervisors of Queens County, 39 Hun, 4i1. And In this case it was also held that the attorney general may employ ST-cial counsel to prosecute the charges, and the expense of such employment is a county charge under the statute. Such costs are a county charge although the proceedings were instituted by the president of u taxpayers association, who appeared as an individual complainant. People ex rel. Smart v. Board of Supervisors, 66 App. Div. 66, 72 N. Y. Supp. 568. In auditing and allowing the costs and expenses incurred in proceedings for the removal of a county officer the board ofsupervisors may, when a claim is presented therefor, examine the items thereof and determine whether or not such costs and expenses were reasonable, and whether or not they were neces- sarily incurred. People ex rel. Benedict v. Supervisors of Oneida County, 24 Hun, 413. 20. Judgements against a county. It is provided by R. S., pt. 3, oh. 8, tit. 4, sec. 102, that all judgments rendered against the board of 40 Counties; Boaeds ok Supeevisoes. County Law, § 230. action or proceeding brought by or against the county or such officer, for an official act done, when such act was done, or such action or proceeding was prosecuted or defended pursuant to law, or by authority of the board of supervisors; and any such damages so recovered, or costs and expenses incurred by any such officers, for any act done in good faith in his official capacity, without any such authority, may be made a county charge by a majority votie of all the members elected thereto." [^County Law supervisors of a county or against the county superintendents of the poor on account of the liability of such county, shall be laid before the board of supervisors of the county at an annual meeting thereof, if required by such board; and by section 103 it is provided that the board of supervisors shall cause a tax to be laid upon the county for the amount of such judgment. Section 20 of the General Municipal Law, post, p. 941, provides that where a final judgment has been recovered against a municipal corporation and the execution thereof is not stayed, the treasurer of such corporation shall pay such judgment upon the production of a certified copy of the docket thereof. 21. Payment of counsel fees. Since a board of supervisors has au- thority to institute proceedings in behalf of the county, the fair charges of the attorneys and counsel employed by them in such proceedings are a legal demand against the county, although the board may misjudge in regard to the county having a cause of action in a particular case. Oillespie v. Broas, 23 Barb. 370. The district attorney of any county in which a capital or other criminal action is to be tried, may with the approval of a county judge employ counsel to assist him on such trial; and the costs and expenses thereof are a charge upon the county. See County Law, sec. 204, post, p. 111. Super- intendents of the poor may employ counsel and their compensation is a county charge. Neary v. Robinson, 98 N. Y. 81. Other county charges. Statutes imposing certain obligations upon county officers frequently expressly provide that the expenses incurred shall be a county charge. The above section of the County Law is general in its purpose and includes as charges against the county all claims which have been by such statutes declared to be county charges. Reference should be made to the various chapters and sections of this work relating to the powers and duties and liabilities of county officers for the purpose of determining what may be declared as proper county charges. It may be well, however, in this connection to cite a few special statutes in which claims for services and expenses are specially prescribed to be county charges. By L. 1899, ch. 700, it was provided that any county official who shall have been successfully defended in proceedings to remove him from office might present a. claim for his expenses in such proceedings and have the same audited and allowed by the board of supervisors. But in the case of Audit; County Charges. 41 County Law, § 232. (L. 1892, ch. 686), § 230; Heydecher's Gen. L. (2d ecf.), p. 1258.J § 7. County charges, how raised. The moneys necessary to defray the county charges of each county shall be leivied on the taxable property in the several towns therein, in the manner prescribed in the general laws Matter of Straus, 44 App. Div. 425; 61 N. Y. Supp. 37, and Matter of Jensen, 44 App. Div. 509; 60 N. Y. Supp. 933, this act was declared un- constitutional, since the county being under no legal or moral obligation to pay such a claim, it was in the nature of a gift to the claimant. County detective. By L. 1897, ch. 62, the county judge of a county containing a population of not less than one hundred and twenty-five thou- sand inhabitants, and adjoining a county containing a population of not less than one million inhabitants, may appoint a county detective for such county. This act would seem to apply only to the counties of Westchester and Queens. The compensation of a county detective appointed thereunder is made a county charge. Costs and compensation of counsel in mnrder cases. Where ser- vices are rendered by counsel assigned to defend a person indicted for an oflFense which is punishable by death, the court in which the defendant is tried may allow such counsel his expenses, and also reasonable compensa- tion for his services not exceeding the sum of $500, which allowance is a charge upon the county in which the indictment is found, to be paid out of the court fund. See Code Crim. Proc, sec. 308. In such cases the attor- ney for the defendant is entitled to a copy of the stenographic minutes of che entire proceedings upon the trial, the expense of which is a county charge, payable to the stenographer out of the court funds upon the certifi- cate of the judge presiding at the trial. See Code Crim. Proc, sec. 456. The expense of printing calendars for a term of the supreme court or a county court is a. charge upon the county in which the term is held; and "can be audited, allowed and paid by the board of supervisors thereof, in like manner as other contingent county charges, except that the expenses of printing the copies of the calendar for the terms of the appellate division of the supreme court, which shall be a charge upon the state, and shall be audited by the comptroller and paid out of the treasury of the state." See Code Civ. Proc. sec. 20, as amended by L. 1899, ch. 523. Stenographers' fees. A court stenographer is entitled to his fees for .ninutes furnished to the district attorney or attorney general in a criminal case, which fees are a county charge and must be paid by the county treas- urer like other county charges. Code Civ, Proc, sec 8C. The board of supervisors of each county must provide for the payment of the sums chargeable upon the treasury of a county for the salary, fees, or expenses of the stenographer or assistant stenographer; and all laws relat- ing to raising money in a county by the board of supervisors thereof, are applicable to those sums. 42 Counties; Boaeds of Supervisoes. County Law, § 232. relating to taxes; and in, order to enable the county treasurer to pay such, expenses as may become payable from time to time, the board of supervisors shall annually cause such sum to be raised Siupreme court stenogrophers in second district. It is provided by see. 256 of the Code of Civ. Proo. that: "Each justice of the Supreme Court for the second judicial district, who does not reside in the county of Kings must appoint, and may at pleasure remove a stenographer, who must attend, as directed by the justice appointing him, the terms of the appellate division and the trial and special terms of the Supreme Court, held in the counties of Suffolk, Queens, Richmond, Westchester, Rockland, Putnam, Dutchess or Orange, and when not thus officially engaged, the stated terms of the County Court, in each of those counties." Section 257 of the Code provides that: — "Each stenographer, appointed as prescribed in the last section, is entitled to a salary fixed by law. To make up and pay the salaries, the board of super- visors of each of the said counties must annually levy, and cause to be col- lected, as a county charge, a proportionate part of the sum necessary to pay the same, to be fixed by the comptroller of the state, in accordance with the amount of the taxable real and personal property in each county, as shown by the last annual assessment-roll therein. The treasurer of each county must pay over the sum so raised, to the comptroller of the state, who must thereupon pay the salary of each stenographer, in equal quarterly payments, under the direction of the justice making the appointment." Conrt stenographers in other districts. Section 258 of the Code, as amended by L. 1903, eU. 173, and L. 1904, ch. 58, reads as follows: "In ad- dition to tne stenograpliers appointed under special laws, the justices of the Supreme Court, or a majority of them, for each judicial district, excepting the first, second, third, fifth, seventh and eighth, shall appoint, and may at pleasure remove, three stenograpliers. The justices of the Supreme Court, or a majority of tliem, for the fifth judicial district, shall appoint, and may at pleasure remove, five stenographers of the Supreme Court for such district. The justices of the Supreme Court, or a majority of them, for the third and seventh judicial district, sliall respectively appoint and may at pleasure re- move, four stenographers of the Supreme Court for each of such districts. The justices of the Supreme Court for the eighth judicial district shall ap- point, and may at pleasure remove, seven stenographers of the Supreme Court for such district. Each of the stenographers shall attend such special and trial terms of the Supreme Court in his judicial district as he shall be assigned to attend by the justices of the Supreme Court, or a majority of them, for such district. Each of such stenographers shall receive an annual salary of twenty-five hundred dollars, to be paid by the comptroller of the state in equal quarterly payments, upon the certificate of a justice of the Supreme Court of the judicial district for which he shall have been appointed." Audit; County Chaeges. 43 County Law, § 232. in advance in their county, as they may deem necessary for sncli purpose. [County Law (L. 1892, ch. 686), § 232; Heydecker i Gen. L. (2d ed.), p. 1260.] Sections 259 and 260 of the Code of Civ. Pioc. provide the means for thj payment of the salaries and expenses of the stenographers in such districts. Such sections are as follows: Sec. 259. To provide the means to pay such salary the comptroller of the state shall, on or before the first day o" November in each year, fix and transmit to the clerk of the board of supervisors in each of the counties in said district a statement of the sum to be raised by such board of super- visors, in accordance with the amount of taxable real and personal prep.;, (.y in each of said counties as shown by the last annual assessment-roll therein. The boards of supervisors in each of such counties shall annually levy and cause to be collected in such county and to be paid over to the cou- ty treasurer thereof, the sum so fixed by the comptroller to be raised by such board of supervisors, and such county treasurer shall pay such sum to the comptroller of the state for the payment of said salaries. Until the first day of January, eighteen hundred and ninety-one, the clerks of the counties composing the seventh judicial district in which a term of court specified in section one of this act is held must furnish the stenographer attending t' c same with a certificate of the number of days the term has been in session. Upon the certificate so furnished, the Supreme Court or special term thereof, held within said judicial district, may, not oftener than once in six mo ths, by order, apportion to each county in said district such a portion of the stenographer's salary as the number of days during which one or more terms were in session in that county bears to the whole number of day.3 during which the terms were in session in that district since the last ap- portionment was made. Upon the presentation of a certified copy of such an order, each county treasurer must pay to the stenographer, fro"i t'l" court fund, or the fund from which jurors are paid, the sum so apportion' d to his county. Sec. 2C0. Each of those stenographers is also entitled to payment of his actual and necessary expenses, while attending court, including statione y and ten cents for each mile for his actual travel, between the place of hold- ing each term and his residence, going and returning, or from term to term, as the case may be. The amount thereof must be certified by the judge holding or presiding at the term, and must be paid, upon his certificate, by the treasurer of the county where the term is held, from the court fund, or the fund from which jurors are paid. But mileage shall not be computed beyond the bounds of the judicial district, except when the usual line of travel, from one point to another within that district, passes partly through another judicial district. 44 Counties; Boards of Supeevisobs. County Law, § 12. CHAPTER IV. QENEEAL POWEES OF BOAEDS OF STJPEEVISOES ; PTTBLICATIOK OF SESSION laws; eemoval of county buildings; othee POWEES. Section 1. General powers of boards of supervisors. 2. Legalization of informal acts of town meeting or village election. 3. Session laws, designation of newspapers for publication of. 4. Session laws, how published; expense of publication. 5. Slips of session laws and current resolutions to be forwarded to newspapers. 6. Session law slips to be forwarded by county clerks to clerks of towns, villages and cities. 7. Newspapers designated to publish election notices and official notices. 8. County buildings, location of may be changed; petition for change beyond boundaries of village or city. 9. Action of board upon presentation of petition for change of location. 10. Submission of question of removal of county buildings to vote of people. 11. Board may establish fire district outside of an incorporated vil- lage; fire commissioners; levy of taxes for fire protection. 12. Soldiers' monument, board of supervisors may appropriate moneys for the erection of. § I. General powers of boards of supervisors. The bo'ard of supervisors shall :' 1. General powers of Ijoard. The constitution (art. Ill, sec. 27), empowers the legislature by general laws to confer upon boards of supervis- ors of the counties such further powers of local legislation and administra- tion as it may from time to time deem expedient. Such boards are legis- lative bodies, in many respects of limited powers; but where they have jurisdiction, they may act for the county precisely as the legislature may act for the state. If they act without jurisdiction their acts are void, the same as is the action of the legislature when in violation of any provision of the constitution. People ex rcl. HotchJdss v Supervisors of Broome Co. 65 N. Y., 222. The acts of a board of supervisors within their statutory powers are legis- lative and not judicial, and they cannot be reviewed by certiorari. People ex rel. O'Gormor v. Supervisors of Queens County, 153 N. Y. 370; 43 N. E. 790; People ex rel. Village of Jamaica v. Supervisors of Queens 131 N. Y. 468; 30 N. E. 488. Boards of supervisors, in the exercise of the legislative powers conferred upon them by the constitution, are not confined in their action to the Geneeal Powebs of Boabds of Supjeevisoes. 46 County Law, § 12. 1. Cov/nty property. Have th.e oare and custody of tihe cor- porate property of the county.' [^County Loav (L. 1892, ch. 686), § 12, sub. l.J 2. Audit. Annually audit all accounts and charges against the county, due or to become due, during the ensuing year, and direct the raising of sums necessary to defray them in full.' [/cZem, sub. 2.J 3. Town charges. Annually direct the raising of such sums in each town as shall be necessary to pay its town charges.' {Idem, sab. 3. J bare letter of the statute enacted to carry out the constitutional provisions, but may, in the exercise of a, sound discretion, act under powers that are to be fairly implied. Within the limits of the powers constitutionally dele- gated by the legislature, each board is clothed with the sovereignty of the state, and is authorized to legislate as to all details precisely as the legis- lature might have done in the premises. People ex r',l. Wakely v. Mclntyre, 154 N. Y. 628, 49 N. E. 70. In this case Bartlett. J., said: "The evi- dent intent of the framers of the constitution in permitting the legislature to delegate certain of its powers to the local boards was to carry out a public policy which assumes that the interests of a particular locality are best subserved by those who are familiar with its affairs. It would be quite impossible for a board of supervisors to properly legislate in regard to local affairs, if it were not at liberty to resort to those implied powers, within the limits of its jurisdiction, vested in the legislature of the state." But, as was remarked by Parker, Ch. J., in the case of Weston v. City of Syracuse, 158 N. y. 274, 287, while it is true that a board of supervisors is clothed with the sovereignty of the state to legislate as to all details, within the limits of its delegated powers, " there are many duties devolved upon boards of supervisors by the legislature which are not legislative in character, but are administrative, and in some cases quasi judicial in nature, and not at all impressed with the character of sovereignty." 2. County property. As to change in the location of county build- ings, see County Law, sec. 31, post, p. 59. Records of conveyances in the office of the county clerk are not county property, and even if so regarded, the board is not authorized by the above subdivision to purchase new in- dexes for such conveyance?, as such subdivision does not apply to the ac- quisition of new property. People ex rrl. Welch v. Nash, 3 Hun, 535; affd. 62 N. Y. 484. But in the case of SchencTc v. Manor, etc., of New York, 67 N. Y. 44, it was held that a board of supervisors has power to purchase, by virtue of its general and incidental powers, supplies to equip the county jail. 3. Audit of claims against the county, see preceding chapter. 4. Town charges, what are. See Town Law, post, p. 812. Audit of claims against the town, by the town board, see Town Law, sec. 162, post p. 805, and notes thereunder. Appeal from audit by town board of fees in criminal proceedings to board of supervisors, see Town Law, sec. 163, post, p. 808; and as to fees of officers in criminal proceedings, see Town Law, sees. 46 Counties; Boards of Supeevisobs. County Law, § 12. 4. Taxes. Cause to be assessed, leivied and collected, such, other assessments and taxes as shall be required of them by any law of the state. {^Idem, sub. 4.] 5. Salaries of county officers. Fix the salaries and compensa- tion of oounty treasurers, district attorneys and superintendente of the poor of their county, which shall be a county charge, and not to be changed during the termi of any such officer; and pre- scribe the mode of appointment, and fix the number, grade and pay of the clerks, assistants and employes in such offices, when not otherwise fixed by law, which shall be a oounty charge.' [Idem, sub. 5. J 6. Mcuy harrow money. Borrow money when they deem it nec- essary, for the erection of county buildings, and for the purchase of sites therefor, on the credit of the county, and for the funding of any debt of the county not represented by bonds, and issue county obligations therefor, and for other lawful county uses and purposes ; and authorize a town in their county to borrow money 164, 165, Tpost, p. 809. Accounts against towns to be itemized and verified, see Town Law, sees. 167, 168, post, p. 811. Abstracts to be made by town auditors of accounts audited against a town, and presented to board of super- visors. See Town Law, sec. 170, post,' p. 816. The supervisors are required to cause the amounts specified in the certificates of the auditors to be levied upon the towns, and they cannot review or reverse the action of the auditors. Osterhoudt v. Rigney, 98 N. Y. 222, 234. 5. Compensation of officers. The constitution (Art. III., sec. 28), provides that a board of supervisors shall not " grant any extra compensa- tion to any public oflacer, servant, agent or contractor." In the ease of People ex rel. Masterson, v. Gallup, 65 How. Pr. 108; 12 Abb. N. C. 65, it was held that a. resolution of the . supervisors of Albany county giving a clerk to the coroners of such county did not violate this constitutional provision. But the Court of Appeals held in this case on appeal that the board was not authorized by the above subdivision of this section of the County Law to appoint such clerk, since such subdivision applies only to those officers which by pre-existing law were entitled to a clerk. See 96 N. Y. 628; affg. 30 Hun, 501, but reversing the case above cited. The county treasnrer is himself entitled to the fees allowed by law for receiving and paying state taxes to the state comptroller, and the board has no power whatever over these fees. Supervisors of Monroe v. Otis, 62 N. Y. 88. Unless otherwise expressly provided by law the fees of a county treasurer on account of state taxes belong to him. Supervisors of Seneca v. Allen, 99 N. Y. 532. Where a salary is fixed the county treasurer is not entitled to fees. I'eople em tel. Conine v. Steuben County, 183 N. Y. 114. 6. County bonds. As to limitations of indebtedness of county, and resolutions authorizing the issue of obligations, see County Law, sees. 13, 14, Geisteeal Powees of Boards of Supeevisoes. 47 County Law, § 12. for town uses and purposes on its credit, and issue its. obligations therefor, when, and in the manner, authorized by law.' \_Idem, sub. 6.] 7. Animals and weeds, destruction, of. Make such laws and regulations as they may deem necessary for the destruction of wild and noxious animals and weeds within the county.' \_Idem; sub. 7.j 8. Fish and game. Provide for the protection and preserva- tion, subject to the laws of the state, of wild animals, birds and game, and fish and shell-fish, within the county ; and prescribe and enforce the collection of penalties for the violation thereof.' \_Idem, sub. 8.] 9. School commissioner districts. Divide any school oomimis- sioner's district within the county which contains more than two hundred school districts, and erect therefrom an additional school commissioner's district, and when such district shall have been formed, a school commissioner for the district shall be elected in •post, pp. 929, 932. As to municipal bonds generally, see General Municipal Law, sees. 2, 4, 11. Funded debt includes all county indebtedness embraced within or evi- denced by a bond, the principal of which is payable at a time beyond the current fiscal year of its issue, with periodical terms for the payment of interest, and where provision is made for payment by the raising of necessary funds by future taxation and the quasi pledging, in advance, of the county revenue. People ex rel. Peene v. Carpenter, 31 App. Div. 603, 52 N. Y. Supp. 781. 7. Town bonds. This subdivision vests generally in the board of supervisors the power to authorize a town to issue its bonds for the raising of money for a town purpose. If bonds of a, town are to be issued "for constructing, building, repairing or discontinuing any highway or bridge therein or upon its borders," application should be made as provided in sec. 69 of the County Law, post, p. 715. The above subdivision was not intended to apply only to such cases as are provided for by sec. 69 of the County Law, namely, for expenditures for highways and bridges. It is sufficiently broad to empower the board to authorize a town to raise, by the issue of bonds, funds necessary to acquire lands adjacent to a town hall. Jamaica Sav. Bank v. City of New York, 61 Anp. Div. 464, 70 N. Y. Supp. 967. As to resolution authorizing issuance of bonds by a town, see County Law, sec. 14, post, p. 932. 8. Noxious weeds. Town meetings may also provide for the destruc- tion of noxious weeds. Town Law, sec. 22, sub. 5, post, p. 243. 9. Fisli and game. The Forest, Fish and Game Law (L. 1900, ch. 20), has re<'uialLd the taking of fish and game within the several counties of 48 Counties; Boaeds of Stipeevisoes. County Law, § 12. the manlier provided by law for the election of sckool commission- ers." \_Idem, sub. 9.] 10. Opening wnd closing of county offices. Fix and regulate the time of opening and closing the county offices daily, except Sundays and holidays, where such time is not fixed by law." \_Idem,, sub. 10.] 11. Contracts with penitentiaries. Contract, at such times and upon, such terms as the board may by resolution determine, with the authorities of any other county for the reception into the penitentiary of such county, and the custody and employment at hard labor therein, of any person convicted within their county of any offense, other than a felony, and sentenced to- imprisonment in a county jail, or penitentiary, for a term exceeding sixty days.'' lldenVj sub. 11.] the state. That act does not authorize boards of supervisors to adopt local laws for the protection and preservation of fish and game. The legisla- ture having specially legislated on this subject, the board of supervisors cannot override such legislation. People v. Fish, 89 Hun, 163, 34 N. Y. Supp. 1013. The boards of supervisors of Queens, Nassau and Suffolk may respectively pass laws regulating and controlling the taking of fish and shell-fish in arms of the sea and fish bait from public lands of such counties, and pre- scribe what violations thereof shall be punishable as misdemeanors and to impose penalties, the same to be enforced under the provisions of article ten of this act. [Forest, Fish and Game Law, sec. 114, as amended by L. 1903> ch. 155.] 10. School commissioner districts. A county may be redivided if any school commmissioner district contained therein contains more than 100 school districts. See Consolidated School Law, tit. 5, sees. 2, 3, post, p. 882. 11. Hours of closing county offices. As to busness hours in office of county clerk, see County Law, sec. 165, post, p. 105; in oflice of sheriff, see County Law, sec. 184, post, p. 124. Holidays and half-holidays shall be considered as Sunday for all purposes relating to the transaction of business in the public offices of the state, and of each county. Public Officers Law, sec. 41. 12. Form of contract with a penitentiary of another county, see Form No. 5, post. Contracts. Board of supervisors cannot contract with the authorities of a, penitentiary for the support of felons. Commissioners of Charities v. Supervisors, 64 Hun, 195, 18 N. Y. Supp. 883. Contracts for keeping prisoners; notice to be published. It is provided by L. 1859, ch. 289, sec. 1, as amended by L. 1874, ch. 209, as follows : Geneeal Powees of Boaeds of Supeevisoes. 49 County Law, § 12. 12. Actions on undertakings. Cause an action to be brought upon the undertaking of any county officer, whenever a breach thereof shall occur. ■'^ [Idem, sub. 12. J 13. County buildings; acquisition of lands. Purchase, lease, or otherwise acquire, for the use of the county, necessary real prop" erty for courthouses, jails, alms-houses, asylums and other county buildings, and for other county uses and purposes;" and erect, alter, repair, or construct, any necessary buildings or other im- provements thereon for necessary county use, and cause to be levied, collected and paid, all such sums of money as they shall deem necessary therefor; to select such name as they may deem proper and appropriate for the alms-house of such coimty and thereafter to designate such alms-house by tlie name so selected; § 1. It shall be lawful for the several boards of supervisors in the sev- eral counties of this state to enter into an agreement with the board of supervisors of any county having a penitentiary therein, or with any person in their behalf by them appointed to receive and keep in the said peniten- tiary any person or persons who may be sentenced to confinement therein by any court or magistrate, in any of the said several counties in this state, for any term not less than sixty days. Whenever such agreement shall have been made, it shall be the duty of the said several boards of supervisors of the several counties aforesaid, to give public notice thereof, specifyinj in such notice the period of the continuance of such agreement, which said notice shall be published in such newspapers, printed in said several counties, not less than two, and for such period of time, not less than four weeks, as the several boards of supervisors of said several counties shall direct. 13. Actions on undertakings. The word "undertaking" includes an official bond. Statutory Construction Law, sec. 10. As to the force and effect of an oflBeial undertaking of a county officer, see County Law, sec. 237, post, p. 181. The sureties on the bond of a county treasurer are not exonerated by any neglect or malfeasance of the supervisors in passing upon his accounts. The bond is not conditioned for, and the law does not guar- antee such an examination. Supervisors of Monroe v. Otis, 62 N. Y. 88. The condition of a treasurer's bond that he should faithfully discharge his duties, involves the obligation of making correct reports, conforming to the requirements of the statute, and the failure so to do is a breach of this condition. Supervisors of Tompkins Co. v. Bristol, 99 N. Y. 316. 14. Acquisition of real property. A county, if unable to agree with the owners, may acquire title to real property by condemnation. See General Municipal Law, sec. 22, post, p. 942. Proceedings for the acquisition of real property by condemnation, see Condemnation Law, Code Civ. Proc, sees. 3357-3382. The board of supervisors can take and hold a fee in lands for county build- ings. And a town which conveys for this purpose, for a nominal considera- tion, cannot, on a subsequent removal of the county seat, maintain an action to enjoin a sale of the lands. Trustees of Ha/vana v. Supervisors of Schuyler Co., 5 T. & C. 703. 4 50 Counties; Boards of Supervisoes. County Law, § 12. and sell, lease or apply to other county use, the sites and buildings, when a site is changed ; and if sold, apply the proceeds to the pay- ment for new sites, buildings and improvements.'^ [Idem, sub. 13, as amended hy L. 1906, ch. 318.] 14. Jury districts. To make one or more jury districts and to make such regulations in respect to the holding of the terms of courts aa shall be necessary by reason of such change. {Idem, mb. 14. J 15. Contracts for hoard of prisoners. To contract at such times and on such terms as the board may by resolution determine with the sheriff of the county, when he is not by law in receipt of a salary as such sheriff, for the board, maintenance and care and custody of prisoners committed to the county jail of his county, OT in the penitentiary of such county, when used as a jail and in charge of the sheriff." \_Sub. 15, added hy L. 1900, ch. 130, Sec. 2 of such act legalizes contracts heretofore executed.^ 16. Tax to enforce Game Law. To raise by tax a sum not ex- ceeding one thousand dollars in any year to aid in carrying out the provisions of the Fisheries, Game and Forest Law. [Svi. 16, added hy L. 1900, ch. 296.] 17. Sheriff salaried office in Chautauqua county. Thei board of supervisors of Chautauqua county shall have power to determine that a sheriff thereafter eleetied in such county shall receive a salary instead of fees, and may fix such salary, or if the sheriff 15. Erection of buildings. As to removal of county buildings, see County Law, sees. 31-33, post, p. 59. Under the power conferred upon the board by the above subdivision it is not necessary that the board should purchase a site and then erect a building thereon. If the county owns real estate with an appropriate building thereon it may appropriate a part of such building to be used as a jail. Roach v. O'Dell, 33 Hun, 320, affd., 99 N. Y. 635. 16. Supervisors may contract with sheriff for board of civil prisoners. The board of supervisors of the counties of this state are hereby authorized and empowered to contract with the sheriff of said coun- ties, or the jailor of the common jail therein, for the support and main- tenance of such persons as may be confined in such jail upon any writ, process, or proceeding as stated in the first section of this act, and such sheriff or jailor shall attach to all bills rendered for such support and maintenance, a list, under oath, of the number and names of the persons to whom such support and maintenance was furnished, and the length of time each person was so supported. (L. 1875, ch. 251, § 2.) By section 3 of this act it is provided that its provisions do not apply to the counties of Kings and Monroe. Geneeal Powees of Boards of Supebvisoes. 51 County Law, § 12. of such oounty sihall thereafter be made a salaried office to deter- mine that a sheriff thereafter elected shall receive the fees pre^ scribed by law, as compensation for his services, instead of his salary. In case the officei of sheriff of such oounty is miaide a salaried office, in pursuance of this subdivision, the sheriff shall collect all fees and perquisites to which he is entitled, in pursu- ance of law, except such as are payable by the county, and shall at least once in each month pay the same to the county treasurer, and such fees and perquisites shall become part of the general fund of the county." [Sub. 17, added by L. 1901, ch. 255.] 17. Other poivers and duties of boards of supervisors. 1. Tovms and town meetings. As to the erection of new towns and the alteration of boundaries of towns by the board of supervisors, see County Law, sec. 34, post. p. 188. Tlie board of supervisors may by resolution fix a time for holding bi- ennial town meetings, see Town Law, sec. 10, post, p. 197. 2. Registration of dogs; taxation. The board of supervisors may fix and impose a tax on dogs, see County Law, sec. 110, post, p. 461. The board of supervisors may regulate the registration of dogs within the county, see County Law, sees. 128-136, post, p. 469. 3. Taxation. As to the duties of the board of supervisors in relation to the assessment of bank shares, see Tax Law, sec. 24, post, p. 363. The board of supervisors must add to the tax on a tract of land belong- ing to a non-resident the expense of making a survey of such tract as au- thorized by Tax Law, sec. 30, post, p. 370. As to the equalization of assessments by boards of supervisors, see Tax Law, sec. 50, post, p. 394, and as to the appointment of commissioners of equalization by the boards of supervisors, see L. 1896, ch. 820, post, p. 395. As to the duties of the board in relation to the assessment of non-resident real property, see Tax Law, sees. 51, 52, post, p. 397. As to the correction of errors in assessment-rolls by boards of supervisors, and the reassessment of property illegally assessed, see Tax Law, sees. 53, 54, post, p. 398, and the County Law, sec. 16, post, p. 399. As to the levy of taxes by tlie board of supervisors, see Tax Law, sec. 55, post, p. 402. As to appeals from the equalization of boards of supervisors by a town, to the state board of tax commissioners, see Tax Law, sees. 174-177, post, p. 409. The board of supervisors is required to annex to the tax roll of each town a warrant under the seal of the county, signed by the chairman and clerk of the board, commanding the collector to collect from the several persons named in such roll the several sums mentioned therein. As to the com- pletion of such warrant, see Tax Law, sec. 56, post, p. 403. 4. Relief of poor. The board of supervisors may determine the number of county superintendents of the poor and may appoint superintendents when 52 Counties; Boaeds of Supeevisobs. County Law, § 12. 18. The board of supervisors of each county may raise by tax on real and personal property, subject to taxation in such county, not more than five thou- sand dollars, to be expended in the repair and construction of sidepaths in such county. The county treasurer of each county where such sum has been raised shall place the same to the credit of the sidepath fund, provided by section four, chapter six hundred and forty of the laws of nineteen hundred, and it shall be expended and paid out according to the provisions of said chapter. [Sub. 18, added by L. 1903, ch. 465.] 19. Whenever a judgment has been rendered in the court of claims in favor of any county against the state of New York, and the time to appeal there- from has expired or the attorney-general has issued a certificate that there has been no appeal and that no appeal will be taken by the state from such judgment, the board of supervisors of such county may sell, assign, transfer or set over such judgment~unto the comptroller, who may purchase the same as an investment for the various trust funds of the state or canal debt sinking fund, or unto any person, firm, association or corporation desiring to purchase such judgment, for a sum not less than the amount for which same was ren- dered with accrued interest but no judgment so acquired by the state shall be deemed merged or satisfied thereby. And such board of supervisors may designate and authorize its chairman and clerk, the treasurer of the county and the attorney of record procuring the entry of such judgment, or any or either of them to execute in the name of the county and deliver unto the party purchasing such judgment the necessary release, transfer or assignment required in law to complete such sale, setting over, transfer or assignment. [Sub. 19, added by L. 1905, ch. 244.] a vacancy shall occur in the office, see County Law, sec. 210. The board of supervisors may appoint one of the superintendents of the poor to act as keeper of the alms-house, see Poor Law, sec. 4, post, p. 482. The board must cause money to be raised for the support of the poor, see Poor Law, sec. 11, post. p. 486. The board may make rules and regulations respecting the temporary relief of the poor, see Poor LaAV, sec. 13, post, p. 488. The board shall cause the amount estimated by overseers of the poor and appropriated by the town board to be raised in each town, see Poor Law, sec. 27, post, p. 528. The board shall charge to the town liable for the support of poor persons, the expenses of such support, when the overseer of the proper town fails to remove such person, see Poor Law, sec. 45, post, p. 538. The board may abolish the distinction between town and county poor, see Poor Law, sec. 134, post, p. 582. The board shall provide for the proper burial of indigent soldiers, sailors and marines. Poor Law, sec. 83, post, p. 572; and shall provide proper head stones for the graves of such soldiers, sailors and marines. Poor Law, sec. 84, post, p. 573. The board shall audit the accounts of the Syracuse State Institution for Feeble-Minded Children for support of children sent thereto, see State Charities Law, sec. 70, post, p. 504; and also accounts for the support of epileptics at Craig Colony, see State Charities Law, sec. 109, post, p. 506. 5. Highways and bridges. As to the duties of boards of supervisors in respect to highways and bridges generally, see chapter 52, post, p. 708. For duties of the board of supervisors as to the construction and main- tenance of roads constructed by the aid of the state, see L. 1898, ch. 115, and L. 1901, ch. 240, post, p. 723. Where the money system is adopted in towns for raising money for high- way purposes, it is the duty of the chairman and clerk of the board to General Powees of Boards of Supervisors. 53 County Law, § 19. § 2. Legalization of informal acts of town meeting or village election. Any such board may, by a two-thirds vote of all its members, legalize the informal acts of any town meeting or village election within such county, and the regular acts of any one or more town or village officers, performed in good faith, and within the scope of their authority. [County Law {L. 1892, ch. 686), § 15; Heydeclcer's Oen. L. (2d ed.), p. 1205.] § 3. Session laws, designation of newspapers for publica- tion of. The members of the board of supervisors in each county repre- senting, respectively, each of the two principal political parties into which the people of the county are divided or a majority of such members representing, respectively, each of such parties, shall designate in writing a paper fairly representing the political party to which they respectively belong, regard being had to the certify the amount so raised to the state comptroller, see Highway Law, sec. 53, post. p. 636. The board of supervisors may adopt what is called the county road system, see Highway Law, sec. 54; and it may also adopt the provisions of art. 8 of the Highway Law relating to the county supervision of highways, see Highway Law, sec. 180, post, p. 642. As to the appointment of county engineer, see Highway Law, sec. 55, post, p. 640. The board of supervisors is required to levy arrearages for unpaid high- way taxes upon the property owners failing to pay such taxes or perform highway labor, see Highway Law, sec. 68, post, p. 652. The board is required to levy taxes upon the county to aid towns in the construction and maintenance of certain bridges, see County Law, sec. 63, post, p. 699. As to the duties of the board in relation to bridges between towns, see, also. Highway Law, sec. 139, post, p. 704. Application must be made to the board of supervisors by turnpike corpo- rations for laying out the highway of such corporation, and the board ia required to appoint commissioners for such purpose, see Transportation Cor- porations Law, sees. 123, 124, post, p. 781. The board may acquire the rights and franchises of turnpike and plank road corporations, see L. 1899, ch. 594, post, p. 795. 6. School commissioners. The board of supervisors may increase the salaries of school commissioners, see Consolidated School Law, tit. 5, sec. 8, post, p. 882. The expenses of school commissioners are to be audited and paid by the board, see Consolidated School Law, tit. 5, sec. 9. The board may divide the county into school commissioner districts, or may erect new districts, see Con- solidated School Law, tit. 5, sec. 2, post, p. 882. 7. County officers. The board of supervisors may appoint a temporary surrogate, see Code Civ. Proc, sec. 2492, post, p. 114. The board may create the office of surrogate in counties containing a certain population, see County Law, sec. 221, post, p. 114. Surrogates are required to report to the board of supervisors, see Code Civ. Proc.j sec. 2501, post, p. 114. 54 Counties; Boaeds of Supeevisoes. County Law, § 19. advocacy by such piaper of the principles of its party and its sup- port of the state and national nominees thereof, and to its regular and general circulation in the towns of the coainty, to publish the session laws and concurrent resolutions of the legislature required by law toi be published, which designation shall be signed by the members making it and filed with the clerk of the board of super- visors." If a majority of the members of the board representing either of such parties cannot agree upon a paper or shall fail to make a designation of a paper or papers as above provided, then in such case the paper or papers last previously designated in behalf of the party or parties whose representatives, or a ma- jority of them, have failed to agree shall be held to' be duly desig- nated to publish the laws for that year, and any designation of a paper or papers made contrary to the provisions of this section eh.all be void. If there shall be buti one paiper published in the county, then, in that case, the laws shall be published in that paper. If either of the two principal parties into which the people of the county are divided shall have uo representative among the members of the board of supervisors, then, and in that event, The board may authorize the appointment of assistant district attor- neys in certain counties, see County Law, sec. 202, post, p. 109. The board of supervisors may appoint a jail physician for each jail in the county, see Code Civ. Proc, sec. 126, post, p. 145. The board of supervisors may abolish the office of railroad commissioners in the several towns in the county, see General Municipal Law, sec. 13, post, p. 935. The board of supervisors may fix and determine the salaries of coroners, see County Law, sec. 191, as added by L. 1899, ch. 447, post, p. 128. Coroners are required to render to the board of supervisors a statement of property found on the person of the deceased before the accounts of such coroners for their fees and compensation can be audited, see Code Crim. Proc, see. 788, post, p. 163. 8. County jails, work houses cmd houses of detention. The board of super- visors may provide for the labor of prisoners confined in county jails, see County Law, sec. 93, post, p. 140. Such board may establish and maintain work houses, see County Law, sec. 102, post, p. 144. It may provide houses of detention for the safe and proper keeping of women and children con- victed of crime and of persons detained as witnesses, see County Law, sec. 101, post, p. 144. 9. Miscellaneous duties. As to the duties of the board in relation to the preparation of grand jury lists, see R. S., pt. 4, ch. 2, tit. 4, sec. 1, post, p. 893. As to provisions relating to the adoption of an official seal by the board of supervisors, see County Law, sec. 235, post, p. 179. General Powers of IBoards of Supervisors. 55' County Law, § 19. the newspaper last legally designated in behalf of such party, not having a representative among the members of the board of su- pervisors, shall be held to be duly designated to publish the laws for that year. The clerk of each board of supervisors as soon as such designation is made shall forward^*^ to the secretary of state a notice stating the name and address of such newspapers as have been selected for the publication within tlie county of the laws and concurrent resolutions of the legislature, or if there is but one newspaper in such county he shall before the first day of January in each year, forward to the secretary of state a notice stating the name and address of such newspaper, and that it is the only news- paper published in the county. The secretary of state shall desig- nate two newspapers in each of the counties of Queens and Richr mond for the publication of the session laws required by law to be published, representing respectively, each of the two principal political parties into which the people of such counties are divided, on the nomination of th.e county committee of each of such par- ties." [Count Law (L. 1892, ch. 686), § 19, as amended by L. 1898, ch. 349, L. 1900, ch. 400, and L. 1905, ch. 4=96; Heydecker's Genu L. (2d ed.), p. 1206.] A hospital, camp o nature, and the persons for whom rendered.' {^County Law (L. 1892, ch. 686), § 161; Heydecker's Gen. L. (2d ed.), p. 1243.] § 3. County clerk to appoint a deputy; oath of office of N. y. Supp. 884. ^^' ^^' '^'^ County Cleek, 105 County Law, § 165. 2. The amount of all fees charged or received for recording any documents in his oiBce, and for certificates thereof. 3. The amount of all sums charged or received for services ren- dered the county. 4. The amount of all sums charged or received for official sei'vices. 5. The sums paid by him for assistance, fuel, lighta, station' ery and other incidental expenses, the names of the persons paid and the items thereof; but he shall not make any charge against the county for stationery, except record books and stationery fur- nished by him for courts held in his county, but the board of supervisors may allow the county clerk the necessary expenses incurred by him for lighting and heating his office.* ^County Law (L. 1892, ch. 686), § 164, as amended by L. 1896, ch. 693; Heydecker's Gen. L. {2d ed.), p. 1244.J § 6. Business hours in office of county clerk. Clerks of counties, courts of record, and registers of deeds, except in the counties of New York and Kings, as hereinafter provided, shall respectively keep open their offices for the transac- tion of business every day in the year, except Sundays and other days and half -days declared by law to be holidays or half -holidays,* between the thirty-first day of March and the first day of October next following, from eight o'clock in the forenoon to five o'clock in the afternoon, and between the thirtieth day of September and the first day of April next following, from nine o'clock in the fore- 4. For form of statement of county clerk to be made to the board of supervisors, see Form No. 8, post. 5. Holidays and half-holidays are enumerated in the Statutory Con- struction Law, see. 24, as amended by L. 1897, eh. 614, as follows: Jan. 1 (New Year'a day) ; February 12 (Lincoln's birthday) ; February 22 (Washington's birthday) ; May 30 (Memorial day) ; July 4 (Independence day) ; first Mon- day of September (Labor day) ; first Tuesday after first Monday in Novem- ber (Election day); Thanksgiving day; December 25 (Christmas day). If any of such days fall on Sunday, the day following is observed as a holiday. The term, half-holiday, includes the period from noon to midnight of each Saturday which is not a holiday. Business in pnblic offices on holidays. Holidays and half-holidays shall be considered as Sunday for all purposes relating to the transaction of business in the public offices of the state, and of each county. [Public OSicers Law (L. 1892, ch. 681), sec. 41]. 106 County OiricKErf. Penal Code, §§ 162-164, 474. noon to five o'clock in the afternoon. In the counties of New York and Kings said offices, the sheriif' s office and the offices of the commissioner of jurors shall remain open during the months of July and August in each year from: nine o'clock in the forenoon to two o'clock in the afternoon, and during the other months in the year from nine o'clock in the forenoon to four o'clock in the afternoon. [County Law (L. 1892, ch. 686), § 165, as amended by L. 1895, ch. 961, L. 1902, ch. 401, and L. 1903, ch. 534; Hey- decher^s Gen. L. {M ed.), p. 1245. J § 7. False certificates by clerk, etc.; penalty for recording instrument without acknowledgment attached. An officer authorized by law to record a conveyance of real prop- erty, or of any other instonoment, which by law may be recorded, who knowingly and falsely certifies, that such a conveyance or instrument has been recorded, is guilty of a felony. [Penal Code, § 162.] A public officer who, being authorized by law toi make or give a certificate or other writing, knowingly makes and delivers as true such a certificate or writing, containing any statement which he knows to be false, in a case where the punishment thereof is not expressly provided by law, is guilty of a misdemeanor. [Idem, § 163.] A public officer authorized to file or record any instrument or conveyance of, or affecting property which is duly proved or acknowledged, who knowingly files or records any such instru- ment or conveyance which is noti accompanied by a certificate according to law, of the proof or acknowledgment, isi guilty of a misdemeanor. [Idem, § 164.] § 8. County clerk omitting to publish statement required by law. A county clerk who willfully omits tO' publish any statement required by law, within the time prescribed, is guilty of a misde- meanor, punishable by a fine of one hundred dollars, or imprison- ment for six months, or both. [Penal Code, § 474.] DiSTBiCT Attobneys, County Judges, Subeogates. 107 County Law, § 200. CHAPTER IX. DISTRICT ATTORNEYS, COUNTY JUDGES AND SUBEOGATES. Section 1. Election, appointment, term of office and undertaking of district attorney. 2. Report of district attorneys of moneys received. 3. Board of supervisors may authorize district attorneys to appoint assistant; powers of assistant. 4. Appointment of assistants in Erie, Monroe, Onondaga and Rens- selaer counties; district attorneys in Erie and Monroe en- titled to costs; payment of expenses of district attorneys in Albany, Rensselaer and Monroe counties. 6. Employment of counsel by district attorney. 6. Election, appointment and term of office of county judge, surro- gate, special county judge and special surrogate. 7. Board of supervisors to create office of surrogate in certain counties; undertaking of surrogate. 8. Compensation of county judges and surrogates. 9. Salaries of surrogates and county judges, how paid; compensa- tion of county judge serving in another county. § I. Election, appointment, term of office and undertaking of district attorney. There shall continue : 1. To be elected in each of the counties a district attorney, who shall hold his ofBce for three years from and including the first day of January succeeding his election ; 2. To be appointed b© the governor, a, district attorney, when a vacancy shall occur in such office, and the person so appointed shall hold the office until and including the last day of December succeeding the first annual election thereafter at which such vacancy can be lawfully filled. 3. Except in the county of Kings, every person elected or ap- pointed to the office of district attorney, shall, beforei he enters upon the duties of his office, and if appointed, within fifteen days after notice thereof, execute and deliver, to the county clerk of his county a joint and several undertaking to the county, ap- proved by the county judge, with two or more sufficient sureties, being resident freeholders, to the effect that ho will faithfully account for and pay over according to law, or as the court/ may direct, all moneys that may come into his hands as such district [108 County OifFicEES. County Law, § 201. attorney/ [County Law (L. 1892, ch. 686), § 200; Heydecker's Oen.L. {2ded.),p. 1250.J § 2. Report of district attorneys of moneys received. Every district attorney shall, on or before the first Tuesday in October, annually file ia the ofiice of the county treasurer a ■written account, verified by his oath to be true, of all moneys received by him by virtue of his office during the preceding year ; and shall, at the same time, pay over any balances thereof to the county treasurer. If he shall refuse or neglect to accounti for and pay over such moneys as' so required of him, the' county treasurer shall prosecute him and his sureties for the same, in the name of and for the benefit of his county.' [County Law (L. 1892, ch. 686), § 201; Heydecker's Gen. L. (2d ed.), p. 1251.] 1. References. Reference may also be made to the following provisions of law, relating directly or indirectly to the office of district attorney: Term of office of district attorney is fixed by the constitution at three years. Constitution, art. X, sec. 1. Removal. The district attorney is removable by the governor. Con- stitution, art. X, sec. 1. Proceedings for his removal are prescribed by Pub- lic Officers Law, sees. 23-25, post, p. 183. The expense thereof are a county charge. County Law, sec. 230, sub. 16, ante, p. 39. ITndertakiiig;, further provisions respecting. County Law, sec. 237, post, p. 181; Public Officers Law, sec. 11, post, p. 267. Effect of failure to execute. Public Officers Law, sec. 13, post, p. 181. Validation of official acts before executing. Public Officers Law, sec. 15, post, p. 269. Vacancy in office created by failure to execute. Public Officers Law, sec. 20, sub. 7, post, p. 271. Vacancies, how created. Public Officers Law, sec. 20, post, p. 270. Resignation of district attorneys to be made to the governor. Public Officers Law, sec. 21. Official oath to be taken. County Law, sec. 236, post^ p. 180. Effect of failure to take. Public Officers Law, sec. 13, post, p. 181. Vacancy cre- ated by failure to take. Public Officers Law, sec. 20, post, p. 270. Briljery, failure to prosecute for, a ground for removal. Constitution, art. 13, sec. 6. Displaced temporarily by attorney-general, when ordered by the governor. Executive Law, sec. 52, sub. 2. Salary of district attorney fixed by board of supervisors. County Law, sec. 12, sub. 5, ante, p. 46. 2. For form of report of moneys received by district attorney, see Form No. 9, post. Fines and penalties. The district attorney is required to pay to the county treasurer all penalties collected by him within thirty days thereafter, deducting only his necessary disbursements, and he must render to the county DiSTEiOT Attorneys^ Coun-ty Judges, Suekogates. 109 County Law, §§ 202, 203. § 3. Board of supervisors may authorize district attorneys to appoint assistant; powers of assistant. In any county having, according to the last preceding federal or state enumeration, more than sixty-five thousand inhabitants the district attorney may, when authorized by the board of super- visors, appoint a suitable person, who must be a counselor-aHaw, in this state, and a citizen and resident of the county to be hia assistant. Every appointment of an assistant district attorney shall be in writing, under the hand and seal of the district attor- ney, and filed in the office of the county clerk ; and the person so appointed shall take and file with the clerk the constitutional oath of office, before entering upon his duties as such assistant district attorney. Every such appointment may be revoked by the dis- trict attorney making the same, which revocation shall be in writ- ing and filed in the clerk's office. Such assistant district attorney may attend all criminal courts, and discharge any duties imposed by law upon, or required of the district attorney by whom he was appointed.' [County Law (L. 1892, ch. 686), § 202, amended hy L. 1904, ch. 78 ; Heydecker's Gen. L. {2d ed.), p. 1251.] § 4. Appointment of assistants in Erie, Monroe, Onondaga and Rensselaer counties; district attorneys in Erie and Monroe entitled to costs; payment of expenses of district attorneys in Albany, Rensselaer and Monroe counties. The district attorney of Erie county may appoint in and for the county of Erie, in the manner provided in the last section, and with like powers, three assistants, to be called respectively the first, ourt at its first term in each calendar year, an account of all money col- lected by him from any person belonging to the county or the state. Code Civ. Proc, sees. 1967, 1968. Recovery and disposition of moneys. The district attorney shall Bue for and recover, in behalf of, and in the name of, his county, the money received by any officer for, or on account of, his county, or any town or city therein, and not paid to the county treasurer, as herein required. All moneys belonging to any town or city in such county, which shall be received by the county treasurer, shall be distributed to the several towns or cities entitled to the same, by resolution of the board of supervisors, which shall be entered in the minutes of its proceedings. [County Law (L. 1892, eh. 686), § 234.] 3. Appointment of special district attorney. In the case of People V. Lytle, 7 App. Div. 553; 40 N. Y. Supp. 153, it was held that L. 1883, ch. 123, amending sec, 90 of R. S., pt. 1, ch. 12, tit. 2, not being included in the repealing schedule of the County Law, is still in force. Such section as thua 110 County Officees. County Law, § 203. second and third assistant district attorneys and two deputy assistants, to be called deputy assistant district attorneys. The salaries of said assistant dis- trict attorneys shall be the same respectively as now received by the first assistant district attorney, the second assistant district attorney, and the transfer tax assistant district attorney of Erie county; the salaries of said deputy assistant district attorneys shall each be the same as now paid the first deputy assistant district attorney now in said office. Said assistants and deputy assistants shall severally take the constitutional oath of office before entering upon the duties thereof ; and the district attorney shall be responsible for their acts. The district attorney of Monroe county may appoint, in and for the county of Monroe, in the manner provided in the last section, and with like powers, three assistants, to be called respectively the first, second and third assistant district attorneys, and two deputy assistants, to be called respectively the first and second deputy assistant district attorneys, who shall severally take the constitutional oath of office before entering upon the duties thereof; and the district attorney shall be responsible for their acts. In Monroe county, the salaries of the assistant district attorneys and the deputy assistant district attorneys shall be fixed by the board of supervisors, as fol- lows : The salary of the first assistant district attorney shall not be less than two thousand dollars per year, payable monthly; the salary of the second assistant district attorney shall not be less than eighteen hundred dollars per year, payable monthly; the salary of the third assistant district attorney shall not be less than sixteen hundred dollars per year, payable monthly; the salary of the first deputy assistant district attorney shall not be less than twelve hundred dollars per year, payable monthly; the salary of the second deputy assistant district attorney shall not be less than seven hundred and twenty dollars per year, payable monthly; and until the salaries of said officials are so fixed by the board of supervisors, they shall be as above stated. The district attorney of Monroe county and his assistants and such deputy assistants shall conduct, on the part of the people, all preliminary examina- tions in the police court of the city of Rochester, and subject to the right of a complainant to appear personally or by attorney, all other prosecutions for crime therein; and may conduct prosecutions therein for violations of the amended reads as follows: "Whenever there is a vacancy or the district attorney of any county and his assistant, if he has one, shall not be in attendance at a term of any court of record, which he is by law required to attend, or shall be unable by sickness, or by being disqualified from acting in a particular case, to discharge his duties at any such term, the court may, by an order entered in its minutes, appoint some attorney at law residing in the county, to act as special district attorney during the absence, inability or disqualification of the district attorney and his assistant; but such appointment shall not be made for a period beyond the adjournment of the term at which made. The special district attorney so appointed shall possess the powers and discharge the duties of the district attorney during the period for which he shall be appointed. The board of supervisors of the county shall pay the necessary disbursements of, and a reasonable compensa- tion for the services of the person so appointed and acting." District Attorneys, County Judges, Surrogates. Ill County Law, § 204. penal ordinances of the said city, and appeals therefrom, and in such event one-half of the salary of such first deputy shall be a charge upon the city of Rochester and assessed back upon said city by the board of supervisors of Monroe county; but the corporation counsel of the said city shall have the power to prosecute any person for the violation of an ordinance and to conduct the proceedings therefor, or any appeal therefrom. The district attorney of Onondaga county may appoint in and for said county, in the manner provided in the last section, and with like powers, two assistants, to be called respec- tively the first and second assistant district attorney, each of whom shall take the constitutional oath of office before entering upon the duties thereof; and the district attorney of said county shall be responsible for their acts. The district attorney of Westchester county may appoint in and for the county of Westchester, in the manner provided in the last section, and with like power, two assistants, to be called respectively the first and second assistant district attorney, who shall severally take the constitutional oath of office before entering upon the duties thereof; and the district attorjiey shall be responsible for their acts; and the salary of each shall be fixed by the board of supervisors. The district attorneys of the counties of Erie, Onondaga and Monroe may also appoint a person to act as interpreter at all sessions of the grand jury of such counties and of the city of Buffalo, whose compensation shall be fixed by the court in and for which such grand jury may be empaneled. The district attorneys of the counties of Erie and Monroe shall each be entitled to receive, in addition to their salary, all costs collected by them in actions and proceedings prosecuted and defended by them. The county judge, or the special county judge, of the county of Monroe, or any supreme court judge, shall have power, on the application of the district attorney of Monroe county, to order and direct the county treasurer of Monroe county to pay to the district attorney any sum of money expended or incurred by him in the performance of his duties in his office, and the county judge of the county of Rensselaer, or any supreme court judge, shall have power, on the application of the district attorney of Rensselaer county, to order and direct the county treasurer of Rensselaer county to pay to the district attorney any sum of money expended or incurred by him in the performance of his duties in his office, and the county judge of the county of Albany, or any supreme court judge, shall have power, on the application of the district attorney of Albany county, to order and direct the county treasurer of Albany county to pay to the district attorney of such county any sum of money expended or incurred by him in the performance of his duties in his office. [County Law (L. 1892, eft. 686), § 203, as amended by L. 1893, eft. 73, L. 1897, eft. 409, L. 1900, eft. 330, L. 1901, eft. 51, L. 1902, eft. 143, L. 1903, eft. ,512, L. 1904, efts. 61] and 38, and L. 1906, eft. 319, and ch. 433.] § 5. Employment of counsel by district attorney. The district attorney of any county in which a capital or other important criminal action is to be tried, with the approval in writing of the county judge of the county, which shall be filed. 112 County Officbbs. County Law, § 220. in -the office of the county clerk, may employ counsel to assist him on sucli trial ; and the costs and expenses thereof, to be certified by the judge presiding at the trial, shall be a charge upon the county in which the indictment is found.'* [County Law (L. 1892, ch. 686), § 204; Heijdecher's Gen. L. {2d ed.), p. 1252.] § 6. Election, appointment and term of office of county judge, surrogate, special county judge and special surrogate. There shall continue to be elected in each of the counties now having such officers, 1. A county judge and a surrogate, who shall severally hold the office for six years from and including the first day of January succeeding his election. 2. A special county judge and a special surrogate, pursuant to the several acts of the legislature creating and respectively defining the terms and duties thereof. 3. There shall continue to be appointed by the governor, by and vsdth the consent of the senate, if in session, a county judge, surrogate, special county judge or special surrogate, when a va- cancy shall occur in either of such offices, and the person so appointed shall hold the office until and including the last day of December succeeding the first annual election thereafter at which such vacancy can be lawfully filled.^ [County Lam {L. 3a. Certificate of judge authorizing the employment of counsel on a second trial of a, criminal case does not authorize payment of services in tha same case prior to such trial. People ex rel. Peck v. Supervisors of Oenesee, 61 App. Div. 545, 70 N. Y. Supp. 578. 4. Constitutional provisions. By section 14 of art. 6 of the constitu- tion the existing county courts are continued. The successors of the several county judges in office when the constitution was adopted are to be chosen by the electors of the counties for the term of six years. Each county judge is required to perform such duties as may be required by law. His salary is established by law, payable out of the county treasury. The county judge of any county may hold county courts in any other county when requested by the judge of such other county. By section 15 of art. 6 of the constitution existing surrogates' courts are continued and the successors of the surrogates in office at that time are to be chosen by the electors of the respective counties, and their terms of office shall be six years. Such section also provides that: "The county judge shall be surrogate of his county, except when a separate surrogate has been or shall be elected. In counties having a population exceeding 40,000, wherein there is no separate surrogate, the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years. When the surrogate shall he elected as a separate officer his salary shall be established by law, payable out of the county treasury. No county judge or surrogate shall hold office longer than until and including the last day of December next after he shall be seventy years of age. DisTBicT Attorneys, County Judges, Subeogates. 113 Oovinty Law, § 220. 1892, ch. 686), § 220, subs. 1, 2, 3; Heydecker's Gen. L. {2d ed.), p. 1255.J Vacancies occurring in the office of county judge or surrogate shall be filled in the same manner aa like vacancies occurring in the Supreme Court. The compensation of any county judge or surrogate shall not be increased or diminished during his term of office. For the relief of Surrogates' Courts the legislature may confer upon the Supreme Court, in any county having a population exceeding 400,000, the powers and jurisdiction of surrogates, with authority to try issues of fact in probate cases." It is also provided by section 16 of the constitution, " The legislature may, on application of the board of supervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, in cases of their inability or of a. vacancy, and in such other cases as may be provided by law, and to exercise such other powers in special cases as are or may be provided by law." Surrogate'! clerk. Board of supervisors may authorize surrogate to appoint clerks, their compensation to be fixed by the board. Code Civ. Proc, sec. 2508. The powers of the clerk of the surrogate are prescribed by Code Civ. Proc, sees. 2509, 2510. Temporary siirrogate. Where, in any county, except New York, the office of surrogate is vacant, or the surrogate is disabled by reason of sick- ness, absence or lunacy, and special provision is not made by law for the discharge of the duties of his office in that contingency, the duties of his office must be discharged until the vacancy is filled or the disability ceases, as follows: 1. By the special surrogate. 2. If there is no special surrogate, or he is in like manner disabled, or is precluded or disqualified, by the special county judge. 3. If there is no special county judge, or he is in like manner disabled, or is precluded or disqualified, by the county judge. 4. If there is no county judge, or he is in like manner disabled, or is precluded or disqualified, by the district attorney. But before an officer is entitled to act, as prescribed in this section, proof of his authority to act as prescribed in section 2487 of this act must be made. In any proceeding in the Surrogate's Court of the county of Kings, before either of the officers authorized in this section to discharge the duties of the office of surrogate of such county for the time being, if an issue is joined or a contest arises either on the facts or the law, such officer, in his dis- cretion, may, by order transfer such cases to the Supreme Court, to be heard and decided at a special term thereof, held in such county, which order shall be recorded in the surrogate's office. A certified copy of such order, together with the appropriate certificate or certificates of the authority of the officer to act as surrogate, shall be sufficient and conclusive evidence of the jurisdiction and authority of the Supreme Court in such matter or cause. After a final order or decree is made in the matter or cause so transferred to the Supreme Court, the court shall direct the papers to be returned and filed, and transcripts of all orders and decrees made therein to be recorded in the surrogate's office of such county; and when so filed and 8 114 County Officees. County Law, § 221. § 7. Board of supervisors to create office of surrogate in cer- tain counties; undertaking of surrogate. The board of supervisors of any county, except Kings, having a popula-tdon exceeding forty thousand, may, by resolution at a recorded, they shall have the same effect as if they were filed and recorded in a case pending in the Surrogate's Court of such county. (Code Civ. Proc, § 2484, as amended by L. 1893, ch. 686.) Where the surrogate of any county, except New York, is precluded or dis- qualified from acting with respect to any particular matter, his jurisdiction and powers with respect to that matter vest in the several oificers designated in the last section, in the order therein provided for. If there is no such oificer qualified to act therein, the surrogate may file in his ofliee a certifi- cate stating that fact; specifying the reason why he is disqualified or pre- cluded; and designating the surrogate of an adjoining county, other than iNew York, to act in his place in the particular matter. The surrogate so designated has, with respect to that matter, all the jurisdiction and powers of the surrogate making the designation, and may exercise the same in either county. (Idem., § 2485.) Board of supervisors may appoint person to act as surrogate. In any county, except New York, if the surrogate is disabled, by reason of sickness, and there is no special surrogate, or special county judge of the county, the board of supervisors may, in its discretion, appoint a suitable person to act as surrogate, until the surrogate's disability ceases, or until a special surrogate or a special county judge is elected or appointed. A person so appointed must, before entering on the execution of the duties of his office, take and file an oath of office, and give an official bond as prescribed by law, with respect to a person elected to the office of surrogate. (Code Civ. Proc, § 2492, as amended by L. 1893, ch. 686.) Compensation of temporary surrogate. An officer, or person ap- pointed by the board of supervisors, who acts as surrogate of any county during a vacancy in the office, or in consequence of disability, as prescribed in the last nine sections, must be paid, for the time during which he so acts, a compensation equal, pro rata, to the salary of the surrogate; or, in a county where the county judge is also a, surrogate, to the salary of the county judge. The amount of his compensation must be audited and paid, in like manner as the salary of the surrogate, or of the county judge, as the case may be. Where an officer of the county performs the duties of the surrogate, with respect to a particular matter, wherein the surrogate is disqualified or precluded from acting, the supervisors of the county must allow him a just compensation for his services therein, to be audited and collected in the same manner. (Code Civ. Proc, § 2493.) Surrogate to report fees received to board of supervisors. The surrogate of each county, except New York, at his own expense, must make a report to the board of supervisors of the county, on the first day of each annual meeting thereof, containing a verified statement of all fees received or charged by him for services, or expenses since the last report, and of all disbursements chargeable against the same, or to the county, stating particu- larly each item thereof. See Code Civ. Proc, § 2501. DiSTKicT Attoeneys, County Judges, Sukeooates. 115 County Law, § 222. meeting thereof, determine that the office of surrogate therein shall he a separate office, and provide foT the election of such officer therein. The clerk of the hoard shall immediately deliver the resolution to the county clerk, who shall file the same in his office and, within ten days thereafter, transmit a certified copy thereof to the secretary of state; and thereafter a surrogatie shall he elected for such county. Every person elected or appointed to the office of surrogate or county judge, where there is no separate office of surrogate, shall, before he enters upon the duties of his office, and if appointed ^^-ithin fifteen' days after notice thereof, execute and deliver to the county clerk of his county a joint and several undertaking, with two or more sureties being resident freeholders, to be approved by such clerk, to the effect that he will faithfully perform his duties as such surrogate, and apply and pay over all moneys and effects that may come into his hands as such surro- gate in the execution of his office; which undertaking shall be immediately filed in the office of such county clerk. \_Cov.nty Law (L. 1892, ch. 686), § 221; HeydecJcer's Gen. L. (2d ed.), p. 1255.] § 8. Compensation of county judges and surrogates. The annual salaries of county judges and surrogates in the sev- eral coTmties are fixed at the sums respectively set opposite the names of each county in the following schedule, to wit: Salary of Salary of Sub. Name of County. county judge. surrogate. 1 Albany $6,000.00' $5,000.00 2 Allegany 2,750.00 3 Broome 5,000.00=^ 4 Cattaraugus 1,500.00 1,500.00 5 Cayuga 2,000.00 2,000.00 6 Chautauqua 2,000.00« 2,000.00 1 Chemung 5,000.00«^ 8 Chenango 3,000.00 9 Clinton 1,200.00 1,800.00 10 Columb ia 2.000.00 2,500.00 5. By L. 1895, ch. 649, the salaries of the county judge and surrogate ol Albany county were fixed at $6,000 and $5,000, respectively. Sa.Amended by L. 1903, ch. 666, in effect January 1, 1907. 6. Amended by L. 1900, ch. 306, in effect January 1, 1901. 6a. Amended by L. 1906, ch. 439, in effect January 1, 1909. 116 County Officees. County Law, § 222. Salary of Salary of Sub. Name of Countt. county judge, surrogate. 11 Cortland , $2,500.00 12 Delaware 3,000.00' 13 Dutcliess 3,000.00'* 3,000.00 14 Erie , 5,000.00 6,000.00 15 Essex , .,. 2,500.00 16 Franklin 2,000.00 17 Fulton 1,400.00* 1,600.00 18 Genessee 2,500.00 19 Greene 3,000.00*'- 20 Hamilton , 800.00 21 Herkimer 3,000.00 22 Jefferson 2,000.00'" 1,500.00 23 Kings 10,000.00 10,000.00 24 Lewis ■. . . 2,400.00 25 Livingston 3,000.00 26 Madison ,. . .. 3,000.00 27 Monroe ,...., 5,000.00 4,500.00 28 Montgomery 1,400.00' 1,600.00 29 ISTiagara 5,000.00'* 1,500.00 30 Oneida 3,000.00" 3,500.00 31 Onondaga ,. . . 4,000.00 3,500.00 32 Ontario i 2,000.00 1,500.00 33 Orange ,. . 3,000.00^^ 3,500.00 34 Orleans • 2,000.00 35 Oswego ,. .. 2,000.00" 1,500.00 36 Otsego 1,800.00 1,500.00 37 Putnam , 2,000.00 38 Q,ueens , 4,000.00 5,000.00 39 Kensselaer 3,500.00^' 5,000.00 40 Eichmond , 5,000.00 7. Amended by L. 1894, ch. 227. 7a. Amended by L. 1905, eh. 160, in eflfeet January 1, 1907. 8. Amended by L. 1901, ch. 161, in effect January 1, 1902. 8a. Amended by L. 1906, ch. 463, in effect January 1, 1907. 8b. Amended by L. 1904, ch. 337, in effect January 1, 1904. 9. Amended by'L. 1894, eh. 646. 9a. Salary of county judge fixed at $5,000 by L. 1905, ch. 410. 10. Amended by L. 1894, ch. 340. 11. Amended by L. 1901, ch. 505, in effect as to the office of surrogate, January 1, 1902, and as to the office of county judge, January 1, 1907; the salary of county judge until such time is $1,500. 12. Amended by L. 1898, ch. 158. 13. Amended by L. 1893, ch. 50. District Attokneys^, County Judges, Subeogates, lllij County Law, § 223. Sub. Name or County. 41 Kockland 42 St. Lawrence i. . o 43 Saratoga i. .;. .>. .■ 44 Schenectady 45 Schoharie , i 46 Schuyler , 47 Seneca 48 Steuben 49 Suffolk 50 Sullivan . .' 51 Tioga ,. 52 Tompkins ., 53 Ulster 54 Warren 55 Washington 56 Wayne 57 Westchester 58 Wyoming 59 Yates [County Law (L. 1892, ch. 686), (2ded.),p. 1256.] Salary of county judge. 3,600.00 1,750.00 $2,000.00 $2 2,000.00" 2,500.00 1,500.00 1,500.00 1,500.00 2,000.00^^ 1,200.00 2,500.00 2,500.00 3,000.00 3,000.00 1,200.00 3,000.00'* 7,500.00" 2,500.00 1,500.00 Salary of surrogate. 1,750.0Q ,500 and $500 for clerk hire. 2,000.0Q 2,000.00 3,000.00 3,000.00 1,500.00 7,500.00"» 222 ; Hey decker's Gen. L. § g. Salaries of surrogates and county judges, how paid; compensation of county judge serving in another county. Such salaries, except in the county of Kings, shall be paid quarterly, by the county treasurer of the respective counties. When a county judge of one county shall hold a county court, or preside at a court of sessions, in any other county, he shall be paid the sum of five dollars per day for his expenses in going 14. Amended by L. 1902, ch. 255, in effect January 1, 1903. 15. Amended by L. 1902, ch. 234, in effect January 1, 1903. 16. Amended by L. 1903, ch. 434, in effect January 1, 1904. 17. In Westchester county, it is provided by L. 1901, ch. 584, as follows : § 1. The salary of the county judge of Westchester county, from and after the expiration of the term of the present incumbent, is hereby fixed and established at the sum of seven thousand five hundred dollars per annum. 17a. Salary fixed as above by L. 1906, ch. 377. § 2. Section two hundred and twenty-two of chapter six hundred and eighty-six of the laws of eighteen hundred and ninety-two so far as it relates to Westchester county is hereby repealed. f 3. This act shall take effect immediately. 118 County Officers. County Law, § 223. to, and from, and holding or presiding at aucli court, which shall be paid by the county treasurer of &uch other county, on ths presentation of the certificate of the clerk of such court of the number of days. ICounty Law (L. 1892, ch. 686), § 223, as amended hy L. 1897, ch. 407; Heydecher's Gen. L. (2i ed.), p. 1258.J Shehiff and Coeoneesj Poweks and Duties. 119 County Law, § 180. CHAPTER X. SHERIFF AND CORONERS; POWERS AND DUTIES. SXCTION 1. Election, appointment and term of office of sheriffs and coroners, and the undertakings of sheriffs. 2. Sheriffs to appoint under-sheriffs; duties of under-sheriff; mal- feasance of under-sheriffs. 3. Deputy sheriffs to be appointed by sheriff; appointment to be in writing. 4. Sheriff's office; notice of place to be filed; when to be kept open; papers served on sheriff. 5. Fees for services for the state; accounts, how audited. 6. Sheriff to be removed for non-payment of moneys. 7. When coroner to act as sheriff; county judge to designate coro- ner; undertaking. 8. When other coroner to be designated; when coroner to execute duties of office of sheriff. 9. County judge may appoint u person other than a coroner in cer- tain cases. 10. Coroners to execute duties of office until vacancy is filled; duties and liabilities of incumbent. 11. Board of supervisors may fix salary of coroner. 12. Duties of sheriff in respect to services of mandates in civil actions ; copy of process to be delivered ; return of sheriff. 13. Liability of sheriff for neglect in serving process in special pro- ceeding. 14. Powers of sheriff in case of resistance to the service of man- date; names of registers to be certified to court; sheriff may ask assistance; governor may order out militia. 15. Trial by sheriff of claim of title to property seized by him ; jurors, how summoned; examination of witnesses; payment of fees. 16. Certificate of new sheriff; certificate to be served upon old sheriff. 17. Former sheriff to deliver books, papers, &c., to new sheriff; pro- ceedings to compel delivery. 18. Duties of former sheriff upon new sheriff taking his office. 19. Under-sheriff or coroner, when to comply with foregoing pro- visions. 20. Injury to records and misappropriation by ministerial officers. 21. Sheriffs and others permitting escapes or refusing to receive prisoners. '§ I. Election, appointment and term of office of sheriffs and coroners, and the undertakings of sheriffs. Tkere shall continue, 1. To be elected in each of the counties a sheriff, and in each of the counties containing a population of one hundred thousand 120 County Officers. County Law, § 180. and' over four coroners, and in all other counties sueh numbeir of coroners, not more than four, as shall be fixed by the board of supervisors, who shall respectively hold thedr officee for three years from and including the first day of January succeeding their election. [Tims amended hy L. 1898, ch. 334.] 2. To be appointed by the governor, a sheriff, or a coroner, when a vacancy sliall occur in either of such offices, and the per- son so appointed shall hold the office until and including the last day of December succeeding the first annual election thereafter, at which such vacancy can be lawfully filled. Every person elected or appointed to the office of sheriff shall, before he enters upon the duties of his office, and if appointed, within fifteen days after notice thereof, execute and deliver to the county clerk of his county, a joint and several undertaking to the county, approved by such clerk, to the effect that such sheriff will, > in all things, perform and execute the office of sheriff of his county I during his continuance therein, without fraud or deceit. Such undertaking shall be filed in the office of the county clerk; and the clerk shall, at the time of his approval thereof, examine each surety thereto under oath; and he shall not approve of such undertaking, unless it shall appear on such examination that such sureties are jointly worth at least fifteen thousand dollars over and above all debts whatever; which examination, subscribed by the sureties, shall be indorsed on or attached to the undertaking; but the clerk shall determine the sufficiency of each surety. In the same manner the security shall be renewed within twenty days after the first Monday of January in each year subsequent to that in which he shall have entered upon the duties of his office.* 1. References. Reference may be made to the following provisions of law relating directly or indirectly to the offices of sheriffs and coroners: Term of office of sheriffs is fixed by the constitution at three years; and sheriffs shall hold no other office and be ineligible for the next term after the termination of their offices. Constitution, art. X, sec. 1. Acts of sheriff, county not responsible for. Constitution, art. X, sec. 1. TTndertaking. Sheriffs may be required by law to renew their security, and in default of giving such new security their offices shall be deemed va- cant. Constitution, art. X, sec. 1. Further provisions respecting undertak- ing. County Law, sec. 237, post, p. 181; Public Officers Law, sec. 11, post, p. 267. Effect of failure to execute undertaking. Public Officers Law, sec. 13, post, p. 181. Validation of official acts before executing undertaking. Public Officers Law, sec. 15, post, p. 269. Vacancy in office created by failure to execute undertaking. Public Officers Law, sec. 20, sub. 7, post, p. 271. Removal of sheriffs. The sheriff is removable by the governor. Con- Sheriff and Oobonees; Powbes and Duties. 121 County Law, § 181. [County Law (L. 1892, ch. 686), § 180; Heydecher's Oen. L. 2d ed.) p. 1246.] § 2. Sheriffs to appoint under-sheriffs; duties of under- sheriff; malfeasance of under-sheriffs. Each sheriff shall, within ten days after he enters on the duties of his office, appoint some proper person under-sheriff of his county, to hold during his pleasure. When a vacancy shall occur in the office of sheriff, the under-sheriff shall, in all things, execute the duties of the office as sheriff, untdl sn sheriff shall be elected or appointed and duly qualified ; and any default or misfeasance in stitution, art. X, sec. 1. The procedure for removal is prescribed by Public Officers Law, sees. 23-25, post, p. 183. The expenses of such removal are a county charge. County Law, sec. 230, sub. 16, ante, p. 39. Official oaths of sheriffs and coroners, to be taken and filed. County Law, sec. 236, post, p. 180. Effect of failure to take oath. Public Officers Law, sec. 13, post, p. 181. Vacancy created by failure to take. Public Offi- cers Law, sec. 20, post, p. 270. Vacanolea in offices of sheriff and coroners. Public Officers Law, sec. 20, post, p. 270. Besignatlons of sheriffs and coroners are to be made to the governor. Public Officers Law, sec. 21. Forms of official oaths and undertakings. See Forms Nos. 20, 21, 22. Fees of sheriff and coroner. See chapter 71, post. Collection of taxes, duties of sheriff relating to. Tax Law, sees. 76, 77, 87, post, p. 426. Special acts makins office of sherifF salaried in. the several comi- ties. In a great many of the counties the office of sheriff is made salaried by special act of the legislature. These acts vary in their nature, and it would be impracticable in a work of this character to attempt to include such acts in full. The following list is made from a careful examination of the statutes. It will be noticed that during recent years the tendency has been to declare such offices salaried, and ultimately all the counties will probably be put upon the same basis in this respect: Albany county, L. 1884, ch. 218, as amended by L. 1897, ch. 20, and L. 1901» eh. 344. Alleghany county, L. 1897, ch. 539. Broome county, L. 1902, ch. 51. Cattaraugus county, L. 1900, ch. 142. Cfiyuga county, L. 1906, ch. 24. Chautauqua county, L. 1901, ch. 255. Chemung county, L. 1900, ch. 249. Chenango county, L. 1898, ch. 288. Clinton county, L. 1903, ch. 36. Delaware county, L. 1901, ch. 461, as amended by L. 1904, eh. 154. Duchess county, L. 1903, ch. 82. Erie county, L. 1891, ch. 108, as amended by L. 1902, ch. 345. Franklin county, L. 1902, ch. 29. Fulton county, L. 1904, ch. 154. 122 County Officees. County Law, § 182. the office of such under-sheriff in the meantime, as well as before, shall be deemed tO' be a breach of the undertaking given by the sheriff who appointed him and also a breach of the undertaking executed by such under-sheriff, to the sheriff by whom he was appointed/ [County Law (L. 1892, ch. 686), § 181; HeydecTcer's Gen. L. {2d ed.) p. 1246.] § 3. Deputy sheriffs to be appointed by sheriff; appointment to be in writing. Such sheriff may appoint such and so many deputies as he may deem proper, not exceeding one for every three thousand inha.b- Essex county, L. 1903, ch. 26. Greene county, L. 1900, ch. 84. Herkimer county, L. 1903, ch. 319, as amended by L. 1904, ci. 681. Kings county, L. 1901, ch. 705. Livingston county, L. 1903, ch. 260, as amended by L. 1905, ch. 177. Madison county, L. 1891, ch. 29, as amended by L. 1897, ch. 540. Monroe county, L. 1902, ch. 490. Montgomery county, L. 1898, ch. 42, as amended by L. 1901, ch. 341. Niagara county, L. 1894, ch. 160. Oneida county, L. 1898, ch. 321, as amended by L. 1901, ch. 666. Ontario county, L. 1902, ch. 380. Orange county, L. 1904, ch. 214. Orleans county, L. 1904, ch. 294. Putnam county, L. 1903, ch. 280. Eensselaer county, L. 1903, ch. 9. Rockland county, L. 1905, ch. 265. St. Lawrence county, L. 1900, ch. 324. Saratoga county, L. 1898, ch. 44, as amended by L. 1901, ch. 582, and L. 1904, ch. 103. Schuyler county, L. 1902, eh. 8. Schenectady county, L. 1905, ch. 153. Seneca county, L. 1899, ch. 547. Steuben county, L. 1898, ch. 445. Suffolk county, L. 1902, oh. 131. Sullivan county, L. 1897, ch. 505, as amended by L. 1898, ch. 323, L. 1902, ch. 215, and L. 1904, ch. 434. Tioga county, L. 1898, ch. 9. Washington county, L. 1897, ch. 117, as amended by L. 1899, ch. 229. Wayne county, L. 1891, ch. 30. Westchester county, L. 1894, ch. 687, as amended by L. 1899, ch. 310, and L. 1901, ch. 537. Yates county, L. 1897, ch. 362. 2. Power of nnder-slieriff. While the sheriff is in execution of hi» office, the under-sheriff would seem to have no greater , power than a deputy. Bee Tillotson v. Cheetham, 2 Johns. 63. On the death of the sheriff the powers of the under-sheriff to act in ths name of the sheriff survive, for the benefit of the parties interested in the execution of the process delivered to the sheriff before his decease; and although the under-sheriff is himself appointed sheriff, he may proceed under the provision of the statute, in his capacity as under-sheriff. Ward v. Btorey, 18 Johns. 121. Sheeiff and Coeoneks; Powees and Duties. 123 County Law, § 182. itante of tlie county; any person may also be deputed by any E.lieTiff or under-sheriff by written instrument, to do particiilar acts. Every appointment of an under-sheriff or of a deputy sheriff shall be in. writing under the hand and seal of the sheriff and filed and recorded in the office of the clerk of the county ; and every such under-sheriff or deputy sheriff shall, before he enters upon the execution of the duties of his office, take the constitu- tional oath of office ; but this last provision shall not extend to any person who may be deputed by any sheriff or imder^sheriff to do a particular act only.' [County Law {L. 1892^ ch. 686), § 182; Hey decker's Gen. L. (2d ed.), p. 1247. J 3. Vacancy in o£Sce of sheriff; appointment of deputies. In case of a vacancy in the office of sheriff, the duties of his office devolve upon his under-sheriff, but the deputies do not continue in office. A new appointment as deputy of the under-sheriff is necessary; nevertheless, if the deputy con- tinues to act under the under-sheriff with his assent, without a formal ap- pointment, he may be regarded as his deputy de facto. Boardman u. Ealli- dwy, 10 Paige, 223. Nnmber of deputies. The statute authorizes the sheriff to appoint as many deputies as he may deem proper, provided he does not exceed the statu- tory limit. People ex rel. Andrus v. Town Auditors, 33 App. Div. 277; 53 N. Y. Supp. 739. Revocation of authority. The authority of a deputy ceases upon cer- vice on him of a written revocation of his appointment, signed by the sheriff. The formality of a seal is not indispensable. The common law, that an instrument under seal cannot be discharged except by a similar instrument under seal, does not apply to the case. This is an administrative arrange- ment, and is to be regulated by the statute. Edmunds v. Barton, 31 N. Y. 495. Pover of deputy. A deputy sheriff has full power and authority to perform all necessary ministerial acts required in the service and execution of legal process addressed to the sheriff. (Hbson v. National Parle Bank, 98 N. Y. 87. And where the sheriff is directed to summon jurors they may be lawfully summoned by his deputy, under his direction. People v. McOeery, 6 Park Cr. R. 653. A sheriff who has goods in his custody under a process, has a special property therein which gives him an insurable iiLterest, and his deputy, as such, without special power, is authorized to insure in the name and behalf of his principal. White v. Madison, 26 N. Y. 117. Undertaking of deputy. The deputy's undertaking is for the benefit of the sheriff. He himself is responsible for the acts of his deputy and may properly require an undertaking to be given by each deputy appointed by him, conditioned for the faithful performance of the deputy's duties. Reilly V. Dodge, 38 N. Y. St. Rep. 352; 14 N. Y. Supp. 129; affd. 131 N. Y. 153. It is a breach of the deputy's bond if he fail to pay over to the sheriflf money collected by him, even if the sheriff should never be sued or made to Pfty the amount. The deputy's liability depends solely upon his own omission 124: County Officees. County Law, § 184. § 4. Sheriff's office ; notice of place to be filed ; when to be kept open; papers served on sheriff. Every sheriff shall keep an officei in soone proper place in. th» city or village in which tihe county co'urts of his county are held, of wliich he shall file a notice in tlie office of the county clerk. If there be more than one place of holding such courts, the notice shall specify in which place his office shall be kept, or it may be specified that an office will be kept in all such places. Every sheriff's office, except in the counties of Kings and New York, as hereinafter provided, shall be kept open, except Sundays and other days and half days declared by law to be ho'lidays or half- to pay the sheriff and not in any manner upon what becomes of the money after the sheriff receives it, or who is entitled to it. Willet v. Sttiart, 43. Barb. 98. Where a deputy's bond was conditioned to indemnify the sheriff from all costs, damages, etc., concerning the return and execution of process and con- cerning the not executing or wrongful execution, etc., of process, it was held that it did not embrace costs in suits wrongfully instituted; but that some act or omission of the deputy must be shown, of such a character that the sheriff would legally be bound to answer for it in damages. The language of the bond should be explicit in order to render the deputy liable for cost* in an unfounded suit against him. Franklin v. Hunt, 2 Hill, 671. A sheriff may recover by action upon his deputy's official bond conditioned to indemnify him against liability to third parties because of acts or omis- sions of the deputy, the amount for which he has been rendered liable to the plaintiff in an attachment suit by reason of the deputy's falsely informing him that a cheek received by the deputy from the claimant of the attached property, on releasing the property under a written stipulation between the attachment plaintiff's attorney and the claimant, that the proceeds of the check were to be held by the sheriff until the final judgment as security after the plaintiff's demand in the attachment suit, was received simply in lieu of the property released. Flack v. Brassel, 153 N. Y. 621 ; 47 N. E. 807. A deputy sheriff is an officer within the meaning of the statute and may resign his office; upon his resignation his sureties are not responsible for any acts done thereafter. Oilbert v. Luce, 11 Barb. 91. Sheriffs to notify constable! and deputy sheriffs to attend courts. The sheriff of each county, except New York and Kings, must within a rea- sonable time before the sitting, in his county, of any term af court, notify, in writing or personally, as many constables or deputy sheriffs of his county, as he deems necessary, to appear and attend upon the term during its sitting. In addition to such constables, or deputy sheriffs, the justices of the Su- preme Court of the eighth judicial district residing in the county of Erie, or a majority of them, shall, in their discretion, appoint and at their pleasure may remove one or more court officers, whose duty it shall be to attend at the justices' chambers and at special terms of the Supreme Court held in said county of Erie. The county judge and the surrogate of Erie county may each appoint, and at pleasure remove, one court officer to attend their respective courts in said county, and to perform such duties in respect thereto as the said county judge and the surrogate may prescribe. Such officers shall poa- Sheriff and Cokoners; Powers and Duties. 125 County Law, § 184. holidays, from nine o'clock in the morning until five o'clock in the afternoon, during the months of November, December, January, Februaxy and March of each year, and from eight o'clock in the morning until six o'clock in the afternoon during the other months in each year.* Every notice or other paper required tO' be served on any sheriff may be served by leaving the same at the office designated by him in such notice during the days and hours for which he is required to keep such office open, but if there be any person belonging to such office therein, such nO'tice or paper shall be delivered to such person, and every such service shall be deemed equivalent to a personal service on such sheriff.' In the counties sess all the powers of ollicers designated by sheriffs to attehd upon such courts, and shall each receive a salary not to exceed one thousand two hun- dred dollars a year, to be paid in equal monthly payments by the treasurer of the county of Erie. The sheriff of said county of Erie shall not be required to attend or designate any officer to attend at justices' chambers or at special terms of the Supreme Court or at any term of the County Court and Surro- gate's Court held in said county of Erie unless requested so to do by the jus- tice presiding. Each of the justices of the Supreme Court residing in Kings county may appoint and at pleasure remove, a clerk to such justice at a salary not exceeding two thousand five hundred dollars a jear, to be raised and paid in the same manner as the salaries of attendants and officers. Code Civ. Proc. see. 97, as amended by L. 1903, ch. 517, L. 1904, ch. 745 and L. 1905, ch. 93. Number. In any county where the compensation of such attendants is now fixed by statute at the sum of three dollars per day and mileage, the number of attendants to be appointed for any one term of court, pursuant to the last preceding section, shall not exceed eighteen. Code Civ. Proc. sec. 98, as amended by L. 1903, ch. 517. Penalty for neglect of officer to attend conrt. Each constable or deputy sheriff, seasonably notified, as prescribed in the last two sections, must attend the term accordingly; and for each day's neglect he may be fined by the court, at the term which he was notified to attend, a sum not exceeding five dollars. Code Civ. Proc. sec. 99, as amended by L. 1003, ch. 517. 4. Office hours of sheriff. Holidays and half-holidays are specified in section 24 of the Statutory Construction Law. See note to County Law, sec. 165, ante, p. 105. By section 41 of the Public Officers Law it is provided that, "holidays and half-holidays shall be considered as Sunday for all purposes relating to the transaction of business in the public offices of the state, and of each county." 5. Service of papers. The papers and notices which may be served upon the sheriff by leaving the same at his office, with his clerk or deputy, refer to the large class of papers and notices which are required by law to be served on the sheriff as such, by virtue of his office, and which do not con- cern him personally. A summons in a civil action against the sheriff cannot be served upon him by leaving the same at his office, or otherwise than by delivering the same to him personally. Sherman v. Conner, 16 Abb. N. S. 396. 126 County Officeks. County Law, §§ 185, 186, 187. of Kings and New York said offices sball remain open during the entire year from nine o'clock in the forenoon to four o'clock in the afternoon, except Sundays and other days and half days declared by law to be holidays or half-holidays. [County Law {L. 1892, ch. 686), § 184, as amended by L. 1895, ch. 718; Heydecker's Gen. L. (2d ed.), p. 1247.] § 5. Fees for services for the state; accounts, how audited. When a sheriff shall be required by any statute tio perform any service in behalf of the people of this state, and for their benefit, which shall not be miade chargeable by la,w to his county, or to some officer, body or person, his account for such services shall be audited by the comptroller and paid outi of the state treasury." [Cminty Law (L. 1892, ch. 686), § 185; Heydecker's Gen. L. l^d ed.), p. 1248.J § 6. Sheriff to be removed for non-payment of moneys. When a sheriff shall be coimmitted to the custody of any other sheriff, or to any coroner by virtue of an execution or attachment for the nO'n-paymentl of moneys received by him, by virtue of big ofiioe, and shall remain so co'mmitted for the space of thirty days successively, such facts shall be presented to the governor by tha ofiicer in whose custody such sheriff may be, to the end that such sheriff may be removed from: office.' [County Laiu (L. 1892, ch. 686), § 18Q ; Heydecker's Gen. L. (2d ed.), p. 1248.] § 7. When coroner to act as sheriff; county judge to desig- nate coroner; undertaking. When a vacancy shall occur in the ofiice of sheriff, and there shall be no under-sheriff of the connty then in office, or the office of such under-sheriff shall become vacant, or he become incapable of executing the duties of the same before another sheriff of the 6. Fees of aheriffs generally. See Code Civ. Proe., sec. 3307; R. S., pt. 4, ch. 2, tit. 8, sec. 11, post, ch. 71. See Note 1, In this chapter, for list of counties in which the office of sheriff is salaried. 7. Unties of coroner as to arrest and confinement of sheriff. When a mandate, requiring the arrest of a sheriff is directed to the coroner he must execute the same in the same manner as a similar mandate directed to a sheriff. His duties in respect to the confinement of the sheriff are the same as those <5f the sheriff in respect to the confinement of any other civil prisoner. See Code Civ. Proc, sees. 172-181. Bemoval of sheriff. For procedure for the removal of county officers by the governor, see Public Officers Law, sees. 23-25, post, p. 183. SlIEBlFF AND CoKONEES ; PoWEES AND DuTIES. 127 County Law, § 188. eame county shall be elected or appointed and qualified, and tliere shall be more than one coroner of such county then in office, the county judge of such county shall foithwith, designate- one of such coroners to execute the duties of the office of sheriff of the connty until a sheriff thereof shall be elected or appointed and qualified. Such designation shall bei by a written instrument, signed by the judge, and filed in the office of the clerk of the county, and the clerk shall immediately give notice thereof to such coroner. Within six days after receiving such notice, such coroner shall execute a joint and several undertaking, with the same number of sureties, to be approved in the same manner and be subject in all respects to the same regulations as the security required by law from the sheriff of such county. After the execution and filing of such undertaking in. the clerk's office, such coroner shall execute the duties of the office of sheriff of the same county until a sheriff shall be duly elected or appointed and qualified. \_Cou)ity Law (L. 1892, ch. 686), § 187; HeydecJcer's Gen. L. {2d ed.), p. 1248.] § 8. When other coroner to be designated; when coroner to execute duties of office of sheriff. When the coroner so designatied shall not, ■within the time specified, give the security required of him, the county judge shall, in like manner, designate another coroner of the county to assume the office of sheriff, and, if necessary, he shall make suc- cessive designation until all the coroners of the county shall have been designated to assiune such office; and all the provisions contained in the last preceding section shall apply to every such designation and to the coroner named therein. If such vacancy shall occur when there shall be but one coroner of the county then in office, he shall be entitled to execute tlie duties of the office of sheriff therein until a sheriff shall be duly elected or appointed and qualified ; but before he enters upon the duties of such office, and within ten days after the happening of the last vacancy in the office of the sheriff and under-sheriff, he shall execute with sureties a joint and several undertaking, the same as is required by lavV from a sheriff; and such undertaking shall be subject in all respects to the same reigulations as the security required from the sheriff. [County Law (L. 1892, ch. 686), § 188; Heydechers Gen. L. (2d ed.), p. 1249.J -128 County Officees. County Law, §§ 189, 190, 191. § g. County judge may appoint a person other than a coroner in certain cases. If suck coroner so in office on tke happening of suoli vacanciea shall neglect or refuse to execute such undertaking within the time required, or if all the coroners, where there are more than one in office in such eventi, shall successively neglect or refuse to esxeoute the undertaking within the time required, the county judge shall appoint some suitable person toi execute the duties of the office of sheriff in hia county until a sheriff therein shall be duly elected or appointed and qualified. Such appointment shall be made and filed in the same manner as the above designations are made and filed, and the clerk shall forthwith give notice thereof to the person so appointied, who shall, vidthin six days thereafter, and before he enters upon the duties of his office, give such security as is required by law of sheriffs, and subject to the same regulations; and thereupon such person shall execute the duties of the office of sheriff of the county until a sheriff shall be duly elected or appointed, and qualified. \_Couniy Law (L. 1892, ch. 686), § 189; Heydecher's Gen. L. {2d ed.), p. 1249.] § 10. Coroners to execute duties of office until vacancy is filled; duties and liabilities of incumbent. Until some coroner designated, or some person appointed by the judge shall have executed the security above required, or until a sheriff of the county shall have been duly elected or appointed, and qualified, the coroner or coroners of the county in which such vacancies shall exist shall execute the duties of the office of sheriff therein; and when any under-sheriff, coroner, coroners or other person- shall execute the duties of the office of sheriff, pursuant to either of the foregoing provisions, the person so executing the same shall be subject to all the duties, liabilities ,and penalties imposed by law upon the sheriff duly elected and qualified, and he shall be entitled to the same compensation. [County Laiu (L. 1892, ch. 686), § 190; Heydecher's Geiu L. {2d ed.), p. 1249.] § II. Board of supervisors may fix salary of coroner. The board of supervisors of any county shall have power to prescribe that coroners in said county shall receive a salary, instead of fees, and to fix the amount of such salary; and there- after coroners in said county shall receive for their services only tihe salary so fixed and shall not be entitled to any fees whatever Sheriff and Ooeonees; Powees and Duties. 129 Code Civil Procedure, §§ 100, 101, 102. except' wiien performing the duties of a sheriff, in, which last named case the coroner so acting, shall have the same oompensa- tion as the sheriff, whose duties he performs, would have had. {County Law (L. 1892, ch. 686), § 191, as added by L. 1899, ch, 447 ; Heydecker's Gen. L. (2d ed.), p. 1250.] § 12. Duties of sheriff in respect to services of mandates in civil actions; copy of process to be delivered; return of sheriff. A sheriff, to whom a mandate of any description, is delivered to be executed, must, without compensation, give to the person delivering the same, if required, a minute in writing, signed by the sheriff, specifying the names of the parties, the general nature of the mandate, and the day and hour of receiving the same. l_Code Civ. Proc. § 100. J A sheriff or other officer, serving a mandate, must, upon the request of the person served, deliver to him a copy thereof, with- out compensation. [Idem, § 101.] A sheriff or other officer, tO' whom a mandate is directed and delivered, must executie the same according to the command there- of, and make retumi thereon of his proceedings, under his hand. For a violation of this provision, he is liable to the party aggrieved, for the damages sustained by him, in addition to any fine, or other punishment or proceeding, authorized by law. A mandate directed and delivered to a sheriff may be returned, by depositing the same in the post-office properly inclosed in a post- paid wrapper addressed to the clerk at the place where his office is situated ; unless the officer making the return in the name of the sheriff resides' in the place where the clerk's office isi situated.' [Idem, § 102.] 8. Duty as to service and return. It is tlie duty of the sheriff to use reasonable efforts to execute process, and he cannot rely upon mere casual information. Einman v. Borden, 10 Wend. 367. A party in whose favor process is issued may give such directions to th« sheriff as will not only excuse the sheriff from his general duty but bind him to the performance of what is required of him. Gregg v. Murphy, 73 Hun, 389; 28 N. Y. Supp. 556. He is subject at all times to the direction of ths party in whose favor process is issued. Root v. Wagoner, 30 N. Y. 19. See, also, Douglas v. Eaberstro, 88 N. Y. 611; Grouse v. Bailey, 2 N. Y. St. Eep. 395 ; Corning v. Southerland, 3 Hill, 502. Uability of sheriff; damages. Prima facie where a sheriff fails to return an execution within the required time he is liable for the amount of the debt, but he may show in mitigation of damages that the defendant 9 130 County Officers. Code Civil Procedure, §§ 103, 104, 105. § 13. Liability of sheriff for neglect in serving process in special proceeding. A skerifE or other officer to whom, is delivered for servixje or exe- cution a mandate authorized by law to be issued by a judge or other officer, in a special proceeding, who wilfvdly neglects to execute the same, may be fined by the judge, in a sum not exceed- ing twenty-five dollars, and is liable to the party aggrieved for his damages sustained thereby. [^Code Ov. Proc. § 103.] § 14. Powers of sheriff in case of resistance to the service of mandate ; names of resisters to be certified to court ; sheriff may ask assistance ; governor may order out militia. If a sheriff, to whom' a mandate is directed and delivered, finds, or has reason to apprehend, that resistance will be made to the execution thereof, he may command all the male persons in his county, or as many as he thinks proper, and with such arms as he directs, including any military organization armed and equipped, to assist him in overcoming the resistance, and, if necessary, in arresting and confining the resisters, their aiders and abettors, to ,be dealt with according to law.' [Code Civ. Proc. § 104.J The sheriff must certify tO' the court, from which or by whose [authority the mandate was issued, the names of the resisters, their aiders and abettors, as far as he can ascertain the same, to the end that they may be punished for their contempt of the court. \_Idem, § 105.] therein had no property on which the execution could be levied. Pach v. Oil- lert, 17 Civ. Proc. R. 39; 7 N. Y. Supp. 336; afifd., 124 N. Y. 612. On the failure to return an execution the sheriff is only liable for the damages sustained, and if it appears that there was only a small amount of leviable property, it is error to direct a verdict for the full amount of the execution. The sheriff is not bound to levy on property pointed out by the plaintiff though an indemnity is offered him, provided he acts in good faith and shows that the property did not belong to the defendant. Dolson v. Sax- ton, 11 Hun, 565. In an action against a sheriff, for neglecting to collect and return an exe- cution against the property, the plaintiff must show a valid judgment; but the sheriff cannot take advantage of a mere irregularity making the judgment only voidable. Forsyth v. Campbell, 15 Hun, 235; Dunford v. Weaver, 84 N. Y. 445. A sheriff cannot, in an action for damages, attack the form of the mandate given him for enforcement unless it is absolutely void. McDonald V. Kieferdorf, 22 Civ. Proe. R. 105; 18 N. Y. Supp. 763. An officer to whom an execution is delivered who extends the judgment debtor's time for payment of the judgment debt beyond the time fixed for SlIEKII'F AND COEONEKS; "PoWEBS AND DUTIES. 131' Code Civil Procedure, §§ 106, 107, 108. A person oommaodeid by a sheriff to assist him, as p'rescribed in the last sectdoii but one, who, without lawful cause, refuses or neglects to obey the command, is guilty of a misdemeanor. [Idem, § 106.] If it appears to the governor, that the power of a county will not be sufficient to enable the sheriff thereof to serve or execute the process or other mandates, deliverd to him, he must, on the appli- cation of the sheriff, order such a military force, from another county or counties, as is necessiary. \^Idem, § 107.] § 15. Trial by sheriff of claim of title to property seized by him; jurors, how summoned; examination of witnesses; pay- ment of fees. Where it is specially prescribed by law, that a sheriff must, or may, in his discretion, empanel a jury to try the validity of n claim of title to, or of the right of possession of goods or effeots, seized by him by virtue of a mandate in an action, interposed by a person not a party to the action, the trial must be conducted in the following manner, except as otherwise specially prescribed by law: 1. The sheriff must, from time to time, notify as many per- sons to attend, as it is necessary, in order to form a jury of twelve persons, qualified to serve as trial jurors in the county court of the county, or, in the city and county of New York, in the Supreme Court., to try the validity of the claim. the return of the execution, and, without consultation with the judgment creditor or her attorney, procures the renewal of the execution, is liable for damages sustained by the subsequent disappearance of the judgment debtor. 9. Sheriff may call for assistance. The fact that an officer had not, at the time of summoning the power of the county, a sufficient cause for sum- moning them, does not affect the duty of the persons summoned, if, when they come together, resistance is offered to his executing the process; nor does it affect the liability of those who make or cause resistance except as to damages. Stater v. Wood, 9 Bosw. 15. The sheriff may call on others to assist him and leave them to watch while he goes for further assistance. He is deemed constructively present so as to justify the others making an arrest. Coyles V. Burtin, 10 Johns. 85. One who, being called upon by an officer to assist him, does so, acts at hia own peril ; if the officer has authority to do the act in which the person is called upon to assist, such person is bound to obey, and if he neglects or re- fuses, he is guilty of a misdemeanor; but if the officer is not so authorized, the person who obeys him is a trespasser. Elder v. Morrison, 10 Wend. 128. 132 County Officers. Code Civil Procedure, §§ 109, 182. 2. Upon the trial, witnesses may be examined, in behalf of the claimant, and of the party, at whose instance the property claimed was taken by the sheriff. For the purpose of compelling a witness to attend and testify, the sheriff, upon the application of either party to the inquisition, must issue a subposna, as prescribed in section eight hundred and fifty-four of this act, and with Uke effect; except that a warrant to apprehend or commit a witness, in a case specified in section eight hundred and fifty-five or sec- tion eight hundred and fifty-six of this act, may be issued by a judge of the court in which the action is brought, or by the county judge. 3. The sheriff or under-sheriff must preside upon the trial. !A. witness, produced by either party, must be sworn by the pre- siding oificer, and examined orally in the presence of the jury. A witness, who testifies falsely upon such an examination, is guilty of perjury in a like case, ar>,d is punishable in like manner, as upon the trial of a civil action. {Code Civ. Proc. § 108. J Upon such a trial there are no costs ; but the fees of the sheriff, jurors, and. witnesses must be taxed, by a judge of the court, or the county judge of the county, and must be paid as follows : 1. If the jury, by their verdict, find the title, or the right of possession to the property claimed, to be in the claimant ; by the party at whose instance the property was taken by the sheriff. 2. If they find adversely to the claimant, with respect to all the property claimed ; by the claimant. 3. If they find the title, or the right of possession to only a part of the property claimed, to be in the claimant ; each, party must pay his O'Wn witnesses' fees ; and the sheriff's and jurors' fees must be paid, one-half by each party to the inquisition. Before notifying the jurors, the sheriff may, in his discretion, require each of the parties to the controversy to deposit with him such reasonable sum, as may be necessary to cover his legal fees, and the jurors' fees. The sheriff must return to each party the balance of the sum so deposited by him, after deducting his feee, lawfully chargeable to that party, as prescribed in this section. {Idem, § 109.] § i6. Certificate of new sheriff; certificate to be served upon old sherifF. Where a new sheriff has been elected or appointed, and has qual- ified and given the security required by law, the clerk of \h» SHEKIIfF AND CoEONEES J PoWEKS AND DUTIES. 133 Code Civil Procedure, §§ 183, 184, 188. county must furnisb to the new sheriff a certificate, nnder his kand and official seal, stating that the person so appointed or elected, has so qualified and given security. [^Code Civ. Proc. § 182.J Upon the commencement of the new sheriff's term of office, and the service of the certificate on the former sheriff, the latter's pow- ers as sheriff ceasei, except as otherwise expressly prescribed by law. [Idem, § 183. J § 17. Former sheriff to deliver books, papers, etc., to new sheriff; proceedings to compel delivery. Within ten days after the service of the certificate, upon the former sheriff, he must deliver to his successor: 1. The jail, or if there are two or more, the jails of the county, with all their appurtenances, and the property of the county therein. 2. All the prisoners then confined in the jail or jails. 3. All process, orders, commitments, and all other papers and documents, authorizing or relating to the confinement or custody of a prisoner, or, if such a process, order or commitment has been, returned, a statement in writing of the contents thereof, and when and where it was retiurned. 4. All mandates, then in his hands, except such as he has fully executed or has begun to execute, by the collection of money thereon, or by a seizure of or levy on money or other property, in pursuance thereof. [Code Civ. Proc. § 184.] If the former sheriff neglects or refuses tio deliver tO' his suc- cessor, the jail, or any of the property, documents or prisoners in his charge, as prescribed in this title, his successor must, notwith- stianding, take possession of the jail, and of the property of the county therein, and the custody of the prisoners therein confined, and proceed to compel the delivery of the documents withheld, as prescribed, by law. [Idem-, § 188.] § 1 8. Duties of former sheriff upon new sheriff taking his office. At the time of the deliveiry, the former sheriff must execute an instrument, reciting the property, documents and prisoners deliv- ered, specifying particularly the process or other authority, by which each prisoner was commitited and is detained, and whether the same has been returned or is delivered to the new sheriff. The 134 CouiiTTY Officers. Code Civil Procedure, §§ 185, 186, 187, 189. iustrument must be delivered to the new sheriff, who must acknowledge, in writing, upon a duplicate thereof, the receipt of the property, documents and prisoners therein specified; and deliver such duplicate and acknowledgment to the former sheriff. [Code Civ. Proc, § 185.J J^'otwithstanding the election or appointment of a new sheriff, the former sheriff must return, in his own name, each mandate M'hich he has fully executed ; and must proceed witti and complete the execution of each mandate which he has begun to execute in the manner specified in subdivision fourth of the last section but one," [ Idem, § 186.] Where a person, arrestied by virtue of an order of arrest, is con- fined, either in jail, or to the liberties thereof, at the time of assigning and delivering the jail to the new sheriff, the order, if it is not then retiumable, must be delivered to the new sheriff, and be returned by him at the return day thereof, with the proceed- ings of the former sheriff and of the new sheriff thereon. [Idem, :§ 187.] §19. Under-sheriff or coroner, when to comply with fore- going provisions. If, at the time when a new sheriff qualifies, and gives the security required by law, the ofiice of the former sheriff is executed by his under-sheriff, or by >a coroner of the ooujity, or a person specially authorized for that purpose, he must comply with the provisions of this title, and perform the duties thereby required of the former sheriff." [Code Civ. Proc, § 189.] 10. Po-nrers of sheriff after ezpiratiojii of ofSce. The above section of the code requires an outgoing sheriff to complete the execution of each mandate which he has begun to execute by the collection of money thereon, or by seizure of or levy on money or other property in pursuance thereof. See Wood v. Colvin, 5 Hill, 228; Averill v. Wilson, 4 Barb. 180; Richards v. Proter, 7 Johns. 137. A judgment of foreclosure directing the sale of mortgaged premises is a "mandate," and an advertisement of the premises for sale is a "seizure." Where a sheriff had, before the expiration of his term of office, advertised premises for sale upon a day after his term expired, it vpas held that he had authority and was bound to complete the sale. Union Dime Satnngs Inst. v. Anderson, 83 N. Y. 174; affg. 19 Hun, 310. 11. IilabiHty of under-sheriff. Where a sheriff dies, who, at the expiration of hia term, has process not fully executed, his late under-sheriff is substituted for hira, assumes all his duties and liabilities, and is personally- liable, although the sureties of the late sheriff may be also liable. Nevnnan V. Beckimth, 61 N. Y. 205. Sheriff and Coeonees; Powees and Duties. 135 Penal Code, §§ 114, 115, 116. § 20. Injury to records and misappropriation by ministerial oiBcers. A sheriff, coroner, clerk of a oooirt, constable or other min- isterial officer, and every deputy or subordinate of any ministerial officer, who either 1. Mutilates, destroys, conceals, erases, obliterates or falsifies any record or paper appertiaining to his office ; or, 2. Fraudulently appropriates to his own nsei or to the use of another person, or secretes with intent to appropriate to such use, any money, evidence of debt or other property intrusted to him in virtue of his office, is guilty of felony. [_Penal Code, § 114.J § 21. Sheriffs and others permitting escapes or refusing to receive prisoners. A sheriff, coroner, clerk of a court, constable or other min- isterial officer and every deputy or subordinate of any ministerial officer, who either 1. Receives any gratuity or reward, or any security or promise of one, to procure, assist, connive at, or permit any prisoner in his custody to escape, whether such escape is attempted or not ; or, 2. Commits any unlawful act tending to hinder justice, is guilty of a misdemeanor. [^Penal Code, § 115.] An officer who, in violation of a duty imposed upon him by law to receive a person into his official custody, or into a prison under his charge, willfully neglects or refuses so to do, is guilty of a misdemeanor. [Idem, § 116.] 136 County Ofbicees. Couniy Law, § 183. CHAPTER XI. COUNTY JAILS. SechoNj 1. Sheriffs to have custody of jaila. 2. Number of rooms in county jail. 3. Custody and control of prisoners; civil prisoners to be kept separate; women not to be kept in same room with men; communication with counsel, etc. 4. Prisoners to be furnished with wholesome food; employment of prisoners. 5. Prisoners to be furnished with reading matter. 6. Record of commitments and discharges, what to state. 7. United States prisoners to be received. 8. Calendars of names of prisoners, etc., to be presented to court. 9. Prisoners to be discharged if not indicted. 10. Suspension of habeas corpus during term of court. 11. Prisoner to be discharged if unable to pay fine. 12. Houses of detention for women, children and witnesses. 13. Boards of supervisors may establish and maintain county work- houses. 14. Who may visit jails and workhouses. 15. Board of supervisors to appoint jail physician. 16. Sale of liquors in jails; permit for use of liquors; penalties. 17. Service of papers in civil action to be made on prisoner in jail. 18. Removal of prisoner in case of an emergency. 19. Designation of jail of other county or other place in same county as a county jail; modification or revocation of designation; copy of designation to be served. 20. Jail liberties, when designation is made. 21. Revocation of designation. § I. Sheriffs to have custody of jails. Each sheriff shall ha,ve the custody of the jails of his county and the prisoners therein and such jails shall be kept by him, or by keepers appointed by him, for whose acts he shall be responsi- ble.' [County Law (L. 1892, ch. 686), § 183; Heydecker's Gen. L. (2d ed.), p. 1247.] 1. Duties of state commissianers of prisons as to jails. The state commission of prisons was created by L. 1895, ch. 1026, pursuant to the authority conferred upon the legislature by section 11 of art. 8 of the Con- stitution, which authorizes the legislature to provide for a "state commis- sion of prisons, which shall visit and inspect all institutions used for the detention of sane adults charged with or convicted of crime, or detained as witnesses or debtors." Sections 2, 5, 6 and 7 of such act (L. 1895, ch. 1026), have reference to the duties of such commission in connection with county jails and are here inserted in full. County Jails. 137 County Law, § 91. § 2. Number of rooms in county jail. Each county jail shall contain, 1. A sufficient number of rooms for the confinement of persons committed on criminal process, or detained for trial^ or examina- tion as witnesses in a criminal case, separately from prisoners un- der sentence ; 2. A sufficient number of rooms for the separate confinement of persons comanitted on civil process, or for contempti ; 3. A sufficient number of rooms for the solitary confinement of prisoners under sentence. \_County Law (L. 1892, ch. 686), § 91; Heydecker's Gen. L. {2d ed.), p. 1229. J Powers and duties of commission. It shall be the duty of said commission to visit and inspect all institutions used for the detention of sane adults charged with or convicted of crime, or detained as witnesses or debtors; to aid in securing the just, humane and economic administration of all said in- stitutions subject to its inspection; to aid in securing the erection of suitable buildings for the accommodation of the inmates of such institutions, and to approve or reject plans for their construction or improvement; to investigate the management of all institutions made subject to the visitation of said com- mission and the conduct and efficiency of the officers or persons charged with their management; to secure the best sanitary conditions of the buildings and grounds of all such institutions, and to protect and preserve the health of the inmates; to collect statistical information in respect to the property, receipts and expenditures of said institutions, the number and condition of the inmates thereof; and to ascertain and recommend such system of em- ploying said inmates as may, in the opinion of said commission, be for the best interest of the public and not in conflict with the provisions of the Con- stitution relating to the employment of prisoners. L. 1895, ch. 1026, sec. 2. Inspection and investigation of institutions. Said commission or any of said commissioners, or its secretary, if authorized by it, is authorized to visit and inspect any of said institutions, subject to its visitations, and may take and hear testimony or proofs in relation to any matter before it or him upon any visit, inspection or examination made by such commission or member thereof, and the said commission or any member thereof, shall have full ac- cess to persons, grounds, buildings, books and papers relating thereto, and may require from the officers and persons in charge any information it or he may deem necessary in the discharge of its or his duties. Said commission may prepare regulations according to which and provide blanks and forms upon which, such information shall be furnished in a clear, uniform and prompt manner for the use of said commission. Said commission shall make an annual report to the legislature, in January in each year, in which it shall give the results of its work and such information as it deems proper relating to said institutions, and its opinions and conclusions relating to the same. Idem, sec. 5. Penal institutions to report to commission. — The warden of every prison, the superintendent or manager of every penitentiary, the keeper of every jail or other institution used for the detention of sane adults charged with or 138 County Officekw. County Law, § 92. § 3. Custody and control of prisoners; civil prisoners to be kept separate; women not to be kept in same room with men; communication with counsel, etc. Each sheriff shall receive and safely keep in the county jails of his county, every person lawfully committed to his custody, for safe-k'.eping, examination, or trial, or as a witness, or committed or sentenced to imprisonment therein, or committed for contempt. He shall not, without lawful authority, let any such person out of jail. Persons in custody on civil process, or committed for contempt, or detained as witnesses, shall not be put or kept in the same room withjersons detained for trial, or examination upon a criminal charge, or with convicts under sentence. Persons detained for trial or examination upon a criminal charge, shall not be put or kept in the same room with con- victs under sentence. A woman detained in any county jail or penitentiary upon a criminal charge, or as a convict under sentence, shall not be kept in the same room with a man; and if detained on civil process, or for contempt, or as a wit- ness, she shall not be put or kept in the same room with a man, except with her husband, in a room in which there are no other prisoners. If a woman committed to any county jail or penitentiary is then the mother of a nursing child in her care, under one year of age, or if a child be born to such woman after her said commitment, such child may accompany its mother to and re- main in such institution until it is two years of age or until the mother's convicted of crime or detained as witnesses or debtors shall on or before the first day of NovemBer in each and every year report to the state commission of prisons the number of male and female persons charged with crime and awaiting trial, the number convicted of crime, the number detained as wit- nesses, and as debtors, in his custody on the first day of October last past, together with a statistical exhibit of the number of admissions, discharges and deaths which have occurred within the past year, the nature of the charge, the period of detention or sentence, and such other facts and information as the commission may require. Idem, sec. 6. Refusal to admit commissioners; com,pulsory process. — Any oflBcer, super- intendent or employe of any of said penal institutions who shall refuse to admit said commission or any of said commissioners or its secretary or other authorized agent for the purpose of visitation or inspection, or shall refuse or neglect to furnish the information required by the said commission or any member thereof, or its secretary, shall be guilty of a misdemeanor, and sub- ject to a fine of one hundred dollars for each such refusal or neglect. The Tights and powers hereby conferred may be enforced by an order of the Su- preme Court. In making investigations as herein empowered said commis- sion or any member thereof is hereby empowered to issue compulsory process for the attendance of witnesses and the production of papers, to administer oaths, and to examine persons under oath and to exercise the same powers as belong to referees appointed by the court. Idem, sec. 7. Erection of jails. The board of supervisors may borrow money for the erection of county buildings and for the purchase of sites therefor, and may acquire, by purchase or otherwise, necessary real property for county jails, and may erect on such real property necessary buildings for the use of a jail. See County Law, sec. 12, subs. 6, 13, ante, pp. 46, 49. If the county owns a site with a building thereon, it may appropriate a part of such building as a jail. Roach v O'Dell, 33 Hun, 320 ; aff'd 99 N. Y. 635. The board of super- visors h;is authority to direct the purchase of such articles of furniture as are necessary to properly equip and furnish the county jail, and an account for County Jails. 139 County Law, § 92. discbarge from custody before the child reaches that age. The sheriff, super- intendent or other oiBcer in charge of any county jail or penitentiary shall cause such child, when it attains the age of two years while its mother is still in custody, or at the expiration of the extension of such time hereinafter mentioned, to be placed in an asylum for children in this state or may com- mit such child to the care and custody of some relative or proper person will- ing to assume such care; provided, however, that the said child shall con- tinue to remain with its said mother in such jail or penitentiary alter it becomes two years of age for such a period as the physician employed to treat and visit prisoners in said jaii or penitentiary certifies in writing to be necessary or advisable. If such woman at the time of such commitment shall be the mother of, and have in her exclusive care, a child more than one year of age which might otherwise be left without care or guardianship, the justice or magistrate committing such woman shall cause such child to be committed to such asylum as may be provided for such purposes or to the care and custody of some relative or proper person willing to assume such care. All persons confined in a county jail or penitentiary shall, as far as practicable, be kept separate from each other, and shall be allowed to converse with their counsel, or religious adviser, under such reasonable regulations and restrictions, as the keeper of the jail may fix. Convicts under sentence shall not be allowed to converse with any other person, except in the presence of a keeper. The keeper may prevent all other conversation by any other prisoner in the jail, when he shall deem it necessary or proper.2 [County Law (L. 1892, ch. 686), § 92, as amended by L. 1906, ch. 426; Beydecker's Gen. L. (2d ed.) , p. 1229.] articles so purchased is a proper county charge. Schenck v. Mayor, etc., of New York, 67 N. Y. 44. Buildings used as jails. It is provided in the Code of Civil Procedure, sees. 121, 122, that: "The buildings, now used as the jails of other counties of the state, shall continue to be the jails of thosp counties respectively until other buildings have been designated or erected for that purpose, according to law; and the sheriff of each county shall have the custody of the jail or jails of his county, and of the prisoners in the same." See. 122 provides that: " The sheriff of a county, in which there is more than one jail, may confine a prisoner in either; and may remove him from one jail to another, within the county, whenever he deems it necessary for his safe keeping, or for his appearance in court." 2. Separation of prisoners; code provisions. Section 123 of the Code of Civil Procedure provides that : " A prisoner, arrested in a civil case, must not be kept in a room in which any prisoner, detained on a criminal charge or conviction is confined." Section 124 provides that : " Male and fe- male prisoners must not be put in the same room ; except that a husband and his wife may be put or kept together, in a room wherein there are no other prisoners." And in section 125 it is provided that: "A sheriff or other officer, who willfully violates any of the foregoing provisions of this title, forfeits to the person aggrieved treble damages. He is .also guilty of a mis- demeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office." liiability of sheriff for injuries to prisoner. The case of Gunther v. Johnson, 36 App. Div. 437 ; 55 N. Y. Supp. 869, was where a prisoner, while confined in the county jail to await the action of the grand jury under a charge of grand larceny, and, while in the custody of the sheriff of the county, had an altercation with a, prisoner who had been committed to the jail as a vagrant; on the following morning when the prisoners were allowed the liberty of the corridor of the jail, no keeper being present, the quarrel 140 County Officees. County Law, § 93. § 4. Prisoners to be furnished with wholesome food; employ- ment of prisoners. Prisoners detained for trial, and thosei under sentence, shall be provided with, a sufficient quantity c : plain but wholesonie food, at the expense of the county ;° but prisoners detained for trial may, at their own expense, and under the direction of the keeper, be supplied with any other proper articles of food. Such keeper shall cause each prisoner co'nmiitted to his jail for imprisonment under sentence, to be constantly employed ati hard labor when practicable, during eveiry day, except Sunday, and the board of supervisors of the county, or judge of the county, may prescribe the kind of labor at which c/uch prisoner shall be employed; and the keeper shall account at least annually, with the board of supervisors of the county, for the proceeds of such labor. Such keeper may, with the consent, of the board of supervisors of the county, or the county judge, from time to time, cause such of the convicts under his charge as are capable of hard labor, to be employed outside of the jail in the same, or in an ad- joining county, upon such terms as may be agreed upon between the keepers and the officers, or persons, under whose direction such convicts shall be placed, subject to^ such regulations as the board or judge may prescribe; and the board of supervisors of the several counties are authorized to employ convicts under sentence to con- finement in the county jails, in building and repairing penal insti- tutions of the county and in building and repairing the highways in their respective counties or in preparing the materials for such highways for sale to and for the use of such counties or towns, vil- lages and cities therein ; and to make rules and regulations for was resumed, and the plaintiff's intestate struck the prisoner who ran after and stabbed him with a pocket knife which such prisoner owned and used in shaving. It was held, in the absence of evidence that the sheriff knew of any trouble in the jail, negligence could not be predicated upon his failure to an- ticipate the attack of the plaintiff's intestate upon the prisoner, or the sub- sequent felonious assault by such prisoner. Purchase of disinfectants, for use in jails. The board of supervisors of the several counties in this state are authorized to purchase disinfectants and the means of applying the same at an expense not greater than the equivalent of one cent per day for the time the same may be used, for each and every cell in the jail, and may direct the application of such disinfectants as often as in the opinion of the jail physician the same may be deemed requisite. See L. 1S68, eh. 599. 3 Board of prisoners. Boards of supervisors are authorized to contract at such times and on such terms as the board may by resolution determine. County Jails. 141 County Law, §§ 94, 95, their omiploynieint; and tke said toard of supervisors are hereby authorized to cause money to' be raised by taxation for the purpose of furnishing materials and carijing this provision into effect; and the courts of this state ax& hereby authorized tO' sentence con- victs co'mmitted to detention in the country j aib to such hard labor as may be provided for them by the boards of supervisors. [ County Law (L. 1892, ch. 686), § 93, as a-mended by L. 1896, ch. 826; Heydecker's Gen, L. (2d ed.), p. 1230.] § s. Prisoners to be furnished v^ith reading matter. Each keeper shall provide a bible to be kept in each room of the jail in his charge, and he shall permit th< persons tlierein con- fined, to be supplied with other suitable and proper books and pa- pers, and if practicable, he rhall cause divine service to be con- ducted for the benefit of the prisoners., at least once each Sunday, if there shall be room in the prison that may be safely used for that purpose. ^County Law (L. 1892, ch. 686), § 94; Heydecker's GeruL. (2ded.),p. 1230.] § 6. Record of commitments and discharges, what to state. Each keeper shall keep in a book, to be provided at the expense of the county, a daily record of the commitments and discharges of all prisoners delivered to his charge, which shall contain the date of entrance, name, offense, term of sentence, fine, age, sex, place of birth, color, social relations, education, secular and religious, for what and by whom committed, how and when discharged, trade or occupation, whether so employed when arrested, number of previous convictions.* The book containing such record shall be a public record, and shall be delivered by each sheriil to his siic- ceesor, and kept on file in the ofiice of sheriff or keeper. [County Law [l. 1892, cli. 686), § 95, as amended by L. 1904, ch. 83; Heydecker's Gen. L. (2d ed.), p. 1231.] with the sheriff of the county, when he is not by law in receipt of a salary as such sheriff, for the board, maintenance and care and custody of prisoners committed to the county jail. See County Law, sec. 12, sub. 5. As to con- tracts for the support of civil prisoners, see L. 1875, ch. 251, sec. 2, ante, p. 50. 4. Commitments to county jails. It is provided in section 702 of the Penal Code that: "Where a person is convicted of a crime, for which the punishment inflicted is imprisonment for a term of less than one year, the imprisonment must be inflicted by confinement in the county jail or place of confinement designated by law to he used as the jail of the county, except when otherwise specially prescribed by statute." Where a minor under the age of sixteen is convicted of a crime he may, instead of being sentenced to fine or imprisonment, be placed in charge of any suitable person or institu- tion willing to receive him. A child under the as<;e of sixteen years who is committed for misdemeanor must be committed to some reformatory, char- 142 County Officees. County Law, §§ 96, 97, 98. § 7. United States prisoners to be received. Such keeper shall receive and keep in his jail every person duly oommitted thereto, for any offense against the United States, by any court or officer of tke United States, until he shall be duly discharged; the United States supporting such per- son during, his confinement; and the provisions of this article, relative to the mode of confining pirisoners and convicts, shall ap- ply to all persons so committed by any court or officer of the United Stiaites. [county Law (L. 1892, ch 686), § 96; Heydecher's Gen.L. {Med.), p. 1231.J § 8. Calendars of names of prisoners, etc., to be presented to court. Such keeper shall present to every court of oyer and terminer, and every court of sessions having a grand jury, to be held in his county, at the opening of the court, a calendar stating : 1. The name of every prisoner then detained in such jail. 2. The time v^hen he was committed, and by virtue of what precept. 3. The cause of hisi detention.' {^County Law (L. 1892, ch. 686), § 97; Heydecher's Gen. L. {2d ed.), p. 1231.] § 9. Prisoners to be discharged if not indicted. Within twenty-four hours after the discharge of any grand jury by any such' court, the court shall caiuse every person so confined itable or other institution authorized by law to receive and take charge of minors. See Penal Code, sec. 713. Sentences to penitentiaries. Where a board of supervisorB has con- tracted with another county for the custody of prisoners in a penitentiary, it is the duty of a committing magistrate to sentence prisoners for terms of sixty days or more to such penitentiary. If the term imposed is less than sixty days, the sentence should be to the county jail. See L. 1859, ch. 289, see. 2, as amended by L. 1876, ch. 108. 5. Courts of Oyer and Terminer and Courts of Sessions were abolished and the Supreme Court and County Court substituted therefor, by Constitu- tion, art. 6, sec. 14. 6. Disorderly persons. It is provided in section 908 of the Code of Crim- inal Procedure that: "The keeper of every prison to which disorderly ptr- sons may be committed must return to the County Court of the county on the first day of each term, a list of the persons so committed and then in his custody with the nature of the offense of each, the name of the masristrate by whom he was committed, and the term of his imprisonment." The per- sons here referred to are persons committed as disorderly persons on failure to give security as provided in sec. 907 of the Code of Criminal Procedure. County Jails. 143 County Law, §§ 99, 100. in jail on a cxinuDal charge, who shall not have heen indicted, to be discharged without bail, unless satisfaetoTy cause shall be sho'wn for its ftirther detention, or if the oasei may require, upon bail, until the meeting of the next grand jury in the county. [County Law (L. 1892, ch. 686), § 98; Heydecker's Gen. L. (2d ed.), p. 1231.] § lo. Suspension of habeas corpus during term of court. During the session of the cooirt of oyer and terminer of any county, no person detained in a county jail of such county upon a criminal charge, shall be removed therefrom by writ of habeas corpus, unless such writ shall have been issued by or shall be made returnable before such court.' [County Law (L. 1892, ch. 686), § 99 ; Heydecker's Gen. L. (2d ed.), p. 1231.J § II. Prisoner to be discharged if unable to pay fine. When any person shall be confined in a jail for the nonpay- ment of a fine, not exceeding two hundred and fifty dollars, im- posed for any criminal offense, and against whom no other cause of detention shall exist, on satisfactory proof being m-:de to the County Court of the county in which such prisoner may be con- fined, that he is unable, and has been ever since his conviction, to pay such fine, the court may, in its discretion, ordei- his dis- charge.' [County Law (L. 1892, ch. 686), § 100; Heydecker's Gen.L. (2ded.),p. 1231.J Fop form of calendar to be presented to criminal courts as required in the above section, see Form No. 10, post. 7. Saspenaion of -writ of habeas corpni. The session of a court con- tinues for the purpose of a suspension of hibeaa corpus until the grand jury is actually discharged from its work; the absence of the judge and the trial of the jury is not a termination of the court wl-. thj meaning of the statute. See Matter of Taylor, 8 Misc. 159; People v. Sullivan, 115 N. Y. 185; 21 N. E. 1039; People v. Barrett, 56 Hun, 351, 9 N. Y. Supp. 321. 8. Remisiion of fines. It is provided in sec. 484 of the Code of Criminal Procedure that: "Any court of record, except an inferior court of local jurisdiction, which has imposed a fine for any criminal offense, or the pre- siding judge thereof, or any judge authorized to preside therein, shall have power in his discretion, on five days' notice to the district attorney of the county in which such fine was imposed, to remit such fine, or any portion thereof. In case of a fine imposed by a court not of record or by any in- ferior court of local jurisdiction, for any criminal offense whatever, the county judge of the county in which the fine was imposed, and in case of a fine imposed by such a court in the city of New York the Court of General Sessions, or any judge thereof, upon five days' notice to the district attorney of the county in which such fine was imposed, shall have the same oower." 144 County Officees. County Law, §§ 101, 102, 103. § 12. Houses of detention for women, children and witnesses. Tlie board of supervisors of any ocunty, except the county of Kings, may procure, by leas© or purciiase, a suitable place or places, other than the jail, for the safe and proper keeping and care of women and children charged with, crime not punishable by deatb. or imprisonment in state prison for a term exceeding five years or with second offense, and persons detained as witnesses, to be termed hooises of detention ; and when so provided, any m^agistrate in the county shall commit women and girls, and boys under sixteen years of age, and all persons held as witnesses tbereto, instead of the jail. The sheriff shall have the same charge and control of such house, and shall be entitled to the same cO'mpemsation for the care and keeping of prisoners therein, as in the county jail. {^County Law (L. 1892, ch. 686), § 101; Heydeclcers Gen. L. (2d ed.), p. 1232.] § 13. Boards of supervisors may establish and maintain county workhouses. The board of supervisors of any county may establish and maintain a workhouse for the confinement of persons convicted within the county of crimes and criminal offenses, the punishment for which is imprisonment in the county jail, and may provide for the imprisonment and employment therein of all persons sentenced thereto, and any court or judicial officer may sentence such person to such workhouse instead of to the county jail.' [County Lwiu (L. 1892, ch. 686), § 102; Heydecher's Gen. L. {2d ed.), p. 1232.] § 14. Who may visit jails and workhouses. The following persons may visit at pleasure all county jails and workhouses: The governor and lieutenant-governor, secre- tary of state, comptroller and attorney-general, members of the legislature, judges of the Court of Appeals, justices, of the Su- preme Court and county judges, districitl attorneys and every minister of the gospel having charge of a congregation in the town ill which such jail or workhouse is located. No other per- son not otherwise authorized by law shall be permitted to enter the rooms of a county jail or workhouse in which convicts are confined, unles.s under such regulations as the sheriff of the county 9. Penitentiaries are of the same nature as workhouses, and it is proba- ble that under the above section boards of supervisors may estsblish and maintain penitentiaries. County Jails. 145 Code Civil Procedure, §§ 126, 128. shall prescribe." [County Law (L. 1892, ch. 686), § 103; Hey- decker's Gen. L. (2d ed.), p. 1232.] § 15. Board of supervisors to appoint jail physician. The board of supervisors of each county, except New York, must appoint some reputable physician, duly authorized to prac- tice medicine, as the physician to the jail of the county. If therB is more than one jail they must appoint a physician to each. The common council of the city of JSTew York must appoint a similar physician, to the jail of that city and county. The physician to a jail holds his office at the pleasure of the board which appointed him, except in the coimty of Kings. In that county, the term of his office is three years. [Code Civ. Proc, § 126.] § 16. Sale of liquors in jails; permit for use of liquors; penalties. Strong, spirituous, or fermented liquor, or wine, shall not, on any pretence, be sold within a building used and established as a 10. Visitation of jails and trork houses. Any member of the state commission of prisons or its secretary or other authorized agent shall be &dr mitted into the jails for the purpose of visitation or inspection. See L. 1895, ch. 1026, sec. 7, ante, p. 138. Members of the executive committee of the prison association of New York or such committees as they shall from time to time appoint, have the power of visitation of county jails upon an order granted by one of the judges of the Supreme Court. See L. 184G, ch. 163, sec. 6. Members of the grand jury are entitled to free access at all reasonable times to county jails. See Code Crim. Proc, sec. 261. Penal provisions as to communications with prliioners. Section 160 of the Penal Code, as amended by L. 1903, oh. 333, in effect September 1, 1903, is as follows: "A person who, "1. Not being authorized by law visits any state prison, reformatory, peni- tentiary, county jail or other place for the detention of persons convicted of crime or communicates with any prisoner therein without the consent of the agent or warden, superintendent, keeper, sheriff or other person having charge thereof or without such consent brings into or conveys out of a state prison, reformatory, penitentiary, county jail or other place for the detention of persons convicted of crime, any letter, information or writing to or from any prisoner; or "2. Conveys in or takes from such prison, reformatory, penitentiary, county jail or other place for the detention of persons convicted of crime, or who personally or through any other person or persons gives, sells, furnishes or otherwise delivers to any prisoner or prisoners in custody any drug, liquor or any article prohibited by law or by the rules of the superintendent, keeper, sheriff, board of managers or other person, or official having charge or control thereof; is guilty of a misdemeanor." 10 146 County Officees. Code Civil Procedure, §§ 129, 130, 131, 132. jail. Spirituous, fennented or other liquor, except cider, anid that quality of beer called table-beer, sball not be brought into a jail for the use of a person confined therein, without a written permit by the physician to the jail, which must be delivered to and kept by the keeper thereof, specifying the quantity and kind of liquor which may be furnished, the name of the prisoner for whom, and the time during which the same may be furnished. [Code Civ. Proc, § 128.J Such a permit shall not be granted, unless the physiciajQ; is satis- fied, that the liquor allowed to be furnished is necessary for the health of the prisoner, for whose use it is permitted ; and that fact must be stated in the permit. [Idem, § 129. j A person who brings into or sells in a jail, strong, spirituous, fermented or other liquor, or wine, contrary to the foregoing pro- visions of this article; or a sheriff, keeper of a jail, assistant keeper,. or an officer, or person employed in or a,bout a jail, who knowingly suffers liquor or wine to be sold or used therein, contrary to this article, is guilty of a misdemeanor, and shall be punished accord- ingly. A conviction also operates as a forfeiture of his office. lldem, § 130.] § 17, Service of papers in civil action to be made on prisoner in jail. A sheriff or jailor, upon whom a paper in an action or special proceeding, directed to a prisoner in his custody, is lawfully served, or to whom such a paper is delivered for a prisoner, must, within two days thereafter, deliver the same to the prisoner, with a note thereon of the time of the service thereof upon, or the re- ceipt thereof by him." For a neglect or violation of this section the sheriff or jailor, guilty thereof, is liable to the prisoner for all damages occasioned thereby. [Code Civ. Proc, § 131.] Subject to reasonable regulations, which the sheriff may estab- lish for that purpose, a sheriff, jailor or other officer, who has the custody of a prisoner, must permit such access to him' as is neces- sary, for the personal service of a paper in an action or special proceeding, to which the prisoner .s a party, and which must be personally served. [Idem, § 132.] 11. An ezecntion against a person is not a paper within the meaning of this section. See Matter of Johnson, 21 Abb. N. C. 172. County Jails. 147 Code Civil Procedure, §§ 143, 135, 136, 137. § 1 8. Removal of prisoners in case of an emergency. If, by reason of a jail, or a. building near a jail, being on fire, there is reason to apprehend that some or all of the prisoners con- fined in the jail, may be injured, or may escape, the sheriff or keeper of tbe jail may, in his discretion, remove them to some safe and convenient place, and there confine them, until they can be safely returned to tbe jail; or, if the jail is destroyed, or so injured, that it is unfit or unsafe for the confinement of the prisoners, until a designation is made, as prescribed in section one hundred and tbirty-five of this act. [Code Civ. Proc, § 143.] § 19. Designation of jail of other county or other place in same county as a county jail; modification or revocation of designation ; copy of designation to be served. If there is no jail in a county; or the jail becomes unfit or unsafe for the confinement of some or all of the prisoners, or is destroyed by fire or otherwise ; or if a pestilential disease breaks out in the jail, or in the vicinity of the jail, and the physician to the jail certifies that it is likely to endanger the healtb of any or all of the prisoners in tbe jail; the county judge, or, in the city and county of New York, the presiding justice of the Appellate Division of the Supreme Court of the first department, must, by an instrument in writing, filed with the clerk of the county, designate anoither suitable place within tbe county, or the jail of a contiguous county, for the confinement of some or all of the prisoners, as the case requires. The place so designated there- upon becomes, to all intents and purposes, except as otherwise prescribed in this article, the jail of the county for which it has been so designated, and for tbe purposes expressed in the instru- ment designating the same. [Code Civ. Proc, § 135, as amended by L. 1895, ch. 946.] The designation may be modified or revoked, by the judge making the same, by a like instrument in writing, filed with the clerk of the county. [Idem, § 136.] The county clerk must serve a copy of the designation, duly certified by him, under bis official seal, on tbe sheriff and keeper of the jail of a contiguous county so designated. The sheriff of that county must, upon the delivery of the sheriff of the county for wbich the designation is made, receive into his jail, and there safely keep, all persons who may be lawfully confined therein, pursuant to this article ; and he is responsible for their safe keep- 148 County Officees. Code Civil Procedure, §§ 138, 139, 140, 141, 142. ing, as if he was the sheriff of the county for which the designatiott is made. [Idem, § 137.J § 2o. Jail liberties, when designation is made. If a prisoner has been admitted to the liberties of the jail of the county, for which the designation is made, he must, notwith- standing, remain within those liberties; but he may be removed by the sheriff, to whom he has giveox bond for the liberties, to the jail or other place so designated, and confined therein, in a case where the sheriff might confine him in the jail of his own county. [Code Civ. Proc, § 138.] If a person, who is arrested, before or after the designation, by the sheriff of the county for which the designation is made, be- comes entitled, after the designation, and before his removal, to the liberties of the jail, he must be admitted to the liberties of the jail of that county, as if the designation had not been made; but he may be removed by the sheriff to the jail, or other place, so designated, and confined therein, in a case where the sheriff might confine him in the jail of his own county. [Idem, § 139.] If a person confined in or removed to the jail of a contiguous county, designated as prescribed in this article, becomes entitled to the liberties of the jail, the sheriff of that county must admit him to the jail liberties, as if he had been originally arrested by that sheriff, on a mandate directed to him. [Idem, § 140.] § 21, Revocation of designation. When a jail is erected for the county, for whose use the desig- nation was made, or its jail is rendered fit and safe for the con- finement of prisoners, or the reason for the designation of another jail or place has otherwise ceased to be operative, the designation must be revoked, as prescribed in this article. [Code Civ. Proc, § 141.J The county clerk must immediately serve a copy of the revoca- tion, duly certified by him. under his ofiicial seal, upon the sheriff of the same county; who must remove the prisoners belonging to his custody, and confined without his county, to his proper jail. If a prisoner has been admitted to the jail liberties in the other county, he must also be removed ; and he is entitled to the liberties of the jail of the county, to which he is removed, without a neiw bond, as if hei had been originally admitted to the jail liberties in that county; and the bond given by him applies accordingly to those liberties. [Idem., § 142.] Civil Pbisonees; Jail, Libekties. 149 Code Civil Procedure, §S 110, 111. CHAPTER XII. CIVIL PBISONEES ; JAIL LIBERTIES. SllcnON 1. Civil prisoners, when arrested; how long imprisoned. 2. Support of civil prisoners; sheriff not to charge for food nor keeping prisoners out of jail; support of civil prisoners out of jail; sheriff not to receive room rent. 3. Prisoner conveyed through other counties. 4. Civil prisoners by virtue of process of United States courts j sheriff or jailer may receive compensation for services. 5. Civil prisoner, when sick may be removed. 6. Jail limits, how established; copy of resolution of board of super- visors to be served on jailor. 7. Boundaries of jail limits, how designated. 8. Civil prisoner, when entitled to jail liberties; undertaking, how executed ; effect of undertaking. 9. Surrender of civil prisoner upon jail limits. 10. Escape of civil prisoner, what constitutes. 11. Liability of sheriff for escape. 12. When sheriff to produce civil prisoner who has been indicted. 13. Confinement of prisoner committed for contempt. § I. Civil prisoners, when arrested; how long imprisoned. A persou arrested, by virtue of an order of arrest, in an action' or special proceeding brought in a court of record ; or of an exe^- cution issued upon a judgment rendered in a court of record ; or surrendered in exoneration of his bail ; must be safely kept in custody, in the manner prescribed by law, and, except as other- wise prescribed in the next two sections, at his own expense, until he satisfies the judgment rendered against him, or is discharged according to law. [Code Civ. Proc, § 110.] No person shall be imprisoned within the prison walls of any jail for a longer period than three months under an execution or any other mandate against the person to enforce the recovery of a sum of money less than five hundred dollars in amount or under a commitment upon a fine for contempt of court in the nonpay- ment of alimony or counsel fees in a divorce case where the amount 80 to be paid is lees than the sum of five hundred dollars; and where the amount in either of said cases is five hundred dollars or over, such imprisonment shall not continue for a longer period than six months. It shall be the duty of the sheriff in whose cus-^ tody any such person is held to discharge such person' at the expira- tion of said respective periods without any formal application 150 County Officees. Code Civil Procedure, § 111. being made therefor. No person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution or other mandate against the person, and no- action shall be commenced against the sheriff upon a bond given for the jail liberties by such person to secure the benefit of such liberties, as provided in articles fourth and fifth of this title for an escape made after the expiration of six months' imprisonment as afore- said. Notwithstanding such a discharge in either of the above cases, the judgment creditor in the execution, or the person at whose instance the said mandate was issued, has the same remedy against the property of the person imprisoned which he had before such execution or mandate was issued ; but the prisoner shall not be again imprisoned upon a like process issued in the same action or arrested in any action upon any judgment under which the same may have been granted. Except in a case hereinbefore speci- fied nothing in this section sball effect a commitment for contempt of court' lldenij § 111.] , 1. Application of section. This section refers only to a final process or mandate after an adjudication fixing the amount due; it does not include orders of arrest issued at the time of the commencement of an action or be- fore any recovery. Levy t\ Salomon, 105 N. Y. 529; 12 N. E. 53, 19 Abb. N. C. 52; In re Coyne, 18 Civ. Proc. R. 397; 13 N. Y. Supp. 797. It has refer- ence to that class of defendants who are actually confined in jail or within the jail liberties. Wright o. Gramt, 11 Civ. Proc. R. 407; 18 Abb. N. C. 451. But an imprisonment of the defendant for contempt on an interlocutory ordet before judgment will not prevent his subsequent imprisonment for disobedi- ence to a final judgment in the same action. Reese v. Reesei, 46 App. Div. 156; 61 N. Y. Supp. 760. , The object of the section is to limit the period of imprisonment to threa months in case of actual confinement, and to six months in ease of imprison- ment within the jail liberties. In computing the term to which the im- prisonment is limited, for contempt of court in the non-payment of alimony, the time during which the person against whom the process runs is out of jail, in the custody of his counsel pending habeas corpus proceedings, is not to be included. People ecu rel. Clark v. Grant, 111 N. Y. 584; 19 N. E. 281. Not to be again Imprisoned upon a like process In same action. Where a defendant has been arrested and imprisoned for the non-payment of alimony previously directed to be paid by the judgment, and remains in prison under the commitment, because of such default of payment, for the full term for which he could be imprisoned, he is not thereafter liable to ar- rest and' imprisonment because of the non-payment of alimony subsequently becoming payable, as the above section prohibits the imprisonment of the party upon a like process, not for the non-payment of the same sum of money, but under a like process issued in the same action. Winton v. Win- ton, 53 Hun, 4; 5 N. Y. Supp. 537; affd, 117 N. Y. 623. Civil. Pkisonees; Jail Liberties. 151 Code Civil Procedure, §§ 112, 113, 114, 115, 116. \ § 2. Support of civil prisoners; sheriff not to charge for food nor keeping prisoners out of jail; support of civil prisoners out of jail ; sheriff not to receive room rent. lu any county, if a prisoner actually confined in jail makes oatli before the sheriff, jailor or deputy jailor, that he is unable to support himself during his imprisonment, his support is a county charge.' [Code Civ. Proc, § 112.] A sheriff or other officer shall not charge a person, whom he has arrested, with any sum of money, or demand, or receive from him money, or any valuable thing, for any drink, victuals, or other thing, furnished or provided for the officer, or for the prisoner at any tavern, alehouse, or public victualing or drinking house. \_Idem, § 113.] A sheriff or other officer shall not' demand" or receive from a person arrested by him, while in his custody, a gratuity or reward, upon any pretence, for keeping the prisoner out of jail; for going with him or waiting for him to find bail, or to agree with his adversary; or for any other purpose. [Idemj § 114.] If a person arrested is kept in a house other than the jail of the county, the officer arresting hhn, or the person in whose custody he is, shall not demand or receive from him any greater sum, for lodging, drink, victuals, or any other thing, than has been theretofore prescribed by the Court of Sessions of the county; or, if no rate has been prescribed by the Court of Sessions, than is allowed by a justice of the peace of the same town or city, upon proof that the lodging or other thing was actually furnished, at the request of the prisoner. And such an officer or person shall not, in any case or upon any pretext, demand or receive compensa- tion for strong, spirituous, or fermented liquor, or wine, sold or delivered to the prisoner. [Idem, § 115.] A prisoner so kept in a house, may send for and have beer, ale, cider, tea, coffee, milk, and necessary food, and such beddinc;, linen and other necessary things, as he thinks fit, from whom he pleases, without detention of the same or any part, thereof by, or paying for the same, or any part thereof to, the officer arresting him, or the person in whose custody he is. [Idenij § 116.] 2. A» to contracts trith aberiS made by the board of supervisors for the support and maintenance of civil prisoners, see L. 1875, ch. 251, sec. 2, mortem examinations and dissections and to testify to the same, the compensation there- for to be a county charge. [L. 1873, cli. 833, § 2, as amended by L. 1874, ch. 535.] § II. Witnesses and jurors; report of coroner. Whenever, in consequence of the performance of his official duties, a coroner becomes a witness in a criminal proceeding, he shall be entitled to receive mileage to and from his place of resi- dence, ten cents per mile, and three dollars per day for each day, or fractional parts thereof, actually detained as such witness. [L. 1873, ch. 833, § 3, a« amended ly L. 1874, ch. 535.] 164 CouisTTT Officers. L. 1873, ch. 833, § 4; L. 1864, ch. 379, §§ 1, 3. Tke fees of jurors necessarily summoiied upon any coroner's inquest shall be not to exceed one dollar for ©aoh day's service, shall be a county charge and shall be audited and allowed by the boards of supervisors in the same manner as other fees and charges mentioned in this act. But the coroner holding such inquest and eumnaoning said jurors, shall make report to the next succeeding board of supervisors after every such inquest of the na.mes of such jurors and the term of service of each, and upon what inquest rendered, on or before the third day of the annual session in each year. [L. 1873, ch. 833, § 4, as inserted by L. 1878, ch. 286, ,§!■] § 12. Justices of the peace, when to act as coroners. Any justice of the peace, in each of the several towns and cities of this state, is hereby authorized and empowered, in case the attendance of a coroner cannot be procured within twelve hotirs after the discovery of a dead body, upon which an. inquest is now by law required to be held, to hold an inquest thereon in the same manner and with the like force and effecit as coroners. [L. 1864, ch. 379, § 1.] Post-morten. examinations. In all cases in which the cause of death is not apparent, it shall be the duty of the justice to asso- cdate with himself a regularly licensed physician, to make a suit- able examination for the discovery of said cause. [Idem, § 2. J Fees. Each and every justice of the peace who shall hold inquests by virtue of this act, shall receive the same fees as axe now allowed by law to coroners. [Idem, § 3.] United States Deposit Fund; Loan Commissionees. 165 State Finance Law, § 82. CHAPTER XIV. UNITED STATES DEPOSIT FUND) LOAN COMMISSIONEES. Sbction 1. The United States deposit fund. 2. Appointment and qualification of loan commissioners. 3. Discharge and cancellation of mortgages by eommissionera. 4. Bond of commissioners. 5. Powers of single commissioner; books and records. 6. Supervision of existing loan office mortgages; loan of moneys by commissioners. 7. Loan commissioners to receive and invest United States deposit fund. 8. Sales of real estate by loan commissioners. 9. Deposit of moneys by loan commissioners 10. New accounts for parts of premises. 11. Power of commissioners to maintain actions. •. 12. Foreclosure and redemption of loan office mortgages. 13. Disposition of surplus moneys. 14. Purchases for the state. 15. Report to comptroller. 16. Certified copy of original mortgage. 17. Fees of loan commissioners. 18. Powers and duties of boards of supervisors as to loan jnorfgages. § I. The United States deposit fund. The part of the United States deposit fund received out of the surplus money of the treasury of the United States, under the thirteenth section of the act of congress, entitled "An act to regu- late the deposits of the public money," passed June twenty-third, eighteen hundred and thirty-six, is held by the state ou the terms, conditions and provisions specified in such act of congress, and the faith of the state is inviolably pledged for the safe-keeping and repayment of all moneys thus received from time to time, whenever the same shall be required by the secretary of the treasury of the United States, under the provisions of such act. The comptroller and treasurer of the state shall keep the accounts of the moneys belonging to the United States deposit fund in the books of their respective offices, separate and distinct from the state funds, and in such manner as to show the amount of principal, of the fund, the amount received from the interest, the amount paid from the annual revenue and the objects to which the same has been applied. If there shall be any loss in the loans of the moneys belonging to the United States deposit fund, it shall be a charge ou the interest derived from the loan of such moneys, and none of the interest moneys shall be paid out for any purpose until such loss has been 166 County Ofeicebs. , State Finance Law, §§ 83, 84. made good thereon/ [State Finance Law (L. 1897, ch. 413), § 82 ; Ileydecher's Gen. L. {2d ed.), p. 619. J § 2. Appointment and qualification of loan commissioners. There shall coiitinue to be two Minmissioiiera for loaning the moneys belonging tO' the United States deposit fund, in each county, where such, moneys are now invested, who shall be known as loan commissioners. The term^ of office of each, commissioner shall be two years. Such coromissioners shall be appointed by the governor, with, the advice and consent of the senate. Each com- missioner shall reside in the oouuty for which he is appointed and shall not be a supervisor. The office of such commissioners for each county shall be kept at the court-house of the coimty or at some convenient place near the same. The office of the commissioners appointed in the city and county of New York shall be at the office [of the register of such city and county. The commissioners shall attend their offices annually on the first Tuesday of October, and thereafter on the Tuesday and Wednesday of each week for the space of three weeks to receive moneys to be paid to them by virtue 'of this chapter. [State Finance Law, (L. 1897, ch. 413), § 83; Heydecher's Gen. L. {2d ed.), p. 620.] §■ 3^; Discharge and cancellation of mortgages by commis- sioners. The comptroller may direct the commissioners to cancel and discharge any mortgage, on satisfactory proof that the moneys 1. Effect of revision of 1897. The revision of 1897 materially changed the law relating to the care and disposition of the United States deposit fund. Loan commissioners were by the revision deprived of their power to loan the money belonging to this fund. They retained the power to enforce the collection of loans, but upon receipt of the money by them they were re- quired to return it to the comptroller who was then authorized to re-invest it in the same manner as other funds of the state. This arrangement was evidently not satisfactory, as the legislature at its succeeding session amended the law by the enactment of L. 1898, ch. 360, and the power to loan money belonging to the United States deposit fund was again conferred upon the loan commissioners, and many of the provisions of the original United States Loan Deposit Act of 1837, ch. 150, which has been repealed by the State Finance Law, were re-enacted and incorporated in the St;ite Finance Law. As the law now stands, the powers of the loan commissioners are practically the same as they were prior to 1897. We have inserted in this place the sec- tions of the State Finance Law relating to the United States deposit fund and the powers and duties of United States loan commissioners and boards of Bupervisora in respect thereto. United States Deposit Fund ; Loan Commissionees. :* 17 State Finance Law, §§ 85, 86. loaned and secured by such mortgage have been fully paid to either of the commissioners authorized to receive the same, if the mortn gage remains uncanceled and undischarged of record. The com- missioners, in pursuance of the order and direction of the comp- troller, shall cancel and discharge such mortgage. [State Fmanc Law (L. 1897, ch. 413), § 84; Heydecker's Gen. L. (2d ecL)-, p. 620.] § 4. Bond of commissioners. Every such commissioner hereafter ap^pointed, before entering on his official duties, shall execute to the people of the state of New York, an undertaking with two or more sufficient sureties, to be approved by the comptroller, in such sum as the comptroller directs, for the true and faithful performance of his duties as such commissioner. No commissioner shall receive any moneys under the provisions of this article until such undertaking has been executed, approved and filed in the office of the comptroller. The comptroller may require additional security at any time, and, if the same is not given when required, shall report the fact, with his reason for requiring additional security, to the governor. [State Finance Law, (L. 1897, ch. 413), § 85; Heydecker^s Gen. L. {2d €d.),p. 620.] § 5. Powers of single commissioner; books and records. If there is but one commissioner in a county, or but one able or qualified to act, he shall have all the powers of two commissioners of the county until his associate has been appointed and qualified or has become able to act. If the two commissioners of the county disagree with reference to any matter requiring their action, either may apply to the supreme court for direction in the premises, on notice of eight days tO' his associate, and any order which the oouit may make on such application shall be observed and complied with by such commissioners. The book or books of mortgages executeel to the commissioners when not in use by them shall remain in thfi clerk's office of the county, and in the city and county of New York in the office of the register. The commissioners shall keep a record of their proceedings in a book to be kept for that purpose, which, when not in use by them, shall be deposited in the clerk's or regis- ter's office of the county. During office hours any person may search and examine any book required to be kept by this article. [State Finance Law, (L. 1897, ch. 413), § 86; Heydecker^s Gen. i., (2ded.),p. 621.] 168 County Officers. State Finance Law, § 87. § 6. Supervision of existing loan office mortgages; loan of moneys by commissioners. Suck commissioners in each county shall have charge of the mortgages heretofore executed tO' them or their predecessors in office, on lands in s.uch county, which mortgages shall continue with the same force and effect as if this chapter were not enacted. The rate of interest on such mortgages shall be five per centum per annum. Such commissioners shall collect and receive the interest arising on any such mortgage^, and in case of failure to pay such interest when due^ may foreclose such mortgage by such actions or proceedings as other mortgages may be foreclosed by their naane as "the commissioners for loaning certain moneys of the United States of the county," of which they are respectively commissioners, and they shall be named and described by such name and style in all legal and other proceedings which may be had un.der the provisions of this act. Such commissioners shall receive payment of the principal or any part thereof of any such mortgage on lands within tiieir respective counties when tendered and shall satisfy and dis- charge the same by the execution and acknowledgment of a satis- faction piece in the usual form, which shall be recorded by the county clerk, who shall thereupon write upon the margin of such mortgage, in the book containing the same in his office, a statement to the effect that the same has been discharged and satisfied by such commissioners, giving the date thereof. Such commissioners may allow any such mortgage to remain as a continuing security if all interest due thereon, has been paid, and they are satisfied, on due inquiry, that the same is a first lien on the premises described therein, and that such premises are worth double the amount paid on the mortgage. If not so satisfied, they shall report the facts to the comptroller, and if directed so to do by him, they shall proceed to foreclose such mortgage and collect the prin- cipal and interest due thereon. On or before the first Tuesday in November in each year, the commissioners shall pay to the treas- urer of the state the amount of moneys in their hands, received on account of the interest of the moneys in their charge, less the amount which they are entitled to retain for their compensation, costs, disbursements and expenses. Any moneys in the hands of the said commissioners as part of the principal of the said fund, they may, from time tO' time, loian out to the inhabitants of their respective counties on mortgage on improved lands in the same county. The said mortgage shall contain the usual covenants as to United States Deposit Fundj Loan Commissionees. 169 L. 1898, ch. 360, § 5. the payment of insurance, interest and taxes. The said commis- sioners, respectively, before they accept a mortgage on lands for any of said moneys, shall be satisfied that the borrower has a titla in fee to such lands, and that the same are free and clear of all incumbranees and are worth double the amount of the sum loaned, exclusive of buildings and of the value of the rent in perpetuity, if any charged thereon ; and whenever the said commissioners shall deem it necessary they shall, in addition to the examinations for that purpose hereinafter directed to be made, require the borrower to satisfy them by proper evidence that he possesses an estate in fee in such lands free and clear of all incumbrances. The said commissioners shall loan the said moneys in sums not exceeding the sum of two thousand dollars, except in the City of New York, and in that city in sums not exceeding the sum of five thousand dollars; and in the several counties, except in the city of New York, in sums not under twO' hundred dollars, and in that city not under five hundred dollars. The interest of the moneys to be loaned as aforesaid, shall be payable annually on the first Tuesday of October in each and every year, and the said moneys shall be loaned on a credit of not exceeding five years, subject, however, to the conditions of being called in, the one half on a previous notice of one year, and the remainder on a previous notice of two years. [State Fmance Law (L. 1897, ch. 413), § 87, as amended by L. 1898, ch. 360; Heydecker's Gen. L. {2d ed.), p. 621.] § J. Loan commissioners to receive and invest United States deposit fund. The comptroller of the state of New York is hereby directed to pay over to the loan commissioners of the various counties of the state of New York, as hereinafter provided, all amounts of princi- pal derived from, the United States deposit fund now in his hands. Whenever the loan commissioners of any county shall report to the comptroller that they have approved of a loan secured by mortgage in compliance with the provisions of this act, the comptroller shall theTeupon remit to the said commissioners the amount of such loan so tO' be taken by them, and they shall thereupon invest the same in such mortgage. The comptroller shall pay over the principal of the said United States deposit fund, as may be required from time to time, to the loan commissioners for the respective counties upon their report as above provided until the amonr.t of principal of the said fund received from the respective counties shall have been XlO County Officers. L. 1898, ch. 360, §§ 6, 7. repaid in full to the loan commissioneira of such counties, and such suma soi repaid shall be by them invested and reinvested in loans secured by mortgage in compliance with the provisions of this act. [L. 1898, ch. 360, § 5.] § 8. Sales of real estate by loan commissioners. Any real estate, the title of which is in the people of the state of New York, through foreclosure of any mortgage taken by any of said loan commissioners, shall be sold by the commissioners of the county in which the same is situated at the best price which can be obtained therefor within three years from the passage of this act ; such sale to be had after due advertisement in two papers published in said county aA least once a week for six successive weeks, or at private sale provided the amount realized from, said sale shall be equal to the principal sum of the mortgage, together with past due interest and the costs of foreclosure and sale ; but before the deliv- ery of the deed therefor by said loan commissioners for and on behalf of the people of the state of New York every sale shall be approved in writing by the comptroller of the state of New York; any such sale may be made upon the condition that one-half of the purchase price shall be paid in cash and the other one-half may be secured by the bond of the purchaser and a, duly executed mort- gage upon the land thus sold, which mortgage shall be held as are other mortgages taken by said commissioners ; and any real estate, the title toi which the people of the state may hereafter acquire by foreclosure of any mortgage taken by loan commissioners, shall be sold in the manner above provided within three years from the time the state acquires an absolute title thereto. [L. 1898, ch. 360, §6.] § g. Deposit of moneys by loan commissioners. Any sums of principal received by the said commissioners in any county in which a savings bank or trust company isi situated shall be forthwith deposited in some savings bank or trust company in said county to the credit of said commissioners, and shall there remain until the same is reinvested in mortgage in conformity with the provisions of this act. In any county in which there is no' sav- ings bank or trust company the commissioners may deposit any sums of principal received by them in an incorporated bank within said county in which the said commissioners keep their accounts as such ; provided, however, that if such moneys are not reinvested in tlNkfED States Deposit Fund; Loan Commissioners. 171 State Finance Law, §§ 88, 89, 90. mortgwge within sixty days, the said cominisaioners shall oa.use the same to be deposited in some savings bank or trust company to their credit as such commissioners, where the same shall remain until it can be reinvested in mortgages as provided by this act. [L. 1898, ch. 360, § 7, as amended by L. 1902, ch. 28.] § lo. New accounts for parts of premises. If the oiwner of mortgaged premises sell a part tliGreof, the com- missioners, on application and with the consent of the mortgagor .and such owner shall open an account against the purchaser for his proportionate share of the moneys unpaid on the mortgage, but not for a less sum than one hundred dollars nor unless the part of the mortgaged premises remaining unsold, exclusive of buildings and prior liens, is worth double the residue of the mortgage debt not included in the new account. On full payment of the amount for which a separate account is opened, the commissioners shall dis- charge the part for which such account was opened by the execation of a release in the usual form, which, when acknowledged, shall be recorded by the county clerk and a minute thereof made upon a margin of the mortgage. Such discharge shall not affect or impair the obligation or liability of the mortgagor. [State Finance Law takings. Every undertaking required by this chapter must be eixecuted by the officer or person in whose behalf it is given, and his sureties, and duly acknowledged ot proven and certified, and the approval in- dorsed thereon. The parties executing the same sihall be jointly and severally liable, regardless of its form in that respect, for the dam- ages sustained by reason of a breach thereof." Bcribe the oath or affirmation above prescribed, together with the following addition thereto, as part thereof: "And I do further solemnly swear (or affirm) that I have not directly or in- directly paid, offered or promised to pay, contributed, or offered or promised to contribute any money, or other valuable thing as a consideration or re- ward for the giving or withholding a vote at the election at which I was elected to said office, and have not made any promise to influence the giving cr withholding any such vote," and no other oath, declaration or test shall be required as a qualificatioii for any office of public trust. The Public Officers Law, sec. 10, provides that an official oath "may be ad- ministered by an officer authorized to take within the state, the acknowledgc- Kent of the execution of a deed of real property." This provision applies generally to all officers where no other provision is made by law. The above section requires the oath to be taken and subscribed before the county clerk •r county judge of the county, which undoubtedly controls the taking of the •fficial oath by a county officer. Failure to take oath. The county clerk is required to give notice to the governor of all county officers who have failed to file their oath of office •r official undertaking. See County Law, sec. 161, sub. 4, ante, p. 102 ; see, jilso. Public Officers Law, sec. 13. It is provided in section 20 of the Public Officers Law that every office shall be vacant upon the refusal or neglect of an officer to file his official oath upon or within fifteen days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within fifteen days after notice of his appointment, or within fifteen days after the eommencement of his term. Notwithstanding the provisions of the statute that upon a refusal or neg- lect of a public officer to file his oath the office becomes vacant, it has been held repeatedly that the omission of the oath within the required time did not, ipso facto, vacate the office, but at most made the officer's title to the office defeasible, and afforded cause for forfeiture. See Cronin v. Stoddard, 97 N. Y. 271, 274; People ex rel. Woods v. Crissey, 91 N. Y. 616, 635; People ea rel. Brooks v. Watts, 73 Hun, 404, 407; 26 N. Y. Supp. 280; Matter of Taylor, 25 Abb. N. C. 143 ; see, also. Matter of Drury, 39 Misc. 288 ; 79 N. Y. Supp. 498. 5. Effect of official mndertakinB. Every official undertaking must ba to the cflfect that the officer will faithfully discharge the duties of his office ind promptly account for and pay over moneys or property received by him 182 CouifTT Ofpicees. County Law, § 237. Every officer or board required to approve an undertaking may examine each, surety thereto' under oath, ajid shall not approve the same unless th,e sureties are freeholders of the state and jointly ■wiorili over and above their debts and liabilities a,t least double a sum which such officer or board may fix upon and inseirt in the un- dertaking as reasonably sufficient to indemnify the county, and every person who may be ot beoome interested therein, or in amy breach thereof." Official bonds and undertakings, including the bonds of exeoutora, administrators, guardians and trustees, required by la.w to' be filed in the office of the county clerk or surrogate, shall also be recorded in such offices respectively, in a book to be provided and kept in eacb of sucb offices, to be designated "book of official bonds and undertakings." The county clerk and surrogate's clerk shall re- as such officer in accordance with law, or in default thereof, that the parties executing such undertaking will pay all damages, costs and expenses result- ing from such default, not exceeding a sum, if any, specified in such under- taking. See Public Officers Law, sec. 11. Approval of undertaking. Such section of the Public Officers Law provides that: "The undertaking of a municipal officer shall, if not other- wise provided by law, be approved as to its form and the sufficiency of the sureties by the chief executive officer, or by the governing body of the muni- cipality, and be filed with the clerk thereof. The approval by such govern- ing body may be by resolution, a certified copy of which shall be attached to the undertaking. The governing body of a county is the board of supervisors." It would seem, therefore, that where no provision is made by law for the approval of an official undertaking by a county officer that the board of supervisors may, by resolution, approve such undertaking. 6. Smreties. Section 11 of the Public Officers Law also provides that: "Every official undertaking shall be executed and duly acknowledged by at least two sureties, each of whom shall add thereto his affidavit that he is a freeholder or householder within the state; stating his occupation and resi- dence and the street number of his residence and place of business, if in a city, and the sum which he is worth over and above his just debts and liabilities and property exempt from execution. The aggregate of the sums so stated in such affidavits must be at least double the amount specified in the undertaking. The failure to execute an official undertaking in the form or by the number of sureties required by or in pursuance of law, or of a surety thereto to make an affidavit required by or in pursuance of law, or in the form so required, or the omission from such an undertaking of the ap- proval required by or in pursuance of law, shall not affect the liability of the sureties therein." Force and effect of official undertaking. Section 12 of the Public Officers Law provides that: "An officer of whom an official undertaking is required, shall not receive any money or property as such officer, or do any Peovisions Applicable to County Offiobes. 183 Public Officers Law, § 23. i_. spectively be entitled to the same fees for such recording, as are allowed to county clerks for recording conveyances, except that in counties where the surrogate's clerk receives a salary as full com- pensation for his services, he shall not be entitled to any fee for such services. [County Law (L. 1892, ch. 686), § 237, as amended hy L. 1904, ch. 461; Heydeckers Gen L. (2d ed.), p. 1262.] § 6. Certain county officers may be removed by governor. An officer appointed by the governor for a full term or to fill a vacancy, any county treasurer, any county superintendent of the poor, any register of a county, any coroner or any notary public, may be removed by the governor within the term for which such officer shall have been chosen, after giving to such officer a copy of the charges against him and an. opportunity to be heard in his defense' [Public Officers Law (L. 1893, ch. 681), § 23, as amended by L. 1899, ch. 238, L. 1902, ch. 91, and L. 1903, ch. 128; Hey decker^ s Oen. L. {2ded.), p. 459.] act affecting the disposition of any money or property which such officer is entitled to receive or have the custody of, before he shall have filed such undertaking; and any person having the custody or control of any such money or property shall not deliver the same to any officer of whom an undertaking is required until such undertaking shall have been given. If a public officer required to give an official undertaking, enters upon the dis- charge of any of his official duties before giving such undertaking, the sureties upon his undertaking subsequently given for or during his official term shall be liable for all his acts and defaults done or suffered, and for all moneys and property received during such term prior to the execution of such undertaking, or if a new undertaking is given, from the time notice to give such new undertaking is served upon him. Every official undertaking shall be obligatory and in force so long as the officer shall continue to act as such and until his successor shall be appointed and duly qualified, and until the conditions of the undertaking shall have been fully performed. When an official undertaking is renewed pursuant to law the sureties upon the former undertaking shall not be liable for any official act done or moneys received after the due execution, approval and filing of the new undertak- ing." 7. Tte constitution authorizes the governor to remove a sheriff, county clerk, district attorney and register in a, county having a register, within the term for which he shall have been elected, giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense. See Constitution, art. 10, sec. 1. The governor may remove a sheriff ap- pointed by him to fill a vacancy caused by the removal of a sheriff elected by the people, although no charges are preferred against the sheriff so ap- pointed and afterwards removed by him. See People ex rel. Faxton v. Parker, 6 Hill, 49. 184 County Officees. Public Officers Law, §§ 24, 25. § 7. Evidence in proceedings for removal by governor. The govenior may take the evidence in any proceeding for the removal by him of a public oificer or may direct that the evidence be taken before a justice of the supreme court of the district, or the fflrunty judge of the county, in, which the officer proceeded against diall reside, or before a commissioner appointed by the governor for that purpose by an appointment in writing, and in the office of &e secretary of state. The gO'vemor may direct such judge or commissioner to report to him the evidence taken in such proceed- ing, or the. evidence and the findings by the judge or commissioner of the material facts deemed by such judge or commissioner to be established. The commissioner or judge directed to take such i evidence may require witnesses to' attend before him, and shall issue i subpoenas for such witnesses as may be requested by the officer pro- ■ eeeded against. i The governor may direct the attorney-general, or the district J attorney of the county in which the officer proceeded against shall reside to co'iiduct the examination into the truth, of the charges alleged as groimd for such removal. If the examination shall be before a commissioner or judge, it shall be held at such place in the county in which the officer proceeded against shall reside as the commissioner or judge shall appoint, and at least eight days after ■vcritten notice of the time and place of such examination shall have been given to the officer proceeded against. All sheriffs, coroners, constables and marshals to whom process diail be directed and delivered under this seetion shall execute the same without unnecessary delay.' [Public Officers Law (L. 1892, ch. 681), § 2A:;Heydecher's Gen. L. (2d ed.), p. 459.] § 8. Order of removal of officer, how made and where filed. Every removal of an officer by one or more state officers, shall be in written duplicate orders, signed by the officer, or by all or a majority of the officers., making the removal, or if made by a body or board of state officers may be evidenced by duplicate oertified copies of the resolution or order of removal, signed either by all or by a majority of the officers making the removal, or by the presi- dent and clerk of such body or board. Both such duplicate orders or certified copies shall be delivered to the secretary of state, who shall 8. The expenses of proceedings brought before the governor for the removal of a county officer are a county charge. See County Law, sec. 230 sub. 16 ante, p. 39. Peovisions Applicable to County Officees. 18& Public Officers Law, § 25. record in his oflSce one of such duplicates, and shall, if the officer removed is a state officer, deliver the other tO' such officer by mes- senger, if required by the governor and otherwise by mail or as the secretary of state shall deem advisable, and shall, if directed by the governor, cause a copy thereof to be published in the state papers. If the officer removed be a local officer, he shall send the other of such duplicates tO' the county clerk of the county in which the officer removed shall have resided at the time he was chosen to the office, and such clerk shall file the same in his office, and forthwith notify the officer removed of his removal. {^Public Officers Law {L. 1892, ch. 681), § 25; Heydeck&r's Oen. L. {2d ed.), p. 460.] Pi^RT III. Towns, Town Meetings and Town O^fficees. CHAPTER XVI. TOWNS ; ERECTION AND ALTEEATION. Section, 1. Town, a municipal corporation. 2. Alteration and erection of towns by boards of supervisors; appli- cation therefor; notice to be posted and published; name of new town. 3. Time and place of holding first election in new town; term of office of town officer not to be abridged. 4. Establishment of disputed lines; application therefor; notice to be published and served upon town officers; resolution to be filed in office of secretary of state. B, Disposition of town property, upon alteration of town bound- aries; when property to be sold; duties of town boards re- specting sale; cemetery not to be sold or divided. 6. Debts to be apportioned according to amount of taxable property; collection of unpaid taxes in such towns. 7. Meetings of town boards for disposition of property and appor- tionment of debts to be called by supervisor; action to en- force settlement. '§' I. Town, a municipal corporation. A town is a mumcipal corporation oomprlsing the inhabitants •within its boundaries, and formed for the purpose of exercising such powers and discharging such duties of local government and administration of public affairs as have been, or may be conferred or imposed upon it by law.' [Town Law (L. 1890, ch. 569), § 2; Heydeclcer's Gen. L. (2d ed.), p. 1400.] 1. Towns as corporations. The tendency of legislation during the past few years has been to change the character and capacity of the simple town- ship of former days. Judge Denio, in the case of Lorillard v. Town of Mon- roe, 11 N. Y. 392, said: "The several towns in this state are corporations for certain special and very limited purposes, or, to speak more accurately, they have a certain limited corporate capacity. They may purchase and hold lands within their own limits for the use of their inhabitants. They may as K corporation make such contracts and hold such personal property as may be necessary to the exercise of their corporate or administrative powers, and they may regulate and manage their corporate property, and as u, necessary (187) 188 Towns, Town Meetings and Town Officees. County Law, § 34. § 2. Alteration and erection of towns by boards of super* visors; application therefor; notice to be posted and published; name of new town. Any sucK board [of supervisors] may, at an annual meeting thereof, by a vote of two-thirds of all tbe members elected thereto, on the application of at least twelve freeholders of each of the towns to be affected, divide or alter the bounds of any town in the county, or erect a new town therein. Notice of such appli- cation, signed by such freeholders, shall be posted in five con- spicuous public places in each of such towns for four weeks next preceding the presentation of such application to the board; and incident may sue and be sued where the assertion of their corporate rights or the enforcement against them of their corporate liabilities shall require such proceedings. In all other respects — for instance, in everything which concerns the administration of civil or criminal justice, the preservation of the public health and morals, the conservation of highways, roads and bridges, the relief of the poor, and the assessment and collection of taxes, the several towns are political divisions, organized for the convenient exercise of portions of the political power of the state, and are no more corporations than the judicial, or the senate and assembly districts." See, also, Tovm of Oallatin v. oucks, 21 Barb. 578; Godfrey v. Qioeens County, 89 Hun, 18; 34 N. Y. Supp. 1052. But the legislature in imposing liabilities and obligations, and correspond- ing duties upon a town, have made it something different from a mere politi- cal division of the state and brought it in character and capacity nearer to a municipal corporation. Horn v. Town of New Lots, 83 N. Y. 100, 107. Potrers of to-nrns as corporations. Towns as municipal corporations are materially different in their powers from business corporations. Busi- ness corporations, unless restrained by their charter, possess the power to borrow money and issue securities therefor. Generally they could not carry on their authorized and legitimate business without such a power, and hence it must be presumed that the legislature intended that they should possess it; but towns and other municipal corporations are organized for govern- mental purposes, and their powers are limited and defined by the statutes under which they are constituted. They possess only such powers as are ex- pressly conferred or necessarily implied. Wells v. Toicn of Salina, 119 N. Y. 280, 287; 23 N. E. 870. See, also, Morey v. Town of Wewfane, 8 Barb. 645; Town of Lyons v. Cole, 3 T. & C. 431; Sweet v. Hulbert, 51 Barb. 312; Peo- ple ex rel. Hess v. Clark, 53 Ba,rb. 171 ; People ex rel. Read v. Town of Smith- ville, 85 Hun, 114; 32 N. Y. Supp. 668; Dorn v. Town of Oyster Bay, 84 Hun, 510; 32 N. Y. Supp. 341; Morson v. Town of Gra/vesend, 89 Hun, 52; 35 N. Y. Supp. 94. The corporate existence of towlis and their capacity to hold property, to protect the possession thereof, and to enforce their quasi corporate rights by appropriate action, is recognized by statute. Bridges v. Supervisors of Sulli- van County, 92 N. Y. 570, 575; Tovm, of Verona v. Peckham, 66 Barb. 103; Furey v. Town of Oravesend, 38 Hun. 319. In the absence of a statute a Towns ; Eeection and Alteration. 189 County Law, § 34. a copy of such notice shall be published for at least six consecu- tive -weeks next preceding the meeting of the board to -which the application is to be made, in three ne-wspapers published in the county, if there be so many, otherwise in all the newspapers published in the county as often as once a week. Such appli- cants shall present to the board, -with such application and notice, due proof of the posting and publishing of such notice, and fur- nish the board with a map and survey of such towns, showing the proposed alteration. The board shall designate the name of any new town so erected. If the application be granted, a copy of such map, with a certified statement of the action of the board town has no power to act as a trustee for charitable purposes. Fosdick v. Town of Hempstead, 125 N. Y. 581 ; 26 N. E. 801. A town in its corporate capacity is authorized to acquire land for a legitimate town purpose. People ex rel. Averill v. Works, 7 Wend. 486. It may take lands for highway pur- poses by conveyance, voluntary or otherwise ; and this implies the power to take such interest as the necessity of the case or the public good may re- quire. Hughes v. Bingham, 135 N. Y. 347; 32 X. E. 78; Vail v. Long Island R. R. Co., 106 N. Y. 283; 12 N. E. 607. Effect of statute npon powers of tonrns as corporations. Under the revised statutes (R. S., pt. 1, ch. 11, tit. 1, sec. 1), the powers of a. town as a corporate body were specifically stated. These powers included the power to sue and be sued; to purchase and hold lands within its own limits and for the use of its inhabitants; to make contracts; and to regulate the disposition and use of its corporate property. The above section of the Town Law is a substitute for such provision of the revised statutes. By declaring a town to be a municipal corporation it was evidently intended to continue in the town the powers formerly expressly conferred. The present law pro- vides for the exercise by the town of such powers pertaining to the adminis- tration of town aflfairs as may be conferred or imposed upon it by law. Lythe ■V. Town of Evans, 33 Misc. 221; 68 N. Y. Supp. 356. This section of the Town Law has not enlarged the town's corporate capacity. Morson v. Town of Grwvesend, 89 Hun, 52; 35 N. Y. Supp. 94. In case of Dorn v. Town of Oyster Bay, 84 Hun, 510; 32 N. Y. Supp. 341, Dykman, J., says : " The towns of this state are the primary political divi- sions. As they exist here they were unknown to the common law, and are all of statutory creation. They were erected and organized by statute, and all their duties and obligations are prescribed by statute, and they derive their capacity and powers from the same source. In the earlier history of the state their capacity was limited, and their duties and liabilities were but few. By the revised statutes, each town as a body corporate had capacity to pur- chase and hold property for certain purposes, to sue and be sued, and to make certain contracts in relation to corporate property and affairs. Modern legis- lation has, however, enlarged their capacity and endued them with powers and imposed upon them obligations similar to those possessed by municipal corporations." 190 Towns, Town Me-etings and Town Officers. County Law, § 35. thereto annexed, shall be filed in the office of the secretary of state, who shall cause such statement to be printed and published with the laws of the next legislature/ [County Law {L. 1892, ch. 686), § 34; Heydecker's Gen. L. (2d ed.), p. 1212.] § 3. Time and place of holding first election in new townj term of office of town officer not to be abridged. The board [of supervisors] shall designate the time and place of holding the first town meeting in a new town so erected, and appoint three electors thereof, who shall post notice of such town meeting, signed by the chairman or clerk of the board of PoTver to contract. Towns have no general power to enter into con- tracts or to incur obligations the payment of which can be enforced against them. Persons dealing with town officers are charged with notice of the limited corporate capacity of the town, and it is, therefore, incumbent upon one who asserts the fact of an indebtedness to him from the town to point out the act of the legislature which authorized and empowered the town ta incur the debt. Morson v. Tovm of Gravesend, 89 Hun, 52; 35 N. Y. Supp. 94. It is a general rule that all parties dealing with public officers are chargeable with notice of the limitation of their powers, and a contract by a public officer in excess of the powers conferred upon him imposes no liabilities upon the municipal corporation, even though the benefits of the contract have been received and applied for the benefit of the public. Van Dolson v. Board of Education, 28 App. Div. 501; 51 N. Y. Supp. 720; Walton v. City of N. Y., 26 App. Div. 76; 49 N. Y. Supp. 615. Where a, statute prescribes the pur- pose and the manner in which a contract shall be made by a town officer, the provisions of such statute must be strictly followed, otherwise the contract will be invalid. Suburban Electric Light Go. v. Town of Hempstead, 38 App. Div. 355; 56 N. Y. Supp. 443. See, also, Parfitt v. Ferguson, 159 N. Y. Ill; 53 N. E. 707 ; Lawrence v. 8mit\ 24 Misc. 233 ; 52 N. Y. Supp. 724. 2. For forms of application, notice and resolution of board of super- visors providing for the erection of new tovras, see Forms Nos. 11 and 12, post. Proceedings for division of toims. The question whether a, town has been legally erected may be decided in an action in the nature of gu» warranto against one claiming to exercise the office of supervisor of such town. Where the act of the board, dividing a town and forming a new one from a portion thereof, only described the dividing line, it has been held that the indefiniteness was cured by reference contained in the act to the applica- tion upon which it was founded and from which it appeared that the new town was to lie south of the line of division. People v. Carpenter, 24 N. Y. 86. In this case the court ruled that the act of the supervisors being one of a legislative character, in favor of the regularity of which all presumption* are to be indulged; those who would impeach the act must show by affirma- tive proof a non-compliance with the conditions imposed by law as a pre- requisite to the exercise of power. Towns; Erection and Alteeation. 191 Countj Law, § 36. supervisors, in four conspicuoufi public places in such, town,, at least fourteen days before holding the same. Such electors shall preside at such town meeting, appoint a clerk, open and keep the polls, and exercise the same powers as justices of the peace when presiding at town meetings ; but if such electors shall refuse or neglect to serve, the electors of the town present shall substitute one of their number for each one so neglecting or refusing to serve; and the posting of the notice of such meeting shall be valid if done by any elector of the town. Nothing herein shall affect flie rights, or abridge the term of office of any town officer in any town, but they shall hold and exercise the offices in the tovTn in which they shall respectively reside after the change or alteration. [County Law (L. 1892, ch. 686), § 35; Heydecker's Gen. L. (2d ed.),p. 1213.] § 4. Establishment of disputed lines; application ^therefor; notice to be published and served upon town officers; resolution to be filed in office of secretary of state. Such board may establish and define boundary lines between the several towns of the county. A notice of intention, to apply to the board to establish, and define such boundary line, particu- larly describing the same, and the line as proposed to be acted upon by such board, signed by a majority of the members of the town board of some one of the towns to be affected thereby, shall be published for four consecutive weeks next preceding the meet- ing of the board at which the application is to be presented, in three newspapers published in the county in, or nearest to such towns, if so many, otherwise in all the newspapers published in the county as often as once a week. A copy of such notice shall also be served personally, at least fifteen days before the meeting of such board, on the supervisor and town clerk of each of the other towns to be affected thereby. A copy of the resolution, as adopted by the board, which shall contain the courses, distances and fixed monuments specified in such boundary line or lines, together with a map of the survey thereof, with the courses., dis- tances and fixed monuments referred to therein, plainly and dis- tinctly marked and indicated thereon, shall be filed in the office of the secretary of state within thirty days after the adoption of such resolutioui, who shall cause the same to be printed and pub- lished vdtib the laws of the next state legislature after the adop- 192 Towns, Town Meetings and Town Officees. Town Law, § 3. tion thereof.' [County Law (L. 1892, ch. 686), § 36; Heij;- decker's Gen, L. {2d ed.), p. 1213.] § 5. Disposition of town property, upon alteration of town boundaries; when property to be sold; duties of town boards respecting sale ; cemetery not to be sold or divided. When the boundaries of a town owning real or personal Tp'Topeirty shall he altered, either hj a division of a town into two or more towns or by the annexation of a part of its territory to another town or towns, the town boards of the several towns affected by such alterations shall meet as soon as may be after the first town meetings subsequently held in such towns, and shall make such agreement concerning the disposition to be made of such real and personal property, and the apportionment of the proceeds, as they shall deem equitable, and take all measures, and execute all con- veyance® necessary to carry such agreement into effect. If no such agreement shall be made within six months after such town meetings, the town board of each town in which any portion of such real property, or in whose, possession any of such personal property shall be-, shall, as soon as may be, sell and convey such part of the real property as shall be included within the limits of the town as fixed by such alteration, and such of the personal property as may be in its possession; and the proceeds arising from the sale shall be a pportioned between the several towns in- 3. Fop form of resolution of board of supervisors establishing and defining boundary lines between towns, see Form No. 13, post. Failure to acquire jurisdiction. If the board of 'supervisors attempts to establish disputed boundary lines without having acquired jurisdiction by the necessary application and the publication of the notice to make such ap- plication, an injunction will lie against such board to restrain further action by it. People ex rel. Town of Knox v. Supervisors, 63 How. Pr. 411. Effect of statute establishing boundary line between towns. Chapter 782 of the laws of 1870, providing that, "The boundary line dividing the towns of New Rochelle and Pelham in the county of Westchester being the northeast boundary of Pelham and the southwest boundary of New Rochelle, is hereby fixed, established and settled in accordance with, and as laid down upon the map made by Capt. Bond in the year 1711," etc.,' did not operate to repeal pro tanto chapter 361 of the laws of 1870, as re-enacted in the above section of the County Law. Goverg v. Board of Supervisors 55 App. Div. 40; 67 N. Y. Supp. 27. Town boundaries; Islands Intersected by town Unes. Whenever two towns are separated from each other by a river, creek or lake, the middle Towns; Eeection and Altekation. 193 Town Law, § 4. terested therein, by tlie town boards of all tbe towns, according to the amount of the taxable property of the town divided or altered, as the same existed immediately before such division or alteration, to be ascertained by the last assessment-roll of such tovsTi. But no town cemetery or burial ground shall be sold or di- vided, but the same shall belong to the town within which it may be situated after a division of the tO'wn shall have been made, and no lots heretofore granted by the people of this state to any town, for the support of the gospel, and of schools, commonly called the gospel and school lots, shall be sold or apportioned.' [Town Law (L. 1890, ch. 569), § 3; Heydecher's Gen. L. (2d ed.), p. 1400.] § 6. Debts to be apportioned according to amount of taxable property; collection of unpaid taxes in such towns. Debts owed by a town, so divided or altered shall be appor- tioned in the same manner as the personal property of a town, and each town shall be charged with its share of the debts, accord- ing to the apportionment and the amount of the unpaid taxes levied and assessed upon the taxable property of the town, divided or altered, before the division or alteration thereof, shall be ap- portioned between the several towns interested therein, according to the amount of taxable property in each town as the same ex- isted before such division or alteration, to be ascertained by the of the channel of such river, creek or lake, shall be the division line between them, unless hereinbefore otherwise provided. R. S. pt. 1, ch. 2, tit. 4, sec. 58. Whenever the boundary line between two towns crosses an island, the whole of such island shall be deemed to be within the town in which the greater part of it lies, unless hereinbefore otherwise provided. Idem, sec. 59. 4. Title of property. Without express provision of statute the erection of a new town does not take away the rights of the old town as to the com- mon property not located within the limits of the new town. Denton v. Jack- son, 2 Johns, Ch. 320. But in the case of Town of North Hempstead v. Town of Hempstead, 2 Wend. 109, it was held that the division of the town of Hempstead effected a division of the common lands. Under an act passed by the legislature to divide the town of Kingston it was held the legal title in the property belonging to the freeholders and in- habitants of the town, continued in their trustees until conveyed by them to officers of the towns into which the old town was divided. Jackson v. Louvo, 12 Johns. 252. As to constitutionality of chapter 975 of the laws of 1895, dividing the town of Watsrvliet, see Fort v. Cummings, 90 Hun, 481. 13 194 Towns, Town Meetings and Town Opficees. Town Law, § 4. last assessment-roll of the town.' In making such, division, there skall be set o£f to eacli town interested the unpaid taxes assessed and levied upon the real property within its borders and such as were assessed and levied upon personal property against persons or corporations., as resided within its borders at the time of th& assessment; and each town, to which the same are proportioned, shall have the same power, right and methods of collecting the same by warrant, action, sale or otherwise, as the town so divided or altered had, or would have had if such town had not been so divided or altered. Any such town having apportioned to it more than its proportion, of unpaid taxes, according to the aforesaid 5. Apportionment of debts. By this section debts owed by a town which has been divided or whose boundaries have been altered must be ap- portioned by the town boards of the several towns aflfected by the division or alteration in the manner prescribed in the preceding section for the appor- tionment of the personal property of the several towns; that is by an agree- ment to be made by the town boards. ( Proceedings by mandamus cannot be instituted against a board of super- visors to levy and assess the amount due upon a judgment against the town upon the territory formerly included in the town. The statute requires the town boards to apportion the debts of the towns upon the property of the several towns, and if the town boards refuse to act the remedy is by mandamus against them to compel a compliance with the terms of the statute. People ex rel. McKenzie v. Board of Supervisors of Ulster County, 94 N. Y. 263. In this case the court said: "But for the statute, or some other provision of law, upon a division of the old town of Kingston, all the liabilities of that town would have remained against the present town of Kingston; and it would have been entitled to all the property of the old town within its limits, and would have been obliged to discharge all its debts and obligations. Lara- mie County V. Alhwny County, 92 U. S. 307 ; Mount Pleasant v. BeckvAth, 100 U. S. 514. Within the latter authority, if the old town of Kingston had been entirely blotted out, and its territory annexed to other towns; or it other towns had been carved out of it, and new munieipalties had thus been formed, in the absence of any legislation providing for the payment of thft debts of the old town, they would have devolved upon the new towns to be paid by them in equitable proportions. But here express provision of law is made as to the manner of discharging the obligations of the old town; and those provisions are, at le"st in the first instance, ewecutive and must be pur- sued. Under them all the debts of the old town of Kingston are to be ap- portioned by the officers named, between the three towns of Ulster, Wood- stock and Kingston, according to taxable property as the same existed im- mediately before the division, to be ascertained by the last assessment list of the town, which was the assessment list of 1879. The relator, therefore, has a plain remedy, which is by mandamus, to compel a meeting of the present officers of the three towns and a discharge by them of the duties devolved upon them by the statute." Towns; Eeection and Alteeation. 195 Town Law, § 5. taxable property, to be ascertained by the last assessment-roll of sucb town, shall pay to the other town or towns interested, such sum or sums as shall be necessary to make such apportionment correspond with the said taxable property, as ascertained by the said last assessment-roll of said town, before the said division or alteration. [Town Law, § 4, as amended hy L. 1896, ch. 459 ; Heydecker's Gen. L. (2d ed.), p. 1401.] § 7. Meetings of town boards for disposition of property and apportionment of debts to be called by supervisor; action to enforce settlement. Whenever a meeting of the town boards of two or more tovras shall be required, in order to carry into effect the provisions of this article, such meeting may be called by either of the super- visors of such tovms, by giving at least three days' written notice to all the other members of such town boards of the time and place of such meeting. Whenever said town boards shall fail to carry into effect the provisions of this article and agree upon the amount of assets to which each town is entitled, and the amount of indebtedness for which each town is liable and complete the full settlement thereof, within eighteen months after the division or alteration mentioned in section three of this article, any of such towns may begin and maintain an action against the other town or tovms to make and enforce such settlement. The provi- sions of this article shall apply to towns heretofore and hereafter divided or altered. [Town Law, § 5, as wmended hy L. 1896, ch. 459 ; Heydecker's Gen. L. {2d ed.), p. 1402.] 196 Towns, Town Meetings and Town Officebs. CHAPTER XVII. TOWN meetings; election and teems of town officees. Section 1. Time and place of biennial town meetings; board of supervisora may fix time; town meeting on general election day. 2. Town may change date of holding town meeting; submission of proposition therefor; certificate to be filed with county clerk and clerk of board of supervisors; terms of office. 3. Changing place of holding town meetings; not to apply to towns in counties where town meetings are held at time of general election. 4. Special town meeting; for what purpose called; application therefor, made by whom. 5. Notices of town meetings; notice of special town meeting. 6. Presiding ofiicers of town meetings; if no justice be present, per- son may be elected by electors. 7. Clerk of meetings. 8. Proclamation of opening and closing polls. 9. Duration of town meetings. 10. Challenges; provisions of election law applied. 11. Minutes of proceedings. 12. Transaction of business not requiring a ballot; when questions are to be submitted; how determined. 13. Votes to expend over five hundred dollars to be by ballot, if less, by viva voce. 14. When women qualified to vote. 15. Notice of propositions to be determined by ballot; ballot-boxes; form of ballots. 16. Ballots; electors in incorporated village when not to vote on highway questions. 17. Canvass of votes; notification of officers elected.. 18. Town meetings in election districts; may be held in regular elec- tion districts, or town board may divide the town; application therefor. 19. Vote upon propositions not requiring a ballot; vote to be by division of electors present; inspectors to enter statement of result; notice of submission of proposition. 20. Town meetings held at the time of general elections; canvass of votes. 21. Ballots at town meetings held on election day. 22. The use and purchase of voting machines. 23. Election of town officers; vacancies in office of justice of the peace; ballots when town meeting is held at time of general election. 24. Term of office of town officers ; when town meetings are held at time of general election ; term to begin on January 1 follow- ing; collector to complete duties of office. 25. Holding over after expiration of term. 26. Number and terms of jii-itines of the peace. Town Meetings; Terms of Town Officees. 197 Town Law, § 10. Section 27. Justices of the peace; ballots for full term and vacancies; officers in new towns. 28. Justices in new towns; upon erection of new towns, or annexa- tions, justices of the peace, how to hold office. 29. Certificate of election of justice of the peace. 30. Commissioners of highways; number of, how determined. 31. Overseers of the poor; determination of number; resolution to be voted for; appointment of overseer by town board. 32. Town sealer of weights and measures. 33. Special constables; appointment and powers. 34. Election officers; their designation, number and qualifications. 35. Election officers in towns at general elections; poll clerks and ballot clerks. 36. General powers of biennial town meetings. 37. Erection or discontinuance of pounds; election of pound-masters. § I. Time and place of biennial town meetings; board of supervisors may fix time ; town meeting on general election day . The electors of a town shall, biennially/ on the seoond Tuesday of Tebruary, assemble and hold meetings at such place in the towns as the electors thereof at their biennial town meeting shall, from time to time, appoint. If no' place shall have been fixed for such meeting, the same shall be held at the place of the last 1. Biennial tonm meetings. Previous to the passage of chapter four hundred and eighty-one of the laws of 1897, town meetings were held an- nually. By that act a town meeting was to be held in each town in the spring of 1898, at which town officers were to be elected for terms of one year; and it was also provided that town meetings should be held in the year 1899 and biennially thereafter. Place of holding toMm meetings. The place of holding a, town meet- ing should be determined by motion or resolution, put in the usual form, upon fair notice to the electors. The result should be declared by the proper officer and entered on the minutes. Attorney-General's Opinion (1870), p. 450. The voting upon a question of where the town meeting shall be held may be by ballot, viva voce, or by ayes and nays. If by ballot no previous notice that the vote is to be taken is required. Attorney-General's Opinion (1855), p. 236. Under a statute similar in all respects to this the Court of Appeals held that the qualified electors of a tovm at their town meeting, have power, after the regular organization of the meeting, to determine by vote that the meet- ing shall be continued at the place of such organization through a part of the day and then adjourned to some other place in the town, and there con- tinued through the residue of the day. People ex rel. Simomon v. Martin, 5 N. Y. 22. This case was decided at the time when town meetings were much less formal in their character than at present, and it may well be doubted whether under the existing system a town meeting may be held at more than one place on the same day. See, also, People ex rel. Kniffin v. Tabor, 21 How. Pr. 42. 198 Towns, Town Meetings and Town Officees. Town Law, § 43. town meeting in the town or election district, when town meetings of a town are held in election districts. The board of supervisors of any county may, by resolution, fix a time when, the biennial town meetings in such county shall be held, which shall be either on some day between the first day of February and the first day of May, inclusive, or on the first Tuesday after the first Monday in IsTovember of an odd numbered year.' [Town Law, § 10, as amended by L. 1898, ch. 363, L. 1900, ch. 374, L. 1901, ch. 391, and L. 1903, ch. 339; Heydecker's Gen. L. {2d ed.), p. 1403.J § 2. Town may change date of holding town meeting; sub- mission of proposition therefor; certificate to be filed with county clerk and clerk of board of supervisors; terms of office. A town may change the date of its town meeting to the first Tuesday after the first Monday in November, known as general election day, by adopting a proposition therefor at a regular town meeting. Such a proposition may be submitted by the town board on its own motion, and shall be submitted by such board on the written application of twenty-five taxable voters of the town. The proposition must be submitted, voted on, and the result canvassed as prescribed by section thirty-two. If it 2. To'vm meetings on general election day. By chapter 363 of the laws of 1898, amending the above section of the Town Law, boards of super- visors were authorized to adopt a resolution fixing the time of holding bien- nial town meetings on the first Tuesday after the first Monday in November, that is, on general election day. A large number of counties have adopted Buch a resolution. By chapter 30 of the laws of 1899, it was provided that: "The acts, reso- lutions and proceedings of boards of supervisors under the authority con- ferred by chapter 363 of the laws of 1898, changing the time of holding town meetings in their respective counties to the first Tuesday after the first Mon- day in November, are hereby legalized, ratified and confirmed, and in such counties town meetings shall be held in the year 1899 only on that day." A similar act was passed in 1901. See L. 1901. ch. 32. In the case of People ex rel. Smith v. Schillcirw 95 N. Y. 124, the question considered was whether a justice of the peace required by the constitution (art. 6, sec. 18), to be elected at "'an annual town meeting," could, by an act of the legislature be elected at any other time than at a regular town meeting. The court held, without deciding the question as to whether the legislature could change the time of holding a town meeting to general election day, that if a regular town meeting was held in the spring, that the justices of the peace could not be elected at a general election. Special acts providing for holding town meetings on general election day. L. 1897, eh. 439, provides for the holding of annual town Town Meetings ; Teems of Town Officeks. 199 Town Law, § 11. be adopted a certificate tO' that effect shall be filed by the town clerk within ten days thereafter in the office of the county clerk and also with the clerk of the board of supervisors. If the propo- sition be adopted the first town meeting shall be held on general election day in the next calendar year, and the terms of all officers, except justices of the peace elected on the day of the adoption of ;the proposition, shall expire on the day of such first meeting. Thereafter town meetings in such town shall be held biennially on general election day in the manner prescribed by this chapter, except that after five years from the first meeting, the town meet- ing may in like manner change from such general election to any other day authorized by law. The term of office of all officers, except justices of the peace, in a town which under this section changes its town meeting to general election day, shall be two years from the date of their election. [Town Law, § 43, as added by L. 1899, ch. 145 ; Heydecker's Gen. L. (2d ed.), p. 1418.] § 3. Changing place of holding town meetings; not to apply to towns in counties where town meetings are held at time of general election. The electors of a town may, upon the application of fifteen meetings and elections in the towns in the counties of Rockland, Orange and Sullivan. L. 1899, ch. 594, provides for holding of town meetings and elections in a county of the state having a population of over 1.50,000 and less than 160,000 inhabitants. This act only applies to the county of Onondaga. L. 1901, ch. 34, provides for the holding of town meetings and elections in a county of the state having a population of over 130,000 and less than 150,000 inhabitants. This act only applies to the county of Oneida. L. 1901, ch. 174, provides for the holding of town meetings in a county having a population of more than 120,000 and less than 130,000 inhabitants. This act applies only to the county of Rensselaer. The action of the board of supervisors of the county of Westchester fixing the time for holding biennial town meetings on the first Tuesday after the first Monday in November in the year 1901 and every alternate year there- after was legalized by L. 1902, ch. 688. L. 1902, ch. 10, provided for the holding of town meetings and elections in a county having a population of over 400,000 and Icsg than 600,000 in- habitants. This act only applies to the county of Erie. L. 1902, ch. 239, provides for the holding of town meetings and elections Sn a county of the state having a population of over 71,000 and less than 75,000 inhabitants. This act applies only to the county of Niagara. L. 1903, ch. 266, provides for holding town meetings and elections in counties having a population of over 50,000 and less than 54,000 inhabitants. This act would seem to apply only to the county of Herkimer. 200 Towns, Town Meetings and Town Offioees. Town Law, § 23. electors therein, to be filed with the town clerk twenty days before a biennial town meeting is to be held, determine at such meeting, by ballot, where future town meetings shall be held. Where town meetings in any town are held in separate election districts, the electors of each district may, at a biennial town meeting, determine by resolution where its future town meetings shall be held. If any place so designated shall thereafter and before the close of the next biennial town meeting, be destroyed, or for any reason become unfit for use, or cannot for any reason be used for such purpose, the town board shall forthwith designate some other suitable place for holding; such town meeting in said town or election district, as the case may be. The provisions of this section shall not apply tO' towns in counties where the town meetings are held at the same time as general elections. [Town Law, § 11, as amended by L. 1897, ch. 481, and L. 1898, ch. 363 ; Hey decker's Gen. L. (2d ed.), p. 1404.] § 4. Special town meeting; for what purpose called; applica- tion therefor, made by whom. Special town meetings shall also be held whenever twenty-fire taxpayers upon the last town assessment-roll shall, by written application addressed to the town clerk, require a special town meeting to be called, for the purpose of raising money for the support of the poor; or to vote upon the question of raising and appropriating money for the construction and maintenance of any bridges which the town may be authorized by law to erect or maintain ; or for the purpose' of determining in regard to the prosecution or defense of actions, or the raising of money there- for; or to vote upon any proposition which might have been determined by the electors of the town at the last annual to'wn meeting, but was not acted upon thereat ; or to vote upon or deter- mine any question, proposition or resolution which may lawfully be voted upon or determined at a special town meeting.* Special 3. See, also. Note 1, ant&, under section 10 of Town Law. This section applies to determining by electors of the town where future town meetings shall be held. 4. Purpose for tvhlch special town meetings may be called. Only- such questions or propositions can be voted upon at a special town meeting as are specified in the statute. People v. Works, 7 Wend. 486. In the case of Berlin Iron Bridge Company v. Wagner, 57 Hun, 346; 10 N. Y. Supp. 840, it appeared that a special town meeting was duly called for the purpose of Town Meetings; Teiuvis of Town Officees. 201 Town Law, § 23. town meetings may also be held upon the like application of the supervisor, commissioners of highways, or overseers of the poor, to determine questions pertaining to their respective duties as such officers, and which the electors of a town have a right to determine. An application and notice heretofore made and given for a special town meeting to be hereafter held for a purpose not heretofore authorized by law, but now authorized by law, shall be as valid and of the same force and effect as if such purpose had been authorized by law at the time of such application and notice. [Town Law, § 23, as amended by L. 1894:, ch. 280, and voting upon a, resolution to raise and appropriate money for the construction and maintenance of an iron bridge. Tliis resolution was voted upon by the electors of the town by ballot and adopted by a, majority vote. A resolution was further submitted to the electors of the town and voted upon by vivai, voce vote authorizing an application to the board of supervisors for the ap- pointment of a commission to build such bridge. It was held that the special town meeting had no authority to authorize the appointment of such commis- sioners, and that an act of the board of supervisors providing for such ap- pointment was invalid. The special town meeting was called under the pro- visions of the statute as it existed prior to the passage of the Town Law, and such statute did not authorize the calling of a special town meeting to secure the appointment of commissioners to construct a bridge. Such statute only authorizes a vote upon the question of raising and appropriating money for the construction and maintenance of a bridge. In the case of Tovm of Kirkwood v. Neicburg, 45 Hun, 323, a similar :eso- lution adopted by a special town meeting was under consideration. The reso- lution was not challenged on the ground of the want of authority of the special town meeting, and it would seem that the town meeting was in that case called under a diflferent statute. If it is desired to provide for the ap- pointment of commissioners to superintend the construction of a bridge, it is possible that an application may be made to the board of supervisors for the passage of an act therefor under the provisions of section 69 of the County Law. In case the board of supervisors has authority to act in a, given case, it is presumed that they would be authorized to appoint commissioners to superintend the construction of a bridge. Berlin Iron Bridge Company v. Wagner, supra. The provisions of the above section permiting special town meetings to vote on the question of raising and appropriating moneys for the construction and maintenance of bridges does not abolish the limitation as to the amount to be raised by immediate taxation; it simply authorizes necessary sums to be raised which, prior to the passage of the act of 1886, chapter 259, from which the above section was derived, could only have been authorized at a, regular town meeting. The special town mpcting called under the pro- visions of this section can authorize the borrowing of money for the erection of a bridge under the provisions of section 69 of the County Law. See post, p. 715. The provision contained in such section, limiting the authority to the special meeting " called for the purpose," simply requires a meetino; called for 202 Towns, Town Meetings and Town Officers. Town Law, § 24. rermmbered by L. 1897, ch. 481; Heydecher's Gen. L. {2d ed.), p. 1410.] § 5. Notices of town meetings ; notice of special town meeting. No previous, notice need be given of tlie biennial town meetings ; but the town clerk shall, at least ten days before the holding of any special town meeting cause notice thereof under his hand, to be posted conspicuously in at least four of the most public places in the town ; which notices shall specify the time, place and purposes of the meeting." [Town Law, § 24, as renumbered and amended by L. 1897, ch. 181; Hey decker's Gen. L. (2d ed.), p. 1411.] the purpose of considering and deciding the question of erecting or repairing the bridge, and so it is not necessary that the call should state that it is for the purpose of borrowing money. Berge v. Berlin Bridge Company, 133 N.Y 477; 31 N. E. 609. When the proceedings of the special town meeting called to consider the propriety of instituting and defining certain statutes and to raise money therefor were regular and authorized the relator to begin certain actions, the expenses incurred by him therefor are a valid claim against the town, and if the town board neglect or refuse to audit, the proper remedy is by man- damus to compel such audit. People ex rel. Wells u. Board of Audit, 4 Hun, S4. A town meeting has no power to discontinue a highway once established. That can be done only by the intervention of the authorities and according to the procedure pointed out in the statute, and a town meeting is no part thereof. Hughes v. Bingham, 135 N. Y. 347; 32 N. E. 78. Submission of propositions under Iiiqnor Tax Iiaxr, A special town meeting is not in any sense " a town election " at which propositions can be submitted to the electors of the town to determine the question whether liquors shall be sold therein. In the case of People ex rel. Thomas v. Sackett, 15 App. Div. 290, 293 ; 44 N. Y. Supp. 593, the court said : " Under section 16 of the Liquor Tax Law the meeting therein referred to is the one at which a town election for officers may be held; one at which official ballots are required to be used, and for which it is made the duty of the town clerk to prepare such ballots at a fixed and stated time. The annual town meet- ing is the only one to which these provisions are applicable. Ijegalizing acts of town meetings. It is provided in the County Law, sec. 15 {post, p. ), that the board of supervisors may "by two-thirds vote of all its members, legalize the informal acts of any town meeting or village election within such county, etc." Application. The application under this section for a special town meeting must be addressed to the town clerk and should be subscribed bv at least twenty-five taxpayers whose names appear upon the last preceding town assessment-roll ; or such application may be made by either of the town officers mentioned in the above section. For the form of such applica- tion, see Form No. 14, post. 5. For form of notice of special town meeting, see Form No. 15, post. Town Meetings; Tekms of Town Officees. 203 Town Law, § 25. § 6. Presiding officers of town meetings ; if no justice be pre- sent, person may be elected by electors. The justices of the peace of each town shall attend every town meeting held therein, except where such town meetings are held at the time of the general elections, and such of them' as shall be present shall preside at such meeting, and see that the same ia orderly and regularly conducted, and shall have the like authority to preserve order, to enforce obedience and to commit for disor- derly conduct, as is possessed by the board of inspectors at a gen- eral election." If there be no justice of the peace at such meeting, 6. Constitutional provision. The constitution provides that registra- tion or election boards shall be bi-partisan, but this provision does not apply to town meetings. (Constitution, art. 2, sec. 6.) Maintenance of order. Under the provisions of this section the justices presiding at a town meeting have the same power to preserve order as inspectors of election at a general election. Section 15 of the Election Law (Jewett's Election Manual, 1903, p. 20), provides that: "Such board and each individual member thereof shall have full authority to preserve peace and good order at such meetings and in and around the polls of elec- tions, and to keep the access thereto unobstructed, and to enforce obedience to their lawful commands. The said board may appoint one or more electors to communicate their orders and directions, and to assist in the performance of their duties in this section enjoined. If any person shall refuse to obey the lawful commands of the inspectors, or by disorderly conduct in their presence or hearing shall interrupt or disturb their proceedings, they shall make an order directing the sheriff or any constable of the county, or any peace or police officer to take the person so offending into custody and retain him until the registration of electors, or the canvass of the votes shall be completed, but such order shall not prohibit the person taken into custody from voting. Such order shall be executed by any sheriff, constable, peace or police officer to whom the same shall be delivered. But if none shall be present, then by any other person deputed by such board in writing. The said board or any member thereof, may order the arrest of any person, other than an election officer, violating or attempting to violate, any of the pro- visions of this Election Law." Any wilful disobedience of a lawful command of the board of inspectors or any member thereof, is a misdemeanor (Penal Code, sec. 41k, sub. 17), and this provision, of course, applies to presiding officers at town meetings. Inspectors have a right to keep order during the canvass of the votes, but they cannot under such a pretense turn out a peaceful and quiet citizen whose presence does not interfere with the discharge of their duties. Borton V. Whistler, 4 N. Y. St. Rep. 810. Acts of justices of the peace are ministerial ai>d cannot be re- viewed by certiorari. Justices of the peace while acting in the position of inspectors of election, are merely ministerial officers, and, although they may have allowed an assistant of the town clerk, who was not himself sworn as a clerk to keep the tally sheet and declare the result of the canvass, and 204 Towns, Town Meetings and Town Officebs. Town Law, § 26. then such person as shall he choeem- for that purpose by the electors present shall preside and possess the like powers as justices; such persons appointed shall take the constitutional oath of office before entering upon his duties as such presiding officer. [Town Law, § 25, renumbered by L. 1897, ch. 481, and amended by L. 1898, ch. 363 ; Heydecker's Gen. L. (2d ed.), p. 1411.J § 7. Clerk of meetings. The town clerk last before elected or appointed, or, if he be absent, such person as shall be chosen by the electors present, shall have permitted other unauthorized persons to aid, under their direction and supervision in the distribution of tickets, and in the taking and counting of votes, the conduct of the justices in permitting such irregularities is not judicial action within the ordinary meaning of that term and cannot be re- viewed by a writ of certiorari. People ex rel. Brooks v. Bush, 23 App. Div. 363; 48 N. Y. Supp. 13; citing Matter of Many, 10 App. Div. 451; 41 N. Y. Supp. 993. See, also, People ex rel. Tan Sickle v. Austin, 20 App. Div. 1, 46 N. Y. Supp. 526, where it was held that an objection to the action of a town election board in not opening the polls at the proper time, could not be raised by a writ of certiorari to review the proceedings of such board. In the case of People ex rel. Stapleton v. Bell, 119 N. Y. 175; 23 N. E. 533, the court in considering the question of the powers and duties of election boards said : " I think we cannot hold otherwise as to inspectors of election than that they are, under the provisions of the Election Law, made minis- terial officers wholly, for their duties are pointed out by the law definitely. They are only officers to execute the law in a prescribed and definite way, and to whom no latitude is allowed when the proposed elector satisfies the statutory demands upon him for oaths and answers to certain questions. They are bound to an exact obedience of the particular commands which the law has laid upon them as its officers, and they may not act on their own opinions or knowledge. The duty of an inspector is discharged when he haa required the challenged voter to submit to the tests prescribed. In support of the view that inspectors of election act ministerially and not judicially in holding elections and making returns, we have ample authority. To-wn meetings in election districts or at a time of general elections. If the town meetings are held in election districts, elections are to be conducted by the inspectors of election thereof instead of the justices of the peace of the town (see Town Law, sec. 38, post, p. 214), and it is also provided that if a biennial town meeting is held at the same time as a general election it shall be held in the election districts of the town, and be conducted by the inspectors of election tliereof. See Town Law, sec. 42, post, p. 217. 'When toxpn meetings governed by Election ta-w. Local elections at town meetings, not held at the same time as a general election, are governed by the Town Law, and the Election Law is not applicable to such elections except where it has been expressly made so by provisions of the Town Law. Matter of Larkin, 163 N. Y. 201; 57 N. E. 404. Town Meetings ; Terms of Town Officees. 205 Town Law, §§ 33, 27. be the clerk of such town meeting, except when held at the time of a general election, and shall keep faithful minutes of its pro- ceedings, in which he shall enter at length every order or direction, and all rules and regulations made by such meeting; such person chosen by the electors present shall take the constitutional oath of office before entering upon his duties as such clerk. [Town Law, § 26, renumbered by L. 1897, ch. 481, and amended by L. 1898, ch. 363; Heydecker's Gen. L. (2d ed.), p. 1411.] § 8. Proclamation of opening and closing polls. Before the electors shall proceed to elect any town officer, procla- mation shall be made of the opening of the polls, and proclamation shall in like manner be made at each adjournment and of the opening and closing of the polls until the election be ended. [Town Laiv, § 33, as renumbered by L. 1897, ch. 481 ; Heydeck- er's Gen. L. {2d ed.), p. 1413.] § 9. Duration of town meetings. Town meetings shall be kept open for the purposes of voting in the daytime only, between the rising and setting of the sun, and, if necessary, may be continued by a vote of the meeting dur- ing the next day, and no longer," and be adjourned to another 7. Dnties of tovni clerk. The duties above imposed upon town clerks are similar in many respects to those of ballot and town clerks at general elections. If town meetings are held in election districts or at the time of a general election the duties of town clerks are to be performed by the regular election officers of the several districts. 8. Honrs during Trhich totrn meetings are to be kept open. The language of the provision of the present statute as to the time that town meetings shall be kept open for purposes of voting, is substantially no different than it has been for upwards of eighty years. It has never been construed so as to require polls of town meetings to be opened at sunrise or continuously kept open until sunset; but, on the contrary, it has been held that it is not necessary that a town meeting should be kept open through the whole time from sunrise to sunset. People ex rel. Simonson v. Martin, 5 N. Y. 22; Goodeil v. Baker, 8 Cow. 386. In the case of People ex rel. Van Sickle v. Austin, 28 App. Div. 1 ; 46 N. Y. Supp. 526, it was held that a town meeting was not rendered illegal by the fact that the polls were not opened until nine o'clock in the forenoon, they continuing open, except for the noon hour, until sunset. In the case of People ex rel. Fisher v. Has- hrouck, 21 Misc. 188; 47 N. Y. Supp. 109, it was held that the fact that polls at the annual town meeting to which was submitted a proposition whether traffic in liquor shoiild be permitted in the town were closed about an hour before sunset did not invalidate the votes cast at such town meeting upon such proposition. 206 Towns, Town Meetings and Town Officees. Town Law, § 28. place not more than one-fourth of a mile from the place where it was appointed.' [Town Law, § 27, as renumbered by L. 1897, ch. 481; Heydecher's Oen. L. (2d ed.), p. 1412.] § 10. Challenges; provisions of Election Law applied. If any person, offering to vote at any town meeting or upon any question arising, at such town, meeting shall be challenged as un- qualified, the presiding officers shall proceed thereupon in the manner prescribe'd in the general Election Law when challenges are made, which law, with its penalties, is made applicable thereto, and no person, whose vote shall have been received upon such challenge shall be again challenged upon any other question arising at the same town meeting." [Town Law, § 28, as renum- bered by L. 1897, ch. 481 ; Heydecher's Gen. L. {2d ed.), p. 1412. J 9. Adjonrmnent. Under the provisions of the revised laws of 1813 to the effect that no town meeting should be held longer than two days and should only be held open between sunrise and sunset, and should be held at such places in each town as the freeholders at their town meeting should from time to time appoint, it was held that the electors of the town on the town meeting being opened had a right to adjourn the meeting to the next day to be held at another place; and that the electors were the exclusive judges of the necessity of the adjournment. Ooodel v. Baker, 8 Cow. 286. See, also, People ex rel. Simonson v. Martin, 5 N. Y. 22, where it was held that the qualified electors of a town meeting may detern:ine by vote, after the regular organization of the meeting, that the tovm meeting be continued at the place of such organization through a part of the day and then ad- journed to some other place in the town and there continued through the residue of the day. The last clause of the above section expressly authorizes an adjournment of a town meeting. 10. Pro-visions of Election Laxr to control oHallenges. The manner of challenging and the oath to be administered in such cases are prescribed by section 108 of the Election Law (Jewett's Election Manual, p. 123), and the provisions of such section are by the above section of the Town Law made applicable to challenges at town meetings. Voters taking oath entitled to vote. Voters answering the question* put to them and taking the oath prescribed by law are entitled to vote, and under such circumstances election boards cannot refuse to accept the vote of an elector. See People v. Pease, 27 N. Y. 45; Ooetcheus v. Matheson, 61 N. Y. 420; People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 372; 29 N. E. 345; Matter of Hamilton,, 80 Hun, 511; 30 N. Y. Supp. 499. In the case of People ex rel. Stapleton v. Bell, 119 N. Y. 175; 23 N. E. 633, it was held that a board of inspectors of election has no discretionary power to reject the vote of a person who, upon the application of the statutory test, has shown himself to be a qualified voter; and that the lawfulness of the vote cannot be determined until it has been received ; and that the elector's right cannot be annuled without a trial. Town Meetings ; Teems of Town Officees. 207 Town Law, §§ 29, 30, 31. § II. Minutes of proceedings. The poll list and minutes of the proceedings of every town meet- ing, subscribed by the clerk of such meeting, and by the officers presiding, shall be filed in the office of the town clerk within two days after such meeting and there preserved. [Town Law, § 29, as renumbered by L. 1897, ch. 481 ; Heydecher's Gen. L. {2d ed.), p. 1412.] § 12. Transaction of business not requiring a ballot; when questions are to be submitted; how determined. The business of the towns which requires a vote of the people otherwise than by ballot shall be commenced at twelve o'clock noon of the day of the annual town meeting and completed with- out adjournment. No question, involving the expenditure of money shall be introduced after two o'clock in the afternoon of the same day. All questions upon motion made at town meetings shall be determined by the majority of the electors voting, and the officers presiding at such meeting shall ascertain and declare the result of the votes upon each question." [Town Law, § 30, as rewwmbered by L. 1897, ch. 481 ; Heydecher's Gen. L. (2cZ ed.), p. 1412.] § 13. Votes to expend over five hundred dollars to be by ballot, if less, by viva voce. All votes in town meetings upon any proposition to raise or appropriate money or incur any town liability exceeding five hundred dollars shall be by ballot ; if five hundred dollars or less, may be viva voce, unless ballot is required by the law authorizing the expenditure." An elector of a town shall not be entitled to vote by baJlot upon any proposition for the raising or appropria- tion of money, or the incurring of any towni liability, unless he or 11. Submission of resolution. In the case of People em rel. Kniffin v. Tabor, 21 How. Pr. 42, it appeared that at a town meeting where the ballot- ing was carried on in a room within a house and a resolution being proposed and drawn up in the presence of the presiding officers, by their direction the clerk proceeded outside of the building where most of the persons attending the town meeting were and, in the presence of one of the presiding officers,, there put the motion, and it was by him or the presiding officer declared carried and no one made objection. It was held that the resolution was duly passed. 12. Votes Incurring liability exceeding five hundred dollars. A Tesolution authorizing the Issuing of new bonds in place of those which have 208 Towns, Town Meetings and Town Officees. Town Law, §§ 44, 32. hia wife is tlie owner of property in tlie town, assessed upon the last preceding assessment-roll thereof. [Town Law, § 31, as re- numbered by L. 1897, ch. 481, and amended by L. 1901, ch. 598 ; Hey decker's Gen. L. {2d ed.), p. 1412.] § 14. When women qualified to vote. A woman who possesses the qualifications to vote for town offi- cers, except the qualification of sex, and who is the owner of prop- erty in the town assessed upon the last preceding assessment-roll thereof, is entitled to vote upon a proposition to raise money by tax or assessment. [Town Law, § 44, as added by L. 1901, ch. 509; Heydecher's Gen. L. (2d ed.), p. 1419.] § 15. Notice of propositions to be determined by ballot; ballot-boxes; form of ballots. No proposition or other matter than the election of officers, shall be voted upon Ly ballot at any town meeting, unless the town officers or other persons entitled to demand a vot© of the electors of the town thereon, shall, at least twenty days before the town meeting, file with the town clerk a written application, plainly stating the question they desire to have voted upon, and request- ing a vote thereon at such town meeting. When town officers, as such, make the application for a vote to raise money for purposes pertaining to their duties, they shall file with their application a statement of their account to date, with the facts and circum- stances which, in their opinion, make the appropriation applied for necessary, and their estimation of the sum necessary for the purpose stated, which statement may be examined by any elector of the town, and shall be publicly read by the town clerk at the meeting when and where the vote is taken, at the request of any elector. The town clerk shall, at the expense of his town, give at least ten days' notice, posted conspicuously in at least four of the most public places in town, of any such proposed question, and matured is a proposition to incur a town liability, and if the amount of Buch bonds exceeds the sum of $500, a resolution authorizing such issue is invalid unless voted upon by ballot. People ex rel. Read v. Toion Auditors, 85 Hun, 114; 32 N. Y. Supp. 668. A resolution submitted at a special town meeting requesting authority of the board of supervisors to borrow money for the construction of a bridge if incurring a liability exceeding $500 must be voted upon by ballot. Berlin Iron Bridge Co. v. Wagner, 57 Hun, 346; 10 N. Y. Supp. 840. Town Meetings j Teems of Town Officers. 209 Town Law, § 32. that a vote will be taken by ballot at the town meeting mentioned.' He shall also, at the expense of his town, provide a ballot-box, properly labeled, briefly indicating the question to be voted upon, 13. For forms of application for vote by ballot upon propositions and of notice that a vote upon such propositions will be taken by ballot, see Forma Nos. 16 and 17, post. Forms of ballot; ballot boxes. The form of ballots for questions sub- mitted is prescribed by section 82 of the Election Law. See Jewett's Elec- tion Manual, 1903, p. 94, and post, p. 222. By the provisions of this sec- tion town propositions for raising or appropriating money for town purposes are to be separate from all other ballots for the submission of other propo- sitions or questions to the electors of the town to be voted upon at the same town meeting or election. This provision applies to town meetings held at the same time as general elections. In the case of Matter of Larkin, 163 N. Y. 201 ; 57 N. E. 404, it was held in effect that the provisions of the Election Law do not apply to town (meetings held at a time other than at the time of a. general election, unless the Town Law in express terms applies such provisions. See, also. People ex rel. Guersey v. Pierson, 35 Misc. 400. In view of this decision it may be that the above section of the Town Law would control the form of a ballot for the submission of u, proposition, and that, therefore, a written ballot submitting a question at such a town meeting would be valid; but it would be the safer and better method, in preparing ballots for questions submitted, to conform to the requirements of section 82 of the Election Law. Section 16 of the Election Law (Jewett's Election Manual, 1903, p. 21, see post, p. 218), provides for the furnishing of a separate ballot box for the recep- tion of votes upon propositions, to be indorsed " Box for questions sub- mitted." Submission of propositions under the Ucinor Tax Lair. This section of the Town Law is general and sweeping in its provisions, and was intended not only to apply to all propositions and questions which could be lawfully submitted to a town meeting at the time of the passage of such law, but also to other propositions that could thereafter be submitted by reason of subsequent enactments. People ex rcl. Eovey v. Town Cleric, 26 Misc. 220, 222; 56 N. Y. Supp. 64. In this case the provisions of the above section were held to apply to a petition of town electors to request, under section 16 of the Liquor Tax Law, a, resubmission to the electors at a town meeting of the question of local option, and that, therefore, unless the peti- tion is filed with the town clerk at least twenty days before the town meet- ing, his refusal to print the ballots required for such resubmission is justi- fied, and action upon his part will not be compelled by mandamus. In the case of Matter of Eggleston, 51 App. Div. 38; 64 N. Y. Supp. 471, it was held that a petition for the submission of a question under the local option provisions contained in section 16 of the Liquor Tax Law should be filed with the town clerk, notwithstanding the fact that such section of the Liquor Tax Law required such petition to be "filed twenty days before such town meeting with the officer charged with the duty of furnishing ballots 14 210 Towns, Town Meetings and Town Officees. Town Law, § 32. into' which all ballots voted upon, the question indicated shall be deposited. He shall also prepare and have at the town meeting a sufficient number of written or printed ballots, both for and for the election." The question in this case seems to have arisen because of the confusion which existed in tlie Election Law at that time as to the proper officer to provide ballots where town meetings were held at the time of general elections. This confusion has been removed by chapter 405 of the Laws of 1902 amending section 86 of the Election Law ( Jewett's Election Manual, p. 104, post, p. 224), to the effect that if a town meeting is held on general election day ballots for town propositions shall be provided by the town clerk in the same form as at a town meeting held at any other time. The case last cited also holds that it is a duty of the town clerk to give notice of the submission of the questions relating to local option in the manner prescribed by the above section of the Town Law. Effect of insufficient notice. The question of the effect of an insuffi- cient notice upon the validity of the vote upon a proposition submitted at a town meeting has arisen in cases under the Liquor Tax Law. In the case of People ex rel. Crane v. Chandler, 41 App. Div. 178; 58 N. Y. Supp. 794, the notice was published but four days prior to the town meeting. It was contended that such notice ought to have been filed twenty days before the town meeting. The court held that a resubmission of the proposition was not necessary since it appeared that the electors of the town had notice of the intention to submit the questions and that they acted upon such notice and expressed their will in the mode prescribed by statute; and the court declared that there were no informalities sufficient to warrant it in saying that the conclusion reached by the electors was not efficient. The court cited the case of People ex rel. Hirsh v. Wood, 148 N. Y. 142; 42 N. E. 536, in which the court said : " We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even wilful mis- conduct of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will, and not to thwart it. The object of election laws is to secure the rights of duly qualified electors and not to defeat them. Statutory regulations are enacted to secure freedom of choice, and to prevent fraud." See, also, Matter of Clement, 29 Misc. 29; 60 N. Y. Supp. 328. Sufficiency of application. The provisions of the above section of the Town Law were not complied with where it appears that a sufficient number of qualified persons signed a paper denominated a, " resolution," which recited that a certain sum should be raised on the faith and credit of the town by an issue and sale of its bonds, and that the money raised and its interest should be charged upon the property of the town taxable therefor, for the purpose of grading and paving certain roads described in the resolu- tion. The paper was not addressed to any person, body or officer, and did not state any question which the signers desired should be voted upon, nor did it request that any vote be taken thereon at a town meeting, and the signers, although taxpayers, were not described as such in the paper, all of which are necessary requirements under the statute. Town of Oyster Bay V. Harris, 21 App. Div. 227; 47 N. Y. Supp. 510. Town Meetings; Terms of Town Officeks. 211 Town Law, § 36. against the question to be voted upon, for the use of the electors. The vote shall be canvassed, the result determined and entered upon the minutes of the meeting, the same as votes given for town officers. [Town Law, § 32, as renumbered by L. 1897, ch. 481 ; Heydecker's Gen. L. (2d ed.), p. 1412.] § 1 6. Ballots; electors in incorporated village when not to vote on highway questions. When the electors vote by ballot, except in towns where the biennial town meetings are held at the time of general elections, all the ofiBcers voted for shall be named in one ballot, which shall contain written or printed, or partly written or partly printed, the names of the persons voted for, and the offices to which such persons are intending to be elected, and shall be delivered to the presiding officers so folded as to conceal the contents, and shall be deposited by such officers in a box to be constructed, kept and disposed of, as near as may be, in the manner prescribed in the gen- eral Election Law." When any town shall have within its limits an incorporated village, constituting a separate road district, ex- empt from' the supervision and control of the commissioners of highways of the town, and from payment of any tax for the salary or fees of said commissioners, and from payment of any tax for the opening, erection, maintenance and repair of any highway or bridge of said town, without the limits of said village, no resi- dents of such village shall vote at any biennial or special election 14. Ballots for toim meetings under tlie Election Lavr. The pro- visions of this section relating to ballots containing the names of town oflScers to be voted for at town meetings not held at the same time as a. general election, are probably superseded by the provisions of section 81 of the Election Law. Jewett's Election Manual, 1903, p. 89. Under section 86 of the Election Law (Jewett's Election Manual, 1903, p. 104), it is pro- vided that ballots to be used at town meetings, not held on general election day, shall be furnished by the town clerk of the town. Ballots are to be prepared from certificates of nominations, filed with the town clerk, as provided in sections 58 and 59 of the Election Law. Jewett's Election Manual, 1903, p 69. Nominations for town offices are to be made under the provisions of sec- tions 56 and 57 of the Election Law. Jewett's Election Manual, 1903, p. 61. The number of ballots is to be determined by section 85 of the Election Law (Jewett's Election Manual, 1903, p. 104), and they are to be distributed as provided by section 87 of that law. Id., p. 105. A town clerk in the per- formance of his duties respecting the furnishing of official and sample ballots, instruction cards and stationery, must conform in all respects to the provi- sions of article 4 of the Election Law. Id., pp. 89-107. 212 Towns, Town Meetings and Town Officers. Town Law, § 36. in sucK town for any commissioner of highways for said town, nor for or against any appropriation for the opening, laying out, maintenance, erection or repair of any highway or bridge in said town, without the limits of said village. At the biennial elec- tions in such towus, the names of candidates for the office of high- way commissioner shall be printed on a different ballot from the one containing the names of candidates for other town officers. Such ballots shall be indorsed " commissioner of highways," and shall be deposited, when voted, in a separate ballot box, which also shall be marked " commissioner of highways." Such ballots and ballot box shall be furnished by the officers now charged by law with that duty at town elections." A poll list shall be kept by the clerk of the meeting on which shall be entered the name of each person voting by ballot. [Town Law, § 36, as renumbered hy L. 1897, ch. 481, and amended by L. 1898, ch. 363 ; Heydeck- er's Gen. L. (2d ed.), p. 1414.] 15. Separate ballots for highTiray commissioners and for proposi- tions relating to high^rays and bridges in certain toims. The provisions of this section, relating to the separate ballots for the electioa of highway commissioners and for propositions for the appropriation of money for the construction and maintenance of highways and bridges, only apply to towns containing an incorporated village, which is, by the provi- sions of its charter or any other special law, exempted from taxation for all highway and bridge purposes within the town outside of the limits of such village. This provision was inserted in the above section to take care of some one or more villages which are so situated under the general law. The highways and bridges of a town are to be constructed and maintained by the whole town, and the property within an incorporated village is not exempted from txation therefor. It is provided in the Village Law, section 141 (Gumming and Gilbert's Village Law, p. 113), that the village constitutes a separate highway district. This provision is for the purpose of con- feiring authority upon the village authorities to construct and maintain streets and highways within the village, and was not for the purpose of relieving the village from the construction and maintenance of town high- ways. It is probable that in a town containing a particular village, to which the provision of the above section referred to applies, that ballots for highway commissioners should be separate from the general town ballot. This is so because of the amendment to such section by ch. 363 of L. 1897 continuing such provision in force and superseding section 81 of the Election Law as enacted by ch. 909 of the L. 1896. Effect of provision of Highway law exempting certain villages from taxation. Under section 53 of the Highway Law (see ch. 46, post, p. 636), providing for the raising of money by taxation for highway pur- poses, villages are exempt from any taxes imposed for the maintenance and repair of the highways lying outside of the villages. In the case of Matter of Town Meetings; Teems of Town Officers. 213 Town Law, § 37. §17. Canvass of votes; notification of officers elected. At the close of the polls at any town meeting, the canvassera shall proceed to canvass the votes publicly at the place where the meeting was held. Before the ballots are opened they shall be counted and compared with the poll list, and the like proceedings shall be had as to ballots folded together, and difference in num- ber as are prescribed in the general Election Law. The void and protested ballots, and the voted ballots other than void and pro- tested, shall be preserved and disposed of by the inspectors in the manner provided by section one hundred and eleven of the Elec- tion Law." The result of the canvass shall be read by the clerk to the persons there assembled, which shall be notice of the elec- tion to all voters upon the poll list. The clerk shall also enter the result at length in the minutes of the proceedings of the meeting kept by him, and shall, within ten days thereafter, transmit to any person elected to a town office, whose name is not on the poll Shapter v. Carroll, 18 App. Div. 390, 392; 46 N. Y. Supp. 202, the above Eection was construed in connection with such section 53 of the Highway Law. The court said: "Such section 53 of the Highway Law does not relieve villages from assessments made for damages and charges for laying out or altering any road or creating or repairing a bridge in the town. Section 53 is general, and applies to every case where an incorporated vil- lage within a town may be a. separate road district. Thus, from a. certain class of public charges or expenses connected with the highways the villages are exempt, while to another class they are subject. A proper interpreta- tion of ch. 262 of the Laws of 1895 (amending the above section of the Town Law) I think is required. It provides that when the village is exempt from the supervision and control of the commissioners of the highways of the town and from paj'ment of any tax for the opening, erection, main- tenance and repair of any highway or bridge of said town without the limits of said village, no residents of such village shall vote . . . for or against any appropriation, etc. The meaning of this is that no residents of the village shall vote on the subject of an appropriation when the village is exempt from liability for such appropriation, but it is only in case the village is so exempt that the residents of a village are not to vote." 16. Dispoaltion of rejected ballots. The provisions of this section require inspectors or the officers presiding at a town meeting to preserve and dispose of the void and protested ballots in the manner provided by section 111 of the Election Law. In the case of People ex rel. Mamm v. Ward, 62 App. Div. 531; 71 N. Y. Supp. 76, it was held that canvassers of the ballots cast at a town meet- ing could be compelled by mandamus to indorse upon each rejected ballot the reason for such rejection, and to place such ballots in a separate sealed package, and to indorse the package with their names and the number of ballots contained therein, as directed by section 111 of the Election Law. 214 Towns, Town Meetings and Town Officees. Town Law, § 38. list as a voter, a notice of his election." [Town Law, § 37, as renumbered by L. 1897, ch. 481, and amended by L. 1899, ch. 168; Heydecker's Gen. L. {2d ed.), p. 1414.] § 1 8. Town meetings in election districts; may be held in regular election districts, or town board may divide the town; application therefor. The electors of a town may determine by ballot at an annual or special town meeting on the written application of twenty-five electors, that town meetings shall thereafter be held in the several election districts of their town, to be therein conducted by the inspectors of election thereof, instead of the justices of the peace of the town ; or may authorize the town board to divide such town into two or more joint election districts, as provided in this sec- tion." The town board of any town which has been so authorized may divide such town into two or more joint election districts, for the purpose of holding town meetings therein, but such dis- tricts shall be constituted by combining the election districts in such town. If the town board of any town shall divide such town into joint election districts in pursuance of this section, such board shall select from the inspectors of election for such town three inspectors residing therein, not more than two of whom shall 17. Application of provisions of Election Lair to canvass. In the ease of Matter of Larkin, 163 N. Y. 201 ; 57 N. E. 404, it was in effect held that the provisions of this section were to control inspectors at town meet- ings not held at the same time as a general election in the performance of their duties, and that in mailing a canvass of the votes cast the provisions of the Election Law did not apply except as expressly provided in the section. In the ease of People ex rel. Guernsey v. Pierson, 35 Misc. 406; 71 N. Y. Supp. 993, it was held that town elections are governed generally by the Town Law and not by the Election Law. Statement of result. It is intended by the statute that the statement read by the clerk of the result of the canvass shall be a sufficient certificate and evidence of the election. Matter of Baker, 11 How. Pr. 418; Matter of Case V. Gamplell, 16 Abb. N. C. 270. IS. Application and submission of proposition. The application for the submission of a proposition under this section must be written and signed by at least twenty-five electors of the town. Such application must be filed with the town clerk at least twenty days before the town meeting, and must plainly and definitely state the question to be voted upon and must request that a vote be taken at a specified town meeting. See section 32 of the Town Law, ante, p. 208. The proposition is to be submitted in the same manner as other town propositions. For form of application for holding town meeting in election districts, see Form No. 18, post. Town Meetings; Tekms of Town Officess. 215 Town Law, § 38. belong to the same political party, for each of such election dis- tricts as so constituted. Such inspectors shall act at the first town meeting held in such districts thereafter. At the first town meeting held in such districts and annually thereafter, there shall be elected in each of such districts in the same manner, and with the same qualifications as inspectors are elected for a general election, three inspectors of election for such district. If a town shall hold its town meeting in more than one district, the inspect- ors of each of such districts shall appoint one poll clerk, and in the conduct of such meetings they shall have the same powers and duties as the justices of the peace and town clerk have at the annual town meetings presided over by them. No town officer shall be required to make or render any report, statement or ab- stract at a town meeting when held in separate or joint election districts. At the close of the polls, the inspectors shall forthwith publicly canvass the ballots cast, and, without postponement or adjournment, make a full and true statement of the whole number so cast for each and every candidate for an office balloted for, and of the whole number of votes for and against every question or proposition voted upon at such tovni meeting. The void and pro-' tested ballots, and the voted ballots other than void and protested, shall be preserved and disposed of by the inspectors in the manner provided by section one hundred and eleven of the Election Law. Such statement shall be made in the same form as statements by such inspectors of the votes cast at general elections, and shall be signed by the inspectors and delivered by one of their number, selected by them, for that p'urpose, to the justices of the peace and town clerk of the town, who shall convene and receive the same at the office of the town clerk, on the day next following the town meeting, at ten o'clock in the forenoon. Such justices and clerk shall then and there recanvass such votes from the statements of the inspectors of the several separate or joint election districts so deliv- ered to them, and thereupon appoint in writing additional inspect- ors of election, and read and enter the results in the same manner as required of them at the close of the canvass of a town meeting presided over by them." When the electors of a town have deter- 19. Canvass of votes by jnstices of the peace and to\m clerk. Where town meetings are held in election districts, under the provisions of this section, the justices of the peace and town clerk are required to meet on the day following the town meeting, at the office of the town clerk, at 10 o'clock in the forenoon, and recanvass the votes on the statements returned by the inspectors of the several districts. Such justices and town clerk 216 Towns, Town Meetings and Town Oefioees. Town Law, § 39. mined to hold their town meetings in separate or joint districts,, they may again, upon the written application of twenty-five elecV ors, at an annual town meeting, determine by ballot to return to the former system of holding but one poll at their town meetings, and thereupon their town meetings shall be held at but one poll- ing place in said town, but such changes shall not be made oftener than once in five years. [Town Law, § 38, a^ renumbered by L. 1897, ch. 481, and amended by L. 1899, ch. 168; Heydecker's Gen. L. {2d ed.), p. 1415.] § ig. Vote upon propositions not requiring a ballot; vote to be by division of electors present; inspectors to enter statement of result ; notice of submission of proposition. Any pToposition to be submitted to and voted upon by the electors of a town at any town meeting, which is not required to be voted upon by ballot, may be submitted to the electors of the town voting in separate or joint election districts of the town meeting, but the vote upon any such proposition shall be taken by a division of the electors present, and voting thereon ; and the inspectors shall count the number of electors so voting in fa.vor of such proposition, and the number ,so voting against the same, and shall enter in the statement of the result of the town meeting held in such district a sta.tement of the proposition so voted upon, and the number of votes so cast in favor of and against the same and certify with the statement that they are required to certify and return to the justices of the peace and town clerk of the town. No such proposition shall be so voted upon tmless notice that such vote will be taken has been published by the town clerk at least one week before the town meeting, in a newspaper published in the town, if any such is published therein; and such notice are required to read and enter the results in the manner required when town meetings are not held in election districts. In the case of People ex rel. Guernsey u. Pierson, 35 Misc. 406; 75 N. Y. Supp. 993, it was held that a town canvassing board cannot be directed to recanvass the votes cast at a town meeting held in election districts and reject for irregularity certain returns unless such returns are wholly void. The following defects were held as not necessarily fatal. That the inspectors in certain districts selected one of their number as poll clerk; that in some districts the poll lists were not subscribed as required by the statute; that in one district the inspectors did not return the number of ballots which were void, but inclosed them in a sealed package which they filed with a statement of the canvass; that the supervisor of the town who took no part in the canvass was present and signed the statement. Town Meetings ; Teems of Town Officees. 217 Town Law, § 42. ahall also be posted for the same length of time at the place where the poll of the town meeting is to be held, in each separate or joint election district, and shall be publicly read by the inspectors to the voters present before any such vote is taken." Any elector of the town may, by a written application filed with the town clerk at least ten days before the town meeting is to be held, require such notice to be given by the town clerk. Every such proposition shall be submitted to a vote, commencing at the hour of twelve, noon, and continuing until all such propositions have been voted upon, and every such proposition shall be submitted to the vote of the electors of the town at the poll of every separate or joint election district in the town. [Town Law, § 39, as renumbered by L. 1897, ch. 4:81; Heydeckers Gen. L. {2d ed.), p. 1416.J § 20. Town meetings held at the time of general election; canvass of votes. If, in any town, the biennial town meeting is held at the same time as the general election, such town meeting shall be held in the election districts of such town, and be conducted by the in- spectors of election thereof. At the close of the polls at any such town meeting, the inspectors shall proceed to canvass the votes for the candidates for the several town oflBces in the election dis- tricts where such town meeting was held, in the same manner as the votes for other candidates cast at the general election are can- vassed. They shall make a statement of the whole number of votes cast for each candidate for a town office and deliver the same to one of the justices of the peace of the town, and, on the Thurs- day succeeding such town meeting, such votes shall be recanvassed, the additional inspectors of election in each district shall be ap- pointed, and the result of the election declared as provided by sec- tion thirty-eight of this chapter."* In case of a contest or other proceeding in which the validity of the election of a town officer in any such town, is in controversy, the ballots cast at any town meeting and election, may be examined aud recounted, as provided 20. Notice of a proposition not requiring a ballot to be voted upon at a town meeting held in election districts must be given as prescribed in the above section. In would seem that where town meetings are not held in election districts such propositions may be submitted without prior notice. See Town Law, sec. 30, ante[ p. 207. 21. CanTass of votes hj jnatioes of the peace and toiim clerk. Where town meetings are held at the time of general elections the returns of the inspectors of election of the several election districts are to be made 218 Towns, Town Meetings and Town Officees. Election Law, §§ 16, 18. ) by law, in case of other ofBcers elected at general elections. [Town Law, § 42, as added by L. 1898, ch. 363, and amended by L. 1901, ch. 391; Hey decker's Gen. L. (2d ed.), p. 1418. J § 21. Ballots at town meetings held on election day. Ballot boxes. — There shall be but one ballot box at each polling place for receiving all ballots cast for candidates for office, which box shall be conspicuously marked " box for general ballots." There also shall be a ballot box for the reception of ballots found to be defective in printing, or mutilated before delivery tO' electors, and for ballots spoiled and returned by electors, which box shall be con^icuously marked " box for spoiled and miatilated ballots." There shall also be a box for detached ballot stubs, which box shall be conspicuously marked, " box for detached ballot stubs." If proposed constitutional amendments, or other propositions or ques- tions may be lawfully voted upon thereat, there shall be a separate ballot box at each polling place for the reception of ballots upon such amendments or propositions, or questions, Avhich box shall be conspicuously ruarked, " box for questions submitted." In towns in which town meetings are held on election day, an additional ballot box shall be provided, to be marked " box for town proposi- tions," in which shall be deposited ballots cast on town propositions and questions. In towns in which town meetings are held on ©lection day in an even numbered year, an additional ballot box shall be provided, to be marked " box for town ballots," in which shall be deposited ballots cast for candidates for town offices. Each box used for the reception of voted ballots shall be provided with a sufficient lock and key, and with an opening in the top thereof large enough and not larger than may be necessary tO' allow a single folded ballot to be easily passed through such opening into the box. Each box shall be large enough to properly receive and hold all ballots which may lawfully be deposited therein at any election. [Election Law, § 16, as amended by L. 1900, ch. 381, L. 1902, ch. 405, and L. 1904, ch. 733; Eeydecher's Gen. L. (2d cd.^,p. 314.J Payment of election expenses. — The expense of providing poll- ing places, voting booths, supplies therefor, guard rails and other furniture of the polling place, and distance markers, and the com- and the votes are to be recanvassed in the manner provided by section 38 of the Town Law. See write, p. 214. Provisions of this section relating to the recanvass, when read in con» ncetion with section 38 of the Town Law, do not permit the justices of tha peace and town clerk who made the recanvass to recount the vote; they must declare the result as it appears from the statements made by the inspectors of cloction, who, under the statute, make the canvass itself. Matter of Park, 37 Misc. 133; 74 ^v. 7 ...„. ::::. Town Meetings ; Tekms of Town Officees. 219 Election Law, § 18. pensation of the electiooi oiEcers in each election district, shall be a charge upon the town or city in which such election district is situated except that such expenses incurred for the purpose of conducting a village election, not held at the same time as a gen- eral election, shall be a charge upon the village. The expense of printing and delivering the official ballots, sample ballots and cards of instruction, poll books, tally sheets, return sheets for inspectors and ballot clerks, and distance markers to be used at a town meet- ing, city or village elections not held at the same time as a general election, and of printing the list of nominations therefor shall be a charge upon the town, city or village in which tlie election is held. The expeuse of printing and delivering the official ballots, sample ballots and cards of instruction, poll books, tally sheets, return sheets for inspectors and ballot clerks, and distance markers to be used in any county, except such counties or portions thereof as are included within the city of New York, at any other election, if no town meeting, city or village election be held at the same time therewith, and of printing the lists of nominations therefor, shall be a charge upon such county. The expense of printing and deliv- ering the official ballots, sample ballots and cards of instruction, poll books, tally sheets, return sheets for inspectors and ballot clerks, and distance markers:, to be used in any such county, at any other election, and of printing the lists of nominations therefor, if the tovsm meeting, city or village election be held in such_ county at the same time therewith, shall be apportioned by the county clerk between such town, city or village and such county, in the pro- portion of the number of candidates for town, city or village officers on such ballots, respectively, to the whole number of can- didates thereon, and the amount of such expense so apportioned to each such municipality shall be a charge thereon. Whenever voting machines are used in an election by any city, town or vil- lage, only such expenses as are caused by the use of such machines, and such as are necessary for the proper conduct of the elections as required by the Election Law shall be charged to such city, town or village. * * * " The county clerk of each county, not salaried, shall be paid by such county a reasonable compensa- tion for his services in carrying out the provisions of this chapter. to be fixed by the board of supervisors of the county, or the board 22, Provision as to compensation of inspectors in cities of the first claai omitted. 220 Towns, Town Meetings and Town Ofpiceks. Election Law, § 58. acting as such board of supervisors. The ix)wn clerk of eaoL, town shall be paid by such town a reasonable compensation for his ser- vices in carrying out the provisions of this chapter, to be fixed by the other members of the town board of the town. Ballot clerks shall receive the same compensation for their attendance at an election, as inspectors of election for the election, and be paid in like manner. Poll clerks shall receive the same compensation for their attendance at an election and canvass of the votes as in- spectors of election, and shall be paid in like manner. An in- spector of election, lawfully required tO' file papers in the county clerk's office, shall, unless he resides in the county, if within the city of New York, or in any other city or town in which such office is situated, be entitled to receive as compensation therefor five dollars, and also four cents a mile for every mile actually and necessarily traveled between his residence and such county clerk's office in going to and returning from such office. * * * ^^ Election officers required to meet at a different time from the regular count of the votes cast at a general election for the purpose of counting and returning the votes of electors absent from their election districts in time of war in the actual military or naval service of this state or of the United States, shall be paid five dollars each. [Election Law, § 18, as amended by L. 1900, ch. 381, and L. 1901, ch. 95; Heydecker's Gen. L. (2d; ed.), p. 315.] Places of filing certificates of nomination. — Certificates of nom- ination of candidates for office to be filled by the electors of the entire state, or of any division or district greater than a county, shall be filed with the secretary of state, except that each certificate of nomination of a candidate for member of assembly for the as- sembly district composing the counties of Fulton and Hamilton, shall be filed in the office of the county clerk of Fulton county, and a copy thereof certified by the county clerk of Fulton county, shall be filed in the office of the county clerk of Hamilton county, so long as the said counties constitute one assembly district, and except that certificates of nomination, of candidates for offices to be filled only by the electors or a portion of the electors of the city of New York shall be filed with the board of elections of the city of New York. Certificates of nomination of candidates for offices to be filled only by tlie votes of electors, part of whom are of New York city, and part of whom are of a county not wholly within the 22a. Provision omitted as to compensation of election officers in cities of the first class. Town Meetings; Teems of Town Officers. 221 Election Law, § 59. city of 'New York shall be filed with the clerk of such county and in the ofiice of the board of elections of said city. Certificates of nomination of candidates for ofiices of any other city, except the city of Buffalo, to be elected at the same time at which a general election is held shall be filed with the clerk of the county in which such city is located. Certificates of nomination of candidates for offices of any other city, except the city of Buffalo, or for officera of a village or town to be elected at a different time from a general election, shall be filed with the clerk of such city, village or town, respectively. In towns in which town meetings are held at the time of general elections, certificates of nomination of candidates for town offices shall be in duplicate, one of which shall be filed with the town clerk of the town in which such officers are to be voted for, and the other with the clerk of the county in which such town is located, except that in the county of Erie, all such duplicate certificates of nomination shall be filed, one with the commissioner of elections and one with the clerk of the town in which such officers are to be voted for. All other certifi- cates of nomination, except in the county of Erie, shall be filed with the clerk of the county in which the candi- dates so nominated are to be voted for, and in the county ef Erie all such certificates, including certificates for the nomination of ward and city officers in the city of Buffalo, shall be filed with the commissioner of elections. All certificates and cor- rected certificates of nomination, all objections to such certificates and all declination of nominations are hereby declared to be public records; and it shall be the duty of every officer or board to ex- hibit without delay, every such paper or papers to any person who shall request to see the same. It shall also be the duty of each such officer or board to keep a book which shall be open to public in- spection, in which shall be correctly recorded the names of all candidates nominated by certificates filed in the office of such officer or board, or certified thereto, the title of the office for which any such nomination is made, the political or other name and emblem of the political party or independent body making such nomination ; and in which shall also be stated all declinations of nominations or objections to nominations, and the time of filing each of the said papers. [Election Law, § 58, as amended hy L. 1900, ch. 381, L. 1901, ch. 95, L. 1902, ch. 241, L. 1902, ch. 405, and L. 1905, ch. 643 ; Heydecher's Gen. L. (2d ed.), p. 345.] 222 Towns, Town Meetings and Town Officers. Election Law, § 82. The times of filing certificates of nomination. — The different certificates of nomination shall be filed within the following periods before the election for which the nominations are made, to wit : Those required to be filed with the secretary of state, if party nominations, at least thirty and not more than forty days ; if independent nominations, at least twenty-five days and not more than forty days; those required to be filed with a county clerk, or the board of elections of the city of New York, or with the city clerk of any other city, or with the commissioner of elections of Erie county, if party nominations, at least twenty-five and not more than thirty-five days; if independent nominations, at least twenty, and not more than thirty-five days; those required to be filed with a town or village clerk, if party nomi- nations, at least fifteen and not more than twenty days; if independent nominations, at least ten and not more than twenty days. Except that in towns, other than in the county of Erie, where town meetings are held at the time of general elections, certificates of nomination for town offices, shall be filed with. the town and county clerks, within the time required by this section for the filing of certificates of nomination with the county clerk, and in the county of Erie such certificates shall be filed with the commis- sioner of elections and the town clerks not less than twenty nor more than thirty days before the day of election. In case of a special election ordered by the governor under the provisions of section four of the Election Law, the certificates of nominations for the office or offices to be filled at such special election shall be filed with the proper officer or boards not less than fifteen days before such special election. [Election LoajO, % 59, as amended by L. 1900, ch. 381, L. 1901, ch. 95, L. 1902, oh. 405, and 1905, ch. 643; Hey- decker's Gen. L. {Zd ed.) , p. 346.] Form of hallot for questions svhmitted. — Mienever tiie adoption of a constitutional amendment or any other proposition or question is to be submitted to tbe vote of the electors of the state, or of any district thereof, a separate ballot shall be provided by the same officers who are charged by law with the duty of providing the officdal ballots for candidates for public office. Such ballots shall comply with the requirements of official ballots for candidates for public office, in so far as such requirements^ are applicable thereto. Under the perforated line shall be clearly printed, in brevier lower case type, the question of the adoption of the constitutional amend- ment or other proposition or question upon which the electors within the district for which such ballot is provided may lawfully vote. If there be more than one constitutional amendment or proposition or question tO' be submitted to the voters of that dis- trict, the different amendments or propositions or questions shall be separately numbered and printed, and separated by a broad solid line one-eighth of an inch wide. Opposite and before each such amendment, question or proposition, so- submitted, shall be printed two squares inclosed in ruled lines, one above the other. Preced- ing the upper one of such squares shall be printed the word " Yes " and preceding the lower one of such squares shall be printed the word " No." At the top of each such ballots, immediately above the perforated line, shall be printed in brevier capital type the following words only : " Notice to electors. — For an affirmative vote upon any question submitted unon this ballot, make a cross; X Town Meetings; Tebms of Town Offioees. 223 Election Law, § 85. mark in the square after the word ' Yes.' For a negative vote, make a similar mark in the square following the word ' No.' " All such ballots for the same polling place shall be of the same color and size, and similarly printed, so that, after the removal of the stub, which shall be numbered as in case of ballots for candidates for public office, it shall be impossible to identify or distinguish any one of such ballots from thei others. On the back of each such ballot, below the stub, shall be printed in addition to the endorsement as presoxibed for general ballots, the words "Ques- tions submitted," so' as to distinguish the said ballots from, the official ballots for candidates for office. Ballots for the submission of town propositions and questions tO' be submitted at town meetings held on election day shall be printed in the manner provided by this section, but shall be endorsed "Town pToposition submitted." All ballots for the submission of town propositions for raising or appropriating money for town purposes, or for incurring a. town liability, to be voted at any town meeting in any town, shall be separate from all other ballots for the submission of other proposi- tions or questions to the electors of such towns to be voted at the same town meeting or election. Such ballots shall be in the form prescribed in this section and shall be endorsed "propositions for town appropriations." [Election Law, § 82, as amended by L. 1900, ch. 381, andL. 1901. ch. 598 ; Heydecker's Gen. L. {2d ed.), p. 356.] Number of official ballots. — The numbea- of official ballots of each kind to be provided for each polling place for each election to be held thereat, except a village election held at a different time from a general election, shall be one and one-half times as many ballots as near as may be as there were names of electors on the register of electOTS of such district for such election at the close of the fourth meeting for such registration. In cities of the first class the officer or board charged with the duty of furnishing official ballots shall furnish one and one-half times as many official bal- lots as near as may be of each kind to be provided for such election as there are electors entitled to vote thereat, as nearly as can be estimated by such officer or board. When but two days of registra- tion are required there shall be a number equal to one and one-half times, as near as may be, the number of names upon the register at the close of the second meeting for registration. The number of official ballots of each kind to be provided for each pollin-r place for a town meeting, held at any time or a village or city election 224 Towns, Town Meetings and Town Offioees. Election Law, § 86. held at a diflferent time from a general election, shall be one and one-half times as near as may be the number of persons who will be entitled to vote thereat, as nearly as can be estimated by the oflBcer charged with the duty of providing such ballots. [Election Law, § 85, as amended by L. 1900, ch. 381; Beydecker's Gen. L. (2d ed.), p. 365.] Officers providing ballots and stationery. — The clerk of each county, except the county of Erie and those counties the whole of which are within the city of New York, and in the county of Erie, the commissioner of elections, shall provide the requisite number of official and sample ballots, cards of instruc- tion, two poll books, distance markers, two tally sheets, inspectors' and ballot clerks' return sheets (three of each kind, and one of each to be marked " original " ) , pens, penholders, ink, pencils having black lead, blotting paper, sealing wax and such other articles of stationery as may be necessary for the proper conduct of the election, and the canvass of the votes, for each election district in such county and not within the city of New York, for each election to be held thereat, except that when town meetings, city or village elections and elections for school officers are not held at the same time as a general election the clerk of such town, city or village, respectively, except in the city of Buffalo, shall provide such official and sample ballots and station- ery for such election or town meeting. If the town meeting is held on gen- eral election day ballots and sample ballots for town propositions shall be provided by the town clerk in like manner and in the same form as at a town meeting held at any other time, and such town clerk shall also furnish in- spectors' and ballot clerks' return sheets for making returns on town propo- sitions or questions. In towns in which town meetings are held at the time of the general election in an odd numbered year, the names of candidates for town offices shall be printed on the same ballots as the names of candidates for other offices voted for in such towns at such general elections. In towns in which town meetings are held on general election day in an even num- bered year, the names of candidates for town officers shall be printed on sep- arate ballots; such ballots and sample ballots for town officers shall be pro- vided by the town clerk in like manner and in the same form as at a town meeting held at any other time, and sucn town clerk shall also furnish in- spectors' and ballot clerks' return sheets for making returns of votes cast for candidates for town offices at such an election, and the expense of furnish- ing such ballots, sample ballots and return sheets shall be a town charge. And the board of elections of the city of New York, and in the city of Buf- falo, the commissioner of elections, shall provide such articles for each elec- tion to be held in said cities. Each officer or board charged with the duty of providing official ballots for any polling place, shall have sample ballots and official ballots provided, and in the possession of such officer or board, and open to public inspection as follows: The sample ballots five days before the election, and the official ballots four days before the election for which they are prepared unless prepared for a village election or town meeting official ballot shall be so printed and in possession at least one day, and held at a different time from a general election, in which case the Town Meetings; Teems of Town Officers. 225 Election Law, §§ 163, 164, 165. the sample ballots at least two days before such election or town meeting. During the times within which the same are open for inspection as aforesaid, it shall be the duty of the officer or board charged by law with the duty of preparing the same, to deliver a sample ballot of the kind to be voted in his district to each qualified elector who shall apply therefor, so that each elector who may desire the same may obtain a sample ballot, similar except as re- gards color and the number on the stub, to the official ballot tO' be voted at the polling place at which he is entitled to vote. [Elec- tion Law, § 86, as amended hy L. 1902, ch. 176, and L. 1902, ch. 405; Heydecker's Gen. L. {2d ed.), p. 366. J § 22. The use and purchase of voting machines. Adoption of voting machine. — The board of elections of the city of Neiw York, the common, council of any other city, the town board of any town, or the board of trustees of any village may adopt for use at elections any kind of voting machine approved by the state board of voting machine commissioners, or the use of which has been specifically authorized by law ; and thereupon such voting machine may be used at any or all elections held in such city, town or village, or in any part thereof, for voting, registering and counting votes cast at such elections. Different voting machines may be adopted for different districts in the same city, town or vil- lage. [Election Law, § 163, as added by L. 1899, ch. 466, and amended by Ij. 1901, ch. 530; Heydecker's Gen. L. (2d ed.), p. 404.] Experimental use of voting machines. — The authorities of a city, tovm or village authorized by the last section to adopt a voting machine may provide for the experimental use, at an, election in one or more districts, of a machine which it might lawfully adopt, without a formal adoption thereof; and its use at such elections shall be as valid for all purposes as if it had been lawfully adopted. [Id., § 164; Heydecker's Gen. L. (2d ed.)) p. 404.] Providing machines. — The local authorities adopting a voting machine shall, as soon as practicable thereafter, provide for each polling place one or more voting machines in complete vrorking order, and shall thereafter preserve and keep them in repair, and shall have the custody thereof and of the furniture and equipment of the polling place when not in use at an election. If it shall be impracticable to supply each and every election district with a vot- 15 226 Towns, Town Meetings and Town Officbbs. Election Law, §§ 166, 182. ing machine or voting machines at any election following such adop- tion, as many may be supplied as it is practicable to procure, and the same may be used in such election district or dis.triots within, the city, town or village as the officers adopting the same may direct. [Id., § 165 ; Eeydecker's Gen. L. (2d ed.), p. 404.] Payment for nuichines. — The local authorities, on the adoption and purchase of a voting machine, may provide for the payment therefor in such manner as they may deem for the best interest of the locality and may for that purpose issue bonds, certificates of indebtedness or other obligations which shall be a charge on the city, town or village. Such bonds, certificates or other obligations may be issued with or without interest, payable at such time or times as the authorities may determine, but shall not be issued or sold at less than par. [Id., § 166; Eeydecker's Gen. L. (2d ed.), p. 405.] Number of voters in election districts. — For any election in any city, town, or village in which voting machines are to be used, the election districts in which such machines are to be used may be created by the officers charged with the duty of creating election districts, so as. to contain as near as may be six hundred voters each. Suck re-districting or re-division may be made at any time after any November election and on or before August fifteenth following, and when so' made shall take effect immediately. Where sueli re-districting or re-division shall be made in any town, the board making the same shall, on. or before September first following, appoint from the inspectors of election, then in office' — if sufficient therefor are then in office, and, if not, from persons not in office, sufficient to make up the requisite number — four inspectors of elec- tion for each election district thus created, two of whom shall belong to and be of the same political faith and opinion on state and national issues as one of the two political parties which at the last preceding general election for state officers shall have cast the greatest number of votes in said town, and the other two of whom shall belong to and be of the same political faith and opinion, on state and national issues as the other of said two political parties. Thereafter no re-division of such election districts shall be made for elections by such machines until at some general election the num- ber of votes cast in one or more of such districts shall exceed seven hundred. But the tovsm board of a town in which such machinesr are used may alter the boundaries of the election districts at any time after a general election and on or before August fifteenth fol- Town Meetings; Tehms of Town Officeks. 227 Town Law, § 12. lowing, provided that the number of such election districts in such town shall not be increased or reduced, and the number of votes to be cast in any district whose boundaries are so altered shall not exceed seven hundred.^" [7cZ., § 1S2, as amended by L. 1901, ch. 530, and L. 1903, ch. 122. J § 23. Election of town officers; vacancies in office of justice of the peace ; ballots when town meeting is held at time of gen- eral election. Therre shall be elected at the biennial town meeting' in. each town, by ballot, one super%'isor, one town clerk, two justices of the peace, three assessors, one collector, one or two overseers of the poor, one, two or three commissioners of highways, and not more than five constables ; if there shall be any vacancies in the office of justice of the peace of any tovsTi at the time of holding its biennial town meet- ing, persons shall then also be chosen to fill such vacancies, who shall hold their offices for the residue of the unexpired term for which they are respectively elected." At town meetings in towns held at the same time as general elections, the names of all candi- dates for town offices shall be voted for in the same manner and on the same ballot as candidates for other offices voted for thereat. At such town meetings no person shall be allowed to vote for candidates 22a. It is provided by L. 1906. ch. 331, inserting § 182a in the Town Law, that in counties having a population of not more than 51,500 and not less than 48,600, election districts may be created where the number of electors exceed 500. This section only applies to the counties of Herkimer, Otsego and Wayne. 23. Election of town officers. This section applies to town and not to city supervisors. People ex rel. Clancy v. Supervisors, 139 N. Y. 524; 34 N. E. 1106. Town clerks can only be elected at town meetings. Matter of Fole>y, 8) Misc. 196; 28 N. Y. Supp. 611. Election of jastices of the peace. The constitution provides that electors of the several towns shall at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. Constitution, art. 6, sec. 17. The designation contained in such constitutional provision of the " annual town meeting " as to time when justices of the peace are to be elected, is equivalent to a prohibition against electing them at any other time, and while the legislature may fix the day upon which town meetings may be held, it cannot prohibit the election of justices of the peace at such meeting, or provide for their election at any other time or place. People ex rel. Smith v. Schiellein, 95 N. Y. 124. See, also. Ex parte Quackenbush, 2 Hill, 369; People v. Keeler, 17 N. Y. 370. Election of constables. Under section 22 of the Town Law (post, p. 241), a, town meeting may determine the number of constables — a number not exceeding five. Where a town meeting fixes the number of constables at three, but only elects two, the two elected oust all those in oflSce at the time of such election. People ex rel. Plainer v. Jones, 17 Wend. 81; People V. Lootnis, 8 Wend. 396 ; People v. Adams, 9 Wend. 333. 228 Towns, Town Meetings and Town Oeficees. Town Law, § 13. for town offices wIlo is not registered and entitleid to vote at STicli general election." [Town Law, § 12, as amended by L. 1898, ch. 363, L. 1901, ch. 536, L. 1903, ch. 57; Ueydecher's Gen. L. (2d ed.),p. 1404.] § 24. Term of office of town officers ; when town meetings are held at time of general election, term to begin on January i following; collector to complete duties of office. Supervisors, town clerks, assessors, commissioners of highways, collectors, overseers of the poor, inspectors of election and contables. Election to fill vacancies. Since the amendment of the Town Law by ch. 481 of the L. of 1897, providing for biennial in place of annual town, meetings, which also made the terms of office of all town officers, except justices of the peace, two years, the only town office in which a vacancy can be filled by election at a town meeting is that of justice of the peace. If the office of justice of the peace is vacant at the time of holding town meet- ings, it may be filled by the electors voting at such town meeting, and the person elected shall hold his office for the residue of the unexpired term. Upon the election and qualification of such a justice to fill a vacancy, the term of office of the person appointed to fill such vacancy expires. People ex ret Lovett u. Randall, 151 N. Y. 497; 45 N. E. 841. 24. Ballots at to^vn meetings. Under this section the election of town officers is by ballot. The provisions of the Election Law relating to the nomination of town officers ( Election Law, sees. 56 and 57 ; Jewett's Election Manual, 1903, pp. 61-69), and to the certificates of nominations (Election Law, sees. 58, 59; Jewett's Election Manual, 1903, pp. 69, 71), apply to town meetings. Section 63 of the Election Law (Jewett's Election Manual, 1903, p. 73), provides that each town clerk shall cause at least ten copies of a list of all nominations to office filed with him to be conspicuously posted in ten public places in the town at least one day before the town meeting, one of which copies shall be so posted at each polling place of such town meeting. Ballots to be voted at town meetings are to be prepared in con- formity with section 81 of the Election Law. Jewett's Election Manual, 1903, p. 89. The above section of the Town Law provides that when town meetings in towns are held at the same time as general elections, the names of candidates for town offices shall be on the same ballot as can- didates for other offices voted for thereat. This provision is now in con- formity with a similar provision contained in section 86 of the Election Law, as amended by ch. 405 of L. 1902. Section 18 of the Election Law (Jewett's Election Manual, 1903, p. 22) contains the following provision: "The expense of printing and delivering official ballots, sample ballots, cards of instruction, poll books, tally sheets, return sheets for inspectors and ballot clerk and distance markers, to be used in any stich county at any other election, and of printing the lists of nominations therefor, if the town meeting, city or village election be held in such county at the same time therewith shall be apportioned by the county Town MEETiN(is; Terms of Town Officers. 229 Town Law, § 13. when elected, shall hold ihcir respective offices for two years." But whenever there is or shall be a change in the time of holding town meetings in any town, persons elected to such offices at the next biennial town meeting after such change shall take effect, shall enter upon the discharge of their duties at the expiration of the term of their predecessors, and serve until the next biennial town meeting thereafter or until their successors are elected and have qualified. Whenever the time of holding town meetings in any town is changed to the first Tuesday after the first Monday in November, except when changed as provided in section forty-three clerk between such town, city or village, and such county in the proportion of the number of candidates for town, city or village officers on such ballots respectively, to the whole number of candidates thereon, and the amount of such expense so apportioned to each such municipality shall be a charge thereon." Registration. When town meetings are not held at the time of general elections no registration is required. Election Law, sec. 33, last sentence; Jewett's Election Manual, 1903, p. 41. The constitution, art. 2, sec. 4, pro- vides that " Registration shall not be required for town and village clrctinns except by express provision of law." Chapter 405 of the L. of 1902 added sub. 11 to sec. 34, which reads as follows: "When a town or village election is held at the same time with the general election, all electors in such town or village to be entitled to vote at such town or village election must be registered as provided by law for the enrollment of electors for any general election in such town or village." 25. Extension of term. It is a general rule that the term of office of a town officer cannot be extended by an act of the legislature. In the case of People ex rel. Le Roy v. Foley, 148 N. Y. 079, 682; 43 N. E. 171, the court said : " The legislature cannot extend the term of a town officer after his election, since that would virtually be an appointment to the office during the period of extension. The legislature cannot appoint town officers. They must either be elected by the people of the town or appointed by such town authorities as the legislature may designate for that purpose. Con- stitution, art. 10, sec. 2. The power of appointment in such cases cannot be directly exercised by the legislature nor indirectly by extending the term of a town officer after his election. It can, of course, enlarge the official term of town officers, but such action can operate only upon officers there- after elected. Where the office is to be filled by one authority and the duration of the term is to be determined by another, the declaration of Buch duration must go before the filling, so that each authority may have its legitimate exercise." See, also. People ex rel. Williamson v. McKinney, 52 N. Y. 374; People ex rel. Lord v. Crooks, 53 N. Y. 648. When the dura- tion of the term of office is once declared by law the legislature cannot ex- tend such term so as to affect the term of the incumbent at the time of the passage of the act. People ex rel. Fov-lrr v. Bull. 46 N. Y. 57. See, also People ex rel. Lovett v. Rwndall, 151 N. Y. 497; 45 N. E. 841. 230 Towns, Town Meetings and Town Officees. Public Officers Law, § 5. of this ehapter," the town officers elected thereat skall take office on the first day of January succeeding their election. Except that the collector elected at such town meeting in nineteen hundred and three and biennially thereafter shall take office immediately upon his election and qualification as prescribed by law. All town officers hereafter elected at a biennial town meeting held at any time be- tween the first day of February and the first day of May shall, in case a board of supervisors thereafter adopts a resolution changing the time of holding such biennial town meetings to the first Tuesday after the first Monday in ^STovember hold office until the first day of January succeeding the biennial town meeting first held pursuant to such a resolution. But the collector in each such town shall com- plete the duties of his office in respect to the collection of taxes, and the payment and return thereof, upon any warrant received by him' during his term of office, notwithstanding the election of his suc- cessor. [Town Law, § 13, as amended by L. 1898, ch. 363, L. 1899, ch. 145, L. 1901, ch. 191, andL. 1901, ch. 391; Hey decker's Oen.L. (2d ed.), p. 14:04.] § 25. Holding over after expiration of term. Every officer except a judicial officer, a notary public, a commis- sioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been, chosen, until his successor shall be chosen and qualified ; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor. An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosem for such terms. An appodntmeait for a term, shorteined by reason of a predecessor holding over, shall be for the residue of the term, only." [PviUc Officers Law, § 5 ; HeydecJcer's Gen. L. (2d ed.), p. 451. J 26. Section 43 of tlie Town Law (ante, p. 198), referred to in the above section authorizes a town to adopt a proposition at a regular town meeting changing the date of its town meeting to the first Tuesday after the first Monday in November, known as general election day. If such a proposition is so adopted, the term of office of all officers, except justices of the peace is two years from the date of their election. 27. Application of seotion. Unless expressly authorized by statute an officer is not permitted to hold over after the expiration of his term. Town Meetings; Teems of Town Officees. 231 Town Law, § 14. § 26. Number and terms of justices of the peace. There shall be four justices of th« peace in each town, divided into two classes, two of whom shall be elected biennially. Such justices shall hold ofSce for a term of four years, commencing on the first day of January succeeding their election. In each county in the state, having within its boundaries a city having a population of not less than three hundred thousand and not more than four hundred thousand, according to the last federal enumeration, the justices of the peace heretofore elected, shall hold their offices for the terms for which they were respectively elected, but except as hereinafter provided, no successors to them shall be elected. In each, of said counties there shall b© elected at the biennial town meeting in nineteen hundred and three, two justices of the peace whose terms of office shall begin on the first day of January succeed- ing their election, and who shall hold office for the term of four years. At the biennial town meeting in each of said counties held in nineteen hundred and five, there shall be elected two justices of the peace whose terms of office shall begin January first, succeding their election, and who shall hold office for four years. At each biennial town meeting thereafter, there shall be elected two justices of the peace for the full terms of four years, commencing on the People V. Tiernan, 30 Barb. 193; 8 Abb. 359. In the case of People ex rel. Woods V. Crissell, 91 N. Y. 616, it appeared that at a general election two persons were candidates for office of alderman. Two of the four inspectors signed a statement certifying that one of them had received a majority of the votes cast. The other two inspectors refused to sign the statement. It was held that until the rights of the parties were decided in the courts and the result settled the election was to be treated as a failure so far as either of such candidates were concerned, and neither could claim any bene- fit therefrom ; and that since, at such election, no successor was elected to the alderman in office, that he held over until the official determination of the result of the election and until his successor duly qualified. In the case of People ex rel. Kehoe v. Fitchie, 76 Hun, 80 ; 28 N. Y. Supp. 600, it was held that the failure to elect a successor of an officer does not render the office vacant, and when a supervisor of a city ward is elected he continues to hold office until his successor is elected either at a general or at a special election ordered as provided by law. In the case of People ex rel. William,' son V. McKinney, 52 N. Y. 374, it was held that until a town collector shall take and subscribe an oath of office he is not qualified within the meaning of this section, and the incumbent of the office is entitled to hold over. Sec, also, Montgomery v. O'Dell, 67 Hun, lfi9, 178; 22 N. Y. Supp. 412. The term "qualified," as used in this section and in section 13 of the Town Law means to take an oath of office and to file an official undertaking as 232 Towns, Town Meetings and Town Officers. Town Law, § 18. first day of January succeeding the town meeting."' [Town Law, § 14, as amended by L. 1897, ch. 481, wnd L. 1901, ch. 488; Bey- decker's Gen. L. (2d ed.), p. 1405.] § 27. Justices of the peace; ballots for full term and vacan- cies ; officers in new towns. When the electors of any town are entitled to vote for a justice of the peace, to fill the vacancy caused otherwise than by expiration of term, each elector may designate: upon his ballot the person required by law. People ex rel. Williamson v. McKinney, 52 N. Y. 374, 380. Where a town officer is lawfully holding over after the expiration of his term the office is to be deemed vacant for the purpose of electing a successor, from and after the expiration of the term for which the incumbent was chosen, although the term of the office, as distinguished from the term for which he was chosen, may have been in the meantime enlarged. People eon rel. Lovelt v. Randall, 151 N. Y. 497; 45 N. E. 841. The town officer holding over after the expiration of his term is a, de facto officer. People v. Gooper, 57 How. Pr. 416; People ex rel. Rumph v. Supervisors, 89 Hun, 38, 41; 34 N. Y. Supp. 1, 128. 28. Constitntlonal provision as to justice of the peace. The con- Btitution provides (art. 6, sec. 17), as follows: "The electors of the several towns, shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. In case of the election to fill a vacancy oc- curring before the expiration of the full term, they shall hold for the residue of the unexpired tcim. Their number and classification may be regulated by law. Justices of the peace and judge or justices of inferior courts not of record and their clerks, may be removed for cause, after due notice and an opportunity of being heard by such courts as are or may be prescribed by law." Power of legislature as to office of justice of the peace. The office of justice of the peace in towns is a constitutional office and cannot be abolished by the legislature either directly or indirectly, so long as the town exists. Kot only is the office itself placed beyond the reach of hostile legisla- tion, but also the term thereof, the method of filling it, and, by implication, the method of removing the incumbent. People ex rel. Burby v. Howland, 155 N. Y. 270; 49 N. E. 775. In this case chapter 22 of the Laws of IPOo, entitled " An act to provide for the better administration of justice in the town of Fort Edward, in the county of Washington," was under consideration. This act created the office of police justice in the town of Fort Edward and by depriving the justices of the peace in that town of fees, and by providing that such justices should not be compelled to take cognizance of criminal pro- ceedings therein it indirectly deprived such justices of their jurisdiction, and it was held to constitute a pro ranto abolition of the office of justice of the peace, and it was to that extent unconstitutional. The court, in effect, de- Town Meetings; Terms of Town Officees. 233 Town Law, § 18. intended for a full term and for a vacancy, and if there are two vacancies, they may be designated as the longer and .th.e shorter vacancy; and if three vacancies, the longer, shorter and shortest vacancy, and each person having the greatest number of votes with reference to each designation, shall be deemed duly elected for the term or vacancy designated. If ballots are voted without designa- tion, the first name on the ballot shall be deemed as intended for the full term of the oflaee voted for, the second name for the longer vacancy, the third name for the shorter vacancy and the fourth cided that it is not in the power of the legislature to enact that justices of the peace in the state at large shall have certain powers and duties, except in one certain town, and that there only they shall not have those duties, and if they voluntarily attempt to discharge them, they shall have no power to enforce tlieir judgment. In the case of Matter of Gertum, 109 N. Y. 170; 16 N. E. 28, the court said: At is undoubtedly beyond the power of the legislature by direct legislation, „o abolish the office of justice of the peace in towns, or shorten their term of office so long as the town exists, but they have an unquestioned right to alter and change the limits of their jurisdiction or abolish the town organization altogether, provided it be done in good faith and for proper constitutional objects. The whole force and effect of the provision in relation to justices is satisfied by enforcing it, so long as there is a town organization in ex- istence authorized under the constitution to elect justices of the peace and requiring the performance of their functions in the government of the town." In the case of People ex rel. Clark v. Treacy, 46 App. Div. 216; 61 N. Y. Supp. 288, which arose under chapter 439 of the Laws of 1897, providing for the holding of town meetings in the towns in the counties of Orange, Rock- land and Sullivan, it was held that the provisions of that act for the election of a justice of the peace to take office before the expiration of the full term of his predecessor was unconstitutional. This act also contained a pro^ vision for the election of a justice of the peace at a town meeting to be held in the year 1897, to take office on the first of January, 1899, instead of at a town meeting held immediately preceding such first day of January, 1899. The court intimated that the legislature could not direct the election of a constitutional officer at a date earlier than that of the election which next precedes the expiration of the term of the existing incumbent, and that, ttierefore, such provision of the statute was invalid. Removal of justice of the peace. Section 18, art. 6, of the constitu- tion provides that justices of the peace may be removed from office by such courts as may be prescribed by law, and the legislature by law prescribed the Appellate Division of the Supreme Court as the court to be vested with such power (see sec. 132 of the Code of Criminal Procedure), and it is the only court that the legislature has vested with such power. Matter of Pre*- oott, 77 Hun, 518; 28 N. Y. Supp. 928. 234 Towns, Town Meetings and Town Officees. Town Law, §§ 19, 20, 57. name for the shortest vacancy." The provisions of this section shall apply to new towns esrected ; and officers toi be.elected in such towns, except for a full term, shall be deemed elected to fiU vacancies. [Town. Lofw § 18, as remwinbered and amiended by L. 1897, ch. 481; Heydecker's Gen. L. (2d ed.), p. 1408.] § 28. Justices in new towns; upon erection of new towns, or annexations, justices of the peace, how to hold office. If there be one or more justices of the peace residing in a new town, when erected, they shall be deemed justice of the peace thereof, and shall hold their offices according to their respective classes ; and only so many shall be elected as shall be necessary to complete the number of four for the town. [Town Law, § 19, as renumbered by L. 1897, ch. 481; Heydecker's Gen. L. (2i ed.), p. 1409.] If by the erection of a new town or the annexation of a part of one town to another, there shall at any time be more than four JTi£.tices of the peace residing in any town, they shall hold and exer- cise their offices in the town in which they reside, according to their classes respectively ; but on the expiration of the term of office of two or more justices, being in the same class, only one person shall be elected to fill the vacancy in that class. Whenever by the erec- tion of a new town, or the annexation of a part of one town to another, any town shall be deprived of one or more justices of the peace, by their residence being within the part set off, the in- habitants of such town shall, at its next annual town meeting, sup- ply the vacancy so produced in the classes to which such justices belong. [Town Law, § 20, as renumbered by L. 1897, ch. 481; Heydecker's Gen. L. (2d ed.), p. 1409.] § 29. Certificate of election of justice of the peace. The town clerk of each town shall, within ten days after the election of a justice of the peace has been declared, transmit to the clerk of his county a certificate showing the result of such election under his hand, which shall be presumptive evidence of the fact 29. Ballots for fnll term and vacancies. The provisions of the above section of the Town Law relatincj to ballots containing the names of candi- dates for vacancies in the office of justice of the peace is to be construed in connection with sec. 81 of the Election Law. Town- Meetings; Teems of Town Officers. 235 Town Law, § 15. therein certified.3o [Town Law, § 57, as amended hy L. 1898, ch. 363; Bey- decker's Gen. L. (2d ed.), p. 1421.] § 30. Commissioners of highways; number of, how deter- mined. The electors of such town may, at their biennial town meeting, determine by ballot whether there shall be elected in their town one, two or three com- missioners of highways. Whenever any town shall have determined upon having two or three commissioners of highways and shall desire to have but one, the electors thereof may do so by a vote by ballot taken at a biennial town meetingj'Ji and when such proposition shall have been adopted no other commissioner shall be elected or appointed until the term or terms of those in office, at the time of adopting the proposition shall expire or become va- cant and they may act until their terms shall severally expire or become va- cant as fully as if two or three continued in office. Whenever any town that has adopted the money system of taxation for working its highways shall have more than one commissioner of highways and shall desire to have but one, the electors of such town may so determine by vote by ballot at a special town meeting called for that purpose which special town meeting shall be called upon the written petition of twenty-five electors of such town. When there shall be but one commissioner of highways in any town, he shall possess all the powers and discharge all the duties of commissionjers of highways as prescribed by law. In towns of less than two square miles in area, where five-sixths of the territory shall consist of an incorporated vil- lage or villages, the office of highway commissioner is hereby abolished, and in towns of more than two square miles in area and less than fourteen square miles in area, where two-thirds of the territory shall consist of an in- corporated village or villages, the town boards shall have the power and au- thority, by a majority vote, at any regvilar meeting of such town boards, to abolish the office of highway commissioner or commissioners, and when so abolished shall file a certificate of such abolition signed by the supervisor and town clerk of such towns in the offices of the town cleik and the clerk of the county in which such town is located, and the powers and duties hereto- fore performed by him or them, shall devolve upon the town board of such town together with such further power and authority over highways, streets and bridges, as are now possessed by or that may be hereafter granted to boards of trustees of villages of the third class. The provisions of this act 30. Fop form of certificate of election of justices, see Form No. 19, post. Duties of county clerk. The clerk of each county is required by section 67 of the Town Law, post, p. 272, to report to the district attorney of the county an omission of a town clerk to transmit a certificate of the election of a justice of the peace as required by the above section. 31. Submission of proposition as to nnmber of commissioners. Section 32 of the Town Law (ante, p. 208), prescribes the necessary pro- cedure for the submission of a proposition at a town meeting. This section applies to a determination of the number of commissioners to be elected in the town under the above section. It follows, therefore, that a written ap- plication must be made for the submission of such a proposition, and that notice must be given by the town clerk of such proposed determination as provided in such section. When a town has determined upon having two or three commissioners of highways the town board may divide the town into highway commissioner districts. See Highway L., sec. 25, post, p. 593, as amended by L. 1903, ch. 57. As to determination by electors, see People ex rel. Lovett v. Randall, 151 N. Y. 497; 45 N. E. 41. 236 Towns, Town Meetings and Town Officees. Town Law, § 16. shall not affect or abridge the term of office of any highway commissioners elected prior to the passage of this act. No town working the highways under the money system of taxation and where the office of highway commis- sioner is abolished by virtue of this section shall be excluded from the bene- fits of section fifty-three of the general highway law. ITown Law, § 15, as renumbered and amended hy L. 1897, ch. 481, L. 1901, ch. 583, L. 1903, ch. 57, and L. 1906, ch. 584; Heydecker's Gen. L. (2,d ed.) , p. 1406.] § 31. Overseers of the poor; determination of number; resolu- tion to be voted for; appointment of overseer by town board. The electors of each town may, at their biennial town meeting, determine by resolution whether they will elect one or two overseers of the poor, and the number so determined upon shall be thereafter biennially elected for a term of two years. Whenever any town shall have determined upon having two overseers of the poor, the electors thereof may determine by a resolution at a biennial town meeting, to thereafter have but one, and if they so determine there- after no other overseer shall be elected or appointed, until the term of the overseer continuing in office at the time of adopting the reso- lution shall expire or become vacant, and the overseer in. office may continue to act until his term shall expire or become vacant. °^ The electors of any town may, at any biennial or regularly called special town meeting on the application of at leaS't twenty-five resident tax- payers whose names appear upon the then last preceding town assessment, adopt by ballot a resolution that there shall be appointed in and for such town one overseer of the poor." If a majority of the ballots so cast shall be in favor of appointing an overseer of the poor, no overseer of the poor shall thereafter be elected in such town eixceipt as hereinafter provided, and the ovtfrseiers of the poor of such town elected at the town meeting at which such resolution is adopted or who shall then, be in office shall continue to hold office for the terms for which they were respectively chosen ; and within thirty day before the expiration of the term of office of such elected over- 32. A reaolntion for tlie determination of the question as to whether one or two overseers of the poor shall be elected in the town may be sub- mitted to the electors upon motion without a ballot under sec. 30 of the Town Law. (See p. 207, ante.) 33. The qnestipn of the appointment of an overseer of the poor must be submitted on a written application of at least twenty-five resident tax- payers and must be voted upon by ballot. The provisions of section 32 of the Town Law relating to the submission of propositions to be voted upon by ballot at a town meeting are applicable to the submission of such Question. See ante, p. 208. Town Mjbetings; Teems of Towk Officees. 237 Town Law, § 16. aeett" •whose t&pnas expires latest, the tawni boajd of suohi town shaR meet amd appoint on© overseer of the poor for such town, who shall hold oflSce for one year from the first day of May next after his appointment; and anaually in the month of April in eaoh year thereafter an overseer of the poor shall be appointed by the town board of suoh town for the term of one year from the first day of May next following soioh month of April. Each overseer of the poor so appointed shall execute and file with the town clerk an offi- cial undertaking in such form and for such sum as the town board may by resolution require and approve." An overseer of the poor, ao appointed, shall not hold any other town office during the term for which he is so appointed, and if he shall accept an election or appointment to any other tovni office he shall immediately cease to be an overseer of the poor. If a vacancy shall occur in the office of an overseer of the poor, so appointed, such vacancy shall be filled by the town board, by appointment, for the balance of the unexpired term. The compensation of an overseer of the poor so appointed, shall be fixed by the town board of snch town, but shall not exceed, in any one year, the su' of one thousand dollars, and shall be a town charge." At any subsequent town meeting after the expirar tion of three years from, the adoption of a resolution by any town to appoint an overseer of the poor, the electors of the town may deter- mine by ballot to thereafter elect one or more overseers of the poor, and if they determine so to elect, then' at the next biennial town meeting thereafter one or more overseers of the poor shall be elected in pursuance of the laws regulating the election of overseers of the 34. Undertaking of overseer. The above section requires an under- taking of an overseer of the poor appointed as provided therein, which must be in such form and for such sum as the town board may by resolution re- quire and approve. A provision for the approval of the undertaking of au overseer so appointed by the town board would, therefore, seem to supersede the provisions of section 62 of the Town Law (see post, p. 262), to the efTect that an undertaking of an elected or appointed overseer must be approved by the supervisor. The undertaking of an overseer elected under the above section of the Town Law would be subject in every respect to the provisions of such section 62. The provisions of section 66 of the Town Law {post, p. 266), apply to the undertaking of an overseer of the poor, whether Elected or appointed. 35. Compensation of overaeer. The compensation of an overseer appointed under the above section may be fixed by the town board. The compensation of elected overseers is fixed by section 178 of the Town Law at $2.00 per day. 238 Towns, Town Meetings and Town Officees. Domestic Commerce Law, § 14; Town Law, § 41. poor, and the term or terms of the overseer or overseers first sa elected shall commence upon the expiration of the term of ofEce of the overseer of the poor last theretofore appointed in pursuance of law, and shall expire as though each such term commenced at the time of election ; and their successors shall thereafter be elected in pursuance of law. [Town Law, § 16, as renumbered and amended by L. 1897, ch. 481 ; Heydecker's Gen. L. {2d ed.), p. 1407. J § 32. Town sealer of weights and measures. There shall be a town sealer of weights and measures in each town, to be appointed by the town board, and hold office during its pleasure. He shall take charge of, and safely keep the town stand- ards, and see that the weights, measures, and all apparatus used in the town which are brought to him for that purpose, conform to the town standards. [Domestic Commerce Law, § 14 ; Heydecker's Oen.L. (2ded.),p. 2804.] § 33. Special constables; appointment and powers. The supervisor and two justices of the peace of any town may> when in their judgment necessary for the preservation of the public peace during any period of three days or less, appoint five or less special constables of such town for such period. Duplicate certifi- cates of the appointment, signed by such supervisor and such justices of the peace as such, shall be delivered to each of such spe- cial constables, specifying the days for which he is so appointed, and one of such duplicates shall be by such special constables filed with the town clerk of said town. The supervisor of such town shall ca,use to be provided and furnished to each of such special constables a badge on which shall be plainly printed the words "special constable," which shall be worn conspicuously by each of such special constables while serving as such, and be delivered by him on the completion of his service to the supervisor of such town, who shall preserve the same for future use and deliver the same to his successor in office who shall preser^'e the same when not in use. Each of such special constables, while in office as such, shall be a peace officer, and have all the powers and be subject, to all the duties- and liabilities of a constable of such town in all criminal actions and proceedings and special proceedings of a criminal nature and shall be entitled to receive compensation from the town at the rate of two dollars per day during his term of office. [Town Law, % Town Meetings; Tekms of Town Officees. 239' Election Law, § 11. 41, as added by L. 1892, ch. 252, and renumbered by L. 1897, ch. 481 ; Heydecker's Gen. L. (2d ed.), p. 1417.] § 34. Election officers; their designation, number and qualili- cations. Tliere shall be in every election district of this state the follow- ing election officers, namely, four inspectors, two poll clerks and two ballot clerks, whose term of office, except as hereinafter pre^ scribed, shall be for one year from the date of their appointment or election, and who shall serve at every general election, special or other election held within their districts during such term. The term of office of inspectors of elections in towns shall be for two years. No person shall be appointed or elected an inspector of election, poll clerk or ballot clerk who is not a qualified elector of the county if within the city of New York or of any other city or of the election district of the town in which he is tO' serve, of good character, able to speak and read the English language under- standingly, and to write it legibly, and who does not possess a general knowledge of the duties of the office to which he is elected or appointed, or who' is a candidate for any office to be voted for by the electors of the district in which he is to serve, or who has been convicted of a felony and not restored to citizenship, or who hold's any public office except notary public or commissioner of deeds, town or village assessor, justice of the peace, village trusee, water commissioner, officer of a school district, overseer of high- way, whether elected or appointed, or who is employed in any public office or by any public officer whose services are paid for out of the public money other thiani is excepteid herein. Each class of such officers shall be equally divided between the two' political parties which at the general election next preceding that for which such officers are to serve, cast the highest and the neixt highest number of votes. Where election officers are appointed the qualifications rquired of them by this section shall be determined by an examina- tion by or under the direction of the appointing board or officer. [Election Law (L. 1896, ch. 909), § 11, as amended by L. 1897, ch. 410, L. 1899, ch. 630, and L. 1901, ch. 536 ; He.ydecher's Gen. L. (2d ed.), p. 308.] [Subd. 2, creating a board of elections in New York city, was added by L. 1901, ch. 95, but is omitted as not applicable to counr ties outside of New York city.] 240 Towns, Town Meetings and Town Officebs. Election Law, § 13. § 35. Election officers in towns at general elections; poll clerks and ballot clerks. Inspectors of election in towns sKall be appointed by tbe town board in eacb year in which a town meeting is held for the election of town officers, and within thirty days thereafter. Such appoint- ments shall be made from lists to be prepared, certified and filed in the manner hereinafter provided, by the two political parties en- titled to representation on a board of election officers. The town caucus or primary held by each such political party for the purpose of nominating town officers shall prepare a list containing the names of at least two persons, qualified to serve as inspectors of election, for each election district in said town, which lists shall be certified by the presiding officer and a secretary of said caucus or primary, and filed with the town clerk in the same manner and at the same time as the party certificate of nomination filed by said party. From each of the two lists sO' filed, the town board shall appoint two- per- sons who possess the qualifications prescribed by law for election officers. If in any town more than one such list be submitted on behalf or in the name of the same political party, only that list can be accepted which is certified by the proper officer or officers of the faction of such party which was recognized as regular by the last preceding state convention of such party ; or if no such convention was held during the year, by the proper officer or officers of the fac- tion of such party, which, at the time of the filing of such list is recognized as regular by the state committee of such party. Such appointment shall be made in writing and filed with the town clerk who shall forthwith notify each person so appointed of his appoint- ment to- said office, in the same manner that he is now by law required to give notice to a person of his election to a town office when his name does not appear upon the poll list at the town meet- ing at which he was elected to said office. Erom the additional names, if any, contained on the lists so filed, of persons qualified to serve as such, the town board shall appoint inspectors of election in case of the resignation, declination or other incapacity of persons appointed to such office. If such lists contain no additional names of such persons, the town board shall fill vacancies caused by such resignation, declination or other incapacity by appointing persons known, or proved to the satisfaction of a majority of the members of said board tO' be members of the same political party in which such vacancy occurred. All appointments to fill vacancies shall be made in writing and filed with the town clerk, and notices thereof Town Meetings; Teems of Town Officers. 241 Town Law, § 22. given by him as hereinbefore provided in the case of an original appointment. At the first meeting in each year of the board of inspectors in every district in a, town, one poll clerk and one ballot clerk shall be appointed by the two inspectors of election represent- ing one of the political parties entitled to representation on such board, and one poll clerk and one ballot clerk shall be appointeid by the two inspectors representing the other political party. Such appointments shall be in writing, signed by the inspectors making the appointments respectively, and shall be filed by them with the town clerk of the town in which siich election district is situated, and a, copy thereof with the post-office address of each person so appointed shall be mailed to the clerk of the county. The poll clerks and ballot clerks so appointed shall hold their office during the term of office of the inspectors appointing them, except as here- after provided. The persons so appointed as poll clerks and ballot clerks shall be votcirs in the district in which they are appointed to serve, and shall possess the qualifications required of such officers by section eleven of this act. If at any time of any election at which poll clerks and ballot clerks are required to be present at the polling place in any election district, the office of a poll clerk or of a ballot clerk of such district shall be vacant, or a poll clerk or a ballot clerk shall be absent, the inspectors of election in such dis- trict shall forthwith appoint a person to fill such vacancy. Such person so appointed shall, before he acts as such poll clerk or ballot clerk, take the constitutional and statutory oaths of office. [Election Law (L. 1896, ch. 909), § 13, as amended by L. 1901, ch. 536; Hey decker's Gen. L. {2d ed.), p. 3 12. J § 36. General powers of biennial town meetings. The electors of each town may, at their biennial town meeting: 1. Determine what number of constables, not exceeding five, and pound-masters shall be chosen in their town for the then ensuing two years." 2. Elect such town officers as may be required to be chosen; 36. Number of constables. If a town meeting has duly fixed the num- ber of constables, votes east for more candidates than the number limited are wholly void. People v. Loomis, 8 Wend. 396. The determination of the number must be by formal resolution (People v. Adams, 9 Wend. 333), although, of course, such resolution is not required to be voted on by ballot. See, also. People ex rel. Planter v. Jonea, 17 Wend. 81. 16 242 Towns, Town Meetings and Town Officebs. Town Law, § 22. 3. Direct the piroaecution or defense of all actions and proceed- ings in which their town is intereeted, and the raising of such sum therefor as they may deem necessary ;" 4. Take measures and give' directions for the exercise of their corporate powers ; 37. Prosecution of actions and proceedings. Where cause of action exists in behalf of a town, and no officer is by statute authorized to prosecute for such cause of action, the town meeting may direct such an action to be brought, and may appoint an agent to prosecute it; but such suit must be brought in the name of the town. Cornell v. Town of Guilford, 1 Den. 510. In this case the electors of a town at a town meeting directed the commis- Bioners of highways to prosecute a turnpike company for entering upon and ta.king possession of a public highway and bridge in that town, and the com- missioners accordingly brought suit for that cause of action in their own name, and failing to succeed, judgment was rendered against them. It was held that such commissioners could not sustain an action against the town for reimbursement for their costs and expenses, and for costs recovered against them in the suit. The resolution in this case would have been valid if it had authorized the commissioners to prosecute a suit against the turn- pike company in the name of the town. A resolution directing the prosecution of actions and proceedings should be formally drawn up and submitted to the electors of the town and be duly entered upon the minutes kept by the clerk of the town meeting. Town of Lyons v. Cole, 3 T. & C. 431 ; Denton v. Jackson, 2 Johns. Ch. 336. In the case of Lyons v. Cole, it appeared that a town resolution was adopted au- thorizing the supervisor to bring an action to restrain commissioners ap- pointed for the issue of town bonds, from disposing of the bonds until the rights of the town were protected; the supervisor employed attorneys who, with his consent, brought an action in the name of the town against the com- missioners, attacking their authority to issue the bonds, and asking judgment that the issue be declared void. It was held that the action was unauthorized by the resolution and that the defendant's motion to dismiss the complaint and stay the proceedings was proper. In the case of Towm of Delhi v. Graham, 3 Hun, 407 ; 6 T. & C. 49, the fact that an action had been brought in behalf of the town was announced at a town meeting and received without objection ; it was held that a 'motion by the defendant for a stay of proceedings on the ground that the use of the name of the town was unauthorized should be denied, since there had been no fraudulent use of the name although the action was not formally brought. It is not necessary, in an action brought pursuant to the authority granted by a town meeting, to aver in the complaint and proof on the trial that action had been taken by a. town meeting authorizing the prosecution of the suit, in order to entitle a town to recovery upon a cause of action sho^vn to exist in its favor. Town of Fort Covington t>. 17. B. & Canada R. R. Co., 1 App. Div. 223; 40 N. Y Supp. 313; affd. 156 N. Y. 702. The court remarked in this case that: "If the defendants had any advantage, arising from such an omission, and wished to secure it, they should have moved to dismiss the action on that ground. It is not in my judgment one of the issues to be tried Town Meetings; Teems of Town Offioees. 243 Town Law, § 22. 5. Make provisions and alloiw rewards for the destruction of noxious weeds an.d animals, as they may deem necessary, and raise money therefor;" in the action. Whether plaintiffs have legal authority to sue can only be pre- sented on motion.'' Foirer of tomt to borrovr money to pay expenses of actions. An action having been commenced by certain taxpayers to restrain tJie enforce- ment of certain town bonds and to have the law under which they were issued adjudged unconstitutional, a resolution was adopted at an annual town meeting authorizing the supervisor of the town, on consent of the plaintiffs in said action, to assume control thereof, prosecute it to a final determina- tion and pay all the expenses; and for that purpose to borrow on the credit of the town all needed sums of money. A supervisor acting in accordance with the resolution, borrowed money on the credit of the town, giving its notes therefor, which money was used for the purpose specified. In an action upon the notes it was held that, assuming the electors of the town had power to authorize its supervisor to take control of the pending action; also, that it might be treated as if commenced in the name of the town or its super- visor, and that such electors had power to direct money to be raised for prosecuting that action, still the action upon the notes was not maintainable. Wells V. Town of Salina., 119 N. Y. 280; 23 N. E. 870. This case was de- cided entirely upon the question of the authority of a town to borrow money upon credit to meet town charges. Judge Earl said in his opinion in this case: "It is the policy of the laws that town charges shall be met by an- nually recurring taxation, and thus extravagance and improvidence are in some degree checked, as those who create town charges or are the taxpayers when they arise, must bear the burden of taxation to meet them. It is quite easy for the taxpayers of to-day to create a debt which they are not to feel and which the taxpayers of the future are to discharge. The system of laws relating to towns requires that all bills for moneys expended or materials furnished or services rendered to the town shall be verified and presented to the board of town auditors and audited by them, and then enforced by war- rants of the boards of supervisors against the taxpayers of the town. This whole system would be subverted if towns could borrow money upon credit to meet town charges. Then the money would have to be repaid whether the town had had the benefit thereof or not, and the wise provisions of the statutes to secure economy and safety by the audit of accounts would be entirely frustrated." 38. Nozions weeds. Under sec. 12, sub. 7, of the County Law, ante, p. 47, boards of supervisors are authorized to make such laws and regula- tions as they may deem necessary for the destruction of wild and noxious animals and weeds within the county. It is the duty of the overseer of highways to cause noxious weeds within the bounds of the highways to be cut down or destroyed twice in each year. See Highway Law, sec. 20, sub. 3, post, p. 617. It is made the duty of owners or occupants of lands adjoining highways to cut noxious weeds, brier and brush growing upon the lands within the bounds of the highway twice in each year. See Highway Law, eecs. 70, 71, post, p. 654. 244 Towns, Town Meetings and Town Offioees. Town Law, § 22. 6. Establish and maintain pounds at such plaT)ointmeiit of three commissioners for the purposes and with Two or more applications under 300 TowNSj Town Meetings and Town Officers. R. S., pt. 3, ch. S, tit. 16, § 8. this section, respecting different lands or parcels within the same town or incorporated village may be made by one proceeding or petition, or two or more such proceedings or petitions may, in the discretion of the court, upon the application of any party in interest, be consolidated, and one commis- sion be appointed for all, and in such case the proceedings shall continue thenceforth as if but one petition had been presented, or one proceeding com- menced. The application provided for by this section may be made by the supervisor of any town on behalf of the town, or by the president of the board of trustees of any incorporated village on behalf of said village. The provi- sions of this title shall apply, so far as practicable, to proceedings -for deepen- ing and clearing out the outlet of any pond so as to permit the free passage of waters therefrom, and to the performance of the work required therefor, and to the assessment and the payment of the cost of such work. [B. 8., pt, 3, ch. 8, tit. 16, § 1, as amended by L. 1869, ch. 888, L. 1886, ch. 636, and L. 1906, ch. 115; Heydecker's Gen. h. (2d ed.), p. 4943.] § 2. Compensation; cost a lien on land; town bonds; issue and sale thereof. The said commissioners shall be paid for their services five dol- lars each, for each full day actually employed in their said duties. They shall keep an account of all their expenses and of all the costs and expenses incurred in draining said lands, including all the costs and expenses incurred in any proceedings under this act and preliminary or incident thereto, and any land damages as herein- after provided, all of which shall be a lien upon the property bene- fited ; and in case it shall be necessary to raise funds for construc- tion of said ditches or channels, or land damages, before the assess- ment hereinafter provided for can be made and collected, tlie said commissioners are hereby empowered from time to time, with the approval of the court in which the proceeding was initiated or ia pending, to borrow so much money as may be necessary therefor, and may thereafter certify such amount to be borrowed to the supervisor or supervisors of the town or towns in which the lands to be assessed are located, and the supervisor or supervisors of such to\vn or towns shall thereupon im- mediately issue bonds of the town or towns to the total amount named in said statement prepared by said com- missioners, and so certified by them to him or them, such bonds to be made payable on or before such time or times, not to exceed five years from the date thereof as the said commissioners shall determine. In case the lands to be drained are located in more than one town, the total amount to be so raised, as certified by the commissioners, shall be apportioned by the court in which the pro- ceeding is pending among the several towns in which the lands to be drained are located, upon application of said commissioners to said court, written notice of said application having been first served on the supervisors, or town clerks, of such several towns, not less than eight days before such application, unless upon order to show cause, a shorter notice is permitted to be so served. Upon Dbainagb of Lowlands ; Duties of Town Officeks. 301 R. S.. pt. 3, ch. 8, tit. 16, § 9. service of notice of such apportionment, specifying the amount to be raised by each town, the supervisor of each town shall there- upon immediately issue bonds of the town to the total amount so ap- portioned to his town, payable in manner, time and form as herein otherwise provided. All such bonds shall bear interest at a rate not exceeding six per centum per annum, and shall be negotiated for not less than their par value. They shall be sold on sealed pro- posals or at public auction upon notice published in the official paper, if any, and also in each other newspaper actually printed in the town, and in such other newspapers as the supervisors of each town may determine, and posted in three public places in the town, at least ten days before the sale, to the person who will take them at the lowest rate of interest. They shall be consecutively numbered from one to the highest number issued, and the clerk shall keep a record of the number of each bond or obligation, its date, amount, rate of interest, when and where payable, and the purchaser thereof or the person to whom they are issued. The proceeds from the sale of said bonds shall immediately be delivered by the said super- visor to the treasurer of said commission. The said commissioners shall, from the proceeds derived from the sale of said bonds, pay all obligations incun-ed by them for draining said lauds, authorized by this act, including such evidences of indebtedness as they may have theretofore issued in pursuance of authority contained in this act T!he said commissioners may borrow such moneys required to be raised upon such evidences of indebtedness as they may deem proper, bearing interest at the rate of six per cent, per annum, pay- able upon the completion of such assessment and collection ; and the interest accruing thereon shall be assessed as other expenses for the said construction. Such evidences of indebtedness shall not be issued for less than par, and shall be receivable in payment of such assessments. \^R. S. pt. 3, ch. 8, tit. 16, § 8, as amended by L. 1886, ch. 636, L. 1901, ch. 523, and L. 1904, ch. 75; Heydeck- erS Gen. L. {2d ed.), p. 4945.] § 3. Acquisition of title by commissioners. Any person whose land is taken in the construction of any such ditch or channel shall be paid by said commissioners on or before the commencement of the work, the value of the land so taken, and such other injuries. as the party may sustain; and if the commissioners cannot agree with any person upon the compensation and damages for making and maintaining foresver such ditches or channels, the said commissioners shall proceed to acquire title to the said easement upon and across the land of such person in the manner, so far as the same is applicable, prescribed by chapter one hundred and forty of the laws of eighteen liundred and fifty, entitled "An act to iiuthorize the forma- tion of railroad corporations, and to regulate the same," and the acts supple- mental and amendatory thereto ; and for the purpose of acquiring such ease- ment under the statute last mentioned such commissioners are hereby granted the powers therein granted to a railroad corporation, so far as is necea- 302 Towns, Town Meetings and Town Officebs. K. S., pt. 3, eh. 8, tit. 16, § 10. sary to acquire title to said easement and no further. The ease- ments over and upon all lands included in or affected by the work determined upon by the commissioners may be obtained by one proceeding under this section. [B. 8., pt. 3, ch. 8, tit. 16, § 9, 05 amended by L. 1869, ch. 888; Rey decker's Gen. L. i2d ed.), p. 4946.] § 4. Assessment of cost upon municipalities and lands; pay- ment of cost; notice of assessment; appeals. The said commissioners shall, as soon as the said costs, expenses, land damages and compensation, hereinbefore provided for, can be determined and ascertained, make a complete and detailed state- ment thereof, including all the claims of said cO'mmissioners, which statement shall be duly verified by said commissioners or by a majority of them. They shall also, in case they ha.ve decided that the public health requires that such lands shall be drained, deter- mine whether any, and if so, how much of the said sum shall be as- sessed to and paid by the incorporated village or villages, town or towns, or county in which the said lands are situated, and whether the same shall be paid in one assessment or in annual installmen.ts, not exceeding thirty in all; the remainder, or in case they shall determine that no portion of said sum shall be paid by said village or villages, town or towns, or county, then all of said sums shall be apportioned amiong the several owners or occupants of such of the lands included in the said ma.p or adjacent thereto, as they shall deem to be directly benefited by said drainage, in proportion to the amount of benefit which each receives therefrom, and they shall in like manner determine, whether said sum so^ apportioned shall be paid in one assessment, or in annual installments, as above pro- vided, in reference to assessments to be paid by a village, to'wn or county; provided, however, that the board of supervisors of any such county, the town board of any such town, the board of trustees of any such village-, or any such, owner or occupant of lands upon which, or to whom said sum or any part thereof is apportioned, may elect to pay the whole of their said apportionment, or the portion thereof at any time remaining unpaid in one assessment, instead of in installments as above provided. The several amounts so adjudged shall constitute liens upon the respective tracts until paid or otherwise removed with interest from the service of notice of such decision of said commissioners as hereinafter provided, that DO portion of the costs, expense, land damages and compensation Deainage of Lowlands ; Duties of. Town Officers. 303 R. S., pt. 3, ch. 8, tit. 16, § 10. provided for in. and by this act as hereby amended shall be assessed to or paid by any incorporated village or villages, town or towns, or county ini which the lands so to be drained are situated, unless a majority of the board of trustees in ease of a village; a majority of the town board in case of a town; and a majority of the board of supeiTisors in case of a county, shall have joined in the petition required by the first section of said act as hereby amended. The said commissioners shall file in each clerk's ofiiee in which their determination of the necessity of draining such lands or duplicate thereof, as provided by section five of this act as hereby amended, is required to be filed, a copy of the said statement, and of the said determination, as to the village or town, or county, in case there be any such, and of the said apportionment, and of the time and man- ner of payment thereof, certified by them, which, or a duly authen- ticated copy of which, may be received in evidence in any suit or proceedings in this state. They shall also cause notice, written or printed, to be given to each person whose lands are assessed by them, to pay any part of said sum, and also to the supervisor of any town or the president of any village, or the chairman of the board of supervisors of any county that may be assessed by them, which notice shall state the time and place of filing such statement and determination. The said notice shall be served personally upon such supervisor, president or chairman, and also upon each person whose lands are so assessed, when he can, be found with due dili- gence in a county in which such lands or a part thereof are situated ; and when not so found, then by delivering such notice to some per- son of reasonable age and discretion, residing upon said premises, directed to the owner or occupant thereof, or if no such person be found residing upon said presmises and such owner or occupant be not found, then by depositing such notice in the post-office duly en- veloped and directed to such owner or occupant at his last known place of residence with the postage prepaid. A copy of such no- tice, with the affidavit of the person who served the same, that he delivered the original to the person to whom it was addressed, shall be evidence of such service. Any person deeming himself aggrieved thereby, or any such officer deeming his village or tO'Wn or county aggrieved, may appeal from the decision, of the said commissioners to the court in which such proceedings were initiated or are pend- ing, for the correction of such assessment, provided he serves upon said commissioners notice of said appeal within ten days after the service upon him of the notice filing such statement, and the party 304 Towns, Town Meetings and Town Officees. R. S., pt. 3, ch. 8, tit. 16, § 11. making the appeal shall, within ten days from the service of notice thereof on the oommissioners, make a full statement of the grounds of his appeal setting forth the points on which he feels aggrieved by the determination of said commissioners, and file a certified copy thereof in the office of the clerk of the county in which such lands or a portion thereof affected by said proceedings are situated, and present the said statement to the court, and the court shall thereupon proceed, without further delay than such as is necessary to give proper notice to the parties interested, to hear and finally determine the appeal. The courts may award costs to the suo- eessful party on such appeal, not exceeding fifteen dollars besides his necessary disbursements to be taxed by the clerk of the court. [B. 8., pt. 3, ch. 8, tit. 16, § 10, as amended by L. 1871, ch. 303 ; L. 1886, ch. 636; L. 1892, ch. 321, and L. 1001, ch. 523; Hey- decker's Gen. L. (2d ed.), p. 4947.] § 5. Levy and collection of assessments; issue of bonds by town or village. The said commissioners shall within thirty days after filing said statement, in case the same is not appealed from, and within thirty days after notice of the final determination of the appellate court thereon, in case the same is appealed from, levy the assessments herein provided for in one sum or annually thereafter until said sum isi paid, and proceed to collect the same. In oases where any persons have been awarded land damages, such damages shall be de- ducted from the assessment, and only the balance shall be collected. In case it is determined that any town or village shall pay any part of such sum, the E.upeirvisor of such tovm, or the board of trustees of such village, is authorized tO' borrow money on the credit of the town or village, as the case may be, tO' pay the same, or any instal- ment thereof, and the board of supervisors shall at their next ensu- ing annual meeting include the amount assessed on any town in the next tax levy on said town, together with any sum to bo paid by said county, which shall be included in the sum to be raised for such county. Money so borrowed shall be upon obligation of the village or town issued at not less than par, bearing interest at six per centum payable out of the moneys raised by tax levy as afore- said, and receivable in payment of such taxes. In case it is deteiv mined that said assessments shall be levied annually, the said com- missioners shall also determine the number of assessments not to ex- ^ceed thirty intO' which the total assessment shall be divided, and the Dkainage of Lowlands; Duties of Town Officers. 305 R. S., pt. 3, ch. 8, tit. 10, § 11. amount of each annual assessment, and shall certify such amounts to the supervisor of the town in which the lands to be assessed are located, and the supervisor of such town shall thereupon immedi- ately issue bonds of the town to the to^al amount named in said statement filed by said comanissioners, and so certified by them to him, such bonds to bear interest at a rate not exceeding six per centum per annum, and shall be negotiated for not leas than their par value. They shall be sold on sealed proposals or at public auo- tion upon notice published in the official paper, if any, and also in each other newspaper actually printed in the town, and in such other newspapers as the supervisor may determine, and posted in three public places in the town, at least ten days before the sale, to the person who will take them at the lowest rate of interest. They shall be consecutively numbered from one to the highest number issued, and the clerk shall keep a record of the number of each bond or obligation, its date, amount, rate of interest, wheu and where payable, and the purchaser thereof or the person to whom they are issued. The amounts of the assessments against said lands as der termined by said commissioners and included in their said state- ment filed as aforesaid, shall be collected annually from, the prop- erty assessed, in such instalments as determined by said commia- sioners, together with the interest accrued on such town bonds for such amounts as other town taxes are collected, and the proceeds thereof shall be used to pay said bonds. Such bonds shall be issued in several series, each series made payable at such time and equal to such amount, as shall correspond with the annual instalments as certified to said supervisor by said commissioners. The proceeds from the sale of said bonds shall immediately be delivered by said supervisor to the treasurer of said commission, and said oommis^ sioTiers shall thereupon be discharged of all duty respecting the col- lection of said annual installments and shall thereupon immediate- ly, from the proceeds derived from the sale of said bonds at not less than par, pay all obligations incurred by them for draining said lands, authorized by this act, included in the statement filed by them, including such evidences of indebtedness or bonds of the town as may have been theretofore issue in pursuance of the author- ity contained in section eight of this act. The court in which the proceedinsr is pendinsr shall have iurisdiction, by mandamus, upon the petition of anv partv aggrieved to enforce the promnt compli- ance of any of the nrovisionai of this section on the part of any 20 306 Towns, Town Meetings and Town Oi-ficees. R. S., pt. 3, ch. 8, tit. 16, § 16. oflBoial charged therewitli. If in any year the amount collected from said assessments is not sufficient to pay the principal and in- terest of the town bonds falling due in thiat year there shall be levied in the next annual tax levy against all the taxable pro'perty in said tflwn in the same manner as other town taxes are levied and collected, an amount equivalent to said deficit in the amount col- lected from said assessments. Said sum so collected shall be used to pay the balance of said bonds and interest then remaining un- paid. Thereafter all sums collected from such unpaid assessments, on account of the non-payment of which an am.ount has been levied and collected against all the taxable property of the town, shall be used to defray any expense or cost for which the town may be lia- ble. [jB. S., pt. 3, ch. 8, tit. 16, § 11, as amended by L. 1892, ch. 321 ; L. 1897, ch. 249, and L. 1901, ch. 523 ; Heydecker's Gen. L. (2iecZ.),p. 494:8.] § 6. Powers and duties of water commissioners of towns and villages. The supervisors, assessors and commissioners of highways of the several towns, and the president of any incorporateid village, as to lands in such village, shall be water commissioners of their respec- tive towns, and, in addition to the powers now conferred by law upon them, they shall have the general charge and supervision of all the dams, drains, ditehes and channels made, completed or con- structed in said towns under this act. Whenever it shall be neces- sary to open, deepen, repair, change or do any work to maintain and keep in repair any such dams, ditches, drains or channels, and dis- putes shall arise between the owners of the lands on which such dams, drains, ditches or channels are situated, reg'arding the same, the said water commissioners, or a majority of them, shall take proceedings similar to tliose authorized hereby, to be taken and had for the construction of such works ; nnd the said water commission- ers are hereby invested for such purpose, with the powers^ conferred upon original commissioners by this act. And where improvements of a nature and character similar to those hereby authorized shall have been made under the provisions of any special act, it shall be Hwful for the county court of the county to cause the same to be hereafter kept in repair and improved by the said water commis- sioners of the town or towns under the provisions of this act. ; and the said water commissioners shall have like power and authority in all cases of open subsoil or tile draining, when such open subsoil or Drainage of Lowlands; Duties of Town Officers. 307i R. S., pt. 3, ch. 8, tit. 16, §§ 25, 26. tile draining shall be, in their judgment, absolutely necessary for public or sanitary purposes, ot for the improvemient of fanning lands, and the owner or occupant of any lands which such owner or occupant shall be desirous of so draining for such purposes shall have to cross the lands of another in order to get an outlet, and the owner of such lands shall not be able to agree in regard thereto ; and the said water commissioners sball have power and authority to make all such needful rules and orders in regard to such open sub- soil or tile draining, as shall be necessary to promote and secure the proper drainage of all farming lands by the owners thereof, who shall desire to drain such lands for the improvement of the same or for public or sanitary purposes, without doing unnecessary injury to others or to the public highways in which such drains may be discharged. And no drains, ditches or other channels for the free passage of water authorized by this act, shall be put across any door-yard, inclosed garden, orchard or vineyard, nor shall any tree in such door-yards, inclosed garden, orchard or vineyard, or build- ing, be removed without the owner's consent, [i?. S., pt. 3, ch. 8, tit. 16, § 16, amended by L. 1871, ch. 303, and L. 1888, ch. 527 ; Heydecker's Gen-. L. (2d ed.), p. 4951. J Town water commissioner. — The supervisor of each town in the state shall be the water commissioner of his town, and as such shall ha,ve charge and supervision of all the ditches and channels for the passage of water which have been, or shall hereafter be constructed or improved for the purpose of draining any swamp, bog, meadow or other low and wet land in said town, pursuant to said act hereby amended, or any special act of the legislature therefor. {_R. S., pt. 3, ch. 8, tit. 16, § 25, as added by L. 1890, ch. 557; Heydecker's Gen.L. (2d ed.), p. 4:Q55.] § 7. Repairs or enlargement of ditch, petition for. Whenever any such ditch or channel shall become wholly or in part filled up, and the passage of water therein impeded, or when- ever such ditch or channel is not large enough for the purpose for which it was made, any three or more persons liable to be assessed for the repair or enlargement thereof, may present to the water commissioner, or if such ditch or channel be partly in more than one town, then to the water commissioner of each town in which the same is located, a petition, verified by at least one such peti- tioner in the manner provided for verifying a pleading under the Code of Civil Procedure, setting forth the nature and locality of 308 Towns, Town Meetings and Town Officees. R. S., pt. 3, ch. 8, tit. 16, § 27. such needed repairs, or of the einlargemeait which may be necessary, and asking that tihe same be made. Upon receipt of the petition, the water commissioner or commissioners to whom the petition is presented stall fortihwitb give notice to all persons liable to be assessed, as kereinafteir provided, that at a time and place therein state-d he or they will examine said ditch or channel and hear all persons interested tberein in respeot to the necessity for its repair or enlargement. Such notice shall be signed by said water com- missioner or commissioners and served by publishing the same in two newspapers published in said county, or, if the diitch be in more than one county, then in one newspaper poiblished in eacb county in which, said ditch is located, once a week in two successive weeks, the first publication to be at least fifteen days before such hearing. Said commissioner or commissioners upon such day sball hear all parties interested, desiring to be heard, and may take proof, and any one of tbem shall have power to administer the proper 0ia.th to witnesses, and may adjourn for the purpose of continuing sucb hearing or making a determination. [R. S., pt. 3, ch. 8, tit. 16, § 26, as added by L. 1890, ch. 557, and amended by L. 1892, ch. 321; Heydecker's Gen. L. (2d ed.), p. 4955.] § 8. Order for repairs; survey and report by engineer. If it shall appear that such ditch or channel is filled up' in whole or in part or the passage of water therein to any considerable ex- tent is impeded, or that said ditch, or channel is not large enough to carry off the waters piroperly, whicb it was intended to carry off, the water commissioner or commissioners shall make and sign an order directing that the ditch or channel be repaired or enlarged or both, as tbe case may be and file the same in the office of the county clerk of each county wherein said ditch or channel is located, which order shall be final and no appeal tberetfrom or review thereof of any kind shall be allowed. Tbereupon said water commissioner or commissioners shall cause a, survey to be made, by a competent civil engineer who shall be employed by him or them, of such ditch or channel and such measurements as shall show the work and excavations required to restore such ditch or channel to its depth or width as originally surveyed and designed for construction, as shown by the maps, surveys, plans and specifi- cations made for such original work, when tlie order is for the enlargement of siich ditch or channel the survey shall show the Deainage of Lowlands; Duties of Town Officers. 309 E. S., pt. 3, ch. 8, tit. 16, § 28. extent of the enlargement that may be necessary. When BufiBcient data eanno't be found the measurements and surveys shall be such, as will show the proper depth and width, required to drain the lands originally sonight to be drained, conforming, however, to the original design and wo'rk so far as the same can be ascertained except that the measurement and surveys shall not be limited to the original design when an enlargement of such ditci. or cbannel has been ordered. A report shall be made by the engineer to the water commissioner or commissioners showing plans and speci- fications of the needed repair or enlargement giving all data suffi- cient to designate the place where repair or enlargement is required, the grade and width at such point, and all data of such excavation or any work required and the amount and nature thereof, for each tract or lot of land traversed by said ditch sep^arate from the others and numbered as a section. The report shall be verified by the engineer to the effect, that it contains all the data required by this act, and that no other estimates are included therein and shall be filed in the county clerk's office of the county in which proceedings were instituted. Thereupon the work for such repair or enlargement shall be let by the water commissioner or commissioners to the lowest bidder or bidders therefor. [i2. 8., pt. 3, ch. 8, tit. 16, § 27, as added by L. 1890, ch. 557, and amended hy L. 1892, ch. 321; Heydecker's Gen. L. {2d ed.), p. 4956. [ § g. Contracts to be let by supervisor as water commissioner. The work of such repair or enlargement required to be done upon each lot or parcel of land traversed by said ditch or channel and designated by number of section, on said engineer's report shall be offered separately from the others and let to the lowest bidder for such part or section of said work ; said water commis- sioner or commissioners shall advertise for bids or proposals for said work, to be made in, vsTiting, in two newspapers published in said county, or if the ditch be in more than one county, then in each such county for not less than once in each of twO' succeeding weeks, stating the time and place for receiving the bids and where the plans and specifications can be examined. Upon receipt of the proposals, said water commissioner or commissioners: may enter into- contract with the lowest bidder for the work to- be done on any of said sections, or may reject any or all bids, and again advertise for further bids. He or they may require of any con- 310 Towns, Town Meetings and Town Offioeks. R. S., pt. 3, oh. 8, tit. 16, § 29. tractor security for the proper performancei of any contract. Such' contract shall provide for the payment of the contract price, when the work is done according to the specifications, by an issue of said commissioner or commissioners of certificates of indebtedness made payable by the collector of taxes of the town in which the work is done, or, if any such tract or lot of land is situated in more than, one town, then of the town wherein said lot is taxed for state and county taxes. [E. S., pt. 3, ch, 8, tit. 16, § 28, as added by L. 1890, ch. 557, and amended by L. 1892, ch. 321; Heydecker's Gen. L. {2d ed.), p. 4956.] § 10. Expense of repairs; assessment upon property bene- fited. When the total cost amd expense of such repairs or enlargement is ascertained the water commissioner or water commissioners shall make and file in said county clerk's office a detailed statement, giving each item of expense and the date thereof, including the day of the month on which each water commissioner was em- ployed, and the nature of his employment, which statement shall be verified to the eifect that it is just and true, and forthwith there- after the water commissioner or water commissioners shall, unless he shall deem a new assessment desirable, levy and assess the total cost and expenses of such repairs or enlargement upon the lands originally assessed for the construction of such ditch or channel, and upon the same basis or ratio, and shall make a roll or statement thereof containing a description of each tract or parcel of land assessed, so far as may be required to identify the same, the num- ber of acres assessed in each tract, the name of the owner or owners thereof and their post-office address, or, where the person is noti known, or his post-office address cannot be ascertained, then the name and post-office address of the occupant thereof and also the amount assessed on each tract or lot. In case the situation, condition or ownership, of the land and premises affected or benefited as originally assessed for the construction of said ditch or channel shall have become changed, so as to make a new assessment desir- able, the water commissioner or water commissioners may assess the total cost and expense of such repairs or enlargement upon the lands benefited by the drain repaired according to the situation of the same and the benefit which shall be derived thereto from the repair or enlargement of said ditch or channel. When any as- sessment shall exceed twenty-five dollars the water commissioner or water. commissioners, in his or their discretion, may make it payable in two instalments by indicating the same upon such roll, the last instalment to be due one year after the first. The roll or assessment shall be verified bv the oath of the water commis- TowNS^ Town Meetings and Town Officees. 311 R. S., pt. 3, ch. 8, tit. 16, § 30. sioner or water commissioners by whom the same is made to the effect that the same is in all respects just and true, and shall be filed in the office of the clerk of the county or counties in which said ditch or channel or any part thereof is located. The said water oommissioner or water commissioners shall give notice of such assessiment and of the filing thereof to each person whose lands are assessed by them to pay any part of said sum, and also to the presi- dent of any village or to the chairman of the board of supervisors in the county that may be assessed by them. Such notice shall bb given in the manner prescribed for giving notice of assessment pro- vided in section two of this act. Appeals from any such assessment may be made by any person deeming himself aggrieved thereby, or by any such officer deeming his village or town or county ag- grieved, in the same manner as is provided for appeals under sim- ilar assessment in section ten of this act, and the provision of said section ten in regard to appeals from assessments and the procedure thereof shall govern and control the parties and proceedings in all appeals that may be taken from assessments made under this sec- tion. The assessment made thereby, or such modification thereof as shall be made upon any appeal taken therefrom shall become a lien upon the several lots or tracts of land on which the same shall be assessed as of the date of such filing, and shall be forthwith collected by the collector of the town or towns in which the same shall be situated. Provided that in case where any such ditch or channel has been kept open and cleaned to its full width and depth as originally laid out, by the owners of the land through or across which is was constructed, at their own expense, such lands shall be exempt from such proportion of the tax or assessment for any re- pairs or enlargement of siuch ditch or channel as shall be equal to the cost and expense of so having kept the same open and cleaned, to be fixed and determined by said water commissioner or water com- missioners and the tax or assessment on any such lands shall be lessened accordingly. [R. S., pt. 3, ch. 8, tit. 16, § 29, as added ly L. 1890, ch. 557, and amended by L. 1892, ch. 321, L. 1896, ch. 819, amd L. 1905, ch. 325; Heydecker's Gen. L. (2d ed.), p. 4957.] § II. Assessments, how collected; payments by collector. On receipt of the roll or statement the collector shall mail forth- with to each person named therein as owner or occupant of any tract or parcel of land assessed within his town at his post-office address stated therein, postage prepaid, a notice stating the amount of the assessment upon the tract or parcel of land owned or occu- pied by him and the date within which the same must be paid, which shall be thirty days from the mailing of such notice. If such assessment is not paid within that time the collector shall 312 Towns, Town Meetings and Town Offioebs. R. S., pt. 3, ch. 8, tit. 16, §§ 31, 32. within' thirty days thereafter, proceed to enforce payment thereof and of the interest thereon from the time it became payable as aforesaid, in tbe manner provided for collecting assessments by section thirteen of the act hereby amended, and section fourteen of said act shall be applicable to any case where an assessment has been so enforced. All moneys collected on said roll as the same shall be received by the collector, shall be paid by him upon the certificates of indebtedness issued by the water commissioner or commissioners as in this act provided. At the expiration of the term of office of any sucb collector he shall turn over to his suc- cessors any such roll which has not been fully collected, together with all money in his hands which has been collected thereon and not paid on any certificate of indebtedness, together with a memo- randum of all the payments made by him and all moneys collected upon said roll; provided, however, that when any collector shall have commenced tO' enforce collection of any assessment his pow- ers in respect thereto shall continue until those proceedings are finished. When the assessments on the roll have been fully paid the roll shall be filed in the office of the clerk of said county. [iJ. 8., pt. 3, ch. 8, tit. 16, § 30, as added by L. 1890, ch. 557; Hey- decker's Gen. L. (2d ed.), p. 4958.] § 12. Rights of contractor to enter upon lands. Any contractor for such repairs or enlargement shall have the right tO' enter upon the premises and have free access' thereto with all necessary tools and teams, and may deposit the earth or ma- terial excavated along the bank of the ditch or channel within a reasonable distance, provided he shall leave the surface thereof as nearly smooth as is practicable, and shall do the work without causing damage to crops further than is necessary. [R. S., pt. 3, ch. 8, tit. 16, § 31, as added by L. 1890, ch. 557, and amended by L. 1892, ch. 321; Ileydecher's Gen. L. (2d ed.), p. 4959.] § 13. Compensation of commissioners and collectors; ex- penses. Each water commissioner shall be entitled to have and receive in full for compensation for his sen'ices under this act, three dollars a day for the time actually employed in such business for not exceeding ten days in any one case eixcept that the county judge of the county, upon his ex parte apnlication shall certify that a larger allowance is proper and fix the limit thereof. The Deainage of Lowlands; Duties of Town Offioees. 313 E. S., pt. 3, ch. 8, tit. 16, 5 33. compensation of the collector shall be two per centum upon the amount collected and disbursed, and twelve cents, for each notice mailed by him. The compensation of the commissioners and collector shall be added to and form part of the cost and expense assessed by the commissioner or commissioners. When, proceed- ings are taken to compel collection of an assessment costs and expenses thereupon may be allowed and taxed by the county judge, not exceeding those allowed to be taxed in any special proceeding, and shall be added to the amount of such assessment and collected therewith. All expense certificates or obligations shall be certi- fied by the water commissioner or commissiouers and paid out of the fund or moneys so provided for when collected, and shall bear interest for the time interest is to be allowed to be collected upon the assessment out of which the same is paid as hereinbefore pro- vided. In case the petition for such repairs shall be denied, the expense incurred shall be paid to the commissioner or commission- ers by the petitioners, and payment thereof may be enforced by him or them in the same manner as a debt or obligation on con- tract [R. S., pt. 3, ch. 8, tit. 16, § 32, as added by L. 1890, ch. 557 ; Heydecker's Gen. L. (2d ed.), p. 4959.] § 14. Effect of amendment on prior assessments. In case any repairs, alterations or enlargement has been made, or proceedings have been taken for the making of any such repairs, alterations or enlargement of any ditch or ditches or other chan- nels for the free passage of water under this act, or for the making or collecting of any assessment to defray the expense thereof prior to the passage of this amendment such assessment or collection thereof shall not be affected hereby. But the water commissioner or water commissioners having jurisdiction of such proceedings shall cause notice of such assessment, written or printed, to be given to the person whose land is assessed by them to pay any part of said sum, and also to the supervisor of the town or the president of any village or chairman of the board of supervisor* of any county that may be assessed by them, of such assessment, which notice shall state the time and place of filing of the detailed state- ment of such assessment, which notice shall be' served in the man- ner prescribed for giving notices of assessment provided for in section ten of this act. Any person feeling aggrieved by such assessment may appeal therefrom in the manner and to the court * So in original. 314 Towns, Town Meetings and Town Officees. R. S., pt. 3, ch. 8, tit. 16, § 34. and within the time prescribed in. section ten of this act; and all provisions of said section ten. in regard to appeals from an assess- ment shall govern and control the procetidings upon such appeals. And if any proceedings have been heretofore taken under the pro- visions of this act for the repairing, altering or enlarging any such ditches or drains, and no assessment has been made or levied to defray the expenses thereof the water comnaissioner or water commissioners of their respective towns, or their successors in office shall proceed to make and levy such assessment and give notice thereof in tbe manner and form provided for levying as- sessments and giving notice thereof provided in, section ten of this act. If any water commissioner or water ooromissioners shall have heretofore levied an assessment for repairs, alterations or enlargement of any such ditches or drains and such, assessment sball fox any reason be, or be a.djudged void by a court of com- petent, jurisdiction the water commissioner or water commission- ers having jurisdiction or authority over suck ditehes or drains sball have power to make a new assessment for the purpose of paying the expenses of said proceedings, which assessments shall be made and notice given thereof as provided in section ten of this act, and any person feeling aggrieved by any such assessment made as provided for in tbis act may appeal therefrom in tbe way and manner provided for appeals from assessments in section ten of tbis act; and the provisions of said section ten shall apply and control tbe parties and proceedings on all such ap'peals. And if any new assessment or assessments shall be made in any case a.s provided in this section the sums that have been paid to' any person in respect of any land assessable under thisi act for or toward paying such void assessments upon such lands shall be credited upon the amounts cba.rgeable upon said lands in any new assessment. [i2. 8., pt. 3, ch. 8, tit. 16, § 33, as added by L. 1890, ch. 557, and amended by L. 1892, ch. 321, amd L. 1896, ch. 819; Heydecker's Gen. L. (2d ed.), p. 4959. j § 15. Right of way to be acquired. If it shall be found in any case where repairs or enlargement are necessary that a right of way for the construction or main- tenance of such ditcb or channel, over or upon any tract of land traversed by it, has not been' acquired, title tberefor may be ac- quired by said commissioner or commissaoners by agreement witK tiie owner or ovraeirs, or, if such agreement cannot be' had, tiheni Deainage of Lowlands; Duties of Town Officees. 315 R. S., pt. 3, ch. 8, tit. 16, § 36. he or they may take proceedings to acquire such title in the man- ner provided by section nine of the act hereby amended. Com- pensation required to be made for such title with the costs and expenses of any proceedings taken therefor, which said costs and expenses shall be allowed to such commissioner or commissioners, and taxed as in. a special proceeding, shall be deemed as expense of such repair or enlargement and collected as part thereof. Whenever any such ditch or channel has been constructed and in use for twenty years and upwards, such use and operation shall be conclusive evidence that a right of way therefor, and all rights in the premises through which it passes which are necessary and incident to the perpetual maintenance thereof as herein provided for, were duly obtained. \_R. S., pt. 3, ch. 8, tit. 16, § 34, as added by L. 1890, ch. 557, and amended by L. 1892, ch. 321 ; Heydecker's Gen. L. (2d ed.), p. 4960.] § 1 6. Examination of ditches; repairs; payment of expense. Upon the receipt by any water commissioner of the town or towns of the petition mentioned in section twenty-six of this title, and within ten days thereafter, it shall be the duty of the said water commissioner or commissioners to make a personal exam- ination of the ditch or ditches mentioned in the said petition, and if upon such examination he shall be of the opinion that the whole amount required to repair or enlarge such ditch or ditches shall not exceed the sum of five hundred dollars, he or they in lieu of all other proceedings required by this title, may proceed to make the said repairs or enlargement of the said ditch or ditches, and for that purpose may let the same by contract as required by this title, or may have the said work done by day's work under his supervision, or under the supervision of some person to be designated and appointed by him. When the said repairs or enlargement shall be finished, it shall be the duty of the said water commissioner to make up an itemized account of his ex- penditures in making the said repairs or enlargement, and file the same in the town clerk's office of the town or towns in which the said ditch or ditches are situated, and also in the office of the county clerk of the county or counties' embracing the said town or towns. At the next meeting of the town board of the town for the audit of claims against the said town, it shall be the duty of the said boiard to audit and allow the said expenditures so made by the said water commissioner not exceeding the sum of five hun- 316 Towns, Town Meetings and Town Officees. L. 1882, ch. 326, § 1. dred dollars in any one year; and the same shall lie certified with the other town audits of the said town to the board of supervisors of the county or counties in which the said town or towns are situated, and the expenses thereof shall be apportioned among the owners of any premises which were originally assessed, for the construction of the said ditch or ditches, according to the valua- tions thereof on the last assessment-roll, and the said tax shall be placed in the annual tax-roll in a separate column opposite the name of the person assessed, which column shall be headed " Ditch Tax," and shall be collected by the collector with the annual state and county taxes against the said person or persons, or their prop- erty, in the same manner and at the same time that other taxes are levied and collected. And in case any town has contributed to the construction of the said ditch or ditches, the said town shall be liable for the said lepairs or enlargement of the said ditch or ditches, in the same proportion that they were originally as- sessed for the construction of the same, which shall also be levied and collected out of the taxable inhabitants of said town, in the same manner that other town taxes are levied and collected. When the said ditch tax shall be so collected, it shall be paid over by the collector to the said water commissioner, who' shall use the same in the payment of the liabilities for repairing or enlarge- ment of the said ditch or ditches, and upon such payment he shall take vouchers therefor, and the same shall be filed by him in the town clerk's office of the town or towns in which the said ditch or ditches are situated. \_R. S., pt. 3, ch. 8, tit. 16, § 36, as added by L. 1899, ch. Ill; Heydecker's Oen. L. (2d ed.), p. 4961.J § 17. Certain drains and ditches declared lawful; easements deemed dedicated to the public. All drains, ditches and water channels in this state for draining swamps, marshes and other low lands made, completed or con- structed before the first day of January, eighteen hundred and seventy-two, under any general or special law, and which, since that time, have been under the undisputed supervision or been maintained or kept in repair by town or other officers having the general charge thereof under said laws, are hereby declared con- structed and maintained for the public health and to be in all respects lawful drains, ditches and water channels; and in all proceedings relating to the same where express grants cannot be Deaiwage of Lowlands; Duties of Toww Officees. 317 L. 1882, ch. 326, §| 2, 3; L. 1891, ch. 310, § 1. shown, thet easements and rights of way therefor shall he deemed to have been legally and irrevocably dedicated and licensed to the publia by the several owners of the lands upon whicli the same were and are located; and where any such officers shall have kept any such drains, ditches and channels in repair and the expense thereof shall not have been heretofore assessed and collected, the same shall be assessed and collected in the manner provided by the law under which said drains, ditches and channels were con- structed. [L. 1882, ch. 326, § 1; Heydecker's Gen, L. (2d ed.), p. 4962.J This act shall not apply to or affect any suit now pending in which the regularity or legality of any proceedings taken or rights acquired for the construction or completion of any drain, ditch or water channel herein mentioned are in issue or may be questioned by any party thereto. [Idem, § 2.] The counties of Kings, Richmond, Westchester, Rockland, Liv- ingston, Otsego, Ulster, Cayuga, Orange, Tompkins, Warren, Herkimer, Delaware and Albany are hereby exempted from the provisions of this act. lldem, § 3.] § 1 8. Drainage of agricultural lands under agreements by owners. Whenever any owner or owners of agricultural lands desire to draini the same, or to reclaim and secure for tillage or other farm- ing purposes, any low, marshy, or wet lands, by draining the same, the said owner or as many owners of such land as may join for said purpose under any agreement, contract or writing entered into by them, may, with the consent and under the supervision of tlie commissioners of highways of any town wherein the said lands are located, lay out and construct the necessary drains or ditches for draining such lands, so as to connect with and flow intoi the drains, ditohes or other water-courses along or across any public road or highway, or through or under any sluice, or under any bridge upon, any public road, or highway, provided that the draining of any land in such manner shall not endanger any such road or highway, or impede travel thereon on account of overflow. In case any additional quantity of water thus' emptied into the highway ditches or* other course for carrying off water be in ex- cess of their usual capacity, the commissioners of highways are hereby authorized to so enlarge or cause to be enlarged, the said higihway ditches' or other courses, that they can receive the waters 318 Towns, Town Meetings and Town Officeks. L. 1891, ch. 310, §§ 2, 3, 4. thus drained into them, without damage or danger of damage or obstruction to the highway. [L. 1891, ch. 310, § 1; Heydecker's Gen. L. {2d ed.), p. 4963.] § ig. Submission of differences in case of disagreement to fence viewers; findings of fence viewers; duties and qualifica- tion of fence viewers. In case of any difference or disagreement arising over the lay- ing out and co'n.''itruotioin of drains or ditches by the owners of adjoining lands, who have previously entered into an agreement for the drainage of any such lands possessed by tliem, as in the first section of this act mentioned, which agreement shall be in writing, the said owners may make in writing, in which all said owners interested shall unite, an application to the fence viewers of the town wherein the land to be drained is situated, to hear and determine the matters of difference between said owners, upon submission to said fence viewers, the said matters of differ- ence, the same as touching any divisions of lands or farm lines for the building and maintaining of line fences, or any other matter which may now be by law submitted to said fence viewers. And the said fence viewers shall, before making their report, view the premises or lands included within the area of the proposed drain- age, and give opportunity to any party interesited to be heard. And any agreement made by any of said owners for said submis- sion to the said fence viewers, shall be held and construed as legal and binding uponi the parties thereto', as any contract or agreement made for any lawful purpose. \_L. 1891, ch. 310, § 2 ; Heydeck- er's Gen. L. (2d ed.), p. 4964. J Findings of fence vieiuers; compensation^ — The conclusions and finding of said fence viewers shall be in writing, one copy of which shall be delivered to the applicants in every such proceed- ing, and one copy shall be filed in the ofSee of the clerk of the town wherein the land proposed to be drained is located. The compensation, or fees of said fence viewers in. such proceedings shall be the same as now allowed by law in the case of establishing and maintaining line fences and shall be paid by the parties mak- ing the applica.tio.n hereinbefore mentioned. [Idem^ § 3.] Drainage, when not deemed diversion of waters. — ^Where any water or drainage has been carried or directed by ovraers of lands as in this act provided, across, through, or under said land to a point of intersection with the natural flow, drainage or outlet- of Drainage of Lowlands; Duties of Town Officees. 319 L. 1891, ch. 310, § 5. water, upon, the suiface; along or by the side of any lands adjoin- ing, but not embraced within the portion or district of land so drained as by this act provided, the same shall not be deemed as a diversion of any drainage or flow of water from, the lands in- cluded within the area so drained. [Idem, § 4. ] Duties and disqualificatiorh of fence viewers. — It shall be the duty of the fence viewers to act when called upon, in the manner and for the purpose hereinbefore provided, and they shall meet and proceed upon any application made as provided, withia ten days after receiving the same; and said application shall contain a particular statement of all the matters and things upon which their action is requested, within the meaning of this act, by the parties to said application, but no fence viewer who is an ovsmer of any land) or has any personal interest in any matter involved in the proceeding, shall be competent to act ; and in case of such disqualification) of any said oflBcer, his place may be filled by any justice of the peace of the town who may not be for the same reason disqualified, and whoin the persons uniting in the applica- tion for suchi proceeding as provided, may agree upon. \^Idem, § 5.] P^RT TV. Taxation. CHAPTER XXIV. TAXABLE PBOPEETY AND PLACE OF TAXATION. Section 1. Definitions. 2. Property liable to taxation. 3. Exemption from taxation. 4. Exemption of the property of hospital corporationB. 6. Exemption of cemeteries. 6. Exemption of property belonging to a, plank road or turnpike corporation. 7. Exemption of property of soldiers' monument association. 8. Taxation of lands sold or leased by the state. 9. No deduction allowed for indebtedness fraudulently contracted. 10. Where property of non-residents is taxable. 11. Place of taxation of personal property of residents; state board of tax commissioners may determine place. 12. Place of taxation of real property; non-resident and unoccupied lands. 13. Taxation of real property divided by line of tax district; when owner may elect in which district property shall be taxed. 14. Corporations; place of taxation; personal property to be taxed where principal office is located; taxation of toll bridges and turnpikes. 15. Taxation of corporate stock of corporations. 16. Stock holders of bank taxable on shares. 17. Place of taxation of individual bank capital. 18. Report of exempt property by assessors. § I. Definitions. " Tax district " as used in this chapter (the Tax Law), means a political subdivision of the state having a board of assessors au- thorized to assess property therein for state and county taxes.' \Tax Law (L. 1896, ch. 908), § 2, ^h. 1; Heydecker's Gen. L. (2d ed.), -p. 1851.J 1. Tax district. A town is the only political subdivision within the meaning of tax district as defined in the above section which is within the scope of this work. It is not the purpose of this work to treat of taxation in any other sense than as connected with the powers and duties of town and county officers. (321) 21 322 Taxation. Tax Law, § 2. " County treasurer " includes any ofiBcer performing the duties devolving upon such officer under whatever name. \ldem,, % 2, mh. 2.J The terms " land," " real estate " and " real property," ' aa used in this chapter, include the land itself above and under -water, all buildings and other articles and structures, substructures and superstructureSi, erected upon, under or above, or affixed to the same; all v^harves and piers, including the value of the right to collect wharfage, cranage or dockage thereon ; all bridges, all tele- graph lines, wires, poles and appurtenances; all supports and in- closures for electrical conductors and other appurtenances upon, above and under ground; all surface, underground or elevated railroads, including the value of all franchises, rights or permis- sion to oonstruct, maintain or operate the same in, under, above, on or through, streets, highways, or public places; all railroad structures', substructures and superstructures, tracks and the iron thereon ; branches, switchesi and other fixtures permitted or au- 2. Rule for determining virliat is real or personal property. To determine the character of property for the purpose of taxation principles no less rigid than those which would be applied to a question of fixtures arising between a vendor and vendee must be considered. In the case of People ex rel. Starch Co. v. Waldron, 26 App. Div. 527; 50 N. Y. Supp. 523, it was held that machinery standing on brick or wooden foundations, fas- tened with bolts capable of being removed without material injury to the buildings in which they are, and which were placed in the building by the owner thereof, a manufacturing corporation, for the purpose of conducting a manufacturing business to which such machinery was essential, and which had been purchased together with the land by a corporation conducting a similar business thereon, must be deemed to have been permanently annexed to the land for the purposes of business, and as such to be taxable as "land" within the meaning of the term as defined in the above section. In the case of Herkimer County Light and Power Co. v. .Johnson, 37 App. Div. 257; 55 N. Y. Supp. 924, apparatus, including an engine and boiler, used by the corporation in the manufacture and supply of gas, and engines, boilers and apparatus used by such corporation in generating electricity, all of which are known as trade fixtures, are situated in buildings standing upon land leased by the corporation, and can be removed from the buildings without injury thereto, were held to be assessable for state and county taxes aa real property in the tax district where the property is situated. But gas mains or pipes laid by a gas company under the streets of a city are not real estate for the purpose of taxation. People eao rel. Citizens' Oas Lirjht. Co. v. Board of Assessors, 39 N. Y. 81. The latter case was decided prior to the amend- ment of the above section by the act of 1897, known as the Special Franchise Tax Act. Under the law as it now stands, gas mains' laid in public streets are to be taxed as real property. See, also, People ex rel. Equitable Gas Light Taxable Peopeety and Place of Taxation. 323 Tax Law, § 2. thorized to be made, laid or placed in, upon, above or under any public or private road, street or ground ; all mains, pipes and tanks laid or placed in, upon, above or under any public or private street or place for conducting steam, heat, water, oil, electricity or any property, substance or product capable of transportation or convey- ance therein or that is protected thereby, including the value of all franchises, rights, authority or permission to construct, maintain or operate, in, under, above, upon, or through, any streets, high- ways, or public places, any mains, pipes, tanks, conduits, or wires, with their appurtenances, for conducting water, steam, heat, light, power, gas, oil, or other substance, or electricity for telegraphic, telephonic or other purposes ; all trees and underwood growing upon land, and all mines, minerals, quarries and fossils in and under the same, except mines belonging to the state. A franchise, right, authority, or permission specified in this subdivision shall for the purpose of taxation be known as a " special franchise." ' A special franchise shall be deemed to include the value of the Co. V. Barker, 81 Hun, 22; 30 N. Y. Supp. 586. The franchise prior to the modification of the definition of real property by the franchise tax act was generally held not taxable. See People ex rel. Panwma R. R. Co. v. Commis- sioner of Taxes, 104 N. Y. 240. The foundations, columns and superstructure of an elevated railway are within the statutory definition of land, and are liable to taxation as realty. People ex rel. N. T. Elevated R. Co. v. Commissioners of Taxes, 82 N. Y. 459. Wharves and piers have always been held to be taxable as real property. See Smith v. Mayon, 68 N. Y. 552; People ex rel. Smith v. Commissioners of Taxes, 10 Hun, 207. Under the old revised statutes the right to receive wharfage was held to be neither real nor personal property and not subject to taxation. Boreel u. Mayor, etc., of New York, 4 Sup. Ct. (2 Sandf. ) 552. But the above definition of real estate includes the value of the right to col- lect wharfage and supersedes in effect the decision in such ease. Interest in real estate subject to taxation. The term lands as used in relation to taxation, includes such an interest in real estate as will pro- tect the erection thereon, and the possession of buildings and fixtures, whether such buildings and fixtures are held in connection with the ownership of a fee in the soil or not. People ex rel. Dunkirk etc., R. R. Co. v. Cassity, 46 N. Y. 46. See, also, People ex rel. Muiler v. Assessors, 93 N. Y. 308; Trustees of Elmira v. Dunn, 22 Barb. 402. 3. Special franchise. Subdivision 2 of the above section of the Tax Law was amended by L. 1899, ch. 712, for the purpose of including as real property all franchises granted by municipalties for the use of streets, high- ways and other public places. All rights, privileges or easements which a person, copartnership or corporation may have in such streets, highways and public places by virtue of a grant from public authorities, made pursuant to law, are to be subjected to taxation. Among the more common franchises 324 Taxation. Tax Law, § 2. tangible property of a person, copartnership, association or corpo- ration situated in, upon, under or above any street', highway, pub- lic place or public waters in connection with the special franchise. The tangible property so included shall be taxed as a part of the special franchise. ISTo property of a municipal corporation shall be subject to a special franchise tax. [Idem, § 2, sub. 3, as amended by L. 1899, ch. 712. J The term " special franchise " shall not be deemed to include the crossing of a street, highway or public place where such cross- ing is not at the intersection of another street or highway, unless such crossing shall be at other than right angles for a distance of not less than two hundred and fifty feet, in which case the whole of such crossing shall be deemed a special franchise. This suV thus to be taxed are those of street railroads, electric light and gas com- panies, telegraph and telephone companies stringing their wires in streets and highways, water companies, pipe line companies and steam surface rail- road companies operating their railroads or any part thereof along or across these streets or highways. The taxation of these franchises as real property seems to be based upon the fact that the right to use public streets and high- ways for the transaction of business of a public or quasi-public nature, is a property right similar in its character to an easement granted by a pri- vate person for the use of private property; and that since an easement granted by a private person is subject to taxation, a similar easement granted by a municipality should also be subject to taxation. The special franchise tax act does not affect the liability of a city to tax- ation upon its real property situated without its corporate limits An engine or pump and a pipe line maintained by the city as a part of its water works system outside of the corporate limits of the city is not subject to a special franchise tax, although it may be subject to taxation as other real property. People ex rel. City of Auburn v. Duryea, 59 App. Div. 488; 69 N. Y. Supp. 388. In the case of People ew rel. Retsof Mining Co. v. Priest, 75 App. Div. 131; 77 N. Y. Supp. 382, it was held that a corporation which lays a line of pipe in the town highway, the fee of which is owned by the abutting owners, with the consent and grant of such abutting owners, but without any express grant from the city or other public body, does not enjoy a special franchise as that term is defined in the above sub-division. The court in this ease said, " 'The franchise' here defined does not mean the right to exercise corporate functions, but the right to use the public streets, highways or public places, either as an individual or a, corporation. The right to so use the public streets, highways or public places is a property right, and it is because Buch property has value that the right exists to assess it. 'The franchise right, authority, or permission' here mentioned must mean some special privilege derived from some governmental body or some political body hiwing authority to grant thn property right sought to be taxed. It is this species of property, intangible in its nature, which the law was enacted to reach. Taxable Peopebty and Place of Taxation. 325 Tax Ijaw, § 2. division shall not apply to any elevated railroad. [Idemj § 2, sub. 4, as inserted by L. 1901, ch. 490.] The terms " personal estate " and " personal property," as used in this chapter, include chattels, money, things in action, debts due from solvent debtors, whether on account contract, note, bond or mortgage; debts and obligations for the payment of money due or owing to persons residing within this state, however secured or wherever such securities shall be held ; debts due by inhabitants of this state to persons not residing within the United States for the purchase of any real estate; public stocks, stocks in moneyed corporations, and such portion of the capital of incorporated com- panies liable to taxation on their capital, as shall not be invested in real estate.' [Idem, § 2, suh. 5.] All tangible property, real and personal, was assessed before the passage of this law. The tangible property which by this law is added to the intangible was presumably before assessed, and there was no apparent difficulty in reaching its value under the general provisions governing local taxation. The purpose of the law, I think, is obvious. Its purpose was to reach and assess those rights in streets, highways and public places which once belonged to the public at large or to political divisions of the state and which had been granted for the term or in perpetuity to individual or corporate bodies." Assessment of special franchises; constitntionality. While a special franchise is included within the definition of "real property" it is not assessed in the same manner as other real property. The act of 1899 which amended the above sub-division also provided for an assessment and a de- termination of the value of special franchises by the state board of assessors. The Court of Appeals in the case of People ex rel. Met. 8t. Ry. Co. v. Tam Commissioners, 174 N. Y. 417, has decided that such assessment by a state board is an infringement upon the constitutional rights of the local asses- sors ; see post, ch. 24, "Assessment of Special Franchises." 4. Taxation of personal property. Under the above section debts due to residents of this state, however secured, and wherever such securities may be held, are deemed personal property and subject to taxation. Before the enactment of L. 1883, ch. 392, from which a portion of the above sub- division was derived, it was held that mortgage securities on lands in another state held permanently by an agent in such state for the owner who resided in this state and which mortgage was subject to taxation in the state where the agent resided was held not to be personal property and subject to tax- ation in this state. People ex rel. Jefferson v. Smith, 88 N. Y. 576. In construing the provision of the act of 1883 declaring that, "All debts and obligations for the payment of money due or owing to persons residing within this state . . . wherever said securities shall be held shall be deemed, for the purpose of taxation, personal property within this state, and shall be assessed as such to the owner or owners," it was held that it referred to debts or obligations which are solely due or owing to residents of this state; but that it did not include as owners persons who are trustees only; the 326 Taxation. Tax Law, § 3. § 2. Property liable to taxation. All real property witliin this state, and all personal property situated or owned within this state, is taxable, unless exempt from taxation by law." [Tax Law (L. 1896, ch. 908), § 3; Heydeck- er's Gen. L. {M ed.), p. 1852.] court said: "Generally a man is not spoken of as an owner of property, who merely holds it as a trustee and in a representative capacity. He has the legal title, and he is to be assessed for it when it is within the state, but this is by express provision of statute and such provision is not mentioned in the case of a trustee whose trust property is outside of the state and not in his possession." People ex rel. Dwrrow v. Coleman, 119 N. Y. 137. If a trustee residing in this state is in possession of the securities, he can be assessed for them as a trustee in possession even though there be other trutees who are non-residents. In the case last cited it appeared that the real acting trustee lived in New Jersey and that he had possession and con- trol of the securities consisting of bonds and mortgages upon lands in other states, and that the beneficiaries were all non-residents. The tax commis- sioners contended that because two of the trustees were residents of this state, although neither of them had possession or control of the property and none of it was in this state, that the trust estate was taxable in this state. The Court of Appeals emphatically overruled this contention. A seat in the New York Stock Exchange has been held by the Court of Appeals to be property. Povyell v. Waldron, 89 N. Y. 328; Belton v. Hatch, 109 N. Y. 593. But such a membership is not personal property and taxable under the laws of this state. People ex rel. Lemmon v. Freitner, 167 N. Y. 1. Where an award made in condemnation proceedings under the law 1888, ch. 49, was, upon being refused as inadequate by the owners, deposited in a trust company to their credit, it was properly assessed under this sub-division to the owners. People ex rel. Lyon v. Ealstead, 26 App. Div. 316; 49 N. Y. Supp. 685. 5. Statute, bow constrned. It is the general purpose of statutes relat- ing to assessments and taxation, to secure an assessment upon all property, real and personal, at its actual value, and they must be construed and en- forced with this purpose constantly in view. An intent to exempt any prop- erty or any portion of the value of any property, from taxation must not be presumed but found plainly expressed in the statutes. People ex rel. Rail- road Co. V. Commissioners of Taxes, 95 N. Y. 554. In construing this section the court said in the case of City of Rochester V. Coe, 25 App. Div. 300, 305; 49 N. Y. Supp. 52: " The language used is broad and comprehensive and, presumptively, is intended to reach all the real property and personal property found in any tax district of the state except such as is exempted from taxation by statutory law. We think the words 'unless exempted from taxation by law' were used with the intention of limit- ing the exemptions to such as should be enumerated by statutory law." Ownership of property. If a farm belonging to the wife is assessed to the husband who resides with her upon It, the assessment is void for want of Taxable l-'iiOPKitiY and Place of Tazation. 327 Tax Law, § 4. § 3. Exemption from taxation.' The following property shall be exempt from taxation : Property of the United States' [Tax Law (L. 1896, ch. 908), § 4, sub. 1; Heydecker's Gen. L. (2d ed.), p. 1852.] jurisdiction. Hallock v. Rumsexf, 22 Hun, 89. But see Powell v. Jenkins, 14 Misc. 83. The land itself may be taxed to one person as owner of the fee and the structures thereon or the minerals or quarries therein may be taxed to another person. Smith v. Mayor, etc., of New York, 68 N. Y. 552. A person or corporation owning fixtures, such as the foundations, columns and super- structure of an elevated railway, may be assessed therefor, although the fee of the land to which they are affixed is in another; and this is so without re- gard to the question whether that other is a natural person, or a municipality, or whether the land is or is not liable to taxation. People ex rel. N. Y. Ele- vated R. R. Go. V. Commissioners of Taxes, 82 N. Y. 459. Parties may by contract so regulate their respective interests in real estate that one may be the owner of the buildings and the other of the land. In such case each interest may be assessed to its owner, and the assessment of the buildings as real estate is proper. So where a lessee is the owner of the buildings upon the demised premises the fact that the lessor has by the lease a right of re-entry in case of non-performance by the lessee, does not affect his present right in the buildings, or the right to assess them to him. People ex rel. Muller v. Board of Assessors, 93 N. Y. 308. In the case of People ex rel. International Navigation Co. v. Barker, 153 N. Y 98 ; 47 N. E. 46, it appeared that a shed was erected by the lessee upon a pier leased from the city of New York, under a lease requiring its erection and providing that it is to become the property of the city on the expiration of the lease. It was held that such shed became the property of the city on being erected and affixed to the realty, and was therefore not taxable as property of the lessee. Statutes providing the procedure for assessing and collecting taxes for the sale of lands for their non-payment, and for the redemption of lands sold for unpaid taxes are applicable to infants and persons under disabilities unless they are excepted from the operation of the act. Levy v. Neuman, 130 N. Y. II; 28 N. E. 660. 6. Rule of construction as to exemption clauses. Taxation is the rule and exemption is not to be established by doubtful implication. People ex rel. Insurance Co. v. Commissioners of Taxes, 76 N. Y. 64; People ex rel. Railroad Co. v. Commissioners of Taxes, 82 N. Y. 459, 465; People ex ro\ D. K. E. Society v. Lawlor, 74 App. Div. 553; 77 N. Y. Supp. 840. An iiitpnt to exempt any property, or any portion of the value of any property may not be presumed, but must be found plainly expressed in the statutes. People <.■ rel. Railroad Co. v. Commissioners of Taxes, 95 N. Y. 554. In determining whether a given case is within a clause in a, statute exempting certain prop- erty or interests from taxation the policy of the law in making the exemption must be considered and should have great weight. People ex rel. Brush Elec- tric Mfg. Co. V. Wemple, 129 N. Y. 543, 552; 29 N. E. 808. A presumption that the legislature intended to surrender its right of taxation in the future 328 Taxation. Tax Law, § 4. Property of this state otiher than its wild or forest lands in tte forest preserve.' [Id., § 4, sub. 2.] by a present exemption therefrom, cannot be entertained, unless such inten- tion is clearly expressed. People ex rel. Cunningham v Roper, 35 N. Y. 629; People ex rel. Westchester Fire Insurance Co. v. Davenport, 91 N. Y. 574. Statutes of exemption are to be strictly construed. Winona & 8t. Paul Land Co. V. Minnesota, 159 U. S. 526; 16 Sup. Ct. 83. They are not to be extended beyond their exact and express requirements. Yazoo R. R. Co. v. Thomat, 132 U. S. 174; 10 Sup. Ct. 68. Exemptions must be clearly expressed, and not left to implication or inference. Schurz v. Cook, 148 U. S. 397; 13 Sup. Ct. 645 ; Keokuk, etc., Co. v. Missouri, 152 U. S. 301 ; 14 Sup. Ct. 592. Effect of exemptions as to assessments for local improvements. In the case of Roosevelt Hospital v. Mayor, etc., of N. Y., 84 N. Y. 108, where a provision in an act incorporating the Roosevelt Hospital exempted its real estate from taxation, it was held that such real estate was not properly ex- empted from an assessment for a local improvement; that the assessment was not taxation within the meaning of the act. The court said: "In a broad sense, taxes undoubtedly include assessments, and the right to impose assess- ments has its foundation in the taxation power of the government; and yet in practice, and generally understood, there is a broad distinction between the two terms. Taxes, as the term is generally used, are public burdens im- posed generally upon the inhabitants of the whole state or upon some civil division thereof, for governmental purposes without reference to peculiar benefits to particular individuals or property. Assessments have reference to impositions for improvements which are specially beneficial to particular individuals or property and which are imposed in proportion to the particu- lar benefits supposed to be conferred. They are justified only because the im- provements confer special benefits and are just only when they are divided in proportion to such benefits." It follows therefore that an exemption from taxation is not sufiicient to exempt the property specified from an assessment for local improvements. See, also, Matter of Mayor, etc., of New York, 11 Johns. 80; Bleecker v. Ballou, 3 Wend. 263; Hassan v. City of Rochester, 67 N. Y. 528. In the case of Roosevelt Hospital v. Mayor, etc., supra, the court also said: "There is a still further suggestion to be made. Laws exempting property from taxation are to be strictly construed. Taxation is the rule; exemption the exception, and before any one can claim exemption from what would otherwise be his just share of a tax or assessment, he must find a plain war- rant for such exemption in the law. In view of what has been said, it would certainly be going to an extraordinary length to say that the exemption from assessments in the plaintiff's charter is plain or free from reasonable doubt. We must therefore hold that plaintiff's property, while exempt from taxation, is not exempt from improvement assessments." Powers of assessors as to exempt property. The office of assessor in determining what property is subject to, and what is exempt from taxation, is judicial ; and the assessor in determining such questions acts judicially and is not liable for errors committed in arriving at his conclusion upon that sub- ject. Barhyte v. Shepherd, 35 N. Y. 238. See, also, Vale v. Owen, 19 Barb. Taxable Pbopebty and Placb of Taxation. 329 Tax Law, § 4. Property of a municipal corporation of the state held for a pub- lie use, except a portion of such property not within the corpora- tion." {Id., § 4, suh. 3.] 22; Foster v. Van Wyck, 2 Abbt. Ct. of App. Dec. 167; 41 How. Pr. 493; Matter of Peek, 80 Hun, 122 ; 39 N. Y. Supp. 59. Assessors having jurisdiction of the subject matter and of the person as- isessed are protected against liability as private persons for the erroneous exercise of their judgment when acting judicially and their determination cannot be assailed collaterally or furnish ground for a private action against them. Rohinson v. Rowland, 26 Hun, 501; Weaver v. Devendorf, 3 Denio, 117. 7. Property of United States. Property of the United States is not taxable for municipal or other purposes unless expressly authorized by statute. People ex ret. Mayor, etc., v. Assessors of Brooklyn, 19 Abb. New Cases 158. See, generally. Van Brocklin v. State of Tennessee, 117 U. S. 151; 6 Sup. Ct. 670. 8. State lands in forest preserve. Wild and forest lands belonging to the state within the forest preserve are assessed at a like valuation and rate as similar lands of individuals within the county where situated. Section 22 of the Tax Law, post, p. 361. The forest preserve includes the lands owned by the state within the county of Clinton, excepting towns of Altoona and Dannemora, and the counties of Delaware, Essex, Franklin, Fulton, Hamilton, Herkimer, Lewis, Oneida, Saratoga, St. Lawrence, Warren, Washington, Greene, Ulster and Sullivan, except lands within the limits of any village or city, and lands not wild lands acquired by the state on foreclosure of mort- gages made to loan commissioners. Forest, Fish and Game Law, sec. 216. , 9. Property of municipal corporation. A municipal corporation is defined in section 3 of the General Corporation Law, aa including "county, town, school district, village and city and any other partial division of the state established by law with powers of local government." The above sub- division is a substitute for sub. 3 and 4 of sec. 4 of tit. 1, ch. 13, pt. 1, of the Revised Statutes, which provided that "every school house, court house and jail used for either of such purposes; and the several lots whereon such build- ings are situated, and the furniture belonging to each of them," and, also, "every poorhouse, almshouse, and the real and personal property used for such purposes belonging to or connected with the same," are exempted from taxation. The above sub-division extended the former provisions of the re- vised statutes so that all property of a municipal corporation held for the public use except such property as is not included within the limits of a cor- poration, is exempt from taxation. This change was made by the revision of 1896 in conformity with the decisions of the court that property owned by the municipality and held by it for municipal purposes was not taxable. See City of Rochester v. Town of Rush, 80 N. Y. 302; People ex rel. Murphy v. KeKey, 76 N. Y. 479, 486-89. It is not property about to be taken or become the property of a municipal corporation that is exempt, but real property actually owned and held by a municipal corporation for public use. Matter of Board of Education, 59 App. Div. 258; 69 N. Y. Supp. 572. Property of a city constituting part of its water works system and located beyond the boundaries of such city is sub- 830 Taxation. Tax Law, § 4. The lands in any Indian reservation owned by the Indian na- tion, tribe or band occupying them/" [Id., § 4, sub. 4.] All property exempt by taw from execution other than an ex- empt homestead." But real property purchased with the pro- ceeds of a pension granted by the United States for military or naval services, and owned and occupied by the pensioner, or by ject to general taxation in the town in which it is located. People ex rel. City of Amsterdam v. Hess, 157 N. Y. 42; 51 N. E. 410. 10. Indian lands. Where the title of Indians to lands occupied by them is not such as implies ownership but is only temporary in its character, the above sub-division does not apply and such lands may be subject to taxation. It is only where the lands in an Indian reservation are owned by the Indian nation or tribe occupying them that the exemption applies. Fellows v. Den- niston, 23 N. Y. 420, 435. See, also. People ex rel. Erie R. R. Co. v. Bea/rus, 52 Barb. 105, affd., 41 N. Y. 619. 11. Property exempt from esecntion. (1.) Personal property exempt. The following personal property, when owned by a householder, is exempt from levy and sale by virtue of an execu- tion; and each movable article thereof continues to be so exempt, while the family, or any of them, are removing from one residence to another: 1. All spinning wheels, weaving looms, and stoves, put up, or kept for use, in a dwelling house; and one sewing machine, with its appurtenances. 2. The family bible, family pictures, and school books, used by or in the family; and other books, not exceeding in value fifty dollars, kept and used as part of the family library. 3. A seat or pew, occupied by the judgment debtor, or the family, in a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured there- from; one cow; two swine; the necessary food for those animals; all n-^cessary meat, fish, flour, groceries and vegetables, actually provided for family use; and necessary fuel, oil, and candles, for the use of the family for sixty days. 5. All wearing apparel, beds, bedsteads, and bedding, necessary for the judgment debtor and the family; all necessary cooking utensils; one table; six chairs; six knives; six forks; six spoons; six plates; six tea cups; six saucers; one sugar dish; one milk pot; one tea pot; one crane and its ap- pendages; one pair of andirons; one coal scuttle; one shovel; one pair of tongs; one lamp, and one candlestick. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value twenty-five dollars. (Code of Civ. Proc, see. 1390, as amended by L. 1891, ch. 112.) In addition to the exemptions allowed by the last section, necessary house- hold furniture, working tools and team, professional instruments, furniture and library, not exceeding in value two hundred and fifty dollars, together with the necessary food for the team for ninety days, are exempt from levy and sale by virtue of an execution, when owned by a person, being a house- holder, or having a family, for which he provides, except where the execution IB issued upon a judgment, recovered wholly upon one or more demandsj either for work performed in the family as a domestic, or for the purchase Taxable Pbopeety and Place of Taxation. 331 Tax Law, § 4. his wife or widow, is subject to taxation as kerein provided." Such property shall be assessed in the same manner as other real property in the tax districts. At the meeting of the assessors to hear the complaints concerning assessments, a verified application for the exemption of such real property from taxation may be pre- sented to them by or on behalf of the owner thereof, which appli- money of one or more articles exempt as prescribed in this or the last section where a judgment has been recovered, etc. (Code Civ. Proc, sec. 1391, as amended by L. 1879, ch. 542; L. 1901, ch. 116, and L. 1903, eh. 461.) Where the judgment debtor is a woman, she is entitled to the same ex- emptions, from levy and sale, by virtue of an execution, subject to the same exceptions, as prescribed in the last two sections, in the case of a house- holder. (Code Civil Procedure, sec 1392.) (2.) Military pay, bounty and pension exempt from taxation. The pay and bounty of a non-commissioned officer, musician or private, in the military or naval service of the United States or the state of New York; a land war- rant, pension, or other reward, heretofore or hereafter granted by the United States, or by a state, for military or naval services; a sword, horse, medal, emblem, or device of any kind presented, as testimonial for services rendered in the military or naval service of the United States or a state; and the uniform, arms and equipments, which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for non-payment of taxes, or in any other legal proceeding; except that real property purchased with the proceeds of a pension granted by the United States for military or naval services, and owned by the pensioner, or by his wife or widow, is subject to seizure and sale for tlie collection of taxes or assessments lawfully levied thereon. (Code Civ. i'roc, sec. 1393, as amended by L. 1897, ch. 348.) ( 3. ) Burial grounds exempt from execution. Land set apart as a family or private burying ground, and heretofore designated, as prescribed by law, in order to exempt the same, or hereafter designated for that purpose, as pre- scribed in the next section, is exempt from sale, by virtue of an execution, upon the following conditions only: 1. A portion of it must have been actually used for that purpose 2. It must not exceed in extent one-fourth of an acre. 3. It must not contain, at the time of its designation, or at any time after- wards, any building or structure, except one or more vaults, or other places of deposit for the dead, or mortuary monuments. (Code Civ. Proc, sec. 1395.) 12. Real property purchased witli pension money exempt. Prop- erty purchased with the pay and bounty of a soldier is not entitled to any greater or different exemption than that in the above sub-division for the ex- emption from taxation of real property purchased with pension moneys. It therefore follows that real property purchased with a soldier's pay or bounty is subject to taxation for local school and highway purposes in the same man- ner as such property purchased with pension moneys. People ea> rel. Kenneif V. Reilly, 41 App. Div. 378; 58 N. Y. Supp. 558. 332 Taxation. Tax Law, § 4. cation must show the facta on which the exemption is claimed, including the amount of pension money used in or toward the pvirchase of such property." If the assessors are satisfied that the applicant is entitled to the exemption, and that the amount of pension money used in the purchase of such property equals or exceeds the assessed valuation thereof, they shall enter the word " exempt " upon the assessment-roll opposite the description of such property. If the amount of such pension money used in the purchase of the property is lees than the assessed valuation, they shall enter upon the assessment-roll the words " exempt to the extent of dollars " (naming the amount) and thereupon such real property, to the extent of the exemption en- tered by the assessors, shall be exempt from state, county and gen- eral municipal taxation, but shall be taxable for local school pur- poses, and for the construction and maintenance of streets and highways. If no application for exemption be granted, the prop^ erty shall be subject to taxation for all purposes. The entries above required shall be made and continued in each assessment of the property so long as it is exempt from taxation for any pur- pose. The provisions herein, relating to the assessment and ex- emption of property purchased with a pension apply and shall be enforced in each municipal corporation authorized to levy taxes. ild.j § 4, sub. 5, as amended by L. 1897, ch. 347.] Bonds of this state to be hereafter issued by the comptroller to carry ooit the provisions of chapter seventy-nine of the laws of eighteen hundred and ninety-five and bonds of a municipal cor- poration heretofore issued for the purpose of paying up or retiring the bonded indebtedness of such corpora4:ion." [Id., § 4, sub. 6, 13. Application for exemption. For form of application for exemp- tion, see Form No. 30, post. The assessors are required under the above sub-division to place the real property of a veteran purchased with pension money upon the roll in the usual manner of assessment, and the claimant for an exemption must prefer it in writing stating the amount on which the exemption is claimed. People ex rel. McOrane v. ReiV.y, 21 Misc. 360; 47 N. Y. Supp. 742. To secure the exemption of real estate purchased in part with pension moneys the owner must make his claim known on grievance day and in default thereof the as- sessment will stand. Matter of Baumgarten, 39 App. Div. 174; 57 N. Y. Supp. 284; Tucker v. City of Utica, 35 App. Div. 206; 54 N. Y. Supp. 855; UoKihhen v. Oneida County, 25 App. Div. 361; 49 N. Y. Supp. 553; Broderick V. City of Tonkers, 22 App. Div. 448 ; 48 N. Y. Supp. 265. 14. The bonds authorized by L. 1895, ch. 79, were issued for the con- struction of canal improvements. Taxable Peopeety and Place of Taxation. 333 Tax Law, § 4. as amended by L. 1897, ch. 80; Heydecher's Oen. L. (2d ed.), p. 1853.] The real property of a corporation or association organized ex- clusively for tlie moral or mental improvement of mem or women, or for religious, bible, tract, charitable, benevolent, missionary, hospdtal, infirmary, educational, scientific, literary, library, pat- riotic, historical or cemetery purposes, or for the enforcement of laws relating to children or animals, or for two or more such pur- poses, and used exclusively for carrying out thereupon one or more of such purposes; and the personal property of any such corpora- tion shall be exempt from taxation.'' But no such corporation or 15. Corporations entitled to exemption. In the case of People ex rel. D. K. E. Society v. Lawlor, 74 App. Div. 553 ; 77 N. Y. Supp. 840, it appeared that a house owned by a chapter of a Greek letter college fraternity, organized as stated in its certificate of incorporation for literary purposes and the promotion of the fine arts, was primarily used, with the exception of the society room, as a boarding place for the active members of the chap- ter, at which they enjoyed the privileges of home life and met for social recre- ation and fellowship without intrusion from uninvited guests; it was held that such property was not exempt from taxation under the above subdivision although it was incidentally used for literary, educational and scientific pur- poses. The property entitled to exemption under this subdivision must be exclusively used for the purposes therein specified. See Church of St. Monica V. Mayor, 119 N. Y. 91; 23 N. E. 294; People ex rel. Church of St. Mary v. Feitner, 168 N. Y. 494, N. E. In the case of People ex rel. D. K. E. Society v. Lawlor, supra, the courts said : " Now the adverb ' exclusively ' is defined by lexicographers to mean ' with the exclusion of all others, without admission of others to participa- tion ' (Century Dictionary) ; and with this definition in mind it is apparent that the partial or occasional use of the relator's chapter house for literary, educational or scientific purposes is not sufficient to sustain its claim to ex- emption, unless it can be said that such purposes are primary and inherent, while all others are secondary and incidental ; for although we ought not per- haps to give to the word 'exclusively' an interpretation so literal as to pre- vent an occasional use of the relator's property for some purpose other than one or more of those specified, yet the policy of the law is to construe statutes exempting property from taxation somewhat rigidly, and not to per- mit such exemption to be established by doubtful implication." In the case of People ex rel. Young Men's Association v. Sayles, 32 App. Div. 197; 53 N. Y. Supp. 67; aflfd., 157 N. Y. 677, it appeared that the re- lator was a corporation organized exclusively for the mental and moral improvement of men and women and for benevolent purposes. Any re- spectabl young man could become a member and enjoy its privileges upon the payment of a nominal membership fee. It owned a building in the city of Albany of which a portion was used for the purpose of a public library, gymnasium, reading, lecture and bath rooms, while the remainder 334 Taxation. Tax Law, ,§ 4. association shall be entitled to any s.uch exemption if any officer, member or employe thereof shall receive or may be lawfully en- titled to receive any pecuniary profit from the operations, thereof except reasonable compensation for services in effecting one or more of such purposes, or as proper beneficiaries of its strictly charitable purposes; or if the organization thereof, for any such avowed purposes, be a guise or pretense for directly or indirectly making any other pecuniary profit for such corporation or asso- ciation, or for any of its members or employes, or if it be not in good faith organized or conducted exclusively for one or more of such purposes. The real property of any such corporation or association entitled to such exemption held by it exclusively for one or more of such purposes and from which no rents, profits or income are derived, shall be so exempt, though not in a-ctual use therefor by reason of the absence of suitable buildings or improve- ments thereon, if the construction of such buildings or improve- ments is in progress, or is in good faith contemplated by such cor- poration or association; or if such real property is helii by such corporation or association upon condition that the title thereto shall revert in case any building not intended and suitable for one or more of such purposes shall be erected upon said premises or some part thereof. The real property of any such corporation not so used exclusively for carrying out there- upon one or more of such purposes, but leased or otherwise used for other purposes, shall not be exempt, but if a portion only of any lot or build- consisted of a spacious and elaborately constructed theater or hall suita- ble for public meetings, exhibitions and entertainments. This hall was leased at fixed rates of rental and used for such purposes only, the income therefrom being devoted exclusively to the maintenance of the library. It was held by the appellate division and subsequently affirmed by the Court of Appeals that such property was subject to taxation. In the case of People ex rel. Catholic Union v. Sayles, 32 App. Div. 203; 53 N. Y. Supp. 65; affd., 157 N. Y. 679, a like conclusion was reached upon a very similar state of facts. The rent of athletic grounds by a college to persons not connected therewith deprives it of the exemption. People ex rel. Adelphi College v. Wells, 97 App. Div. 312, 8!) N. Y. Supp. 957. See, also. People ex rel. Medical Society v. Xeff, 34 App. Div. 83; 53 N. Y. Supp. ±077. As to effect of lease of academy by educational corporation, see People ex rel. Trustees, etc., v. Mezgar, 98 App. Div. 237, 90 N. Y. Supp. 488. In the case of Congregation I\. I. A. P. v. Mayor, 52 Hun, 507, it was held that the building, of which the principal story was used as a synagogue, while the lower story contained the living rooms of the janitor of the synagogue and bath tuba and plunging pools for men and women, which were arcpssible for a pecuniary consideration, payable to the janitor in lieu of salary, to all Jews, whether worshippers at that synagogue or not, was not exempt from tuxalion, for the reason that the building was not "exclu- sively used," for one or more of the purposes specified in the statute. The ri^ligious society of Friends owned four hundred and "Sfty acres of land upon which was conducted an institution for the education of Indian children. A portion of tliis land was cultivated and used for raising crops and the pasturage of cattle. The crops raised were more than sufficient for the use of the school and the surplus was sold and the proceeds devoted to Taxable Peopeett and Place of Taxation. 335 Tax Law, § 4. ing of any such corporation or association is used exclusively for carrying out thereaipon one or more such purposes of any such corporation or association, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion to the extent of the value of such remaining or other portion shall be subject to taxation; provided, however, that a lot or building owned, and actually used for hos- pital purposes, by a free public hospital, depending for main- tenance and support upon voluntary charity shall not be taxed as to a portion thereof leased or otherwise used for the purposes of income, when such income is necessary for, and is actually applied to, the maintenance and support of such hospital, and further pro- vided that the real property of any fraternal corporation, associa- tion or body created to build and maintain a building or buildings for its meeting or meetings of the general assembly of its members, or subordinate bodies of such fraternity and for the accommoda- tion of other fraternal bodies or associations, the entire net income of which real property is exclusively applied or to be used to build, furnish and maintain an asylum, or asylums, a home or homes, a school or schools for the free education or relief of the members of such fraternity or for the relief, support and care of worthy and the school. It was held that only the land used for crops and pasturage was exempt from taxation. People ex rel. Blackburn v. Barton, 63 App. Div. 581. But where all the products of the farm upon which is situated an in- stitution exempt from taxation under the above subdivision are used for the maintenance of the inmates of the institution, the farm is entitled to exemption. People ex rel. Seminary, etc. v. Bariour, 42 Hun, 27; aflfd., 106 N. Y. 669. A church corporation engaged in charitable and missionary work among the poor carried on such work by the aid of guilds of men and women, and a staff consisting of the rector, curates and three sisters. Annexed to the church building in which religious services were held, and forming a part thereof, was the clergy house and a rectory devoted to the use of the work of the corporation. It was held in the appellate division that the entire building was exempt from taxation under the above subdivision. People ex rel. Society of the Free Church v. Feitner, 63 App. Div. 181. But the Court of Appeals modified its decision by holding that the rectory, being located on another corner of the church lot and separate from the other property, was not exempt from taxation except as a dwelling house used by the officiating clergyman of the church. See sub. 9 of sec. 4, post, p. 336. Effect of subdivision upon special provisions. The provisions of the above subdivision exempting the property of the charitable corporation and association from taxation supersede, and by implication repeal, the provi- sions of all special acts exempting the property of such corporations and a.ssociatinns from taxation. Matter of Huntington, 168 N. Y. 399; Pratt Institute v. City of New York, 183 N. Y. 151. 336 Taxation. Tax Law, § 4. indigent members of the fraternity, their wives, widows or or- phans, shall be exempt from taxation. Property held by any of- ficer of a religious denomination shall be entitled to the same ex- emptions, subject to the same conditions and exceptions, as prop- erty held by a religious corporation. [_Id., § 4, sub. 7, as amended by L. 1897, ch. 371, L. 1903, ch. 204, and L. 1906, ch. 336; Hey- decker's Gen. L. {2d. ed.), p. 1853.] Real property of an incorporated association of present or former volunteer firemen actually and exclusively used and occupied by such corporation and not exceeding in value fifteen thousand dol- lars, ild., § 4, sub. 8.j All dwelling-houses and lots of religious corporations while actually used by the officiating clergymen thereof, but the total amount of such exemption to any one religious corporation shall not exceed two thousand dollars. Such exemption shall be in addition to that provided by subdivision seven of this section. [Id., § 4, sub. 9.] The real property of an agricultural society permanently used by it for exhibition grounds. [Id., § 4, sub. 10.] The real property of a minister of the gospel or priest who is regularly engaged in performing his duties as such, or permanently disabled, by impaired health from the performance of such duties, or over seventy-five years of age, and the personal property of such minister or priest, but the total amount of such exemption on account of both real and personal property shall not exceed fifteen hundred dollars." [Id., § 4, sub. 11.] All vessels registered at any port in this state and owned by an American citizen, or association, or by any corporation, incorpo- rated under the laws of the state of New York, engaged in ocean commerce between any port in the United States and any foreign port, are exempted from all taxation in this state, for state and local purposes; and all such corporations, all of whose vessels 16. Exemption of ministers and priests. A minister who is with- drawn from active duty as such by reason of age or infirmity, but is engaged in no secular occupation is entitled to an exemption. People ex rel. Mann V. Peterson, 31 Hun, 421. Where the value of a minister's property exceeds the sum of $1,500, he is entitled to a deduction for that amount, although he has not occupied the real property. Idem. The assessors' acts in determining the value of the property of a minister are judicial and they cannot be held liable for assessing the property in excess of the valuation exempted. Weaver v. Devendorf, 3 Denio, 117; Vale V. Owen, 19 Barb. 22. Taxable Peopeety and Place of Taxation. 337 Tax Law, § 4. are employed between foreign ports and ports in the United States, are exempted from all taxation in this state, for state and local purposes, upon their capital stock, franchise® and earnings, until and including December thirty-firsti, nineteen tundred and twenty-two. [_Id., § 4, sub. 12. J A bond, mortgage, note, contract, account or other demand, belonging to any person not a resident of this state, sent to or deposited in this state for collection ; the products of another state, owned by a nonresident of this state and consigned to his agent in this state for sale on commission for the benefit of the owner ; moneys of a nonresident of this state, under the control or in the possession of his agent in this state, when transmitted to such agent for the purpose of investment or otherwise." [Id., § 4, sub. 13J ^_ 17. Exemption of securities belonging to non-residents. The statute provides that a person shall be taxed in the tax district where he resides, when the assessment for taxation is made, for all personal prop- erty owned by him or under his control as agent, trustee, guardian, executor or administrator. Tax Law, see. 8, post, p. 343. This provision if standing alone would doubtless authorize the assessment of all personal property belong- ing to a non-resident in the hands of his agent in this state. But by virtue of the above subdivision there are appended to this general provision two im- portant qualifications; first, that the products of any state of the United States consigned to any agent in this state for sale on commission shall not be assessed to such agent; second, that agents of moneyed corporations of capitalists shall not be liable to taxation for any moneys in their possession or under their control, transmitted to them for the purpose of investment or otherwise. The Court of Appeals, in the case of Williams v. Board of Supervisors, 78 N. Y. 561, in speaking of these exemptions, says: "Nothing can be more plain than the policy and purpose of these exemptions. They are clearly intended to further the trade and commerce of the state and to encourage and even invite the sending of foreign capital here for investment. It is argued, however, that the exemption as to capital continues only so long as it remains uninvested, and that when invested, if the securities remain in the hands of the agent they are taxable. If such were the true construc- tion of the provision it would be quite ineffectual and rather a lure than a protection to foreign capitalists who might send their capital here to be invested under the assurance that it should be free from taxation. But such a construction is precluded by the express provisions of the statute contained in the same chapter, which declares that when any bond, mort- gage, note, contract, account, or other demand belonging to any person, not being a resident of this state, shall be sent to this state for collection, or shall be deposited in this state for the same purpose, such property shall be exempt from taxation. . . . These provisions are clearly designed to 22 338 Taxation. Tax Law, § 4. The deposits in any bank for savings whioh are due depositors, the accumulations in any domestic life insurance corporation, held for the execlusive benefit of the insured, other than real estate and stocks, now liable for taxation ; the accumulations of any incorpo- rated co-operative loan association upon the shares of such asso- ciation held by any person ; and personal property of any corpora- tion, person, company or association transacting the business of fire, casualty or surety insurance in this state equal in, value to the unearned premiums required by the laws of this state, or the regulations of its insurance department, to be charged as a lia- bility. [Id., § 4, sub. 14, as amended by L. 1901, ch. 618.] Moneys collected in the course of the business of any corpora- tion, association or society doing a life or casualty insurance busi- ness or both, upon the co-operative or assessment plan, and which afford to the foreign capitalist who invests his funds here every conceivable protection. His capital cannot be taxed while awaiting investment. If the securities are taken by him out of the state he may with impunity send them back to the agent here for the collection of principal or interest. And if instead of being removed from the state, they are deposited here with an agent for collection, they are equally free. The capital is protected from taxation whether invested or uninvested, and whether the securities are taken away or remain here for collection." See, also. People ex rel. Ferrer v. Com- missioner of Taxes, 42 Hun, 560; Lord v. Arnold, 18 Barb. 104. Debts due to non-residents upon contracts for the sale of real estate situated within the state, which contracts were in the hands of an agent residing within the state, are liable to assessment and taxation against such agent. People ex r&l. Young v. Willis, 133 N. Y. 383; 31 N. E. 125. The above subdivision does not apply to assets in the hands of an administrator of a resident of Scotland where such assets consist of debts due on bond and mortgage on real property located in this state, and where the residuary legatees reside therein. People ex rel. Cochrane v. Coleman, 128 N. Y. 524; 28 N. E. 465. 18. Deposits in savings banks. The exemption from taxation con- ferred by the above subdivision upon " deposits in any bank for savings which are due depositors," applies to the depositors as well as to the bank and relieves them from assessment for taxation as to their deposits. PeojtCe ex rel. Hiermance u. Dederick, 158 N. Y. 414; 53 N. E. 163; People ex rel. Ithaca 8av. Bank v. Beers, 67 How. Pr. 219. Every savings bank is required to pay to the state annually for the privi- lege of exercising its corporate franchise or carrying on its business in such «orporate or organized capacity an annual tax, which shall be equal to one per centum on the par value of its surplus and undivided earnings. Tax Law, sec. 187b, as added by L. 1901, ch. 117. Prior to this statute it was held that the surplus of a savings bank was exempt under the above sub- division. People etc rel. Netoburg Samngs Bank v. Peck, 167 N. Y. 51; 51 N. E. 412. Taxable Pbopebty and Place of Taxation. 339 L. 1889, ch. 95, | 4. are to be used for the payment of assessments, or for death losses or for beneifits to disabled members. [Id., § 4, sub. 15.] The ovmer or holder of stock in an incorporated company liable to taxation on its capital, shall not be taxed as an individual for such stock." [Id., § 4, sub. 16. J The personal property in excess of one hundred thousand dollars of a mutual life insurance corporation incorporated in this state before April tenth, eighteen hundred and forty-nine. [Id., § 4, sub. 17.] Property real, from which no income is derived, and personal property, situated within any city of the first class and belonging to the medical society of any county, which county is either wholly or partly within such city and which society was heretofore in- corporated under the provisional of chapter ninety-four, laws of eighteen hundred and thirteen, entitled " An act to incorporate medical societies for the purpose of regulating the practice of physic and surgery in this state," provided that such property is used for the purposes of such a society and not otherwise, and pro- vided that such exemption of property for any society in the coun- ties of Kings or Ncfw York, shall not exceed one hundred and fifty thousand dollars, and in any other county affected hereby, shall not exceed fifty thousand dollars. [Id., § 4, suh. 18, as added by L. 1903, ch. 199.J Property real from which no rent is derived and personal property situated within any city of the first class and belonging to any incorporated pharma- ceutical society of any county which is either wholly or partly within such city, which society has heretofore been or may hereafter be authorized and empowered by act of the legislature to establish and which has established or may hereafter establish, a college of pharmacy in such city; provided that such property is used for the purposes of such college and not otherwise, and provided also that the exemption of such property for any society in the counties of Kings and New York shall not exceed one hundred thousand dol- lars and in any other county affected hereby, shall not exceed fifty thousand dollars. [Id., § 4, sub. 19, added by L. 1905, ch. 446.] 19. Exemption of corporate stock. The shares of stock of corpora- tions created under the laws of this state are not taxable in the hands of the stockholders, nor are shares of stock of corporations created by other states taxable, since the presumption is that they are taxed upon their capital in the same states. Bonds being evidence of a fixed indebtedness are taxable at their actual value. People ex rel. Trowbridge v. Commissioners of Texas, 4 Hun, 595 ; affd., 62 N. Y. 630. A corporation is not subject to taxation upon stock of another corporation owned by it and the capital of which is taxable, any more than an individual stockholder would be. People eao rel. Brooklyn Traction v. Boa/rd of As- sessors. 30 N. Y. Supp. 488; 61 N. Y. St. Rep. 480. 340 Taxation. L. 1S47, ch. 133, § 10; Transportations Law, § 140. § 4. Exemption of the property of hospital corporations. The property of a hospital corporation, both real and personal, shall be exempt from taxation, to the extent that, and so long as, the same shall be used exclusively foi the care, reception, maintenance, medical and surgical advice, aid and treatment of persons needing such medical and surgical ad- vice, aid and treatment, or the care and maintenance of infirm, aged and indi- gent persons, and provided that it shall and do actually render medical and surgical aid, advice and treatment to poor persons in need of such treatment without charge therefor, or care for and maintain infirm, aged and indigent persons without charge.20 [L. 1889, ch. 95, § 4.] § 5. Exemption of cemeteries. The cemetery lands and property of any association formed pursuant to this act, and any property held in trust by it for any of the purposes mentioned in section 9 of this act, shall be exempt from all public taxes, rates and assess- ments, and shall not be liable to be sold on execution, or be applied in pay- ment of debts due from any individual proprietor. But the proprietors of lots or plots in such cemeteries, their heirs or devisees, may hold the same exempt therefrom, so long as the same shall remain dedicated to the purposes of a cemetery, and during that time no street, road, avenue or public thorough- fare shall be laid out through such cemetery, or any part of the lands held by such association for the purposes aforesaid, without consent of the trus- tees of such association, and of two-thirds of the lot owners thereof, and then only by special permission of the legislature of the state.21 [L. 1847, ch. 133, § 10, as amended ly L. 1904, ch. 237.] § 6. Exemption of property belonging to a plank road or turnpike corporation. Toll houses and other fixtures, and all property belonging to any plank road or turnpike corporation shall be exempt from assessment and taxation for any purpose until the surplus annual receipt of tolls on its road, over necessary repairs and a suitable re- 20. Exemption of hospitals. The charge made by a hospital for treat- ing some of its patients, the sum so received being applied to the use of other poor patients, is not an income of the hospital of such a nature as to deprive the institution of its exemption from taxation under the above act. People ex rel. Society of the New York Hospital v. Purdy, 58 Hun, 386; 12 N. Y. Supp. 307; affd., 126 N. Y. 679. 21. Esemption of cemeteries. The consent of the supervisors is not essential to secure exemption from taxation where the lands owned by a cemetery corporation were acquired under a special statute. People ex rel. Trustees of Cathedral v. Davren, 16 N. Y. Supp. 794; 41 N. Y. St. Rep. 779; afTd., 131 N. Y. 601. Water rates assessed against cemetery corporations by municipalities are not public rates within the meaning of this section. Bat- terman v. Oity of New York, 65 App. Div. 576, 73 N. Y. Supp. 44. Lands within the terms of this section are exempt from taxation from the moment of their acquisition, although no dead are buried there and such burial is forbidden by a municipal ordinance. People ex rel. Oak Bill Ceme- tery V. Pratt, 129 N. Y. 68; 29 N. E. 7. Taxable Peopeety and Place of Taxation. 341 Tax Law, §§ 5, 6. serve fund for repairs or relaying of plank, shall exceed seven per cent, per annum on the first cost of the road.'^ If the assessors of any town, village or city and the corporation disagree concern- ing any exemption claim, the corporation may appeal to the county judge of the county in which such assessment is proposed to be made, who shall, after due notice to both parties, examine the books and vouchers of the corporation, and take such further proof as he shall deem proper, and decide whether such corpora- tion is liable to taxation under this section, and his decision shall be final. [Transportation Corporations Law (L. 1890, ch. 566), I 140; Heydecker's Gen. L. (2d ed.), p. 3438.] § 7. Exemption of property of soldiers' monument association. The property of any soldier's monument association formed pursuant to chapter 273 of the Laws of 1866, is exempted by sec- tion 5 of that chapter, as amended by chapter 299 of the Laws of 1888, from levy and sale on execution, and from all public taxes, rates and assessments. § 8. Taxation of lands sold or leased by the state. All lands which have been sold by the state, although not con- veyed, shall be assessed in the same manner as if such purchaser were the actual owner. Where land is leased by the state such leasehold interest, except in cases where by the terms of the lease the state is to pay the taxes imposed upon the property leased, shall be assessed to the lessee or occupant in the tax district where the land is situated. [Tax Law (L. 1896, ch. 908), § 5, as amended hy L. 1897, ch. 443; Heydecker's Gen. L. {2d ed.), p. 1856.] § 9. No deduction allowed for indebtedness fraudulently contracted. No deduction shall be allowed in the assessment of personal property by reason of the indebtedness of the owner contracted 22. Exemption of plank and tnrnpike roads. Property of plank and turnpike road corporations are exempt from taxation until the surplus annual tolls over necessary repairs and a suitable reserve fund for repairs or relaying plank shall exceed 7 per cent, per annum on the first cost of the road. The first cost of the road means only such road as the company has and operates at the time of the assessment; so where a company constructed the plank road, and afterwards abandoned a portion of it, it was held that the first cost of the portion of the road retained, and not of the whole original road, was to be estimated in determining whether the property of the company was assessable. People v. Freeman, 3 Lans. 148. 342 Taxatioit. Tax Law, § 7. or incurred in the purchase of nontaxable property or securities owned by him or held for his benefit,23 nor for or on account of any indirect liability as surety, guarantor, indorser or otherwise, or for or on account of any debt or liability contracted or incurred for the purpose of evading taxation. [Tcua Law (L. 1896, ch. 908), § 6.] § 10. Where property of non-residents is taxable. Subdivision 1. Nonresidents of the state doing business in the state, either as principals or partners, shall be taxed on the capital invested in such busi- ness, as personal property, at the p^ace where such business is carried on, to the same extent as if they were residents of the state.24 Subuivision 2. The personal property of nonresidents of the state having an actual situs in the state, and not forming a part of capital invested in business in the state, shall be assessed in the name of the owner thereof for the purpose of ideiitiiication and taxed in the tax district where such property is situated, unless exempt by law. This subdivision shall not apply to money, or negotiable collateral securities, deposited by, or debts owing to, such non- residents nor shall it be construed as in any manner modifying or changing the law imposing a tax on real estate mortgage securities. ITaao Lmo (L. ib96, ch. 908), § 7, as amended by L. 1906, cti. ii48; Beydecker's Gen. L. (2d ed.), p. 1856.] 23. Deduction because of purchase of uon-tazable property. The first clause of the above section to the ettect that no deduction shall be made for debts or liabilities contracted or incurred in the purchase of non- taxable property applies to debts incurred in the purchase of imported goods not taxable by the state. Imported tobacco in original packages, whicli has been subjected to the duty under the U. S. Revenue Laws, is non-taxable property. The above provision is not confined to cases where the debt was fraudulently contracted to evade taxation. Nor is it unconstitutional as working a discrimination in taxation, feople ex rel. Bijur v. Barker, 155 N. Y. 330; 49 N. E. 940. A debt incurred by a corporation in the purchase of the good will of the business cannot be deducted from the value of its taxable personal property under tne above section. People ex rel. Cornell Steamboat Company v. Dederick, 161 N. Y. 195; 55 N. E. 927. A corpo- ration is entitled to deduct a debt incurred in the purchase of stock of another domestic corporation taxable on its capital. People ex rel. Keppler, etc. V. Barker, 22 App. Piv. 120; 47 N. Y. Supp. 958; ahd., 155 N. Y. 661. 24. Intention and application of statute. This statute was intended to reach the capital of non-residents employed within this state in con- tinuous trade, and not property sent here only to market for sale. So where a foreign corporation, engaged in manufacturing in another state, transmitted to its agent here its manufactured product for sale, the proceeds being remitted at once, with the securities received for sales made on credit, to the home office of the corporation, it was held not to be doing business in this state within the meaning of the statute. People ex rel. The Parker Mills V. Commissioners of Taxes, 23 N. Y. 242. Where the business of a foreign corporation carried on in this state is intended by it to be a per- manent and continuous business, including both the manufacture and the sale of goods, the value of its merchandise at the place designated by it as its principal place of business in this state is properly assessed for taxation, under the above section of the Tax Law as being invested in its business in this state, although the business conducted at that place consists wholly of selling, and while a portion of the goods held there for sale was manufactured Taxable Peopeety and Place of Taxation. 343 Tax Law, § 8. § II. Place of taxation of personal property of residents; state board of tax commissioners may determine place. Every person shall be taxed in the tax district where he resides when the assessment for taxation is made, for all personal prop- by the corporation within this state, a large portion was manufactured at the corporation's domicile in another state, to which the proceeds of sales are remitted. People ex rel. Armstrong Cork Co. v. Barker, 157 N. Y. 159 : 51 N. E. 1043. The value of notes and open accounts owing to the corporation for mer- chandise sold by it in the transaction of its business in this state, is prop- erly included in the assessment. Idem.; see, also. People ex rel. Crane Co. V. Feitner, 49 App. Div. 108; 62 N. Y. Supp. 1107; People ex rel. Yellow Pine Go. V. Barker, 23 App. Div. 524; 48 N. Y. Supp. 553; aflfd., 155 N. Y. 665. The section has no application to goods stored here for sale, the proceeds of which are to be remitted to the foreign principal. People ex rel. Sherwin- Williams Go. V. Barker, 5 App. Div. 246; 39 N. Y. Supp. 151; affd., 140 N. Y. 623. It is not suflBcient that a person is doing business in this state as an agent, although solely with the property of his principal. To justify an assessment under the above section it is indispensable that the person assessed shall in fact have money invested in the business carried on by him in this state, either as sole principal or as partner. McLean u. -lepson, 123 N. Y. 142; 25 N. E. 409. The money value of the privilege enjoyed by a non-resident of the state of New York, as a member of the New York Stock Exchange, is capital invested in business in this state, but it is not taxable as personal property as against a non-resident. People ex rel. Lemmon v. Feitner, 167 N. Y. 1. Place and manner of asiesament. A foreign corporation doing busi- ness in this state, and having a principal office here, is taxable for moneys invested in such business, as the personal estate of a domestic corporation is taxed, in the town or ward of such office and the assessment at such place must be exclusive, and embrace all its personal property liable to taxation within this state. An assessment of personal property of a foreign corpora- tion in the possession of an agent in a town, other than that where such office is situated, by the assessors of that town is void. People ex rel. Bay State, etc.. Go. v. McLean, 80 N. Y. 254. Moneys in the hands of a resident partner, belonging to a firm whose principal place of business was in a foreign country, but which transacted business here, are subject to taxation, though the business here consisted of purchasing products for sale abroad, and the moneys were here only for that purpose. Matter of McMahon, 66 How. Pr. 190. Deduction for debts. In the case of People ex rel. Thurher-Whyland Co. V. Barker, 141 N. Y. 118; 35 N. E. 1073, the court said: "We are of the opinion that this act (the above section) does not contemplate the deduction of debts from the sums invested in this state by non-residents. As the person is a non-resident, it is to be assumed that he will, at the place of his domicile, have all of what might be termed his equities adjusted, and that if entitled to it anywhere, it will be at such domicile that he will claim and be allowed the right to have such deduction. In using the expression ' the 344 Taxation. Tax Law, § 8. erty owned by him, or under his control as agemt, trustee, guardian, executor or administrator/' Where taxable personal property is in the possession or under the control of two or more agents, trus- tees, guardians, executors or administrators residing in differeait tax districts, each shall be taxed for an equal portion of the value same as if they were residents of this state,' we do not think it was intended that exceptions were to be allowed here the same as if the party were a resi- dent, or that deductions from the sum thus invested should be made as if that were the case. It meant, at it seems to us, that the sum invested in any manner in business in this state should be assessed in the same manner and form as a resident would be assessed." But where a foreign corpora- tion, doing business in this state, has purchased property in this state for its business and pays cash for a portion of it and promises to pay the balance at a future time, the amount due upon the property is to be deducted in ascertaining the sums invested in this state. People eec rel. Milling Co. v. Bcurker, 147 N. Y. 31; 41 N. E. 435; see, also. People ex rel. Bird v. Barker, 145 N. Y. 239 ; 39 N. E. 1065. In the case of People em rel. Ba/rney v. Barker, 36 App. Div. 486; 54 N. Y. Supp. 848, it was held that a non-resident having capital invested in a firm doing business in this state, is not entitled to have deducted the amount of his indebtedness to residents unless it appears that he has no personal property out of the state to pay such indebtedness. 25. 'Wbat constitutes residence. For the purpose of assessment for personal property the residence of the taxpayer will be presumed to con- tinue to be where it has been previously shown to be until a change is affirma- tively shown. Matter of Nicholls, 54 N. Y. 62. The presumption that when a man has acquired a residence in a tax district, such residence continues for the purpose of taxation until another residence shall have been acquired, can be overcome only by affirmative and satisfactory evidence that such place of business has been abandoned by the party assessed. People ex rel. Blocker v. Groioley, 21 App. Div. 304; 47 N. Y. Supp. 457; see, also. Pad- dock V. Lewis, 59 App. Div. 130; 69 N. Y. Supp. 1. The declaration of an intention not to return to a domicile or to, longer reside in such place is not sufficient to effect a change. People ex rel. Rosa v. Streeter, 24 Wk. Dig. 95; aflfd., 103 N. Y. 652. Where a person resides in New York city during the winter months and has his place of business in such city, he should be taxed there, although he resides elsewhere during the summer months. Bartlett v. Mayor, etc., of New York, 5 Sandf. 44; see, also, Douglass v. Mayor, etc., of New York, 2 Duer, 110. But in the case of People ex rel. Lorillard v. Parker, 70 Hun, 379; 24 N. Y. Supp. 63, where it appeared that the relator lived in a hired house in the city of New York during the winter, but lived during the rest of the year in a house owned by him without the city, where he voted and was taxed, and that he was not engaged in business in New York city, it was held that he was not a resident of New York city and was not liable there for a tax upon his personal property. If a person has two residences, the place where his family lives, where he stays the greater part of his time, where he votes and is assessed for personal taxes is his place of residence Taxable Peopeety and Place of Taxation. 345 Tax Law, § 8. of such property so held by them." Rents reserved in any lease in fee or for one or more lives or for a term more than twenty-one years and chargeable upon real property within the state, shall be taxable to the person entitled to receive the same, as personal property in the tax district, where such real property is situated, and for the purpose of the taxation thereof such person is to be deemed a resident of such tax district. When a person shall have acquired a residence in a tax district, and shall have been taxed therein, such residence shall be presumed to continue for the pur- pose of taxation until he shall have acquired another residence in this state or shall have removed from this state. The residence of a person on July first shall be deemed his residence for the purpose of assessment and taxation during that year. If he shall have actually and in good faith changed his residence after July first, and before Avigust first in any year, from one tax district for the purpose of taxation. People ex rel. Lawrence v. Barker, 44 St. Rep. 695, 17 N. Y. Supp. 788; see, also. People ex rcl. Blocker u. Crowlry, 21 App. Div. 304, 47 N. Y. Supp. 457. Where one's principal place of business is in tt city and he resides there part of the time and part of the time on a farm in another town, he is properly taxable for his personal property in the city ward in which he resides. Bowe v. Jenkins, 69 Hun, 458, 23 N. Y. Supp. 548; see, also, People ex rel. Oilbert v. Moore, 52 Hun, 13, 4 N. Y. Supp. 778. Residence at the time \rhen assessment is made. The above section provides that the residence of a person on July first shall be deemed his resi- dence for the purpose of assessment and taxation during that year. In the case of Bell u. Pierce, 51 N. Y. 12, it appeared that the plaintiiT during the whole of the year preceding June 20, resided in his own house in Buffalo, where his only business was transacted. He also owned a house in West Seneca, where he passed the summers with his family, attending meantime to his business in Buffalo, and staying there occasionally over night. The assessors of West Seneca assessed him upon his personal property and the tax was collected. After the statutory notice no objection was made to the regularity of the assessment, and the assessors were not aware that the plain- tiff claimed another residence until the delivery of the assessment roll to the supervisor. It was held that since the plaintiff resided in West Seneca on July first, the assessors had jurisdiction to assess him there, and were not liable in damages for their so doing. The words "when assessment is made'' relate to the binding and conclusive act of the assessors which designates the taxpayers and the amount of taxable property held by each. This time must be the first day of July, the assessors being required to complete their preparatory inquiries in May and June. Mygatt v. Washburn, 15 N. Y. 316. Residence by an owner of property in a town during June, July and August, gives the assessors jurisdiction for the purpose of assessment. Boyd v. Gray, 34 How. Pr. 323. 26. Assessment of trustees, executor, etc. The above section docs not authorize the assessment of a tax upon personal securities belouTing to 346 Taxation. Tax Law, § 8. to another, and shall make proof to the assessors at or before their last meeting for the correction of the assossmentrroU of such change of residence and that he is assessed in the tax district to ■which he has removed, his name and the assessment of his per- sonal property shall be stricken from the assessment- roll of the tax district where he resided on July first. In case of any con- troversy as to the proper place of taxation within the state of any person, his residence for purposes of taxation may be determined by the state board of tax commissioners, subject to review by the court. [Tax Law (L. 1896, ch. 908), § 8; Heydecher's Gen. L. {2d ed.), p. 1856.] trustees, two of whom reside within this state, while the third v?ho has pos- session of the securities resides without the state, and the beneficiaries are also non-residents. People ex rel. Darrow v. Coleman, 119 N. Y. 137; 23 N. E. 488. But in the case of People ex rel. Campbell v. Commissioners of Taxes, 38 Hun, 536, it was held that the personal estate of the testator whose will was admitted to probate in New York city is taxable there although one of the executors who has actual possession and control of the property resides in another state, the other executors being residents of, though temporarily absent from, New York. See, also, People ex rel. Neustadt v. Coleman, 42 Hun, 581. Upon a proceeding against administrators to collect a tax assessed upon them as such, it appeared that the intestate, who had been a resident of another state died there, leaving personal property and debts here, and that, pending proceedings before the surrogate, the assessment had been made upon the valuation of the whole personalty without deducting the indebtedness. It was held that the assessment was properly made and that it was no de- fense that the administrators did not know of the assessment. In this pro- ceeding the valuation could not be questioned and there was no ground for legal or equitable interference in behalf of the administrators. Matter of MoMahon, 67 How. Pr. 113. Under the statutes relating to the city of Albany, an assessment of per- sonal property of an estate in the single name of one executor "and others'" is sufficient and its subsequent amendment in the official revision by insert- ing the names of the four executors and correcting the amount assessed is regular. People ex rel. McHarg v. Oaus, 169 N. Y. 19; 61 N. E. 987. An assessment for personal property, levied in the city of New York, against a trustee who was a resident of the state of New York, but not of the city of New York, is void for want of jurisdiction, and it is not necessary for the trustee to apply on review day to have the assessment cancelled. Dale v. City of New'york, 71 App. Div. 227; 75 N. Y. Supp. 576. See, also, People ex rel. Kellogg v. Wells, 1S2 N. Y. 314; People ex rel. Moller v. O'Donnell, 183 N. Y. 9. *> Personal property held by trustees jointly. Where taxable personal property ia held by two or more trustees jointly, each trustee must be as- sessed in the tax district in which he resides for his proportionate share of such trust estate, and where taxable personal property is held by three trustees^ two of whom are residents and the other a non-resident of the state. Taxa-blb Peopeety and Place of Taxation. 347 Tax Law, § 9. § 12. Place of taxation of real property; non-resident and un- occupied lands. When real property is owned by a resident of a tax district in ■which it is situated, it shall be assessed to him." When real prop- erty is owned by a resident outside the tax district where it is situated, and is occupied, and the occupant is a resident of the tax district, it shall be assessed to either the owner or occupant." If the occupant resides out of the tax district or if the land is un- occupied, it shall be assessed as nonresident, as hereinafter pro- vided by article two. In all cases the assessment shall be deemed as against the real property itself, and the property itself shall be each resident trustee should be assessed for one-third of all of the taxable property of the trust estate. People ex rel. Beaman v. Feitner, 1G8 N. Y. 360. 27. JnriBdiction of assessors. The only fact necessary to give asses- sors jurisdiction as to real estate is that it be situated within the assessor's town or ward. In making an assessment upon such land they have jurisdic- tion of the subject matter, and while an error committed by them may be subject to review, it will not make their proceedings void. Van Rensselaer v. Cottrell, 7 Barb. 127. In the case of Tebo v. City of Brooklyn, 134 N. Y 341; 31 N. E. 984, a lot of land under water with a pier upon it extending from the city of Brooklyn beyond low water mark, the boundary line between New York and Kings counties, was held properly taxable in Brooklyn where the owner resided. Assessment of railroad lands. The lands of railroad companies are to be assessed the same as those of residents in the towns in which they lie and not as non-resident lands. People ex rel. Dunkirk, etc., R. R. Go. v. Caa- sity, 46 N. Y. 46. A railroad corporation is, for the purpose of taxation of its real estate, a resident of each town through which it passes, and is prop- erly assessed in personam therefor. People ex rel. Buffalo d State Line R. R. Co. V. Supervisors of Erie, 48 N. Y. 93. 28. Assessment to occupant. When lands of a non-resident of a county are occupied by a resident of a town where they are situated they must be assessed to the occupant. An assessment of them as non-resident is void. Btevxirt v. Crisler, 100 N. Y. 378; Joslyn v. Rockwell, 128 N. Y. 334; 28 N. K. 604. An assessment to a person who is neither owner nor occupant of the land is void. Whitney v. Thomas, 23 N. Y. 281. When real property is as- sessed to the owner the name of the owner must be inserted in the roll ; when assessed to the occupant, the name of the occupant should appear. Where real estate was assessed in the name of one not the owner adding the words "or occupant," it was held that the roll was fatally defective and would not support process against property in the possession of the occupant. Dubois V. Webster,, 7 Hun, 371. The assessors are not authorized to name in their rolls the actual or supposed non-resident owners of lands. The lands are to be assessed, not the owners. New York & Harlem R. R. Co. v. Lyon, 16 Barb. 651. An assessment against the husband of the owner of a house and not living with her therein is void, he being neither owner nor occupant. Loomis V. Semper, 38 Misc. 567; 78 N. Y. Supp. 74. 348 Taxation. Tax Law, § 10. holden and liable to sale for any tax levied upon it." [Tax Law (L. 1896, ch. 908), § 9, as amended by L. 1902, ch. 171; Hey- decker's Gen. L. {2d ed.), p. 1857.J § 13. Taxation of real property divided by line of tax district; when owners may sleet in which district property shall be taxed. If a farm or lot is divided by a line betw^een two or more tax districts it shall be assessed in the tax district in vi^hich the dwell- ing-house or other principal buildings are located, in the manner provided by section nine of this chapter, the same as though such farm or lot was wholly in such tax district, except that if the land is unoccupied or has not buildings thereupon, the portion of such farm, lot or tract of land lying in each district shall be separately assessed therein. If such land is situated in two or more counties and is wild and uncultivated and not occupied and used for agri- cultural purposes, the portions of such land lying in each county shall be separately assessed therein. If the boundary line of a tax district passes through a building, any portion of which is used as a dwelling, the owner of such building, if occupying the same or residing in either tax district, and otherwise, the person occupying such building as a dwelling-house, may elect in which district such building and the adjacent land, owned, occupied and connected therewith shall be assessed, by serving a written notice of such election on the assessors of each tax district during the month of May; but if such election is not made, the property shall be assessed in the tax districts in which it is located.'" [Tax 29. Assessment of unoccupied lands as non-resident. Article 2 of the Tax L/aw referred to in the above section is made the subject of the following chapter of this work. The terms "unoccupied" and "non-resident" as applied to lands within the meaning of the tax laws, are not synonymous. Lands, although occupied, may be assessed as non-resident lands, while unoc- cupied lands may be assessed as resident. People ex rel. Vander Veer v. Wil- son, 125 N. Y. 367; 26 N. E. 454. Non-resident lands are unoccupied lands not owned by a person residing in the town or ward in which such lands are situated. Eampton v. Hampsher, 46 Hun, 147. 30. Taxation of lands in more than one tax district. ^^^le^e a farm lies in two towns the owner can only be assessed in the one in which he resides. If it is assessed by the assessors of the town in which the owner does not reside, the assessment and tax founded thereon are illegal and void, and the assessors are personally liable for damages resulting therefrom. Dorn V. Backei-, 61 N. Y. 261. The decision of the assessors upon the ques- tion of the residence is not conclusive; so where the plaintiff in an action lived on land lying in two towns, the dwelling house being on the town line, and he voted and had held office in one, it was held that a finding that hi* Taxa-ble Peopeety and Place of Taxation. 349 Tax Law, § 11. Law (L. 1896, ch. 908), § 10, as amended hy L. 1898, ch. 537, L. 1902, ch. 200, and L. 1903, ch. 305; Heydecker's Gen. L. (2d ed.), p. 1857. J § 14. Corporations ; place of taxation ; personal property to be taxed where principal office is located; taxation of toll bridges and turnpikes. The real estate of all incorporated companies liable to taxation, shall be assessed in the tax district in which the same shall lie, in the same manner as the real estate of individuals. All the per- sonal estate of every incorporated company liable to taxation on its capital shall be assessed in the tax district where the principal office or place for transacting the financial concerns of the company shall be, or if such company have no principal office, or place for land was not assessable in the other would not be disturbed. Gordon v. Becker, 71 Hun, 282; 24 N. Y. Supp. 1,018. Where the owner of a farm a portion of which is situated in each of two adjoining towns ( there being no residence upon the farm in question ) , re- sides with his father upon an adjacent farm owned by the latter, and wholly situated within one of such towns, and works both farms jointly with his father, the farm divided by the town line is all of it properly assessed in the town in which the owner resides. People ex rel. Dickson v. Oaylord, 52 Hun, 335; 5 N. Y. Supp. 348. Where the owner of a farm of ninety acres lived on a portion consisting of fifteen acres in one school district, and his employe lived on the other part in another district, it was held that for school pur- poses the whole was taxable in the district in which the owner lived. Budd V. Allen, 69 Hun, 535; 24 N. Y. Supp. 5. Effect of general lair upon special act. Special acts have been passed from time to time providing for the payment by taxation of town bonds issued for the construction of railroads. For instance, in chapter 152 of L. 1882, sec. 25, as amended by ch. 21 of L. 1883, it is provided that all real property within the corporate limits of a town assessed or liable to be as- sessed upon the assessment roll of such town at the time of issuing bonds by said town pursuant to this act, and all acts amendatory thereof, shall continue to be assessed and assessable for all purposes whatsoever in said town until said bonds or any renewals thereof are fully paid; and if the owner of such real property does not reside within said town, then such real property shall be assessed as non-resident land or to any occupant of said real property actually residing within said town. This statute was under con- sideration in the case of Oasterton v. Town of Vienna, 163 N Y. 268; 57 N. E. 622, and it was held that the general law did not supersede the provisions of the special act and that under such a statute a change made in the resi- dence of the owner of a farm situated partly in two towns from the portion of the farm in one town to that in the other would not withdraw from taxa- tion the portion of his farm within the town from which he moved. See, alao, Wilcox V. Baker, 22 App. Div. 299; 47 N. Y. Supp. 900. 350 Taxation. Tax Law, § 12. transacting its financial concerns, then in the tax district where the operations of such company shall be carried on." In the case of toll bridges, the company owning such bridge shall be assessed in the tax district in which the tolls are collected ; and where the tolls of any bridge, turnpike, or canal company are collected in several tax districts, the company shall be assessed in the tax dis- trict in which the treasurer or other officer authorized to pay the last preceding dividend resides. [Tax Law (L. 1896, ch. 908), § 11; Heydecker's Gen. L. (2d ed.), p. 1858.] § 15. Taxation of corporate stock of corporations. The capital stock*" of every company liable to taxation, except such part of it as shall have been excepted in the assessment-roll 31. Place of taxation of personal property of corporation. Under section 202 of the Tax Law the personal property of every corporation, com- pany, association or partnership taxable under article 9 of the Tax Law, other than for the organization tax, are exempt from assessment and taxa- tion upon its personal property for state purposes. Trust companies which are taxable under section 187a of the Tax Law upon their capital stock sur- plus and undivided profits are exempt from assessment and taxation for all other purposes. The certificate of incorporation naming the place where the principal office of the corporation is located is conclusive as to its location for the purpose of taxation. Western Trans. Co. v. Scheu, 19 N. Y. 408. See, also. Union Steam- boat Co. V. City of Buffalo, 82 N Y. 351; Chesebrough Mfg. Co. v. Coleman, 44 Hun, 545 ; People ex rel. Knickerbocker-Press v. Barker, 87 Hun, 341 ; 34 N. Y. Supp. 269; People ex rel. Gen. Electric Go. v. Parker, 91 Hun, 590; 36 N. Y. Supp. 844. In the case of Austin v. Hudson River Telephone Co., 73 Hun, 96; 25 N. Y. Supp. 916, it was held that, where the act under which a corporation was organized did not require that the article should state where the principal oflBce of the corporation should be established, the statement that it was to be in a certain place was not conclusive, but its actual principal place of busi- ness would determine its residence. Where the principal office is stated by a corporation to be at a certain place in a sworn statement of an officer filed in the office of the assessor, the corporation is estopped from claiming that the place of business for the purpose of taxation is at some other place. Matter of McLean, 138 N. Y. 158; 33 N. E. 821. 32. Capital stock. The words " capital stock " in the statute refer to the capital of the company and not the shares of the stockholder. People ex rOl. Union Trust Co. v. Coleman, 126 N. Y. 433; 27 N. E. 818. In taxing corporations, therefore, under the above section the subject of valuation and assessment is never the share stock, but always the company's capital and surplus which should be assessed at its actual value when that is known or can be ascertained The court, in the case last cited, in considering this ques- tion discussed elaborately the relative significance of the capital stock of the Taxable Peopeety and Place of Taxation. 351" Tax Law, § 12. or shall be exempt by law, togetiher with its soirplus profits or re- serve funds exceeding ten per centum of its capital," after deduct- ing the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under the laws of this state, shall be assessed at its actual value." [Tax Law {L. 1896, ch. 908), § 12 ; Heydecker's Gen. L. (2d ed.), p. 1858.] company and the capital stock which is held in shares by the corporators. It was said: "The two things are neither identical nor equivalent. The capital stock of a company is one thing; that of the stockholders is another and a different thing. That of the company is simply its capital, existing in money or property, or both; while that of the shareholders is representa- tive, not merely of that existing and tangible capital, but also of surplus, of dividend earning power, of franchise and the good will of an established and prosperous business." See, also, People ex rel. Johnson Co. v. Roberts, 159 N. Y. 70; 53 N. E. 685; People ex rel. Wielusch, etc., Co. v. Roberts, 154 N. Y. 101; 47 N. E. 980; People ex rel. Singer Mfg. Co. v. Wemple, 150 N. Y. 46; 44 N. E. 787; People ex rel. Jewelers Publishing Co. v. Roberts, 155 N. Y. 1; 4; 49 N. E. 248 Capital stock of railroad corporation. The capital stock of a rail- road corporation which is not invested in its railways, or other real estate, is to be taxed as personal property, in the town or ward where the principal office or place for transacting the financial concerns of the company is situ- ated. Mohawk & B. R. R. Co. v. Clute, 4 Paige, 384. In fixing the value of » lease of railroad property for the purpose of assessing the capital stock and surplus of the lessee corporation, the assessors have the right to con- sider the nature of the estate granted to the lessee corporation, its duration and the profits, if any, realized from operating the leased property, but should deduct therefrom the value of the leased franchise, as the lease of the fran- chise is taxable under another statute. People ex rel. D. & B. Go. v. Feitner, 61 App. Div. 129. 33. Section constmed a« to exception and snrplns profit*. In speaking of the provisions of this section Judge Earl said in the case of Peo- ple ex rel. 23d St. R. R. Co. v. Commissioners of Taxes, 95 N. Y. 554, 557: "There is a most extraordinary confusion of ideas in this section. What is meant by the clause, 'except such part of it (capital stock), as shall have been excepted in the assessment roll?' I know of no law which authorizes any such exception to be made in the roll. Then the section, literally read, requires that the actual valuation shall be placed both upon the capital and the surplus, and yet the surplus is always included in and goes to make up the actual value of the capital. Notwithstanding the language, it could not have been intended that capital should be assessed at its actual value, and that in addition thereto the surplus, less the ten per cent., should also be in- cluded in the assessment at its actual value, thus making a double assess- ment of surplus." 34. Valuation, how aicertained. The capital stock should be assessed at its real, as distinguished from its nominal value. The par value of the 352 Taxatioit. Tax Law, § 13. § 1 6. Stockholders of bank taxable on shares. The stockholders of every bank or banking association organ- ized under the authority of this state, or of the United States, shall be assessed and taxed on the value of their shares of stock therein ; said shares shall be included in the valuation of the shares of stock is not material in determining the actual value of the capital stock. Oswego Starch Factory v. Dollotmy, 21 N. Y. 449. The value may be ascertained from other sources as in valuing real estate. People ex rel. Pacific Mail S. S. Co. v. Commissioners of Taxes, 46 How. Pr. 315. If the capital of a corporation Is of no value because of the fact that its indebtedness exceeds its assets, it should not be assessed. People ex rel. West Side and Yonkers R. R. Go. v. Commissioners of Taxes, 31 Hun, 32. An assessment of a corporation based upon the market value of its shares is erroneous since it is the corporate assets that is the subject of taxation. People ex rel. Bleecker St., etc., R. R. Co. v. Barker, 85 Hun, 210; 32 N. Y. Supp. 990. But where the value of the assets of a corporation cannot, owing to conflict- ing and insufficient data, be definitely ascertained, the proper way to estab- lish a valuation, for the purposes of taxation, is to deduct the assessed value of its real estate from the market value of its stock. People ex rel. Malcolm Brewing Co. v. Neff, 19 App. Div. 596; 46 N. Y. Supp. 299. In this case it was also held that while the good will of the business of a corporation is not taxable no deduction from the actual value of the capital of the corpora- tion should be made therefor where the facts show that there is no good will of any value which enters into the market value of the shares of stock. The method of ascertaining the actual value is left to the judgment of the assessors and they have a right to resort to any and all of the tests and meas- ures of value which are ordinarily adopted for business purposes in estimat- ing values. Where the assessors have so exercised their judgment it is sub- ject to no review or correction except as prescribed by law. People ex rel. Knickerbocker Fire Insurance Co. v. Coleman, 107 N. Y. 541. Deduction on account of real estate. In assessing the capital stock of a corporation, the assessors are to ascertain the present value thereof, and from this are to deduct the assessed value of the real estate, and the fact that the whole capital was originally invested in real estate does not pre- clude them from so doing. People ex rel. Butchers, etc., Co. v. Asten, 100 N. Y. 597. The rule of taxation as to corporations when based upon the amount of capital paid in, is, after deducting the amount paid out for real estate from the capital, to assess the remaining capital at its actual value, leaving the real estate to be assessed like that of individuals in the town or ward where it is situated. People ex rel. Citizens' Gas Light Co. v. Assessors, 39 N. Y. 81 ; People ex rel. American Linen Thread Co. v. Assessors, 6 Lans. 105. If the real estate is situated in a town or ward within the state its assessed valuation may without difficulty be ascertained from the proper as- sessment rolls. But if the real property is situated in another state or country its assessed valuation may not be easily ascertained. In such cases or in any other case where the assessed valuation cannot be ascertained, the price paid for the real property, in the absence of proof or of any other stand- ard may be taken as the assessable value. People ex rel. 23d St. R. R. Co. v. Taxable Peopeety and Place of Taxation. 353 Tax Law, § 13. personal property of such stoddiolders in the assees.ment of taxes in the tax district where such bank or banking association is lo- cated, and not elsewhere, whether the said stockholders reside in said tax district or not."' [Tax Law (L. 1896, ch. 908), § 13; Heydecker's Gen. L. (2d ed.), p. 1859.] Commissioners of Taxes, 95 N. Y. 554. See, also. People ex rel. Van Ness v. Commissioners of Taxes, 80 N. Y. 573. The refusal of commissionera in taxing the capital of a bank to deduct anything for a building erected by it upon leased land is erroneous since the property of a bank in the building is itiil estate and taxable as such. But to entitle a corporation to the deduc- tion of the value of its real estate from that of its capital, the real estate must have been paid for out of its capital. People ex rel. Van Ness v. Com- missioners of Taxes, supra. In the case of Eden Musee v. Feiiner, 60 App. Div. 282 ; 70 N. Y. Supp. 120, it was held that when assessing the capital stock and surplus of a corporation whose chief estate is a building erected on leased ground, the commissioners may properly estimate the building at its actual value, and then add the value of the personal property belonging to the corporation, and from this amount deduct the assessed value of the building. In determining the value of the building the actual cost of the erection thereof may be considered 35. Effect of assessment of bank shares under section 24 of tlie Tax Xiaxr. Section 24 of the Tax Law provides a complete scheme for the assessment for taxation of bank shares and in effect supersedes the pro- visions of the above section. Such section 24 requires the bank to pay a fixed tax of one per centum upon the value of the shares of stock as ascer- tained by adding together the amount of the capital stock, surplus and un- divided profits of the bank, and by dividing the result by the number of out- standing shares of such bank. The decisions under such section will be con- sidered hereafter. See Tax Law, sec. 24, post, p. 363. Taxation of shares of national bank. By section 5219, U. S. Revised Statutes, the state is authorized to direct the manner of taxing shares of national bank stock held by taxpayers. The shares of national bank stock are subject to taxation under the laws of the state, though such tax must not be at a greater rate than upon other moneyed capital in the hands of individuals, nor must such tax exceed the rate imposed upon the shares of any of the banks organized under the au- thority of the state. People ex rel. Kennedy v. Commissioners of Taxes, 35 N. Y. 423. National bank shares can be assessed above par. No unjust dis- crimination against national banks arises from the fact that the state banks can divide up all their surplus while national banks are required to accumu- late a surplus. People ex rel. Gallatin Nat. Bank v. Commissioners of Taxes, 67 N. Y. 516. The restriction in the U. S. Revised Statutes, sec. 5,219, as to taxation of shares of stock in national banks, is equality of assessment with other moneyed capital, not with other property generally. Talbott v. Silver Bow County, 139 U. S. 438; 11 Sup. Ct. 594; Davenport Nat. Bank v. Board of Equalization, 123 U. S. 83; 8 Sup. Ct. 73. 354: Taxation. Tax Law, § 14. § 17. Place of taxation of individual bank capital. Every individual banker shall be taxable upon the amount of capital in- vested in his banking business in the tax district vifhere the place of such business is located, and shall, for that purpose, be deemed a resident of such tax district.36 ITaaa Law (I/. 1896, oh. 908), § 14; Heydecker's Gen. L. {2d ed.), p. 1859.] § 18. Report of exempt property by assessors. It shall be the duty of the board of assessors of the several towns of this state, and the boards or officials charged with the duty of assessing property for the purposes of taxation in the several cities of the state, to furnish to the clerks of the boards of supervisors of their respective counties, or in the case of the city of New York, to the city clerk of that city, on or before the first day of July in each year, a full and complete list and statement of all prop- erty situated within their respective districts exempt from taxation under the laws of this state. Such list and statement shall be mads on blanks furnished by the state board of tax commissioners, and in such form and to contain and set forth all the information relative to such property and the situation and value thereof, as may be required by the state board of tax commissioners, and to be verified in the same manner as assessments of property for the pur- poses of taxation and in the city of New York by the chief deputy of the department of taxes and assessments. The state board of tax commissioners shall prepare and transmit to the clerk of the board of supervisors in each county and to the city clerk of the city of New York, a sufficient number of such blanks, on or before the first day of May in each year, and the clerks of the boards of supervisors and the city "clerk of the city of New York shall forthwith, upon the receipt thereof, distribute the same among the boards of assessors for use in preparing the statement herein required. And it shall be the duty of the clerk of the board of supervisors of each county and of the city clerk of the city of New York, to transmit such completed lists or state- ments to the state board of tax commissioners, on or before the first day of August in each year, and the state board of tax commissioners shall tabulate such statements, and on or before the first day of February in each year, cause to be published in their annual report to the legislature, a, complete tabulated statement, based upon the statement so transmitted to the state board of tax commissioners, of all real estate in the several counties of the state, which is exempt from taxation. Immediately upon the receipt of the completed reports by the various clerks of the board of supervisors, and the city clerk of the city of New York, those officials shall prepare a tabulated statement of the returns received and shall post a copy thereof in a con- spicuous place, and in all cities of the state cause a copy thereof to be pub- lished in tlie official paper or papers of said city at least once in each week for three successive weeks. The expense of such publication shall be a city charge and shall be audited and paid in the same manner as charges for other city notices are audited and paid. [Tax Law [L. 1896, ch. 908) , § 15, as added by L. 1904, eft. 438.] The rule and test of discrimination is to be found in the nature of the business in which the corporation is engaged. The act simply prohibits tax- ation at a greater rate than like property similarly situated. Mercantile Bank V. City of Nc%v York, 121 U. S. 138; 7 Sup. Ct. 826. 36. Assessment of individual banker. Section 25 of the Tax Law, post, p. 367, provides the manner of making an assessment of an individual banker. Mode of Assessment. 355 Tax Law, § 20. CHAPTER XXV. MODE OF ASSESSMENT. Section 1. Division of tax district; ascertaining facts for assessment. 2. Assessment roll, how prepared. 3. Assessment of state lands in forest preserve; copy of assessment rool to be filed in offices of comptroller and board of fiaheries, game and forestry; approval of comptroller. 4. Banks to make reports; contents of report; penalty; lists of stockholders; forms prescribed by state tax commissioners. 5. Bank shares, how assessed; deductions. 6. Individual banker, how assessed. 7. Notice of assessment to bank or banking association. 8. Statement of corporations to assessors; contents; mandamus to compel report. 9. Penalty for omission of corporation to make statement; how recovered. 9a. County clerks to furnish data respecting corporations. 10. Real property of non-residents, how designated in assessment roll. 11. Surveys and maps of non-resident real property, to be made by supervisor; disposition of maps. 12. Corporations, how assessed on assessment roll. 13. Assessment of agent, trustee, guardian or executor. 14. Assessment roll, when to contain assessment of property omitted in preceding year. 15. Debts owing to non-residents of United States, how assessed. 16. Completion of assessment roll; notice of completion; contents. 17. Grievance day; statement of complaints; effect of failure to testify; minutes of examination to be filed. 18. Application to county court for apportionment of taxes and assessment; notice to assessors; collector to change assess- ment roll upon order of court. 19. Oath verifying assessment roll. 20. Assessment roll when completed and verified to be open to in- spection; notice thereof; roll to be delivered to supervisor. 21. Assessors to apportion valuation of railroad, telegraph, tele- phone, or pipe line companies between school districts. 22. Forms prescribed by tax commissioners; neglect or omission of duty by assessors; penalty. 23. Sub-division of lots may be abandoned; thereafter lots to be treated as a single tract. 24. Making false statement in reference to taxes. § I. Division of tax district; ascertaining facts for assessment. The assessors in each tax district may, by mutual agreement, divide it into convenient assessment districts not exceeding the number of such assessors. The assessors in each tax district shall 356 Taxation. Tax Law, § 20. annually between May first and July first, ascertain by diligent inquiry all the property and the names of all the persons taxable therein, eixcept that in towns containing an incorporated village having a population of more than ten thousand inhabitants ac- cording to the last state census the assessors may have from April fifteen until July firsit to ascertain the taxable property and names of persons taxable in such town, and except that in towns containing an incorporated city having a population of more than ten thousand inhabitants, according to the last state census, where said city so situated shall have its own separate board of assessors, the (own assessors may have from May first to July first to ascer- tain the taxable property and names of persons taxable in such 1. Majority of assessors must act. One assessor cannot make an assess- ment. It is the general act of all or a majority of the assessors which con- stitutes a valid assessment. An assessment made by one assessor without the concurrence of the others is irregular and void, and cannot be enforced. Met- calf V. Messenger, 46 Barb. 325; People ex rel. Mygatt v. Supervisors, UN. Y. 563; People ex rel. D. & E. 0. Co. u. Parker, 45 Hun, 432. Where an as- sessment is signed by two of three assessors it is prima facie evidence that the third acted with them. Doughty v. Hope, 3 Denio, 249, afifd. 1 N. Y. 79. An assessment is not shown to be illegal by proof that it was made up and notice thereof published by a majority of less than the full board of asses- sors. It must be proved that all were not present, or that the one absent did not have notice of the meeting, or that a vacancy occasioned by death had not been filled. Matter of Merriam, 84 N. Y. 596. Ascertalmnent of facts for assessment. The assessors may avail themselves of such information by inquiry and otherwise as they can obtain. If the party assessed claims that injustice has been done, he may file his afiidavit, which the assessors may afterwards examine. People ex rel. Thomp- son V. McComber, 7 N. Y. Supp. 71; 24 N. Y. St. Rep. 902. Where physical and tangible property visible to the assessors exists, of the character ordi- narily dealt in and whose value is a matter of common knowledge in the community, the assessors may assess it according to their own judgment without seeking other proof or sources of knowledge. In such a case the de- termination of the assessors will stand until affirmatively proved to be er- roneous. People ex re\ Trowbridge v. McNamara, 18 App. Div. 17 ; 45 N. Y. Supp. 458. The assessors are not concluded by opinions of witnesses as to the value of real or personal property unless it be the only evidence and they have no other information. People ex rel. Oswego Canal Co. v. City of Oswego, 5 Hun, 117. Tax assessors are not free to capriciously disregard the evidence and emancipate themselves from all restrictions and rules, however funda- mental; but they are not bound by statements that are contradicted and which they disbelieve where good reasons exist for such disbelief. People em rel. Mamhattan Railicay v. Barker, 146 N. Y. 304, 314; 40 N. E. 996. In determining the question of residence the assessors may act upon such facts as come to their notice, and where real property is situated partly in one town and partly in another the assessors act judicially in determining the place of residence of the owner for the purpose of taxation. Breton v. Smith, Mode of Assessment. 357 Tax Law, § 21. towng.^ [Tax Law (L. 1896, ch, 908), § 20, as amended hy L. 1900, ch. 512, L. 1902, ch. 324, and L. 1905, ch. 61 ; Heydeckers Gen. L. (2d ed.), p. 1859.J § 2. Assessment-roll, how prepared. They shall prepare an assessment-roll containing six separate columns, and shall, according to the best information in their power, set down: 24 Barb. 419. If a person taxed for personal property is an inhabitant of the town when the assessment is made, the assessors are clothed by statute with jurisdiction to inquire and determine whether he is taxable or not, and if the person has another residence and a principal business elsewhere, which should be deemed the site of his personal property for the purpose of taxation, be should inform the assessors. The assessors are not liable for an error in assessing him under such circumstances. Idem. See, also. Bell v. Pierce^, 51 N. Y. 12. Assessors act judicially in determining liability to assessment. Assessor? are quasi judicial officers; when acting within the sphere of their jurisdiction, and their assessments when made become judgments to be enforced by a war. rant in the nature of a special execution, to be issued by the supervisors of the county. The assessors are not subject to an action to review, modify, or reverse their judgments, nor to hold them to personal liability when act- ing within their jurisdiction. Western R. R. Go. v. Nolan, 48 N. Y. 513. See, also, Barhyte v. Shepherd, 35 N. Y. 238; Weaver v. Devendorf, 3 Denio, 117; Robinson v. Rowland, 26 Hun, 501; Vose v. Wili'.ard, 47 Barb. 320; Matter of Peek, 80 Hun, 122; 30 N. Y. Supp. 59. An erroneous assessment, overruling a claim of exemption, is not void; the assessors in deciding what property within the jurisdiction is taxable and what is exempt, act judicially. Foster V. Van Wyck, 2 Abb. Ct. App. Dec. 167. An action will not lie to set aside an erroneous assessment where the assessors have acted within their juris- diction and the assessment roll was in due form and attested according to law. The assessors acting in such instance judicially, their acts cannot be at- tacked collaterally, but the remedy provided by law for review must be fol- lowed. Brooklyn Elevated R. R. Co. v. City of Brooklyn, 11 App. Div. 127; 42 N. Y. Supp. 683. In determining the value of taxable property assessors act judicially. Weaver v. Devendorf, 3 Denio, 117. If the assessors err in determining the value of taxable property the error is a judicial one and can only be reviewed upon certiorari. Genesee Valley Nat. Bank v. Supervisors, 53 Barb. 223; Youmans v. Simmons, 7 Hun, 466; Williams v. Weaver, 75 N. Y. 30. Residence of the person assessed within the assessment district is essential to give jurisdiction to the assessors to make a valid assessment of personal property, and the fact that the board of assessors acts for the whole city and has jurisdiction of all the taxable inhabitants will not validate an assessment made in a wrong ward or render it irregular only. Wilcox v. City of Roches- ter, 129 N. Y. 247; 29 N. E. 99. Time of assesBineiit. The assessment must be made before the expira- 358 Taxatioit. Tax Law, § 21. 1. In the first column the names of all taxable persons in the tax district/ tion of the time prescribed in the above section. The assessors have no au- thority to make an assessment on grievance day or at any time after the first day of July in each year. Olarh v. 'Norton, 3 Lans. 484; 58 Barb. 434. This case was affirmed by the Court of Appeals ( 49 N. Y. 243, 246 ) , and the court said : " The law prescribes and regulates the duties of assessors, and defines and limits their powers with precision, and by an adherence to the statute the rights of the taxpayers are protected and secured. The assessors have the months of May and June within which to malje ine necessary inquiries and to ascertain the names of the taxable inhabitants in their respective towns and wards, and the property real and personal, within their jurisdiction liable to taxation; and to prepare an assessment roll containing the names of those liable to taxation, and the property to be taxed, with its value ar- ranged in columns, as directed by law. The assessment must be made by the first day of July, and of property and persons in respect to the liability as it exists on that day. The assessment roll must be completed and a, fair copy made and deposited for examination by those interested, on or before the first day of August. An individual not liable to taxation on the first day of July could not be placed upon the assessment roll after that time; neither could a. person whose name was properly on the assessment roll be assessed for property acquired by him after that day.'' See, also. People ex reil. Mygatt V. Supervisors of Chenango, 11 N. Y. 563; Mygatt v. Washburn, 15 N. Y. 316; Sexton V. Pepper, 28 Hun, 31; People ex rel. Coudert v. Commissioners of Taxes, 31 Hun, 235. Z. Names of taxable persons. Keasonable certainty is all that is required in preparing the list of names of taxable persons for an assessment roll. Van Voorhis v Budd, 39 Barb. 479. If the name of a taxpayer inserted in an assessment roll is the name by which he is generally known, he will be bound thereby, though the name is not his real one. Idem. The assessment against heirs of a deceased person without naming them is sufficient. Tillage of Sandy Hill v. Akin, 77 Hun, 537; 28 N. Y. Supp. 889. An assessment in the name of a lunatic with an addition of the name of the committee who had not yet been appointed, is a valid assessment. People ex ret. Trust Co. v. Barker, 59 N. Y. St. Rep. 741 ; affd. 137 N. Y. 631. In the case of Dubois v. Webster, 7 Hun, 371, the tax roll contained the name and description, "Foster, Joseph, or occupant." It appeared that Fos- ter did not own the property assessed. It was held that the words "or occu- pant" did not give the assessment any validity. The court said: "The occu- pant must be named or else the tax roll gives no information to the collector of whom he may require payment. When the statute provides that real estate may be assessed to the owner, the name of the owner must be inserted in the assessment roll. It is the same with the word 'occupant.' Any other rule would lead to great confusion, uncertainty and injustice." The assessment of a trust estate against the name of one of the trustees only, adding the name of the other and the words "executor and trustees," and making the name of thp trustee "Henry^' instead of "Harry P.," may be amended bv the assessors by striking out the word "executors" and correct- Mode of Assessment. 359 Tax Law, § 21. 2. In the second column the quantity of real property taxable to each person, with a statement thereof in such form as the com- missioners of taxes shall prescribe.' 3. In the third column the full value of such real property.* ing the name. People ex rel. Pike v. Barker, 86 Hun, 283; 33 N. Y. Su^p. 1,132. An assessment of executors of "the estate of Goodwin," when the tes- tator's name was '" Godwin," is not invalid. People ex rel. Mollcr v. O'Donnel, 106 App. Div. 526, 94 N. Y. Supp. 884. Aasessment of partner*. In the ease of People ex rel. Dufour v. Wells, ?2 N. Y. Supp. 866; 40 Misc. 553, an assessment was made against the firm of Dufour & Co., instead of against the partners as individ- uals. Judge Bischoflf said: "The statute requires that the assess- ment shall be made in such manner as to describe the ' person ' taxed, and the value of the property of that ' person,' after deducting all the debts owing by him. In no possible aspect is a, partnership a ' person,' nor is the aggregate property employed by the partners in the business property of a ' person,' nor is the firm's property the measure of each partner's interest for taxation. The property of each individual, lessened by his debts, is the tasis of the tax. The law so provides, for the benefit of the taxpayer, and a strict compliance with the terms of the law, in the manner of making the assessments is essential to the legality of the assessment. Unless the statute provides to the contrary an assessment for taxation of partnership property must be made in the names of the individuals composing the firm." 3. Description of lands. It was a sufficient description in an assess- ment roll to give the known name of a tract of land and the number of the town, range and lot therein. Coleman v. Shattuck, 62 N. Y. 348. Where an assessment was made against "the trustees of the First Congregational Church," and the property assessed was described as "parsonage" and the valuation was entered as $1,600, it was held that this description did not mislead the relators ; that the absence of the statement of the quantity of the land which it was intended to assess was not a source of any injury to the relators. People ex rel. Hutchinson v. O'Brien, 53 Hun, 580; 6 N. Y. Supp. 862. This case should not be deemed to authorize an omission to specify the tjuantity of land assessed where it is ascertainable. It would seem that the courts require a strict compliance with the statute as to the form and con- tents of the assessment roll. May v. Traphagen, 139 N. Y. 478; People ex rel. Supervisors v. Fowler, 55 N. Y. 252. The commissioners of taxes referred to in this sub-division are the state board of tax commissioners. It is made the duty of the state board to prepare forms for reports and assessment rolls and to furnish the same to assessors and other officers at the expense of the state. Tax Law, sec. 171, sub. 3, post, p. 407. An assessment in Long Island City in the form customary since the organ- ization of such city and which had been recognized by the legislature, was held valid, although it omitted to state the quantity of land as required by this section. Matter of Wood, 35 App. Div. 363 ; 54 N. Y. Supp. 978. 4. Valuation of real property. In determining the value of real estate the assessors are to be merely guided and not controlled by the evi- dence as to value produced by the owner of the property, and may use their own judgment. People ex rel. Trowhridge v. McNamara, 18 App. Div. 17; 45 N. Y. Supp. 456. In ascertaining the full value of business property its cost 360 Taxation. Tax Law, § 21. 4. In the fourtK column the full value of all the taxable personal property owned by each person respectively after deducting the just debts owing by him." 5. In the fifth column the value of taxable rents reserved and chargeable upon lands within the tax district, estimated at a prin- cipal sum, the interest of which, at the legal rate per annum, shall produce a sum equal to such annual rents, and if payable in any may be considered, but the more controlling consideration is its earning ca- pacity. People ex rel. Albany, etc., Bridge Co. v. Weaver, 34 Hun, 322; Peo- ple ex rel. Del., etc., Canal Go. v Roosa, 2 How. Pr. (U. S.), 479. Valuation of railroad lands. In determining the value of the real estate of a railroad for the purpose of taxation the estimation should include its original cost and the cost of present reproduction as well as its earning capacity. People ex rel. D. £ H. G. Go. v. Ganley, 8 N. Y. Supp. 563; affd. 131 N. Y. 566. The rule to be ordinarily applied in assessing the value of the real estate of a. railroad company for local taxation is the cost of replacing the portion of the road and appurtenances situated within the jurisdiction of the asses- sors in the condition in which they are found by the assessors at the time of making the assessment. In assessing such real estate it is erroneous to base the valuation of the portion of the railroad situated within a town upon the income or earning capacity of any other extensive system of which such por- tion of railroad forms a part. People ex rel. D. L. & W. R. R. Co. v. Clapp, 152 N. Y. 490; 46 N. E. 842. In the case of Albany & Schenectady R. R. Co. V. Osborne, 12 Barb. 223, it was held that the real estate of a railroad is to be valued in the same manner as the adjacent lands belonging to individuals, and without reference to the other parts of the railroad, without the town in which it is assessed, and irrespective of whether it is profitable to the stockholders or not. See, also, Albany & Tf. Stockbridge R. R. Co. v. Camaan, 16 Barb. 244; People ex rel Buffalo & State Line R. R. Co. v. Barker, 48 N. Y. 70. 5. Valuation of personal property. The assessors are liable for entering in an assessment roll an assessment of personal property belonging to persons who are not residents of the tax district. Darwin v. Strickland, 57 N. Y. 492; Uygatt u. Washburn, 15 N. Y. 316; People ex rel. Mygatt v. Supervisors of Chenango, 11 N. Y. 563. But they are not liable for an ex- cessive valuation of such property. Youmans v. Simmonds, 7 Hun, 466. Where evidence adduced before assessors as to personal property of a tax- payer stands uncontradicted, they cannot disregard it in fixing the assess- ment. People ex rel. Douglas v. Dykes, 19 N. Y. Supp. 78; 45 N. Y. St. Rep. 621. The omission of property liable to assessment for taxes from the roll does not invalidate it nor support an action by a person whose property is taxed upon it, to have the tax set aside as illegal, since the assessors act ju- dicially. Van Derventer v. Long Island City, 139 N. Y. 133; 34 N. E. 774. As to the deduction of debts, see People ex rel. Schaeffler v. Barker, 87 Hun, 194; 33 N. Y. Supp. 1,042; People ex rel. Luckemeyer v. Coleman, 16 N. Y. Supp. 330; 41 N. Y. St. Rep. 160. Mode of Assessment. 361 Tax Law, § 22. other thing except, money, the value of the rents in money to be ascertained by them and the value of each rent assessed separately, and if the name of the person entitled to receive the rent assessed cannot be ascertained by the assessors, it shall be assessed against the tenant in possession of the real property upon which the rents are chargeable. 6. In the sixth column the value of the special franchise as fixed by the state board of tax commissioners. 7. Such assessment-roll shall contain two additional columns, in one of which shall be inserted the amount of the tax levied against each person named therein, and in the other the date of the payment of such tax. [^Tax Law {L. 1896, ch. 908), § 21, as amended by L. 1899, ch. 712 ; sub. 7 inserted by L. 1901, ch. 159 ; Heydecker's Gen. L. (2d ed.), p. I860.] § 3. Assessment of state lands in forest preserve; copy of as- sessment-roll to be filed in offices of comptroller and board of fisheries, game and forestry; approval of comptroller. All wild or forest lands within the forest preserve shall be as- sessed and taxed at a like valuation and rate as similar lands of individuals within the counties where situated. On or before August first in every year the assessors of the town within which the lands so belonging to the state are situated shall file in the office of the comptroller and of the board of fisheries, game and forest, a copy of the assessment-roll of the town, which, in addition to the other matter now required by law, shall state and specify which and how much, if any, of the lands assessed are forest lands, and which and how much, if any, are lands belonging to the state; such statements and specifications to be verified by the oaths of a majority of the assessors. The comptroller shall thereupon and before the first day of September following, and after hearing the assessors and the board of fisheries, game and forest, if they or any of them so desire, correct or reduce any assessment of state lands which may be in his judgment an unfair proportion to the remaining assessment of land within the town, and shall in other respects approve the assessment and communicate such approval to the assessors. No such assessment of state lands shall be valid for any purpose until the amount of assessment is approved by the comptroller, and such approval attached to and deposited with the assessmentrroll of the town, and therewith delivered by the assess- ors of the tovsm to the supervisor thereof or other officer authorized 362 Taxation. Tax Law, § 23. to receive the same from the assessors. Ko tax for the erection of a schoolhouse or opening of a road shall be imposed upon the state lands unless such erection or opening shall have first been ap- proved in writing by the board of fisheries, game and forest. [Tax Law (L. 1896, ch. 908), § 22; Heydecker's Gen. L. (2d ed.), p. I860.] § 4. Banks to make reports; contents of report; penalty; lists of stockholders; forms prescribed by state tax commissioners. The chief fiscal officer of every bank or banking association, or- ganized under the authority of this state or of the United States, shall, oni or before the first day of July in each year, furnish the assessors of the tax district in which its principal office is located, a statement under oath of the condition of such bank or banking association on the first day of June next preceding, stating the amount of its authorized capital stock, the number of shares and the par value of the shares thereof, the amount of stock paid in, the amount of its surplus and of its undivided profits, if any, a complete list of the names and residences of its stockholders and the number of shares held by each.' In case of neglect or refusal on the part of any bank or banking association to report as herein prescribed, or to make other or further reports as may be required such bank or banking association shall forfeit the sum of one hundred dollars for each failure, and the additional sum of ten dollars for each day such failure continues, and an action therefor shall be prose- cuted by the county treasurer of the county in which such bank or banking association so neglecting or refusing to report, is lo- cated, and in the city of New York by the receiver of taxes thereof. There shall, in addition to such report, be kept in the office of every such bank or banking association a full and correct list of the names and residences of all stockholders therein, and of the num- ber of shares held by each, and such lists shall be subject to the inspection of the assessors at all times. The list of stockholders furnished by such bank or banking association shall be deemed to contain the names of the owners of such shares as are set. opposite them, respectively, for the purpose of assessment and taxation. [Tax Law (L. 1896, ch. 908), § 23, as amended by L. 1901, ch. 550; Heydecker's Gen. L. (2d ed.), p. 1861. J 6. For form of report to be made by bank to local assessors, see Fonu No. 31, post. Mode op Assessment. 363 Tax Law, § 24. § 5. Bank shares, how assessed; deductions. In assessing the shares of stock of banks or banking associations organized under the authority of this state or the United States, the assessment and taxation shall not be at a greater rate than is made or assessed upon other monied capital in the hands of indi- vidual citizens of this state. The value of each share of stock of each bank and banking association, except such as are in liquida- tion, shall be ascertained and fixed by adding together the amount of the capital stock, surplus, and undivided profits of such bank or banking association and by dividing the result by the number of outstanding shares of such bank or banking association. The value of each share of stock in each bank or banking association in liquidation shall be ascertained and fixed by dividing the actual assets of such bank or banking association by the number of out^ standing shares of such bank or banking association. The rate of tax upon the shares of stock of banks and banking associations shall be one per centum upon the value thereof, as ascertained and fixed in the manner hereinbefore provided, and the owners of the stock of banks and banking associations shall be entitled to no de- duction from the taxable value of their shares because of the per- sonal indebtedness of such owners, or for any other reason whatr soever.' Complaints in relation to the assessments of the shares of stock of banks and banking associations made under the provisions of this act shall be heard and determined as provided in article two, section thirty-six, of the Tax Law. The said tax shall be in lieu of all other taxes whatsoever for state, county or local pur- poses upon the said shares of stock, and mortgages, judgments and other choses in action and personal property held or owned by banks or banking associations, the value of which enters into the value of said shares of stock, shall also be exempt from all other state, county or local taxation. The tax herein imposed shall be levied in the following manner: The board of supervisors of the several counties shall, on or before the fifteenth day of December in each year, ascertain from an inspection of the assessmentrrolls in their respective counties, the number of shares of stock of banks and banking associations in each town, city, village, school and 7. Place of taxation of bank shares. Under section 13 of the Tax Law, ante, p. 352, the shares of bank stock are to be included in the assess- ment of taxes in the tax district where the bank or banking association is located and not elsewhere, whether the owners of such shares reside in such tax district or not. 364 TAZATioif. Tax Law, § 24. otiher tax district, in their several counties, respectively, in which such shares of stock are taxable, the names of the banks issuing the same, respectively, and the assessed value of such shares, aa ascertained in the manner provided in this act and entered upon the said assessmentrrolls, and shall forthwith mail to the presi- dent or cashier of each of said banks or banking associations a statement setting forth the amount of its capital stock, surplus and undivided profits, the number of outstanding shares thereof, the value of each shares of stock taxable in said county, as ascertained in the manner herein provided, and the aggregate amount of tax to be collected and paid by such bank and banking association, under the provisions of this act.' A certified copy of each of said statements shall be sent to the county treasurer. It shall be the duty of every bank or banking association to collect the tax due upon its shares of stock from the several owners of such shares, and to pay the same to the treasurer of the county wherein said bank or banking association is located, and in the city of New York to the receiver of taxes thereof on or before the thirty-first day of December in said year; and any bank or banking associa- tion failing to pay the said tax as herein provided shall be liable by way of penalty for the gross amount of the taxes due from all ovraers of the shares of stock, and for an additional amount of one hundred dollars for every day of delay in the payment of said tax. Every bank or banking association so paying the taxes due upon the shares of its stock shall have a lien on the shares of stock, and on all property of the several share ovsmers in its hands, or which may at any time come into its hands, for reimbursement of the taxes so paid on account of the several share holders, with legal interest ; and such lien may be enforced in any appropriate manner. The tax hereby imposed shall be distributed in the following manner : The board of supervisors of the several coun- ties shall ascertain the tax rat© of each of the several town, city, village, school and other tax districts in their counties respectively, in which the shares of stock of banks and banking associations shall be taxable, which tax rates shall include the proportion of state and county taxes levied in such districts, respectively, for the year for which the tax is imposed, and the proportion of the tax on bank stock to which each of said districts shall be respect- ively entitled shall be ascertained by taking such proportion of the 8. For form of statement to be made by supervisors to president or cashier of a bank, see Form No. 32, post. In determining the value of the shares of u banking corporation the assessing officers should include the value of the real estate owned by the corporation. Mailer of First Nat. Bank of Ot^rAnuig, 182 N. Y. 460. Mode of Assessment. 365 Tax Law, § 24. tax upon the shares of stock of banks and banking associations, taxable in such districts respectively, under the provisions of this act as the tax rate of such tax district shall bear to the aggregate tax rates of all the tax districts in which said shares of stock shall be taxable.' The clerk of the several cities, villages and school districts to which any portion of the tax on shares of stock of banks and banking associations is to be distributed under this act shall, in writing and under oath annually, report' to the board of supervisors of their respective counties, during the first week of the annual session of such board, the tax rate of such city, village and school district for the year prior to the meeting of each such board. The said board of supervisors shall issue their warrant or order to the 9. A county is not a tax district within the meaning of this section, and is not, therefore, entitled to share in the distribution of the tax laid upon bank stock taxable in a tax district. People ex rel. Lawyer v. Supervis- ors of Schoharie County, 39 Misc. 1G2. In this case the assessors of the town of Cobleskill within which are located two banks, made their assessment against each stockholder of such banks in the manner required by law. The tax so laid was paid by the banks to the treasurer of Schoharie county. No question was made as to the regularity or amount of the assessment, but it was claimed by the relator that an erroneous principle was adopted by the board of supervisors in distributing or apportioning the tax among the tax districts entitled thereto. The board apportioned the tax as follows: To t!i county of Schoharie, $568.88; to the village of Cobleskill, $1,385.54; to the town of Cobleskill, the sum of $632.24. Judge Chester said: "The pro- visions of the statute require the tax to be distributed among the tax dis- tricts in which the bank shares are taxable. To justify the distribution of a portion of the tax to the county required the board to regard the county as a tax district. This, it appears, they did, but in so doing I think they fell into an error. The Tax Law ( sec. 2 ) , defines a 'tax district' to be a 'political sub- division of the state having a board of assessors authorizea to assess property therein for state and county taxes. While a county, like towns and villages, is a political sub-division of the state, it does not come within this statutory definit'on of a tax district. It was, therefore, unlawful for the board to in- clude the county in its apportionment of this tax and the whole of it should have been apportioned to the town and village of Cobleskill which was the only ' tax district ' within which the bank shares, upon which this tax was paid, were taxable." It appeared in this case that the board of supervisors ascertained that the tax rate of the town of Cobleskill was .0047, and of the village of Cobleskill .0103, making the aggregate tax rates of both tax district? .0150. Following the provisions of the above section it was the duty of this board to apportion the tax on these bank shares, amounting to the sum of $2,586.66, to the town and village of Cobleskill, being the only two districts where the shares were taxable, and the court held that the town was entitled to $827.12, or .0047- .0150 thereof, and the village to $1,759.54, or .0103-.0150 thereof. By the amendment to this section the tax on bank stock is to be distributed among all municipalities formerly entitled to assess such stock ; the term " tax district," as here used, includes villages and school districts, though not having separate boards of assessors. People ex rel. Village of Kinderhook v. Supervisors of Columbia, 105 App. Div. 319, 93 N. Y. Supp. 1093. 366 Taxation. Tax Law, § 24. county treasurer on or before the fifteenth day of December in eaeh year, setting forth the number of stares of bank stock taxable in eacb town, city, village, school and other tax district in said county, in which said shares of stock shall be taxable, the tax rate of eaeh of said tax districts for said year, the proportion of the tax imposed by this act to^ which each of said tax districts is en- titled, under the provisions hereof, and commanding him to collect same, and to pay to the proper officer in eaeh of such districts the proportion of such tax to which it is entitled under the provisions of this act." The said county treasurer shall have the same pow- ers to enforce the collection and payment of said tax as are pos- seissed by the officers now charged by law with the collection of taxes, and the said county treasurer shall be entitled to a commis- sion of one per centum for collecting and paying out said moneys, which commission shall be deducted from the gross amount of said tax before the same is distributed. In issuing their warrants to the collectors of taxes, the board of supervisors shall omit there- from assessments of and taxes upon the shares of stock of banks and banking associations. All assessments of the shares of stock of banks and banking associations made on or after January first, nineteen hundred and one, and prior to the passage of this act, shall be null and void, and new assessments thereof shall be made agreeably to the provisions of this act. Provided, that, in the city of New York the statement of the bank assessment and tax herein provided for shall be made by the board of tax commission- ers of said city, on or before the fifteenth day of December in each year, and by them forthwith mailed to the respective banks and banking associations located in said city, and a certified copy thereof sent to the receiver of taxes of said city. The tax shall be paid by the respective banks in said city to the said receiver of taxes on or before the thirty-first day of December in said year, and said tax shall be' collected by the said receiver of taxes and shall be by him paid into the treasury of said city to the credit of tlie general fund thereof. This act is not to be construed as an exemption of the real estate of banks or banking associations from taxation. [Tax Law (L. 1896, ch. 908), § 24, as amended hy L. 1901, ch. 550, L. 1902, ch. 126, and L. 1903, ch. 267 ; Heydech- er'sOen.L. {2d ed.), p. 1861.] 10. For form of warrant for the collection of a tax upon bank shares and for the distribution thereof, see Form No. 33, post. Mode of Assessment. 367 Tax Law, §§ 25, 26, 27. § 6. Individual banker, how assessed. Every individual banker doing business under the laws of this state, must report before the fifteenth day of June under oath to the assessors of the tax district in which any of the capital invested in such banking business is taxable, the amount of capital in- vested in such banking business in such tax district on the first day of June preceding." Such capital shall be assessed as per- sonal property to the banker in whose name such business is carried on. \_Tax Law (L. 1896, ch. 908), § 25; Heydecker's Gen.L. {2ded.), p. 1862b.] § 7. Notice of assessment to bank or banking association. The assessors of every tax district shall within ten days after they have completed the assessment of the stock of a bank or bank- ing association, give written notice to such bank or banking asso- ciation of such assessment of the shares of its respective share- holders and no personal or other notice to such shareholders of such assessment is required." \_Tax Law (L. 1896, ch. 908), § 26; Heydecker's Gen. L. (2d ed.), p. 1862b.] § 8. Statements of corporations to assessors; contents; man- damus to compel report. The president or other proper officer of every moneyed or stock corporation deriving an income or profit from its capital or other- wise shall, on or before June fifteenth, deliver to one of the as- sessors of the tax district in which the company is liable to be taxed and, if such tax district is in a county embracing a portion of the forest preserve, to the comptroller of the state, a written statement specifying: 1. The real property, if any, owned by such company, the tax district in which the same is situated and, unlessi a railroad cor- poration, the sums actually paid therefor. 2. The capital stock actually paid in and secured to be paid in excepting therefrom the sums paid for real property and the amount of such capital stock held by the state and by any incor- porated literary or charitable institution ; and 3. The tax district in which the principal office of the company is situated or in case it has no principal office, the tax district in which its operations are carried on. 11. For form of report of individual banker, see Form No. 34, post. 12. For form of notice to bank of assessment, see Form No. 35, post. 368 Taxatioh-. Tax Law, § 28. Such statement shall be verified by the officer making the sam» to the effect that it is in all respects just and trua If such state- ment is not made within twenty days after the fifteenth day of Jime, or is insufficient, evasive or defective, the assessors may compel the corporation to make a proper statement by mandamus. [Tax Law (L. 1896, ch. 908), § 27; Heydecker's Gen. L. (2d ed.), p. 1862b.J § g. Penalty for omission of corporation to make statement; how recovered. In case of neglect to furnish such statements within thirty days after the time above provided, the company so neglecting shall forfeit to the people of this state for each statement so omitted to be furnished, the sum of two hundred and fifty dollars, and it shall be the duty of the attorney-general to prosecute for such penalty upon information which shall be furnished him by the 13. For form of statement of a corporation to assessors, see Form No. 36, post. Effect of failure to file statement. Corporations may be assessed thougli no statement is made by them to the assessors as required by law. Such a statement when made is not conclusive upon the assessors. It is the judgment of the assessors that the law requires. People ex rel. Manhattan Fire Ins. Co. v. Commissioners of Taxes, 76 N. Y. 64. The assessors have jurisdiction to assess a, corporation although it fails to make a statement of its financial condition. If such a corporation fails to appear and demand a correction of the perliminary assessment it can obtain no relief from over- valuation by certiorari. People ex rel. Union Telegraph Co. v. Commissioners of Taxes, 99 N. Y. 354. Effect of statement. Where a corporation furnishes assessors with a full and complete statement of its assets and liabilities, together with its balance sheet supporting such statements, the assessors are, in the absence of any other evidence bound to make such statements the basis of their assessment against the corporation. People ex rel. Seidenberg Co. v. Feitner, 41 App. Div. 571; 58 N. Y. Supp. 713. The assessors cannot except a. part of a statement relating to the assets of a corporation and reject the part relating to its liabilities. People ex rel. Amer. Flag Co. v. Ba/rker, 37 N. Y. Supp. 106; 72 N. Y. St. Rep. 152. Assessors are not justified in rejecting the statement of a corporation upon the sole ground that its sets forth values less than the statement of the preceding year. People ex rel. Insulating Co. V. Barker, 16 Misc. 252; 39 N. Y. Supp. 88. In case of the failure of a corporation to deliver the report required by this section, it will be presumed that the assessors ascertained the value of the capital and surplus of the corporation to be the sum stated in the assessment-roll, from the best information available to them. Matter of Adler Bros. & Co., 76 App. Div. 571; 78 N. Y. Supp. 690; affd., 174 N. Y. 287. Mode of Assessment. 369! Tax Law, § 29. comptroller. Upon such statement being furnished and the costs of the suit being paid, the comptroller, if he shall be satisfied that such omission was not willful, may, in bis discretion, discontinue such suit.i* [Tax Law (L. 1896, ch. 908), § 28; Heydecker's Gen. L. (2d ed.) , p. 1863.] § ga. County clerks to furnish data respecting corporations. Between the first and fifteenth day of June in the year nineteen hundred and six, the county clerk in each county of the state, excepting counties con- taining a city of the second class and counties wholly situate within the cor- porate limits of a city, shall prepare from the records in his office and mail to each of the town clerks in his said county, a certified statement containing the names of every stock corporation, incorporated within the five years next preceding the fir="t day of June, nineteen hundred and six, whose principal business office or chief place of business is designated in its certificate of incorporation as being in such town or in any village or hamlet therein, together with the fact of such designation and the names and addresses of the directors of each such corporation so far as said county clerk can discover the same from the certificate of incorporation or from the latest certificate of election of directors of such corporation filed in his office. Annually there- after, between the first and fifteenth days of June, said county clerk shall furnish to such town clerks the several statements aforesaid containing the above facts with reference to stock corporations whose certificates of incor- poration have been filed with him since his last preceding annual statements to said several town clerks. Each town clerk receiving such statement shall forthwith file the same in his office and mail a notice of such filing to each of the assessors of his town. [_Taa Law (L. 1896, ch. 908), § 28a, added by L. 1906, ch. 425.] 8 10. Real property of non-residents, how designated in as- sessment-roll. The real property of nonresidents of the tax districts shall be designated in a separate part of the assessment-roll and if it be a tract subdivided into lots or parts of a tract so subdivided, the assessors shall : 1. Designate it by its name, if known by one, or if not distinguished by a name or the name is unknown, state by what lands it is bounded. 2. Place in the first column the numbers's of all unoccupied lots of any subdivided tract, without the names of the owners,i6 beginning at the lowest 14. Tie penalty prescribed by this section is exclusive and the courts cannot impose any other punishment. People ex rel. West Shore R. R. Go. v. Pitman, 9 N. Y. St. Rep. 469. 15. Nnmlier of lot. The number of a lot or part of a tract of land owned by a non-resident, if subdivided, must be correctly stated; for, if the assessors assess the lot by a wrong number, the non-resident owner may be misled. Dike v. Leivis, 4 Denio, 237. A failure to set down in the assess- ment-roll the number of each lot will constitute a fatal defect in the pro- ceedings. French v. Whittlesley, 30 N. Y. Supp. 363; 62 N. Y. St. Rep. 117. 16. Inserting names of onrners. Where the name of a non-resident owner of land was inserted in the first column with his place of residence, it was hold that the assessment was detective, since the assessment was made in such form as to leave it open to doubt whether the name was entered as a part of the description of the land, or for the purpose of including the owner among the taxable inhabitants. Sanders v. Downs, 141 N. Y. 422; 36 N. E. 391. S7Q Taxatioit. Tax Law, § 30. number and proceeding in numerical order to the highest, but the entry of the name of the owner shall not affect the validity of the assessment. 3. In the second column and opposite the number of each lot, the quantity of land therein. 4. In the third column and opposite the quantity, the full value thereof.W 5. If it be a part of a lot, the part must be distinguished by boundaries or in some other way by which it may be identified. If any such real property be a tract not subdivided or whose subdivisions cannot be ascertained by the assessors, they shall certify in the roll that such tract is not subdivided, or that they cannot obtain correct information of the subdivisions and shall set down in the proper column the quantity and valuation a:? herein directed. If the quantity to be assessed is part only of a tract, that part, or the part not liable must be particularly described.JS [Taoi Law (L. 1896, ch. 908), § 29; Eeydecker's Gen. L. (2(i ed.), p. 1863.] § II. Surveys and maps of nonresident real property, to be made by supervisor; disposition of maps. If the assessors shall deem it necessary to have an actual sur- vey made, to ascertain the quantity of any lot or tract of non- In the ease of Collins v. Long Island City, 132 N. Y. 321, 324; 30 N. E. 835, the court says : " The statutes, relating to the assessment of lands in towns, require the assessors to designate the lands of non-residents in the assessment-roll separate and apart from the other assessments. And assessors have no jurisdiction of the person of a non-resident whereby they can initiate a charge against him personally for a tax, because of unoccupied lands owned by him in their town. They have power to value the lands, but none to value them against the owner. Hence, it follows that they have jurisdiction of the land and may subject it to an assessment, and so initiate a lien thereon for a tax ultimately to be laid, but none to charge the owner with its payment, and the land is to be assessed without the name of the owner, and set down in the roll apart from the names of the taxable in- habitants. And this requirement of a classification of resident and non- resident lands is imperative." Citing Whitney v. Thomas, 23 N. Y. 281; Crooks V. Andrews, 40 N. Y. 547; Newell v. Wheeler, 48 N. Y. 486. Where the name of the owner is placed in the second column as a part of the description of the property, the assessment is not invalidated. French V. Whittlesley, 30 N. Y. Supp. 363. In the case of Sanders v. Downs, 141 N. Y. 422, 426; 36 N. E. 391, the court remarked that, " had the name been inserted in the second column, with the description, the assessment would, no doubt, be entirely valid." 17. Quantities and values. An assessment-roll which fails to specify in the second and third columns of the roll, respectively, the quantity of land in the lot liable to taxation and its valuation, is fatally defective. Bennett V. Kovarick, 23 Misc. 73; 51 N. Y. Supp. 752. 18. Description. An accurate designation or description of the land assessed is essential to the validity of an assessment to support a sale of the land on non-payment. If the designation or description is of such a character as to mislead the owner and prevent him from ascertaining by the notice that his land was to be sold or redeemed, it is not sufficient. Tallman V. White, 2 N. Y. 66; Zink v. UcManus, 121 N. Y. 259; 24 N. E. 467. Statute must be strictly complied -with. The statute in respect to the assessment of non-resident lands must be strictly complied with, or the Mode of Assessment. 371 Tax Law, §31. reaideint real property divided by a town line, they shall notify the supervisor, v?ho shall cause the necessary surveys to be made at the expense of the tovcn. If a part only of a tract of real prop- erty is liable to taxation as nonresident and the assessors cannot otherwise designate such part, they shall notify the supervisor of the town, who shall cause a survey and two manuscript maps to be made for the purpose of ascertaining the situation and quan- tity of such part. One of such maps shall be delivered to the county treasurer and by him to be transmitted to the comptroller in case the county in which the land is situated embraces a part of the forest preserve; and in other counties it shall be retained by him. The other map shall be delivered to the assessors, who shall then complete the assessment of the tract and deposit the map in the town clerk's office for the information of future as- sessors. The expense of making such survey shall be immediately repaid to the supervisor out of the county treasury and added by the board of supervisors to the tax on such tract, distinguishing it from the ordinary tax. [Tax Law (L. 1896, ch. 908), § 30; Hey deckers Gen. L. (2d ed.), p. 1864.] § 12. Corporations, how assessed on assessment-roll. '* The assessors shall assess corporations liable to taxation in their assessment will be void. The intention is to enable the owner to ascertain if his lands are taxed, and to enable a purchaser, under a sale for unpaid taxes, to ascertain the location of the land purchased. People ex rel. Clark V. Oliver, 1 T. & C. 570; see, also, Cromwell v. MacLearu, 123 N. Y. 474; 25 N. E. 932. In the case of Sanders v. Downs, 141 N. Y. 422, 426, the court said: " Any construction of the statute which would, in any degree, encourage erroneous, lax or careless methods of making up the assessment-roll, would /iisturb the security with which the law guards private rights, and at the same time prove detrimental to public interests.'' See, also. May v. Trap- .hagen, 139 N. Y. 478; 34 N. E. 1064; Clason v. Baldwin, 152 N. Y. 204, 210; 46 N. E. 322. The statnte of 1902, chapter 171, adding section 60 to the Tax Law (see post, p ), has provided that the assessment of a non-resident parcel of land in the resident portion of the roll, and the assessment of a resident parcel in the non-resident portion of the roll, does not render the roll invalid. 19. References. For exemptions of certain corporations and associa- tions, see Tax Law, sec. 4, sub. 7, ante, p. 333. For place of taxation of corporations, see Tax Law, sec. 11, ante, p. 349. For the taxation of corporate stock, see Tax Law, sec. 12, ante, p. 350. The personal property of trust companies taxable under section 187a of the Tax Law, is exempt from assessment and taxation for all purposes, under section 202 of the Tax Law. 372 Taxation-. Tax Law, § 31. respective tax districts upon tkeir assessiment-roUs in the follow- ing manner:'" 1. In the first column the name of each corporation, and under its' name the amount of its capital stock paid in and secured to be paid in ; the amount paid by it for real property then owned by it wherever situated;'' the amount of all surplus profits' or reserve funds exceeding ten percentum of their capital, after deducting therefrom the amount of said real property and the amount of its 20. Asaessment of corporation, hoir made. Assessors, in assessing corporations, may resort to all the tests and measures of value, which men ordinarily adopt for business purposes in estimating and measuring values of property. They may use their own judgment; and if they act in good faith, upon reasonable grounds, and do not err in the principle of assess- ment, to the prejudice of the taxpayer, their decision will be sustained. People ex rel. Knickerbocker Fire Ins. Go. v. Coleman, 107 N. Y. 541 ; 14 N. E. 431; People ex rel. Equitable Gas Light Co. v. Barker, 144 N. Y. 94; 39 N. E. 13. They may act on evidence outside of that furnished by the corporation. People ex rel. Equitable Gas Light Co. v. Barker, 144 N. Y. 94; 39 N. E. 13. The above section of the Tax Law is simply administrative, providing for carrying into effect the provisions of section 12 {ante, p. 350), relative to the taxation of corporate stock; it specifies the manner in which the prop- erty of a corporation is to be set down in the assessment-roll. People ex rel. 23rd St. R. R. Co. v. Commissioners of Taxes, 95 N. Y. 554, 561. In this case ihe court said : " We think the assessment-roll may be made up substan- tially as follows: In the first column insert the name of the corporation; in the second column the quantity of real estate in the town or ward; in the third column the assessed value of the real estate, and in the fourth column the value of the capital stock after making the exemptions and deductions required by section 3 referred to (sec. 12 of Tax Law) ; and thus effect will be given to the manifest intention of the legislature." This statement is very general in its scope, and in complying with the statute assessors should conform, as near as may be, to the details specified in the above section. This section does not prescribe the manner in which assessors shall assess foreign corporations, they being governed by sections 7 and 9 of the Tax Law {ante, pp. 342, 347). New York Milk Products Go. v. Damon, 57 App. Div. 261 ; 68 N. Y. Supp. 183. For other cases relating to the assessment of corporations, see Green's Annotated Tax Law, 1903, p. 44. 21. Amonmt paid for real estate when stated by the corporation should be included in the first column for the purpose of determining the amount to be deducted from the capital stock. The assessors are not required to take the assessed valuation of real estate of a corporation as its real value. People ex rel. Clem-vng House Building Co. v. Barker, 31 App. Div. 315; 51 N. Y. Supp. 1102; affd., 158 N. Y. 709. See cases cited in notes to sec. 12 of Tax Law, ante, p. 350. Mode of Assessment. 373 Tax Law, § 31. stock, if any, belonging to the state and to incorporated literary and charitable institutions. 2. In the second column the quantity of real property, except special franchises, owned by such oorporation and situated within their tax district. 3. In the third column the actual value of such real property, except special franchises. 4. In the fourth column the amount of the capital stock paid in and secured to be paid in''^ and of all of such surplus profits or re- serve funds as aforesaid after deducting the sums paid out for all the real estate of the company, wherever the same may be situated and then belonging to it, and the amount of stock, if any, belong- ing to the people of the state and to incorporated literary and char- itable institutions.^* 22. Surplus profits or reserve funds are the accumulations of the company of moneys or property in excess of the par value of the stock Issued by it; and if, after the real estate and personal property is assessed at its actual value, no surplus over the par value of the stock is shown, or if Buch surplus does not exceed ten per cent, of the capital stock, there is noth- ing to assess as surplus, and nothing from which the ten per cent, of the capital can be deducted. People ex rel. Manhattan Ry. Co. v. Barker, 166 N. Y. 305. 23. Capital stock. The provision of this subdivision requiring an assessment of the amount of the capital stock of a corporation " paid in or secured to be paid in " is superseded by the provision re-enacted in section 12 which requires the capital stock to be assessed at its actual value. People ex rel. Cornell 8. Co. v. Dederick, 161 N. Y. 195; 55 N. E. 927. 24. Deductions in general. Assessors can only make such deductions from the gross value of the personal assets of a corporation as are expressly authorized by statute. People ex rel. Nat. Surety Co. v. Feitner, 166 N. Y. 129. As to deductions of debts of corporations, see People ex rel. Cornell B. Co. V. Dederick, 161 N. Y. 195; 55 N. E. 927. In assessing the capital stock of a corporation it is entitled to have its indebtedness de'dueted from the value of its corporate assets. People ex rel. Second Ave. R. R. Co. v. Barker, 141 N. Y. 196; 36 N. E. 184. But stock issued in payment for prop- erty is not a debt which may be so deducted. People ex rel. Hecker, eto., Milling Co. v. Barker, 147 N. Y. 31; 41 N. E. 435; see, also, People ex rel. Western R. Co. v. Assessors, 40 N. Y. 154 ; People ex rel. Butchers' Hide, etc. Co. V. Asten, 100 N. Y. 597. Nor is a deduction permitted for debts created by the purchase of non- taxable property (see Tax Law, sec. 6, ante, p. 341) ; hence a debt incurred by a street railway company in the purchase of a franchise cannot be deducted from its assets. People ex rel. Manhattan R. Co. V. Barker, 165 N. Y. 305. Deductions on account of real estate. The principle of the law is to tax the real estate of a corporation in the place where it is situated in the 374 Taxatiois-. Tax Law, § 32. 5. In the fifth column the value of any special franchise owned by it as fixed by the state board of tax commissioners. [Tax Law (L. 1896, ch. 908), § 31, as amended hy L. 1899, ch. 712, in effect October 1, 1899 ; Heydecker's Gen. L. {2d. ed.), p. 1864.] § 13. Assessment of agent, trustee, guardian or executor. If a person holds taxable property as agent, trustee, guardian, executor or administrator, he shall be assessed therefor as such, with th.e addition to his name of his representative character, and such assessment shall be carried out in a separate line from his in- dividual assessment.'" {Tax Law (L. 1896, ch. 908), § 32; Hey- decker's GenL. (2d. ed.), p. 1865.] same manner as the real estate of an individual. The residue of the capital of the corporation is to be assessed, after deducting the assessed value of the real estate, as personal property for the benefit of the tax district where the principal place of business of the corporation is situated. Vtica Cotton Mfg. Co. V. Supervisors of Oneida, 1 Barb. Ch. 432. It will be noticed that section 12 of the Tax Law, with which this section is to be construed, provides for a deduction of the assessed valuation of the real property, rather than the " sums paid out " for such property. The Court of Appeals has held that the provisions of the above section, so far as in conflict with such section 12, are superseded by that section. People ex rel. Cornell 8. Co. v. Dederick, 161 N. Y. 195 ; 55 N. E. 927. This decision is based upon the fact that the law as it existed prior to the enactment of the Tax Law contained the same conflicting provisions, and that under the former law it had been held that the statute from which section 12 was derived superseded the conflicting provisions of the statute from which the above section was derived. People ex rel. 2Srd St. B. R. Co. v. Commissioners, 95 N. Y. 554. It follows, therefore, that the assessed valuation of the real property should be deducted in all cases where it can be ascertained, rather the sum paid therefor as provided in the above section. See People ex rel. Gas Light Co. v. Barker, 66 Hun, 21; 20 N. Y. Supp. 797; afifd., 137 N. Y. 544; People ex rel. Edison Electric Illuminating Co. v. Harkness, 84 Hun, 445; 44 N. Y. Supp. 51; People ex rel. Malcom Brewing Co. v. Neff, 19 App. Div. 596; 46 N. Y. Supp. 299; aflFd., 154 N. Y. 437; People ex rel. Jenkins v. Neff, 29 Misc. 59; 60 N. Y. Supp. 582. But if the real property is situated in another state or county, or if for any other reason its assessed value cannot be ascertained, the price paid, in the absence of proof or of any other standard, may be taken as the assessable value. People ex rel. 23rd f^t. R. R. Co. V. Commissioners, 95 N. Y. 554; People ex rel. Fairfield Chem. Co. v. Colemant, 115 N. Y. 178; 21 N. E. 1056. 25. References. Place of taxation of trust property, etc., see Tax Law, sec. 8, ante, p. 343. All assessments made to the " estate " of a decedent prior to April 19, 1898, were legalized by L. 1898, ch. 310; and it would seem that such assessments are deemed to be valid under section 60 of the Tax Law, as added by L. 1902, cli. 171, post, p. 400. Mode of Assessment. 375 Tax Law, § 33. § 14. Assessment-roll, when to contain assessment of prop- erty omitted in preceding year. The assessors of any tax district shall, upon their own motion, or upon the application of any taxpayer therein, enter in the as- sessment roll of the current year any property shown to have been omitted from the assessment roll of the preceding year, at the valu- ation of that year, or if not then valued, at such valuation as the assessors shall determine for the preceding year, and such valua- tion shall be stated in a separate line from the valuation of the cur- Assessments to personal representatives. It haa been repeatedly lield that it is not sufficient for assessors to assess lands or personal prop- erty to the " estate of A. B.," or to the " heirs of A. B.," but that the assess- ment to be valid, must specify the name or names. of the individuals wlio are subject to the tax. Cruger v. Dougherty, 43 N. Y. 107 ; Trowbridge v. Horan, 78 N. Y. 439; Cromwell v. MacLean, 123 N. Y. 474, 485; 25 N. E. 932; Matter of Kenworthy, 63 Hun, 165; 17 N. Y. Supp. 655; Sandy Hill v. Akin, 77 Hun, 537; 28 N. Y. Supp. 889. An assessment to one of four execntors, with an addition " and others excrs., of the est. of " a specified decedent, followed by the entry of the amount of personal property, is sufficiently accurate to lead to the identification of the executors and is in proper form to make a valid assess- ment. People ea> rel. McHarg v. Oaus, 169 N. Y. 19. The name of the trustee, or other person acting in a, representative capacity, should be inserted, and there should be appended a designation of his representative capacity and a description of the estate which he rcpre- ecnts, as "A. B. trustee for estate of J. D." In this connection Judge Beek- man, in the case of People ex rel. Cadwallader v. Feitner, 26 Misc. 40, 43; 56 N. Y. Supp. 407, says: "It is plain that the proper construction of the statute requires a, separate assessment against a trustee with respect to each separate and distinct trust administered by him. It is also obvious that the tax commissioners could not, under a single assessment and a general designation of the person assessed, by the words " John L. Cadwallader, as trustee," without further description, necessarily include all the trust estates represented by him. Such a method would inevitably result in difficulties and complications in the determination of the proportion of the tax which should be charged against each estate, and in other respects, which it would be unreasonable to suppose the legislature ever intended to sanction. Separate assessments then being necessary with respect to each trust, it is the more apparent that the trust itself must, in each case, be particularized, as, otherwise, it would be impossible to determine to which estate any one of such assessments applied, and a condition of uncertainty would exist calling for a construction of the statute that would avoid any such result. Such a construction, which is consonant with reason and does no violence to the terms of the statute, is realized by holding, as I do, that the requirement that the representative character of the person assessed shall be stated, imports a specification of the concrete relation of such person to a particular trust." See, also, People ex rel. Pike v. Barker, 86 Hun, 283; 33 N. Y. Supp. 1132. 376 Taxation. Tax Law, § 34. rent year." [Tax Law (L. 1896, ch. 908) , § 33 ; Heydecker'a Ge assessment had been made by local assessors; a petition for a writ of certiorari to review the assess- ment must be presented within fifteen days after the completion and filing" of the assessment-roll, and the first posting or publica- tion of the notice thereof as required by law. Such writ must run to and be answered by said state board of tax commissioners and no writ of certiorari to renew any assessment of a special franchise shall run to any other boird or officer unless otherwise directed by the court or judge granting the writ. An adjudication made in the proceeding instituted by such writ of certiorari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of said assessment in the same manner as though said local assessors or officers had been parties to the proceeding. The state board of tax commissioners on filing vdth the city, town or village clerk a statement of the 392 Taxatioit. Tax Law, § 46. "valuation of a special franchise, shall give to the person, copartnership, asso- ciation or corporation affected written notice that such statement has been filed, and such notice may be served on a copartnership, association or corpo- ration by mailing a copy thereof to it at its principal office or place of busi- ness, and on a person either personally or by mailing it to him at his place of business or last known place of residence. [Tao! Law, § 45, as added by L. 1899, ch. 712, and amended iy L. 1900, ch. 254; Heydecker's Gen. L. {2d ed.), p. 1872.] § 5a. Defense of certiorari proceedings. In any proceeding for the review of an assessment of a special franchise made by the state board of tax commissioners, said state board of tax com- missioners is authorized to appear by counsel to be designated by the attor- ney-general. The compensation of such counsel and the necessary and proper expenses and disbursements, including the expense of procuring the evidence of experts, incurred or made by him in the defense of such proceeding, and upon any appeals therein, shall when audited and allowed as are other charges against such tax district, be a charge upon the tax district upon whose rolls appears the assessment sought to be reviewed. Where, in one proceeding, there is reviewed the assessment of a special franchise in more than one tax district, separate accounts shall be rendered for said costs, expenses and dis- bursements to the proper officer of each of said tax districts and audited and allowed by him as aforesaid. For the purposes of this section, the city of New York shall be deemed one tax district. ITax Law (L. 1896, ch. 908), § 45a, OS added ly L. 1906, ch. 155.] § 6. Deduction from special franchise tax for local purposes. If, when the tax assessed on any special franchise is due and payable under the provisions of law applicable to the city, town or village in which the tan- gible property is located, it shall appear that the person, copartnership, asso- ciation or corporation affected has paid to such city, town or village for its exclusive use within the next preceding year, under any agreement therefor, or under any statute requiring the same, any sum based upon a, percentage of gross earnings, or any other income, or any license fee, or any sum of money on account of such special franchise, granted to or possessed by such person, copartnership, association, or corporation, which payment was in the nature of a tax, all amounts so paid for the exclusive use of such city, town or vil- lage except money paid or expended for paving or repairing of pavement of any street, highway or public place, shall be deducted from any tax based on the assessment made by the state board of tax commissioners for city, town or village purposes, but not otherwise; and the remainder shall be the tax on such special franchise payable for city, town or village purposes. The cham- berlain or treasurer of a city, the treasurer of a village, the supervisor of a town, or other officer to whom any sum is paid for which a, person, copartner- ship, association, or corporation is entitled to credit as provided in this sec- tion, shall, not less than five nor more than twenty days before 11 tax on a special franchise is payable, make and deliver to the collector or receiver of taxes or other officer authorized to receive taxes for such city, town or vil- lage, his certificate showing the several amounts which have been paid dur- ing the year ending on the day of the date of the certificate. On the receipt of such certificate the collector, receiver or other officer shall immediately credit on the tax-roll to the person, co- partnership, association or corporation affected the amount stated in such. Assessment of Special Feanchises. 393 Tax Law, § 47. ceirtificate, on any tax levied against such person, copartnership, association or corporation on an assessment of a special franchise for city, town or village purposes only, but no credit shall be given on account of such payment or certificate in any other year, nor for a greater sum than the amount of the special franchise tax for city, town or village purposes, for the current year; and he shall collect and receive the balance, if any, of such tax as required by law. \_Tax Law, § 46, as added by L. 1899, ch. 712 ; Heydeck- er's Gen. L. {2d ed.), p. 1872.] § 7. Special franchise tax not to affect other tax. The imposition or payment of a special franchise tax as pro- vided in this chapter shall not relieve any association, copartner- ship or corporation from the payment of any organization tax or franchise tax or any other tax otherwise imposed by article nine of this chapter, or by any other provision of law ; but tangible property siibject to a special franchise tax situated in, upon, under or above any street, highway, public place or public waters, as described in subdivision three of section two shall not be taxable except upon the assessment made as herein provided by the state board of tax commissioners. ^Tax Law, § 47, as added by L. 1899, ch. 712; Heydecker's Gen. L. (2d ed.), p. 1873.] S94 Taxation'. Tax Law, § 50. CHAPTER XXVII. DUTIES OF BOAEDS OF SUPEEVISOES AS TO ASSESSMENTS AND TAX- ATION J EQUALIZATION OF ASSESSMENTS. Section 1. Board of supervisors to examine assessment-roll; equalization of valuations. 2. Board of supervisors may appoint commissioners of equaliza- tion; county judge to appoint in case of disagreement; terms of office; compensation. 3. Examination of assessment-rolls by commissioners; equalization of valuations; vacancy in office of commissioners. 4. Commissioners' report of equalized valuations. 5. Board of supervisors may change descriptions of non-resident real property. 6. Review of assessment against non-resident owners of rents re- served by board of supervisors. 7. Correction of errors by board of supervisors; petition of asses- sors for correction; petition to be served on owner. 8. Board of supervisors may correct manifest errors, and causa moneys illegally collected to be refunded. 9. Certain errors in roll to be corrected. 10. Re-assessment of property illegally assessed. 11. Levy of taxes by board of supervisors. 12. Tax roll, collector's warrant to be attached to; contents of warrant. 13. Statement of taxes upon certain corporations by clerk of super- visors. 14. Statement of equalized valuation to be forwarded to the comp- troller by clerk of board of supervisors. 15. Clerk of board of supervisors to furnish county treasurer with abstract of tax-rolls. § I. Board of supervisors to examine assessment-roll; equali- zation of valuations. Subdivision 1. The board of supervisors of each county in this state, at its annual meeting, shall examine the assessment-rolls of the several tax dis- tricts in the county, for the purpose of ascertaining whether the valuations in one tax district bear a just relation to the valuations in all the tax districts in the county, and the board may increase or diminish the aggregate valua- tions of real estate in any tax district, by adding or deducting such sum upon the hundred, as may, in its opinion, be necessary to produce a just rela- tion between all the valuations of real estate in the county; but it shall, in no instance, except as provided in subdivision two of this section, change the Duties of Supeevisoks as to Taxation. 395 L. 1896, ch. 820, § 1. aggregate valuations of all the tax districts from the aggregate valuation thereof as made by the assessors.i Subdivision 2. The board of supervisors in any county of the state having a population of more than fifty-five thousand and less than sixty thousand in- habitants according to the federal enumeration next preceding the passage of this act and which adjoins a city of the first class may, in its discretion, when examining the assessment rolls of the several tax districts of the county, as above provided, exclude from the tax rolls of said districts, to be prepared by said board, such parcels of real property as have been struck down to the county at a tax sale and not redeemed as provided in section one hundred and fifty-two of this act. No such properties shall be so excluded from said tax rolls except by a resolution of said board adopted at an annual meeting by a vote of a majority of the members thereof. Whenever such real prop- erty is so excluded from the tax rolls by the board the total of the assessed valuations of the real estate of the several tax districts, as the same appear on the completed tax rolls, shall be the aggregate valuation of the taxable real estate in the county. [Tax Law (L. 1896, ch. 908), § 50, as amended L. 1905, ch. 447.] § 2. Board of supervisors may appoint commissioners of equalization; county judge to appoint in case of disagreement; terms of office; compensation. The board of supervisors of any county of the state may by the concurring vote of a majority of all the supervisors elected to such board, resolve to ap- point three persons to be commissioners of equalization of such county. They shall thereupon appoint such commissioners, two of whom shall be residents of such county and not members of the board of supervisors, and the third commissioner shall not be a resident of or a taxpayer in such county, but shall reside in the judicial district in which such county is situated. If there be one or more cities in such county one of such commissioners shall be a resident of such city or cities and one shall be a resident of the towns in such county outside of such city or cities. The commissioner appointed from such city or cities shall be named by the supervisors representing such city or cities, and the commissioner appointed from the towns outside of such city or cities shall be named by the supervisors representing such towns. Both such commissioners, including the third commissioner appointed from the judicial district outside of such county, shall be confirmed by a two-thirds vote of all the members of the board of supervisors. If, after such board has resolved to appoint such commissioners of equalization, they are unable to agree upon the commissioners to be appointed as provilled by this section, and such com- missioners are not appointed before the first day of July, succeeding the time when such resolution was adopted, the clerk of such board shall apply to the county judge of such county certifying to him the fact that such resolution was adopted and such commissioners have not been appointed pursuant thereto and such county judge shall appoint the commissioners subject to the provisions of this section relating to their places of resi- dence. The term of office of each such commissioner shall be 1. The annnal meeting of boards of supervisors is held at such time and place as may be fixed by them. County Law, see. 10, ante, p. 7. Notice. Notice of the time and place of meeting of the board of super- visors as a board of equalization need not be given. The taxpayer or person aggrieved is presumed to have knowledge of the provisions of the statute. People V. Turner, 117 N. Y. 227; 22 N. E. 1022. 396 Taxation. L. 1896, eh. 820, § 2. three years. Not more than one commissioner shall reside in the same town or city, and if a commissioner remove to a town or city in which another commissioner resides, the office of the commis- sioner so removing shall thereon become vacant. Such appoint- ments shall be so made that not more than a majority of the commissioners belong to the same political party, and the other commissioner shall be chosen from the other political party polling in such county at the last general election either the highest or the next highest number of votes. If the office of any commissioner become vacant before the expiration of his term, such vacancy shall he filled, for the unexpired term, by the appointment of a person of the same political faith as his predecessor at the time of his appointment. Each commissioner shall be paid by the county for his services, a sum to be fixed by the board of super- visors, not exceeding the rat© of four dollars per day, for the time necessarily and actually occupied in the performance of his duties, and his necessary and reasonable expenses incurred while absent from his home in the discharge of his duties, but the total amount paid to any commissioner for his services and exj)enses in any one year shall not exceed three hundred dollars. [L. 1896, ch. 820, § l.J § 3. Examination of assessment-rolls by commissioners; equalization of valuations ; vacancy in office of commissioners. Between the first day of September and the time of the annual meeting of the board of supervisors in each year, the commission- ers shall examine the assessment-rolls of the several towns in their county and shall visit each town therein, once in each alternate year between such dates, or once in each year when deemed neces- sary by them, for the purpose of ascertaining whether the valua- tions in one town or ward bear a just relation to the valuations in all the towns and wards in the county, and they may increase or diminish the aggregate valuations of real estate in any town or ward by adding or deducting such sum upon the hundred as may, in their opinion, be necessary to produce a just relation between all the valuations of real estate in the county, but they shall in no instance reduce the aggregate valuations of all the towns and wards below the aggregate valuations thereof as made by the assessors. If the office of any commissioner become vacant before the expiration of his term, such vacancy shall be filled, for the unexpired term by the appointment of a person of the same politi- Duties of Supeevisoes as to Taxation. 397 L. 1896, ch. 820, § 3; Tax Law, §§ 51, 52. cal faith as his predecessor at the time of his appointment, [i. 1896, ch. 820, § 2, as amended hy L. 1898, ch. 265, and L. 1904, ch. 155.] <§ 4. Commissioners' report of equalized valuations. On or before the fourth day of the annual meeting of the board of supervisors in each year the commissioners shall file with the clerk of such board of supervisors their report of the equalized valuations of real estate, signed by a majority of such commis- sioners, and the same shall be binding and conclusive on such board of supervisors as an equalization of the assessments of real estate for such year. [L. 1896, ch. 820, § 3.] § 5. Board of supervisors may change descriptions of nonresi- dent real property. The board of supervisors of each county, at its annual meeting, shall examine the assessment-rolls of the several tax districts, and shall make such changes in the deccriptions of the real property of nonresidents as may be necessary to render such descriptions sufficiently definite for the purposes of collection of taxes by sale thereof.' If a sufficiently definite description cannot be obtained during the session, the board shall cause the same to be obtained for the next annual session, and the property shall not be taxed until such description is obtained, and shall then be taxed for the year so omitted, in the manner provided for taxing omitted lands. [Tax Law (L. 1896, ch. 908), § 51; Heydecker's Gen. L. (2d ed.), p. 1874.] § 6. Review of assessment against nonresident owmers of rents reserved by board of supervisors. If an assessment of taxable rents shall have been made against any person in any tax district of which he is not an actual resident, the board of supervisors of the county shall have the same power and authority in all respects, and it shall be its duty to correct such assessments as to the valuation of such rents and as to the gross amount for which such persons shall be assessed therefor, as the assessors of a tax district have as to the assessment of per- 2. References. As to the assessment of real property of non-residents, see Tax Law, sec. 29, ante, p. 369. As to the survey and maps of non-resident real property made by asses- sors, see Tax Law, sec. 30, ante, p. 370. As to the assessment of omitted property, see Tax Law, see. 33, ante, p. 375. 398 Taxation. Tax Law, § 53. sonal property of an actual resident of such tax district. The hoard may reduce the amount of any such assessment, if necessary, to make such assessment just when compared with the other assess- ments of property upon such roll." [Tax Law (L. 1896, ch. 908), § Z^; Hey decker's Gen. L. {2d ed.), p. 1874. J § 7. Correction of errors by board of supervisors; petition of assessors for correction ; petition to be served on owner. If it shall be made to appear to the board of supervisors of any county, upon the verified petition of the assessors of any tax dis- trict : First. That any property taxable therein has, by any mistake in transcribing or copying the assessment-roll of the preceding year, been placed on the assessment^roU delivered to the supervisor, at a valuation less than actually appearing upon the original roll signed by the assessors, such board shall insert in the assessment- roll of the current year an assessment of the property upon the valuation equal to the difference between the actual valuation made by the assessors and the amount at which, by such mistake, the property was placed upon the roll of the preceding year, and tax the same at the rate per centum imposed upon property in .such tax district in the year in which the mistake occurred. Second. That any taxable property therein has been omitted from the assess.ment-roll of the preceding year, such board shall place the same on the roll of the current year at its valuation for the preceding year, to be fixed by the assessors in their petition, and shall tax the same at the rate per centum of the preceding year. Third. That taxable property has been omitted from the assess- ment-roll, for the current year, such board shall place the same thereon at a valuation to be fixed by the assessors in their petition, and shall tax the same at the rate per centum of the current year.' A copy of the petition under the second or third subdivision of this section, with a notice of the presentation thereof to the board of supervisors, shall be served personally on the person alleged to be liable to taxation for the land omitted from the 3. As to the taxation of rents reserved, see Tax Law, sec. 8, ante p. 343. Such taxable rents reserve are included in the fifth column of the assessment-roll. See Tax Law, sec. 21, sub. 5, ante, p. 360. 4. For form of petition by assessors under this section, see Form No. 41a poat. Duties of Supeevisors as to Taxation. 399 County Law, § 16. assessment-roll, at least ten days before the meeting of the board of supervisors; and the board of supervisors shall take no action on such petition, unless proof of the personal service of such peti- tion and notice be made to them by affidavit. The board of super- visors shall give to the person alleged to be liable to taxation for such omitted land, an opportunity to be heard, and on such hear- ing and review the board of supervisors shall have, as to such omitted property all the powers of the assessors of a tax district in reviewing and correcting the assessment-roll.' The whole amount of tax levied upon the land or property omitted in the tax levy of the preceding year shall be deducted from the aggre- gate of taxation to be levied on the tax district for the current year before such tax is levied. [Tax Law (L. 1896, ch. 908), § 53; Heydecker's Gen. L. {2d ed.), p. 1875.] § 8. Board of supervisors may correct manifest errors, and cause moneys illegally collected to be refunded. Any such board may correct any manifest clerical or other error in any assessment or returns made by any one or more town officers to such board, or which may, or shall have properly come before such board for its action, confirmation or review; and cause to be refunded to any person the amount collected from him of any tax illegally or improperly assessed or levied, and upon the order of the County Court, it shall refund any such tax." In raising 5. Assessment of omitted property. Boards of supervisors, in includ- ing in the assessment-roll of a town omitted property, must give the owner of such property an opportunity to be heard. In including in the assessment of such property the board is to be governed by the provisions of sections 33- 37 of the Tax Law, cmte, pp. 375-381, relating to the correction of assessment- rolls by assessors. Po-nrers of supervisors as to assessments. The supervisors have no authority to add to the assessment-roll, at the suggestion of the assessors, the name of a person whom they had previously omitted as not liable to as- sessment. Where the supervisors add a tax which they have no jurisdiction to place upon the roll, the supervisor of a, town who delivers the roll to the collector is liable in damages for a sale thereunder. Marsh v. Bowen, 12 Abb. N. C. 1 ; see, also, Overing v. Foote, 43 N. T. 290. 6. References. This section should be considered in connection with sec. 53 of the Tax Law. Section 256 of the Tax Law provides for the audit- ing and allowing by the board of supervisors of the amount paid under an as- sessment which has been declared illegal, erroneous or unequal in proceedings instituted to review the assessment made by the assessors pursuant to the provisions of sees. 250-255 of the Tax Law. Distinction between erroneous and an illegal assessment. There 400 Taxation-. Tax Law, § 60. the amount so refunded, or necessary to supply the deficiency caused by the correction of any error in such assessment, such board shall, in the same or next ensuing tax levy, adjust and ap- portion such amount upon the property of the several towns and V7ards of the county as shall be just, taking into consideration the portion of the state, county, town and ward included therein, and the extent to which such town or ward has been benefited thereby. Such board shall ascertain, fix and determine the amount to which any person or corporation is equitably entitled to receive back from any town, for taxes paid while the boundary line between towns was in dispute and cause the same to be levied and collected. iCounty Law (L. 1892, ch. 686), § 16 ; Heydeckers Gen. L. {2d ed.), p. 1205.] § g. Certain errors in roll to be corrected. The assessment of a nonresident parcel of real estate in the resi- dent portion of the roll, the assessment of a resident parcel of real estate in the nonresident portion of the roll, an error in the name of the owner or occupant or the assessment of a parcel of real estate to the name of a deceased person or to his estate, shall not render the assessment invalid or render the tax levied on the valua- tion of said real estate invalid. The board of supervisors of each Is a clear distinction between a case of erroneous or over-assessment and a case of an assessment made under an unconstitutional law, or without au- thority of any law. For instance, a. tax warrant, regular on its face, issued for the collection of a tax levied under an erroneous assessment, would afford protection to the ofiBcer serving it, while a tax warrant issued for the collection of a tax levied under an unconstitutional law, or without authority of law, would afford no protection whatever. N orris v. Jones, 81 Hun, 304, 310; 27 N. Y. Supp. 209. See, also, Weaver v. Devendorf, 3 Denio, 117; Wat. Bank of Chemung v. City of Elmira, 53 X. Y. 49. Errors irhlch may be corrected. This section does not subject all assessments to review, or permit a correction of all errors, but simply of those which are apparent by an examination of the assessment-roll or re- turn, without extrinsic evidence to make them clear; the errors of the asses- sors in making assessments and substantial errors of judgment or of law are not subject to correction. Hermance v. Supervisors of Ulster, 71 N. Y. 481. Nor does this section authorize the correction of an assessment because of it being excessive. Matter of Baumgarten, 39 App. Div. 174; 57 N. Y. Supp. 284. Refund upon order of connty court. The board of supervisors under this section is required to refund any tax erroneously paid, upon the order of the County Court. The power of the court is limited to directing the re- Duties of Supeevisoes as to Taxation. 401 Tax Law, § 54. county may at any time before levying the tax as provided in article three of this act, at the request of the supervisor of the tax district in which the real estate is situated, correct any errors which may come to his knowledge in the assessment of any parcel of real estate in his district, in either of the cases mentioned in this sec- tion. [Tax Law, § 60, as added hy L. 1902, cTi. 171. J § 10. Reassessment of property illegally assessed. Whenever, by the final judgment of a court of competent juris- diction, it appears to the board of supervisors that any property liable to taxation in any year was erroneously or illegally assessed, and that by reason of such erroneous or illegal assessment, such property did not become subject to taxation for such year, the board shall place the same on the roll of the current year at the valuation thereof, if any, fixed by the assessors for such preceding year; and in case no valuation was fixed by the assessors, such property shall be assessed by the board at such valuation as they may determine for the preceding year. Before fixing such valua- tion, the board of supervisors shall give to the owners of such prop- erty, at the time of the assessment by the board, a notice of at least five days and an opportunity to be heard, and on such hearing, the board shall have, as to such property, all the powers of the assessors funding of an illegal tax that has been paid. It cannot order the board to cancel a tax illegally imposed. Matter of Buffalo Mut. Gas Light Co., 144 N. Y. 228; 39 N. E. 86. The court in this case, in speaking of the power of the County Court said: "The legislature anticipated the possibility that the board might neglect or refuse to refund an illegal tax to the person who had paid it. In such cases the board is required by the statute to cause it to be refunded upon the order of the county judge, and this is the only power which the statute has conferred upon that officer. The power to refund a tax once paid, conferred by statute upon a board or oflScer of special and un- limited jurisdiction, does not carry with it by implication the power to can- cel the tax before payment, or to restrain its collection.'' This case over- rules in effect the ease of Matter of Douglas, 48 Hun, 318. Where exempt property has been assessed, and the tax paid under pro- test, the County Court may direct the board to refund the amount paid. Williams v. Board of Supervisors, 78 N. Y. 561; Matter of New York Catho- lic Protectory, 77 N. Y. 342. The section only authorizes a refund in case a, tax has been collected under compulsion of law. It does not authorize the refund of a tax voluntarily paid without any effort having been made to collect it. Matter of McCue v. Supervisors, 162 N. Y. 235; 56 N. E. 627; see, also. Matter of Reid, 52 App. Div. 243; 65 N. Y. Supp. 373. 26 402 Taxation. Tax Law, § 55. of a tax district in reviewing and correcting an assessmentrroll. Such property shall be taxed at the rate per centum of such pre- ceding year. The whole amount of tax on property levied in pur- suance of this section shall be deducted from the aggregate of taxa- tion to be levied on the tax district for the current year, before such tax is levied.' [Tax Law (L. 1896, ch. 908), § 54; Hey- decher's Gen. L. (%d ed.), p. 1876.] § II. Levy of taxes by board of supervisors. The board of supervisors of each county shall, at its annual meeting, levy the taxes for the county, including the state tax, upon the valuations as equalized by it and estimate and set down in a separate column in the assessmentrroll of each tax district therein, opposite to the sums set down as the valuation of real and personal property or property of incorporated companies or of the taxable rents reserved, the sum to be paid as a tax thereon, including the state tax, as fixed by the comptroller.' Such assess- ment-roll shall, when the warrant is annexed thereto, become the tax-roll of the tax district, and a copy thereof shall be delivered to the proper supervisor, who shall deliver it to the clerk of the proper city or town to be kept by him for its use. [Tax Law (L. 1896, ch. 908), § 55 ; lieydecJcer's Gen. L. (2d ed.), p. 1876.] 7. Reassessment. The evident purpose of thia section, which was new in the Tax Law of 1896, is to permit the board of supervisors to re-assess property which has been declared by a court of competent jurisdiction, in proceedings brought for the review of the original assessment, to have been erroneously or illegally assessed. Proceedings for the review of assessment are authorized by sections 250-256 of the Tax Law. If in such proceedings an assessment is declared illegal or erroneous, the effect of the judgment is to render invalid the assessment for that year, and except for the provisions of the above section, no authority would be imposed upon any person or board to re-assess such property for the year in which it was declared to have been illegally assessed. 8. County charges to be levied npon taxable property. The moneys necessary to defray the county charges of each county shall be levied on the taxable property in the several towns therein, in the manner pre- scribed in the general laws relating to taxes; and in order to enable the county treasurer to pay such expenses as may become payable from time to time, the board of supervisors shall annually cause such sum to be raised in addition in their county, as they may deem necessary for such purpose. County Law (L. 1892, ch. 680), sec. 232. As to what constitute county charges, see County Law, sec. 230, ante, p. 3L Town charges to be levied upon taxable property. It is provided in section 180 of the Town Law (post, p. 812), that " all town charges speci- fied in this section shall be presented to the town board for audit, and tha Duties op Supeevisoes as to Taxation. 403 Tax Law, § 56. § 12. Tax-roll, collector's warrant to be attached to; contents of warrant. On or before December fifteenth in each year the board of super- visors shall annex to the tax-roll a warrant under the seal of the county, signed by the chairman and clerk of the board, command- ing the collector of each tax district, to whom the same is directed to collect from the several persons named in said roll the several sums mentioned in the last column thereof, opposite their respect- ive names, except taxes upon the shares of stock of banks and banking associations, on or before the first day of the following February, and further commanding him to pay over on or before that date all moneys so collected appearing on said roll, to the treasurer of the county, if he be a collector of a city or a division thereof, or if he be a collector of a town : 1. To the commissioners of highways of the town, such sum as shall have been raised for the support of highways and bridges therein. 2. To the overseers of the poor of the town, such sum as shall have been levied, to be expended by such overseers for the support of the fKJor therein. 3. To the supervisor of the town, all the moneys levied therein, to defray any other town expenses or charges. 4. To the treasurer of the county, the residue of the money so to be collected." moneys necessary to defray such charges shall be levied on the taxable prop- erty in such town by the board of supervisors." It is also provided by County Law, sec. 12, sub. 3, that the board of supervisors shall " annually direct the raising of such sums in each town as shall be necessary to pay its town charges." Copying assessment-roll. In each county it is usually the custom for the supervisor of each town to copy the assessment-roll for his town. Under section 23 of the County Law (ante, p. 12), the board of supervisors is authorized to allow to each member of the board for his services in making a copy of the assessment-roll, three cents for each written line for the first one hundred lines; two cents per line for the second hundred written lines; and one cent per line for all written lines in excess of two hundred, and one cent for each line of the tax roll actually extended by him. 9. Fop form of collector's warrant, see Form No. 42, post. The mere omission of the dollar mark in stating the value of the prop- erty and the amount of the tax, in a tax warrant, does not render the war- rant irregular or invalid, for the law supplies the omission in support of the manifest intent. American Tool Co. v. Smith, 32 Hun, 121; 14 Abb. N. C. 578, affd. 96 N. Y. 670. A defect in the warrant in not specifying the return day, is cured by the statute authorizing the extension of the time for the 404 ' Taxa-tiow. Tax Law, § 56. If the law shall direct the taxes levied for any local or special piurpose in a city or town, to be paid to any person or officer other than those named in this section, the warrant shall be varied so as to conform to such direction. The warrant shall authorize the collector to levy such taxes by distress and sale, in case of non- payment. The corrected assessment-roll, or a fair copy thereof, shall be delivered by the board of supervisors to the collector of the tax district on or before December fifteenth, in each year." [Tax Law {L. 1896, ch. 908), § 56, as amended by L. 1901, ch. collection of taxes in that county. Bradley v. Ward, 58 N. Y. 401. The war- rant is not void because the persons who signed it did not attach to their signature their official description or designation. Sheldon v. Van Buskirk, 2 N. Y. 473. The -nrarrant and the assessment-roll constitute one process. John- son V. Learn, 30 Barb. 616, 618. A warrant issued to a collector directing him to collect from persons "named in the assessment-roll, to which this warrant is annexed, the several sums mentioned in the last column thereof, to wit, the fifth column, and set opposite to the names of such persons respectively, together with your fees thereon," and which further provides that "it is the duty of the collector to demand payment of taxes charged to him on his property; and in case any person or persons named in said assessment-roll shall refuse or neglect to pay the tax imposed on him or them, you will levy the same by distress and sale of the goods and chattels of the person or persons who ought to pay the same,'' when construed in connection with the assessment-roll is sufficient to authorize the collection of the general tax stated in the fifth column of the roll, and also the highway tax stated separately in the sixth column. Bennett ■V. Robinson, 42 App. Div. 412; 59 N. Y. Supp. 197. In issuing a -warrant for the collection of taxes the action of the board of supervisors is not the act of the several members, as supervisors of the towns respectively, but the corporate act of the county. Neicman v. Super- visors, 45 N. Y. 676. 10. Time of delivery. The provision requiring the assessment-roll and warrant to be delivered to the collector by the fifteenth day of December is directory merely; a, delay does not invalidate the warrant. Bradley v. Ward, 58 N. Y. 401 ; Supervisors of Osv>ego v. Betts, 6 N. Y. Supp. 934. But the de- livery to the receiver of taxes of a town of a, warrant for the collection of taxes, after the return day of the warrant has passed, vests in him no power to enforce payment of the tax. Matter of Lonff, 40 App. Div. 152; 57 N. Y. Supp. 929. The rolls mnst he completed before the warrants for the collection of the tax are annexed thereto. 'The insertion of the necessary figures in the assessment-roll to complete it after the valuations have been determined is clerical. Bellinger v. Gray, 51 N. Y. 610; Bradley v. Ward, 58 N. Y. 401. The board cannot issue a warrant for the collection of taxes in blank au- thorizing some person to fill in the proper amounts to be collected. People v. Bagadorn, 36 Hun, 610; affd., 104 N. Y. 516. Duties of Supeevisors as to Taxation. 405 Tax Law, §§ 57, 58. 158, taking effect March 22, 1901, and L. 1901, cli. 550, tahmg effect April 25, 1901 ;" Heydecker's Gen. L. {2d ed.), p. 1876.] § 13. Statement of taxes upon certain corporations by clerk of supervisors. The clerk of each board of supervisors shall, within five days after the tax warrant is completed, deliver to the county treasurer, a statement showing the names, valuation of property and the amount of tax of every railroad corporation and telegraph, tele- phone and electric light line in each tax district in the county, and on refusal or neglect so to do, shall forfeit to the county the sum of one hundred dollars, to be sued for by the district attorney in the name of the county." [Tax Law (L. 1896, ch. 908), § 57 ; Heydecker's Gen. L. {2d ed.), p. 1877.J § 14. Statement of equalized valuation to be forwarded to the comptroller by clerk of board of supervisors. The clerk of each board of supervisors shall, on or before the second Monday in December, transmit to the comptroller, in the form to be prescribed by such comptroller, a certificate or return of the aggregate assessed and equalized valuation of the real and personal estate in each tax district as the valuation of such real estate has been corrected by such board, and the amount of tax assessed thereon for town, city, school, county and state purposes. Also the names of the several incorporated companies liable to taxation in such county, the nature of their business, the amount of the capital stock paid in and secured to be paid in by each, the amount of real and personal property of each as put down by the assessors, or by it, the amount of taxes assessed on each, and the amount of personal property on which each such corporation is 11. Effect of amendments of 1901. The amendment made to this section by chapter 158, L. 1901, inserted after the word "county'' in the first column the words "or board of supervisors," so that the warrant might be issued under the seal of the county or the board of supervisors. Chapter 550 of the laws of the same year amended the section by inserting the ex- ception as to assessors of stock of banks and banking associations, but inad- vertently omitted the words inserted in the former amendment. It is proba- ble that the latter act supersedes the former, and that the section should b;' read as in the text. 12. For form of statement of taxes upon certain corporations, see Form No. 43, post. References. Provisions similar to those contained in the above section was also contained in section 53 of the County Law. See ante,, p. 81. 4-06 Taxation. Tax Law, § 59. exempt on account of the payment of state taxes on its capital. In the city of New York such report shall be made by the clerk of the board of aldermen, and for the purpose of making such report he may require any department or board of such city ta furnish the necessary information. [Tax Law (L. 1896, ch 908), § 58; Heydecker's Oen. L. {2d ed.), p. 1877.] § 15. Clerk of board of supervisors to furnish county treas- urer with abstract of tax-rolls. On or before the twentieth day of December in each year, the clerk of the board of supervisors shall transmit to the treasurer of the county an abstract of the tax-rolls, stating the names of the collectors, the amount of money which each is to collect, the pur- pose for which it is to be collected, and the persons to whom and the time when it is to be paid. The county treasurer, on receiving such account, shall charge to each collector the amount to be col- lected by him." {Tax Law (L. 1896, ch. 908), § 59; Heydeck- er's Gen. L. (2d ed.), p. 1878. J 13. For form of abstract of tax rolls to be furnished to county treasurer under this section, see Form No. 44, post. State Board of Tax Commissionees. 407 Tax Law, §§ 170, 171. CHAPTER XXVIII. STATE BOABD OF TAX COMMISSIONEES; EQUALIZATION BY STATE BOAED ; APPEALS FEOM SUPEEVISOES. SJECHOIT 1. State board of tax commissioners. 2. General powers and duties of state board of tax commissioners. 3. Tax commissioners to visit counties. 4. State board of equalization; powers and duties. 5. Supervisor may appeal from equalization of board of super- visors; consent of town board; appeal, how brought. 6. Form of petition; rules of state board; time and place of hear- ing appeal. 7. Board of tax commissioners, determination of; how made and what to contain. 8. Costs on appeal to be fixed by state board; limitation of amount. § I. State board of tax commissioners. The tax commissioners now in office shall continue in office for the terms for which they were appointed, and they and their suc- cessors shall constitute the state board of tax commissioners. On the expiration of their terms the governor shall appoint three commissioners by and with the advice and consent of the senate, to hold office for three years, and so classified that the term of office of one of them shall expire with the thirty-first day of De- cember in each year, and in case of a vacancy the appointment shall be for the unexpired term. Each commissioner shall receive an annual compe'usation of five thousand dollars, payable monthly, and in addition thereto the expenses actually incurred by him, in the discharge of his official duties, including expenses while at- tending meetings of the commission. \_Tax Law (L. 1896, ch. 908), § 170, as amended hy L. 1900, ch. 94; Heydecker's Gen. L. (2d ed.), p. 1913.] § 2. General powers and duties of state board of tax com- missioners. The state board of tax commissioners shall : First. Investigate and examine, from time to time, as to the methods of assessment within the state. Second. Furnish local assessors with such information as may be necessary or proper to aid them in making the assessment thereof. Third. Make such rules and regulations as may be necessary [to enforce the provisions of this article and prepare forms for 408 Taxation. Tax Law, §§ 172, 173. reports and assessment-rolls, and furnish the same to assessors and other officers at the expense of the state. Fourth. Take testimony and hear proofs, under oath, with ref- erence to any matter within the line of its official duty. Any member of such board may be designated for that purpose. And it may require from all state and municipal officers such informa- tion as may be necessary for the proper discharge of its duties. Fifth. Hold meetings at an office to be assigned it in one of the state buildings at Albany, at such times as may be fixed by the chairman of the board or by adjournment thereof, or at such other places as it may designate. Sixth. Employ a secretary, prescribe his duties and fix his salary at a sum not to exceed thirty-five hundred dollars per an- num ; employ not to exceed six special agents who shall be deemed the confidential agents of the board ; and experts and other needed assistants and prescribe their duties. It shall fix the compensa- tion of such employes, which shall not exceed in the aggregate the amount annually appropriated by the legislature for that purpose, \_8ubdivision amended by L. 1899, ch. 712, and L. 1900, ch. 94. J Seventh. Prepare an annual report to the legislature and recom- mend such changes or amendments to the tax laws as it may deem advisable. Eighth. Perform the other powers and duties conferred upon it by law. [Tax Law (L. 1896, ch. 908), § 171 ; Heydecker's Gen. L. {2d ed.), p. 1913.] § 3. Tax commissioners to visit counties. Two or more of the members of the board of tax commissioners shall officially visit every county in the state at least once in two years, and inquire into the methods of assessment and taxation, and ascertain whether the assessors faithfully discharge their duties and particularly as to their compliance with this act re- quiring the assessment of all property not exempt from taxation at its full value. [Tax Law {L. 1896, ch. 908), § 172; Hey- decker's Gen. L. (2d ed.), p. 1914.J § 4. State board of equalization; powers and duties. The commissioners of the land office and the three commission- ers of taxes shall constitute the state board of equalization. The state board of equalization shall meet in the city of Albany on State Boaed of Tax Commissionees. 409 Tax Law, § 174. the first Tuesday in September in each year, for the purpose of examining and revising the valuations of real and personal prop- erty of the several counties as returned to the board of tax com- missioners, and shall fix the aggregate amount of assessment for each county, upon which the comptroller shall compute the state tax. Such board may increase or diminish the aggregate valua- tions of real property in any coimty by adding or deducting such sum as in its opinion may be just and necessary to produce a just relation between the valuations of real property in the state. But it shall, in no instance, reduce the aggregate valuations of all the counties below the aggregate valuations thereof as so returned. The comptroller shall immediately ascertain from this assessment, a copy of which shall be transmitted to him, the proportion of state tax each county shall pay, and mail a statement of the amount to the county clerk, and to the chairman and clerk of the board of supervisors of each county.' \_Tax Law (L. 1896, ch. 908), § 173 ; Heydecher's Gen. L. {2d ed.), p. 1914.] § 5. Supervisor may appeal from equalization of board of supervisors ; consent of town board ; appeal, how brought. Any supervisor may appeal in behalf of the town, city or ward, which he wholly or in part, represents, to the state board of tax commissioners, from any act or decision of the board of supervisors, in the equalization of assessments and the correction of the assess- ment-rolls. If such appeal is brought in behalf of a town, a majority of the town board of such town, if in behalf of a city, a majority of the supervisors representing such city, or if the assess- ment in the wards of any city are equalized separately and such wards have separate assessment-rolls, then the alderman or alder- men representing such ward in the common council of the city, shall first consent to and approve of the bringing of such appeal. Such appeal shall be brought within ten days after the delivery of the assessment-roll to the collector by filing in the ofiioe of the county clerk a notice thereof, with such consent in- dorsed thereon or annexed thereto, together with the affidavit of the supervisor so appealing, that in his opinion injustice has been 1. Action of board is judicial. The action of the state board of equalization in the discharge of the duty imposed upon it in examining the valuations of the property of the several counties is judicial in its character, and when it has acquired jurisdiction, any error in its judgment or mistake in its conclusions can be asserted only in some direct proceeding for review. Mayor, etc., of 'New York v. Davenport, 92 N. Y. 604. 410 Taxation. Tax Law, § 175. done to such town, city or ward by the act or decision from which the appeal is taken ; and also within such time, by serving person- ally or by mail, a duplicate or copy of such notice, consent and affidavit on the chairman or clerk of the board of supervisors, and by mailing such a copy or duplicate to the state board of tax com- missioners. [Tax Law (L. 1896, ch. 908), § 174; Heydecker's Gen. L. {2d ed.), p. 1915.] § 6. Form of petition; rules of state board; time and place of hearing appeal. The board of tax commissioners may prepare a form of petition and notice of appeal from decisions of the board of supervisors in the equalization of assessment and rules and regulations in re- lation to bringing such appeals to a hearing or trial thereof. Such rules shall provide for a hearing on the papers and proofs submitted to the board of supervisors on making the equalization, in case the party so desires, and also, in case the notice of appeal so specifies, for the taking of additional evidence offered by either party. The appeal shall be heard in the county in which it orig- inated. In either case such hearing shall be had at a time and place to be fixed by the board upon notice of at least twenty days by mail to the party appealing and to the clerk of the board of supervisors of the county in which the appeal is taken.' If the 2. Conduct of hearing. The fact that the state board of equalization, after giving a county full opportunity to present proof, information and argument, went into secret session when deliberating upon the equalization of assessments, excluding the representatives of the county from participa- tion therein, and declined their assistance and advice in making such equali- zation, does not justify a charge of misconduct against the board. People ecc rel. Mayor, etc. v. McCarthy, 102 N. Y. 630; see, al»,o, Mayor, etc., of New York V. Davenport, 92 N. Y. 604. It was held in the case of People ex rel. Supervisors v. City Assessors, 22 Wk. Dig. 453, that the rulings of the state board on questions of evidence cannot be reviewed by certiorari. In the case of People ex rel. Schvacker v. State Assessors, 47 Hun, 450, it was held that a technical error by the state board in the admission of evi- dence does not invalidate its decision. In the case last cited the court sustains the proposition that the state board is governed and controlled by statutory provisions and by the rules and regulations made by it in pur- suance of authority conferred by statute; and that while it has not full power to render a decision of its own volition and without evidence, yet it is to some extent vested with a discretionary power to take action without restricting its proceedings to strict technical rules. Evidence as to valuation. The state board is confined in making its State Boaed of Tax Commissionees. 411 Tax Law, § 176. appellant or his successor fails to appear at the time and place appointed or upon any day to which such hearing and trial shall be adjouraed, the board shall make an order dismissing the appeal, which shall have the same effect as if the appeal had not been sustained after a hearing on the merits. [^Tax Law {L. 1896, ch. 908), § 175 ; Heydecker's Gen. L. (2d ed.), p. 1915.] § 7. Board of tax commissioners, determination of; how made and what to contain. On every such hearing or trial, the board of tax commissioners shall determine whether any, and if any, what deductions ought to be made from the aggregate corrected value of the real and personal property of such tax district as made and to what tax district or districts in such county the amount of such deductions, if any, shall be added ; and shall certify their determination, in writing, to such board of supervisors and forward the same by mail within ten days thereafter to the clerk of the board, directed to him at his post-office address and forward a copy thereof to the super- visor appealing. Such determination shall be carried into effect by such board at its next annual session.' [^Tax Law (L. 1896, ch. 908), § 176; Heydecker's Gen. L. (2d ed.), p. 1916.] equalization to the valuation of real estate, and it cannot be required to hear testimony as to the amount of personal property. People ex rel. Supervisors V. Hadley, 76 N. Y. 337. The price stated in a conveyance to have been paid on a private sale of real estate, is not competent evidence of value, and a comparison of the difference between the consideration stated in transfers of real estate, and the assessed valuation of such real estate, in two counties of the state, is not conclusive evidence to show that the assessed valuation in one county is nearer the real value than in the other county. People ex rel. Mayor v. McCarthy, 102 N. Y. 630; see, also. People ex rel. Carter v. Williams, 20 N. Y. Supp. 350. The supervisors have no authority to consider, for the purposes of equaliza- tion, property upon which no valuation has been fixed by the local assessors, and the state board has no original jurisdiction in that respect, but merely an appellate power to review the action of the supervisors. They cannot take into consideration the question whether personal property was assessed below its true value, or erroneously exempted. People ex rel. Supervisors v. Hadley, 1 Abb. N. C. 441. 3. Determination by state board. It is the duty of the state board, upon an appeal by a town, to determine: (1) Whether the town appealing has suffered injustice, as compared with other towns in the county; (2) whether such town shall have a deduction from its valuation, and the amount thereof; (3) upon what other town or towns such deduction shall be placed, and the portion thereof which shall be placed on each. The com- 412 Taxation. Tax Law, § 177. § 8. Costs on appeal to be fixed by state board; limitation of amount. The board of tax commissioners shall certify the reasonable ex- pense on every such appeal, not exceeding the sum of two thousand dollars, for services of counsel and one thousand dollars for all other expenses, including the compensation and expense of the stenographer. If such appeal is not sustained, the costs and ex- penses thereof so certified shall be a charge upon the tax district or districts taking such appeal and shall be levied thereon by the board of supervisors.* If the appeal is sustained, the amount of such costs and expenses so certified shall be levied by the board of supervisors upon, and collected from, the county in the assess- ment and collection of taxes for the current year, except the tax district or tax districts whose appeal is sustained. If there shall be appeals by more than one tax district in the county, some of which are sustained and some dismissed, the state board shall decide what portion of such costs and expenses shall be borne by any tax district whose appeal is dismissed. [Tax Law (L. 1896, ch. 908), § 111; Hey decker's Gen. L. {2d ed.), p. 1916.] parison is not between the town appealing and tlie residue of the county as an entirety, but between such town and the other towns as distinct and separate organizations. If, in considering the value of all the towns of the county, separately, they find that an excessive valuation has been placed upon the appealing town as compared with some towns in the county, they may remedy the injustice by imposing the excess upon such towns. People ex rel. Supervisors v. Hadley, 76 N. Y. 337. 4. Costs npon dismissal of appeal. Where an appeal to the state board is dismissed, the costs and expenses incurred by the board of super- visors may be audited by the board and charged against the city or town appealing, and included in the amount of tax to be levied upon such city or town; and in case of a city where such tax is raised by action of the common council, its levy and collection may be enforced by mandamus. People ex rel. Supervisors v. Common Council of Kingston, 101 N. Y. 82. Collection of Taxes. 413 CHAPTER XXIX. COLLECTION OF TAXES. SSOTION 1. Collector to give notice of receipt of tax roll and warrant; con- tents of notice; how posted; notice to non-residents. 2. Notice to non-residents; notice of residence of non-residents to be filed with town clerk; duty of town clerk. 3. Collector to call upon taxpayers after expiration of thirty days; levy on personal property beeause of failure to pay; sale of personal property; disposition of proceeds. 4. Settlement of conflicting claims to surplus of tax sale; action by claimant to recover amount of surplus. 5. Collection of taxes assessed against stocks in banks and bank- ing associations; collector may levy on stock. 6. Railroad, telegraph, telephone and electric light corporations may pay tax to county treasurer; duties of county treas- urer. 7. Payment of school tax by railroad company to county treas- urer. 8. Railroads in towns bonded for the construction thereof, to pay tax to county treasurer; investment of money by county treasurer. 9. Tax against telegraph, telephone and electric light lines; collec- tors may levy on instruments; return of unpaid taxes to county treasurer; county treasurer may sell lines. 10. Sequestration of property of corporations for failure to pay taxes. 11. Taxes on rents reserved; collector may levy on personal prop- erty of owner found in county; when tenant may be com- pelled to pay. 12. Collector to return unpaid taxes on debts owing to non-resi- dents of the United States to county treasurer; county treas- urer to issue a warrant to sheriff to collect amount of tax. 13. Sheriff to return warrant for collection of taxes on debts owing to non-residents; neglect to make return; proceedings if war- rant is returned unsatisfied. 14. Application to County Court for order directing sheriff to col- lect tax when person taxed has removed from county; certified copy of order to be delivered to sheriff or constable of county to which person has removed. 15. Supervisor or county treasurer may institute supplementary proceedings for collection of unpaid taxes. 15a. Dismissal of suits or proceedings. 16. When tax is paid by tenant he may retain amount from rental. 17. Payment of taxes on part of lot. 18. Payment of taxes on state lands in forest preserve. 19. Fees of collector. 414 Taxation. Tax Law, § 70. Section 20. Return by collector of unpaid taxes; contents of return; form prescribed by tax commissioners. 21. Stay by injunction or otherwise of collection of taxes, to operate as an extension of time for making return of taxes affected. 22. Payment by collector of taxes collected; officers to give collector duplicate receipts; receipts to be filed. 23. Collector failing to make payments; County Court to order sheriiT to levy on property of collector; return of sheriff. 24. County treasurer to make payments to proper officers out of moneys collected. 25. Supervisors to prosecute collector's undertaking for deficiency. 26. County treasurer may extend time for collection of taxes; new bond of collector. 27. Filling vacancy in office of collector; notice of appointment to county treasurer; warrant to be delivered to new collector. 28. Sheriff to collect taxes in case of collector's failure to execute bond, unless vacancy be filled; duties of sheriff thereunder. 29. Collector's bond, satisfaction of, by county treasurer; form of satisfaction; filing thereof. 30. Reassessment of unpaid taxes on resident real property; super- visor to include in tax roll; rate of interest on unpaid taxes; to be regarded as non-resident thereafter. 31. County treasurer to pay money to creditors of county. 32. County treasurer to be charged with amount of state tax; when state tax is to be paid over; county treasurer may borrow money for payment of state tax; interest on amount with- held. 33. State comptroller to state accounts with county treasurer; to institute proceedings against county treasurer for failure to pay over. 34. Losses by default of collector or treasurer, how borne. 35. Collector to give receipts to each person paying a tax; form of receipts; to be provided by board of supervisors. 36. Obstructing officer in collecting taxes. § I. Collector to give notice of receipt of tax-roll and war- rant ; contents of notice ; how posted ; notice to nonresidents. Every collector, upon receiving a tax-roll and warrant, shall forthwith, cause notice of the reception thereof to be posted in five conspicuous public places in the tax district, specifying one or more convenient places in such tax district, where he will attend from nine o'clock in the forenoon until four o'clock in the after- noon, at least three days, and if in a city, at least five days, in each week for thirty days from the date of the notice, which shall be the date of the posting or first publication thereof, which days shall be specified in such notice, for the purpose of receiving the Collection of Taxes. 415 Tax Law, § 70a. taxes assessed upon such roll.' The collector shall attend aooord- ingly, and any person may pay his taxes to such collector at the time and place so designated, or at any other time or place. In a city, the notice in addition to being posted shall b© published once in each week, for two weeks successively, in a newspaper published in such city. On the written demand of a non-resident owner of real property included in such tax roll, and the payment by such owner to the collector of the sum of twenty-five cents, the collector shall within twenty-four hours after the receipt of such demand mail in a postpaid envelope directed to such non-resident owner, to the orders to be furnished in such demand a statement of the amount of taxes assessed against such property with a notice of the dates and places fixed by him for receiving taxes. [Tax Law (L. 1896, ch. 908), § 70, as amended by L. 1899, ch. 342; Heydecker's Gen. L. {2d ed.), p. 1879.] § 2. Notice to nonresidents; notice of residence of nonresi- dents to be filed with town clerk; duty of town clerk. A person who is the owner of, or liable to assessment for, an interest in real property situated and liable to assessment and taxation in a town in which he is not actually a resident may file with the town clerk of such town a notice stating his name, resi- dence and postrofiic© address, a description of the premises suffi- cient to identify the same, and if situated in a village or school district, the name of such village and number and designation of such school district. The town clerk shall, within five days after the delivery of the warrants for the collection of taxes in such tax districts, furnish to the collectors of the town, and the col- lector of each village and school district in which such real prop- erty is situated, and such collectors shall within such time apply for, a transcript of all notices so filed, and such collectors shall within five days after the receipt of such transcripts mail to each person filing such notice, at the post-office address stated therein, a statement of the amount of taxes due on said property. 1. For form of notice of collector of receipt of tax roll and warrant, see Form No. 45, post. References. The form and contents of the collector's warrant are pre- scribed by section 56 of the Tax Law, ante, p. 403; for form of tax warrant, see Form No. 42, post. Section 70a of the Tax Law, as inserted by L. 1903, ch. 338, provides for the serving of notice of the receipt of a tax warrant upon non-residents; sea next section. 416 Taxation. Tax Law, § 71. Upon the filing of such notice the town clerk shall be entitled to receive a fee of one dollar from the person offering such notice, which shall be in full for all services rendered hereunder. ^Tax Law (L. 1896, ch. 908), § 70a, as inserted hy L. 1903, ch. 338.J § 3. Collector to call upon taxpayers after expiration of thirty days; levy on personal property because of failure to pay; sale of personal property ; disposition of proceeds. After the expiration of such period of thirty days, the collector shall call, at least once, on every person taxed upon such roll, whose taxes are unpaid, at his usual place of residence, if he is an actual inhabitant of such tax district, and demand payment of the taxes charged to him on his property." If any person shall 2. Liability of collector. The authority conferred upon a tax collector by his warrant is special and exceptional, and must be pursued according to its terms. First Nat. Bank of Sandy Hill v. Fancher, 48 N. Y. 524. The tax roll and -nrarrant constitute one process. If each is regu- lar upon its face, the process will fully protect the collector in forcing a collection of the tax. Bennett v. RoHnson, 42 App. Div. 412 ; 59 N. Y. Supp. 197; Ghegaray v. Jenkins, 5 N. Y. 376; Van Rensselaer v. Witleck, 7 N. Y. 617; Patohin v. Ritter, 27 Barb. 34; Johnson v. Learn, 30 Barb. 616. In the ease of Bradley v. Ward, 58 N. Y. 401, it was held that when a copy of the assessment-roll with the warrant attached, is delivered to the town collector, it is not necessary to attach the affidavit of the assessors or a copy of it in order to protect the collector. The fact that the roll did not show in express terms that the amount assessed was a valuation of capital stock, but it was placed under u column headed " Valuation of Personal Property," is not such an indication of error on the part of the assessors as to destroy the protection of the warrant. Ifiagara Elevating Co. v. McNamara, 50 N. Y. 653. If the warrant issued to the collector is regular on its face, he is not bound to inquire whether the taxes were legally assessed, Wollsey v. Morris, 96 N. Y. 311; and this is so even though the collector knew of (L. 1896, ch. 908), § 264; Heydecker's Gen. L. (2d ed.), p. 1952.J § 5. Collection of taxes assessed against stocks in banks and banking associations; collector may levy on stock. Every bank or banking association shall retain any dividend until the delivery to the collector of the tax-roll and warrant of the current year, and within ten days after such delivery, shall pay to such collector so much of such dividend as may be neces^ sary to pay any unpaid taxes assessed on the stock upon which such dividend is declared. In case the owner of such stock resides in a place other than where the bank or banking associa- tion is located, the same power may be exercised in collecting the tax so assessed as is given in case a person has removed from a tax district in which the assessment was made. The tax so as- 5. Duty of supervisor as to surplus moneys. Section 71 of the Tax Law, ante, requires the collector to pay over to the supervisor of the town the surplus remaining after the payment of the tax for which the property was sold as provided in that section, in case there is any controversy as to the ownership of such property. The supervisor under the above section is to retain such money until the rights of the contesting parties are determined. 420 Taxation. Tax Law, § 73. sessed shall be and remain a lien on the shares of stock against which it is assessed till the payment of such tax, and if the stock is transferred it shall be subject, to such lien. The collector or county treasurer may foreclose such lien in any court of record, and collect from the avails of the sale of the stock the tax assessed against the same. In addition thereto, the same remedy may be had for the collection of the tax on such shares as is now provided by law for enforcing payment of personal tax against residents. [Tax Law (L. 1896, ch. 908), § 72; Heydecker's Gen. L. (2d ed.), p. 1880.J § 6. Railroad, telegraph, telephone and electric light corpora- tions may pay tax to county treasurer; duties of county treas- urer. Any railroad, telegraph, telephone or electric light company may, within thirty days after receipt of notice by the county treasurer from the clerk of the board of supervisors, pay its tax, with one per centum feesi, to the county treasurer, who shall credit the same with such fees to the collector of the tax district, unless otherwise required by law. If not so paid, the county treasurer shall notify the collector of the tax district where it is due, and he shall then proceed to collect under his warrant. Until such notice from the treasurer the collector shall not enforce payment of such taxes, but may receive the same, with the fees allowed by law, at any time.' [Tax Law (L. 1896, ch. 908), § 73; Hey- decker's Gen. L. (2d ed.) p. 1881. J 6. Section 24 of the Tax Law (ante, p. 363), relating to the assess- ment and taxation of shares of banks and banking associations, provides that the tax assessed upon such shares shall be paid by the bank or bank- ing association to the treasurer of the county wherein it is located. Such section contains a complete scheme for the assessment, taxation and pay- ment of taxes by banks and banking associations, and probably supersedes the provisions of the above section. 7. References. The clerk of the board of supervisors is required to deliver a, statement to the county treasurer, showing the names, valuations and amount of tax, as appearing upon the assessment-roll of the several tax districts, of each railroad, telegraph, telephone and electric light corpo- ration therein. Tax Law, sec. 57, ante, p. 405. If a town or city has unpaid bonds outstandinft, issued to aid in the con- struction of a railroad, the tax collected on account of such railroad in such town or city is to be paid to the treasurer of the county, to be applied in the purchase of such bonds. General Municipal Law, sec. 12, post, p. 422. Collection of Taxes. 421 L. 1881, ch. 675, §§ 1, 2, 3. § 7. Payment of school tax by railroad company to county treasurer. Statement of school railroad tax to he delivered to county treas- urer; notification of ticket agent. — It shall be the duty of the school collector in each school district in this state, except in the counties of New York, Kings and Cattaraugus, within five days after the receipt by such collector of any and every tax or assess- ment-roll of his district, to prepare and deliver to the county treasurer of the county in which such district, or the greater part thereof, is situated, a statement showing the name of each rail- road company appearing in said roll, the assessment against each of said companies, for real and personal property respectively, and the tax against each of said companies. It shall thereupon be the duty of such county treasurer, immediately after the re- ceipt by him of such statement from such school collector, to notify the ticket agent of any such railroad company assessed for taxes at the station nearest to the office of such county treasurer, personally or by mail, of the fact that such statement has been filed with him by such collector, at the same time specifying the amount of tax to be paid by such railroad company. [L. 1881, ch. 675, § 1, as amended by L. 1882, ch. 319, and L. 1885, ch. 533.] Payment within thirty days. — Any railroad company hereto- fore organized, or which may hereafter be organized, under the laws of this state, may within thirty days after the receipt of such statement by such county treasurer, pay the amount of tax so levied or assessed against it in such district and in such state- ment mentioned and contained with one per centum fees thereon, to such county treasurer, who is hereby authorized and directed to receive such amount and to give proper receipt therefor. lldem, § 2.] Collection if not so paid. — In case any railroad company shall fail to pay such tax within said thirty days, it shall be the duty of such county treasurer to notify the collector of the school dis- trict in which such delinquent railroad company is assessed, of its failure to pay said tax, and upon receipt of such notice it shall be the duty of such collector to collect such unpaid tax in the manner now provided by law, together with five per centum fees thereon ; but no school collejctor shall collert. by distress and sale any tax levied or assessed in his district upon the property of any 422 Taxatioit. L. 1881, ch. 675, |§ 4, 5; General Municipal Law, § 12. railroad company until the receipt by him of aueh notice from the county treasurer. \_Idem, § 3.] Amount to be paid over to collector of district. — The several amounts of tax received by any county treasurer in this, state, under the provisions of this act, of and from railroad companies, shall be by such county treasurer placed to the credit of the school district for or on account of -which the same was levied or as- sessed, and on demand paid over to the school collector thereof, and the one per centum fees received therewith shall be placed to the credit of, and on demand paid to, the school collector of such school district. {Idem, § 4.] Com,panies muy pay collector. — Nothing in this act shall be oonstrued to hinder, prevent or prohibit any railroad company from paying its school tax to the school collector direct, as now provided by law. [Idem, § 5.] § 8. Railroads in towns bonded for the construction thereof, to pay tax to county treasurer; investment of money by county treasurer. If a town, village or city has outstanding unpaid bonds, issued or substituted for bonds issued, to aid in the construction of a rail- road therein, so much of all taxes as shall be necessary to take up such bonds, except school districts and highway taxes, collected on the assessed valuation of such railroad in such municipal corpora- tion, shall be paid over to the treasurer of the county in which the municipal corporation is located. Such treasurer shall purchase with such moneys of any tovm, village or city, such bonds, when they can be purchased at or below par, and shall immediately cancel them in the presence of the county judge.' If such bonds 8. By Ii. 1899, ct. 336, jurisdiction was conferred upon the court of claims to hear, audit and determine the claim of any county where state taxes collected of a railroad corporation in towns aiding in the construction of the railroad had been paid by the county treasurer to the state treasurer. In the case of County of Ulster v. State of New York, 79 App. Div. 277, the determination of the court of claims, in a case brought under this act, that the state was not liable to repay to the counties the amount of tax so paid by county treasurers to the state treasurer was reversed. The court in this case held that ch. 907, L. 1869, as amended by ch. 283, L. 1871, from which the above section of the General Municipal Law was derived, was enacted for the purpose of relieving the county from the payment of the state tax upon the property of a railroad in a town bonded for its coa- struction. CoLLECTioisr OF Taxes. 423 General Municipal Law, § 12. cannot be purchased at or below par, sucb treasurer shall invest such moneys in the bonds of the United States, o£ the state of New York, or of any town or village or city of such state, issued pursuant to law ; and shall hold such bonds as a sinking fund for the redemption and payment of such outstanding railroad aid bonds. If a county treasurer shall unreasonably neglect to comply with this section, any taxpayer of the town, village or city having so issued its bonds may apply to the county judge of the county in wliinh such municipal corporation is situated, for an order compelling such treasurer to execute the provisions of this section. Upon application of the town board of any town, the board of supervisors of the county in which said town is situated may authorize payment by the county treasurer of all moneys thus paid to him in any year by the railroads mentioned in this section, to the supervisor of such town, for its use and benefit; to be applied either to the purchase of outstanding railroad aid bonds or the payment of interest thereon and any payment heretofore made in good faith by the treasurer of any county to any town or to the supervisor tliereof, of the taxes received, in any year by such treasurer, from railroad corporations in that town is hereby validated. The county treasurer of any county in which one or more towns therein shall have issued bonds for railroad purposes, shall when directed by the board of supervisors or county judge of the county, execute and file in the office of the clerk of the county an undertaking with not less than two sureties, approved by such board or judge, to the effect that he will faithfully per- form his duties pursuant to this section. The annual report of a county treasurer shall fully state, under the head of "railroad sinking fund" the name and character of all such investments Constitutionality. The act from which the above section was derived has been declared constitutional. Matter of Clark v. Sheldon, 106 N. Y. 104. Application of section; dnties of officers. The provisions of the above section are applicable to any municipality having outstanding bonds issued in aid of the construction of any railroad. The assessors and boards of supervisors should ascertain the amount required to be paid under the provisions of such section to the county treasurer and should specify such amount in the tax roll and warrant. If such amount has been so specified, the collector may make the proper deduction of school and road taxes and pay the balance to the county treasurer. If the duty of making the separa- tion has not been discharged before payment to the county treasurer, it devolves upon him to make the separation and invest the proper amount as directed by the statute. Matter of Clark v. Sheldon, 106 N. Y. 104. 424 Taxation. Tax Law, § 74. made by him or his predecessors, and the condition of such fund. [General Municipal Law (L. 1892, ch. 685), § 12, as amended ly L. 1893, ch. 466, and L. 1903, ch. 515; Heydecker's Gen. L. {2d ed.), p. 1155.J § g. T,ax against telegraph, telephone and electric light lines; collectors may levy on instruments; return of unpaid taxes to county treasurer; county treasurer may sell lines. Collection of tax against a telegraph, telephone or electric light line may be enforced by sale of the instruments and batteries connected with such line, and in case there is not sufficient per- sonal property, together with such instruments and batteries, to pay such tax and the per centage due the collector, he shall return a statement thereof to the county treasurer as other unpaid taxes are returned, and the county treasurer shall proceed to sell such part of the line in the tax district where the tax Was levied as may be necessary to satisfy the unpaid taxes and per csentage, in the manner now provided by law for the sale of lands on execu- tion, and upon such sale shall execute to the purchaser a convey- ance of such part of said line, and the purchaser shall thereupon become the owner thereof. Nothing herein contained shall be construed to prevent collection of such taxes by any procedure now provided by law. [Tax Law (L. 1896, ch. 908), § 74; Hey- djclers Gen. L. (2d ed.), p. 1881. J If the county treasurer neglects to comply vrith the provisions of this section and pays the amount that should be apportioned to the discharge of railroad aid bonds in payment of county and state taxes, an action may be maintained by the town against the county to recover the money so mis- appropriated. Strough v. Board of Supervisors, 119 N. Y. 212; 23 N. E. 552; see, also, Peirson -u. Supervisors of Wayne County, 155 N. Y. 105; 49 N. E. 766. The supervisors have no jurisdiction over the fund and cannot legislate concerning it, nor direct nor control the act of the county treasurer with reference to it. Nor can a, town meeting by its vote authorize the ap- plication of such fund for any other purpose than the payment of such bonds. In the hands of the county treasurer it is a trust fund upon which the law has impressed a, distinct purpose, and any action that diverts it from that purpose is illegal. Clark v. Sheldon, 134 N. Y. 333; 32 N. E. 23. As to the right of a, town to compel a proper application of tliis fund, see Kilbourne v. Board of Supervisors, 137 N. Y. 170; 33 N. E. 159; Woods V. Supervisors, 130 N. Y. 403; 39 N. E. 1011; People ex rel. McMillan v. Supervisors, 136 N. Y. 281; 32 N. E. 854; Ackerson v. Board of Supervisors, 72 Hun, 616; 25 N. Y. Supp. 196. Collection of Taxes. 425 Tax Law, §§ 263, 75. § 10. Sequestration of property of corporations for failure to pay taxes. It shall be the duty of the attorney-general, on being informed by the comptroller or by the county treasurer of any county that any incorporated company refuses or neglects to pay the taxes imposed upon it, pursuant to articles one and two of this chapter, to bring an action in the Supreme Court for the sequestration of the property of such corporation, and the court may so sequestrate the property of such corporation for the purpose of satisfying taxes in arrears, with the costs of prosecution, and may, also, in its discretion, enjoin such corporation and further proceedings under its charter until such tax and the costs incurred in the action shall be paid. The attorney-general may recover such tax with costs from such delinquent corporation by action in any court of record. [Tax Law (L. 1896, ch. 908), § 263; Hey- decker's Gen. L. (2d ed.), p. 1951. J § II. Taxes on rents reserved; collector may levy on personal property of owner found in county; when tenant may be com- pelled to pay. If any tax upon any such tax-roll upon rents reserved is not paid, the collector shall collect the same by levy and sale of the per- sonal property of the persons against whom the tax is levied, which may be found within the county. If no sufEcient personal property belonging to such person can be found in the county, the collector shall collect such tax of the tenant or lessee in pos- session of the premises, on which the rent is reserved, in the same manner as if such tax had been assessed against such tenant or lessee. Every such tenant or lessee paying any such tax, or of whom any such tax shall be collected, shall be entitled to have the amount thereof, with interest, deducted from the amount of rent reserved upon such premises, which may be due or may there- after become due' thereon, or may maintain an action to recover the same." [Tax Law (L. 1896, ch. 908), § 75; Heydeckers Gen. L. {2d ed.), p. 1881. J 9. The value of tasable rents reserved ia included in the fifth column of the assessment-roll, and if the name of the person entitled to receive the rent cannot be ascertained by the assessors, the tax is to be assessed against the tenant in possession of the real property. See Tax Law, sec. 21, sub. 5, ante, p. 360. 426 Taxatioi^. Tax Law, § 76. § 12. Collector to return unpaid taxes on debts owing to non- residents of the United States to county treasurer ; county treas- urer to issue a warrant to sheriff to collect amount of tax. If it shall appear by the return of any collector that any tax imposed upon a debt owing to a person residing out of tiio United States remains unpaid, the count*- treasurer shall, after the ex- piration of twenty days from such return, issue his warrant to the sheriff of any county in this state where any debtor of any S'Uch non-resident creditor may reside, commanding him to make of the real and personal property of such non-resident the amount of such tax, to be specified in a schedule annexed to the warrant, with his fees and the sum of one dollar for the expense of issuing such warrant, and to return the warrant to the treasurer issuing the same, and to pay over to him the money which shall be col- lected by virtue thereof, except the sheriff's fees, by a day therein to be specified within sixty days from the date thereof. The taxes upon several debts owing to a non-resident shall be included in one warrant. The taxes upon several debts owing to different non-residents may be included in the same warrant, and the sheriff shall be directed to levy the sum specified in the schedule annexed, upon the real and personal prop- erty of the non-residents, respectively, opposite to whose names, respectively, such sums shall be written, with fifty cents for the expenses of the warrant. Such warrant shall be a lien upon and shall bind the real and personal property of the non- residents against whom issued from the time an actual levy shall be made upon any property by virtue thereof, and the sheriff to whom the warrant shall be directed shall proceed upon the same, in all respects, with like effort, and in the same manner, as pre- scribed by law, in respect to execution against property issued upon judgment rendered in the Supreme Court., and shall be entitled to the same fees for his services in executing the same, to be collected in the same manner." [^Tax Law (L. 1896, ch. 908), § 76; TTeiidecker's Gen. L. (2d ed.), p. 1882.] 10. The use of the xrord. " make " in this sentence is apparently an error. It probably was intended for the word " take." The same language was used in sec. 6 of L. 1851, ch. 371, and was retained in the revision of 1896. 11. As to assessment of debts owing to non-residents of the United States, see Tax Law, sec. 30, ante, p. 370. Collection of Taxes. 427 Tax Law, §§ 77, 258. § 13. Sheriff to return warrant for collection of taxes on debts owing to nonresidents; neglect to make return; proceedings if warrant is returned unsatisfied. If any sheriff shall neglect to return any such warrant as directed therein, or tO' pay over any money collected by him in pursuance thereof, he shall be proceeded against in the Supreme Court by attachment in the same manner, and with like effect, as for similar neglect in reference to an execution issued out of the Supreme Court in a similar action, and the proceedings therein shall be the same in all respects. If any such warrant shall be returned unsatisfied, wholly or partly, the county treasurer may obtain an order from a judge of the Supreme Court of the district, or a county judge of the county, of such treasurer, issuing the warrant, requiring such non-resident or any person having prop- erty of such non-resident or indebted to him, to appear and answer concerning the property of such non-resident. The same reme- dies and proceedings may be had in the name of such county treasurer or comptroller before the officer ^ wanting such order, and with a like effect, as are provided by law in proceed- ings against a judgment debtor supplementary to execution against him, returned wholly or in part unsatisfied. The ex- penses of a county treasurer, and such compensation as the board of supervisors may allow him for his services under this section, and for making and transmitting to the assessors of the several towns of his county an abstract or copy of the statements of the agents of non-resident creditors, shall be a county charge. [Tax Law (L. 1896, ch. 908), § 77; Heydecker's Gen. L. (2d ed.), p. 1882.] § 14. Application to County Court for order directing sheriff to collect tax when person taxed has removed from county; certified copy of order to be delivered to sheriff or constable of county to which person has removed. If it shall satisfactorily appear by affidavit to the County Court of any county that a tax legally levied therein, except upon real property of non-residents, cannot be collected because of the re- moval of the person taxed to any other county of the state, sucli court shall, upon application of the collector of any tax district or of the country treasurer of the county, grant an order, directed to the sheriff of the county where such person may be, to collect the same out of his personal property, with interest at the rate 428 Taxation. Tax Law, § 259. of eight per centum per annum from the date of said order. Such order shall be filed in the office of the clerk of the county in which it is granted, and a certified copy thereof delivered to the constable or sheriff of the county where the person liable for the tax may be, and such constable or sheriff, on receiving the same, shall execute it, and make a like return, and be entitled to the same fees and subject to the same liabilities and penalties for neglect as upon execution from any court of record. The sheriff receiving such moneys shall pay the same to the county treasurer of the county where it was levied, to the credit of the tO'Wn in which it was as- sessed. This provision shall also apply to taxes levied upon rents reserved as upon personal property where such taxes remain un- paid. [Tax Law (L. 1896, ch. 908), § 258 j Heydecher's Gen. L. (2d ed.), p. 1949.] § 15. Supervisor or county treasurer may institute supple- mentary proceedings for collection of unpaid taxes. If a tax exceeding ten dollars in amount levied against a person or corporation is returned by the proper collector uncollected for Want of personal property out of which to collect the same, the supervisor of the town or ward, or the county treasurer or the president of the village, if it is a village tax, may, within one year thereafter, apply to the court for the institution of proceed- ings supplementary to execution, as upon a judgment docketed in such county, for the purpose of collecting such tax and fees, with interest thereon from the fifteenth day of February after the levy thereof. Such proceedings may be taken against a cor- poration, and the same proceedings may thereupon be had in all respects for the collection of such tax as for the collection of a judg- ment by proceedings supplementary to execution thereon against a natural person, and the same costs and disbursements may be allowed against the person or corporation examined as in such supplementary proceedings, but none shall be allowed in his or its favor." The tax, if collected in such proceeding, shall be paid to 12. Supplementary proceedings. The proceedings authorized by this section for the collection of unpaid taxes are the same as those provided for the collection of a judgment by proceedings supplementary to execution aa contained in sections 2432-2463 of the Code of Civil Procedure. Under section 2463 of the code corporations are not subject to supplementary pro- ceedings " except in those actions or special proceedings brought by or against the people of the state." But by the above provision corporations may be proceeded against in the same manner as a natural person. Collection of Taxes 429 Tax Law, §§ 78, 79. the county treasurer or to the supervisor of the town, and if a village tax, to the treasurer of the village. The costs and aishursements collected shall be- long to the party instituting the proceedings, and bhall be applied to the pay- ment of the expense of such proceedings. The president of a village and a county treasurer shall have no compensation for any such proceeding. A supervisor shall have no other compensation except his per diem pay for time necessarily spent in the proceeding. 13 [Tax Law (L. 1896, ch. 908), § 259; Heydecker's Gen. L. (2d ed.) , p. 1950.] § 15a. Dismissal of suits or proceedings. Where the person or corporation against whom a proceeding or suit is brought to collect a personal tax in arrears in any town or ward, village, county or city of this state is unable for want of property to pay the tax in whole or in part, or where for other reasons, upon the facts, it appears to the court just that said tax should not be paid, the court may dismiss such suit or proceeding on the payment of such part of the tax as may be just or oH payment of costs. [Tax Law (L. 1896, ch. 908), § 259a, added L. 1905, ch. 348.] § 16. When tax is paid by tenant he may retain amount from rental. If a tax upon real proj>erty shall have been collected of any occupant or tenant, and any other person, bv agi'eement or other- wise, ought to pay such tax, or any part thereof, such occupant or tenant shall be entitled to recover, by action, the amount which such person ought to have paid ; or to retain the same from any rent due or accruing from him to such person for tlie land so taxed. [Tax Laiv (L. 1896, ch. 908), § 78; Heydecker's Gen. L. {2d ed.), p. 1883.] § 17. Payment of taxes on part of lot. The collector shall receive the tax on part of any lot, piece or parcel of land charged with taxes, provided the person paying such tax shall furnish such particular specification of such part, and in case the tax on the remainder thereof shall remain unpaid the collector shall enter such specification on his return to the county treasurer, clearly showing the part on which the tax re- mains unpaid, and if the part on which the tax shall be so paid shall be an undivided share, the person paying the same shall 13. Fnnisliineiit for non-payment of tax. Neglect or refusal to pay any tax shall not be punishable as a contempt or as misconduct; and no fine shall be imposed for such non-payment, nor shall any pefson be im- prisoned or otherwise punishable on account of non-payment of any tax, or of any fine imposed for refusal or neglect to pay such tax. L. 1897, ch. 766, sec. 1, as amended by L. 1898, oh. 79. By section 2 of this act, it is provided that such act does not apply to proceedings supplementary to exe- cution upon judgments recovered for taxes. Sufficiency of application. The application need only allege the facts stated in the above section and need not allege facts sufficient to show that the assessors and board of supervisors had jurisdiction to impose the tax in question. Matter of Conklin, 36 Hun, 588. 430 Taxation. Tax Law, §§ 80, 81, 82. state to the collector who is the owner of such share, and the col- lector shall enter the name of such owner on his account of arrears of taxes, and such share shall be excepted in case of a sale for the tax on the remainder. [Tax Law (L. 1896, ch. 908), § 79; Heydecker's Gen. L. {M ed.), p. 1883.J § 1 8. Payment of taxes on state lands in forest preserve. The treasurer of the state, upon the certificate of the comp- troller as to the correct amount of such, tax, shall pay the tax levied upon state lands in the forest preserve, by crediting to the treas- urer of the county in which such lands may be situated, such taxes, upon the amount payable by such county treasurer to the state for state tax. No fees shall be allowed by the comptroller to the county treasurer for such portion of the state tax as is so paid. [Tax Law (L. 1896, ch. 908), § 80; Heydecker's Gen. L. {2d ed.), p. 1884.J § ig. Fees of collector. On all taxes paid within tbirty days from the date of notice that he has received the roll, the collector shall be entitled to re- ceive, if the aggregate amount shall not exceed two thousand dol- lars, two per centum, and otherwise one per centum, in addition thereto. On all taxes collected after the expiration of such period of thirty days, the collector shall be entitled to receive five per centum in addition thereto. The collector shall be entitled to receive from the county treasury, two per centum as fees for all taxes returned to the county treasury as unpaid. [Tax Law (L. 1896, ch. 908), § 81; Heydecker's Gen. L. {2d ed.), p. 1884.] § 20. Return by collector of unpaid taxes ; contents of return ; form prescribed by tax commissioners. Every collector who makes and delivers to the county treasurer an account of unpaid taxes, upon the tax-roll annexed to his war- rant, which he shall not have been able to collect, verified by his affidavit, that the sums mentioned therein remain unpaid, and that he has not, upon diligent inquiry, been able to discover any personal property out of which the same could be collected by levy and sale, shall be credited by the county treasurer with the amount Collection of Taxes. 431 Tax Law, § 82. of such account." la making such return of unpaid taxes, the collector shall add theret/> five per centum of the amount thereof. In case such tax is uncollected upon lands assessed to a resident he shall also state the re." son why the s.ime was not collected. Any collector who has heretofore failed in making such return of unpaid taxes, may malce such return, whether his terra of office has expired or not, verified hy his afiidavit, to the county treasurer an}- time within eight years after such failure and before the lands against which said taxes are assessed, are advertised for sale pur- suant to this act, and in case any collector shall heretofore or hereafter fail to add said five per centum the county treasurer shall add the aforesaid five per centum of tlie amount of said un- collected tax as aforesaid. Such return shall be indorsed upon or attached to said roll, and shall be in the form to be prescribed by the state board of tax commissioners. Such tax and percentage may be paid to the county treasurer at any time before a return is made to the comptroller. The county treasurer in counties in which lands are sold by him for the non-payment of taxes, is hereby authorized to incur and pay for such expenses as he may deem necessary for the examination of collector's returns and de- scriptions of property to be sold pursuant to this act, and the procurement of proper collector's returns and the examinations and procurement of matters and facts as he may deem necessary to make a valid tax sale hereunder, but such expense shall not exceed the amount of the five per centum added as aforesaid. 14. For form of affidavit to be attached to collector's return of unpaid taxes, see Form No. 47, post. Tie form of the retnrn of the collector is prescribed by the state board of tax commissioners. A retnrn ty a collector, the affidavit to which has no venue, is a nullity. A return which does not state that the account is a transcript of the assess- ment-roll, nor that the figures were taken from the assessment-roll, nor that the sums claimed to be due were for the taxes assessed against the property, is insufficient. Where there was nothing in the return of the collector or in the return of the county treasurer showing that the taxes unpaid were assessed upon non-resident lands, they did not lay a foundation for a sale by the comptroller. Thompson v. Burhans, 61 N. Y. 52. 15. The addition of five per cent, to the amount of the unpaid taxes by the collector in making his return of unpaid taxes on non-resident lands is no error; the section applies to non-resident as well as other lands. Cole- man V. Shattuck, 62 N. Y. 348. It was also held in this case that it was im- material whether the percentage was made a separate item or added to the tax and the sum total returned. 432 Taxation-. Tax Law, §§ 83, 84. [Tax Law (L. 1896, ch. 908), § 82, as amended hy L. 1901, cK. 517; Heydecker's Gen. L. {2d ed.), p. 1884.J § 21. Stay by injunction or otherwise of collection of taxes, to operate as an extension of time for making return of taxes affected. Any stay, lawfully granted by any court of record by injunc- tion or other order or proceeding, of the collection of any tax existing at the expiration of the period for the collection of the tax under any warrant or process in the hands of the collector or other officer for the collection thereof, or existing at the time of the expiration of the term of office of the collector or officer hold- ing such warrant, shall operate as an extension of the time within which such collector or other officer may collect such tax until such stay is terminated and for the period of thirty days there- after. As to all other taxes to be collected under any such war- rant or process the collector or officer holding the warrant or process shall make a return thereof within the time prescribed by law. [Tax Law (L. 1896, ch. 908), § 83; Heydecker's Gen. L. (2d ed.'), p. 1885.] § 22. Payment by collector of taxes collected; officers to give collector duplicate receipts; receipts to be filed. Every collector shall, within one week after the time prescribed in his warrant for the payment of the moneys directed therein to be paid, pay to the officers and persons specified therein, the sums required in such warrant to be paid to them respectively." The 16. Payments by collector. The collector cannot pay claims against the county and credit himself with the amount thereof. Matter of Boyce, 2 Cow. 444. The statute requires that the warrant should direct the pay- ments to be made to the commissioner of highways of such moneys as are raised for highway purposes, and to the overseer of the poor such as are raised for the support of the poor. Notwithstanding the warrant directs a payment to be made contrary to the provisions of the statute, the collector must pay the money raised for such purposes to the highway commissioner and to the overseer of the poor respectively. People v. Permock, 60 N. Y. 421. The presumption is that taxes received by the collector are paid over to persons to whom they are directed to be paid by law. Bank of Gommonioealth V. Mayor, 43 N. Y. 184. Duties of supervisor. Under section 80 of the Town Law, ante^, p. 273, the supervisor of each town is to receive and pay over all moneys raised therein for defraying town charges, except those raised for the support of highways and bridges, and of the poor. Collection of Taxes. 433 Tax Law, § 260. ofiScers and persons other than the county treasurer, to whom any such money shall be paid, shall deliver to the collector duplicate receipts therefor, one of which duplicates shall be filed by the col- lector with the county treasurer and shall entitle him to a credit in the books of the county treasurer for the amount therein stated to have been received, and no other evidence of such payment shall be received by the county treasurer. If any greater amount of taxes shall be levied in any toven than the towTi charges thereof, and its proportionate share of the state taxes and county charges, the surplus shall be paid by the collector to the county treasurer, who shall place it to the credit of such town, and it shall go to the reduction of the tax upon the town for the succeeding year, [Tax Law (L. 1896, ch. 908), § 84; Heydecker's Gen. L. (2d ed.), p. 1885.] § 23. Collector failing to make payments; County Court to order sheriff to levy on property of collector; return of sheriff. If any collector shall neglect or refuse to pay over the moneys •collected by him, to any of the persons to whom he is required to pay the same by his warrant, or to account for the same as unpaid, the County Court, on proof of such fact by affidavit, on application of the county treasurer, shall make an order directed to the sheriff of the county, commanding him to levy such sum as shall remain unpaid by such collector out of his property, personal and real, and pay the same to the county treasurer, within sixty days from the date of such order. The sheriff shall cause the same to bo executed, and pay to the county treasurer the money levied by virtue thereof, deducting for his fees the same compensation that the collector would have been entitled to retain. If the whole sum due from the collector, or if a part only, or if no part thereof, shall be collected, the sheriff shall state the fact in his return, which shall be made as in the case of an execution, and the county treasurer shall give notice to the supervisor of the town, city or division thereof, of any amount which may remain due from such collector. If the sheriff shall neglect to execute the order, or to pay over the money collected thereon, within the time limited thereby, he shall be liable therefor as in case of an execution, and the county treasurer shall immediately prosecute such sheriff and his sureties for the sum due from him, which sum when collected shall be paid into the county treasury. [Tax Law (L. 1896, ch. 908), § 260; Eeydecher's Gen. L. (2d ed.), p. 1950.] 28 434 Taxation. Tax Law, §§ 261, 262, 85. § 24. County treasurer to make payments to proper officers out of moneys collected. The county treasurer shall pay over the moneys received from the sheriff upon such order in the manner directed by the war- rant to the collector. If the whole amount of moneys due from the collector shall not be collected on such warrant, or otherwise,, the county treasurer shall first retain the amount which ought to have been paid to him before making any payment to the town officers. [Tax Law (L. 1896, ch. 908), § 261 ; Heydecker's Gen, L. (2d ed.), p. 1951.] § 25. Supervisors to prosecute collector's undertaking for deficiency. If it appears that the whole or any part of the moneys due from the collector has not been thus collected, the county treasurer shall forthwith give notice to the supervisor of the town or ward of the amount still due from such collector. The supervisor shall forth- with cause the undertaking of the collector to be prosecuted, and shall be entitled to recover thereon the sum due from the col- lector vnth costs of the action. The moneys received shall be applied and paid by the supervisor in the same manner as they s'hould have been by the collector. [^Tax Law (L. 1896, ch. 908), § 262; Heydecker's Gen. L. (2d ed.), p. 1951.] § 26. County treasurer may extend time for collection of taxes; new bond of collector. The county treasurer, upon application of the supervisor of any town or common council of any city in his county, may extend the time for collection of taxes remaining unpaid to a day not later than May first, following, in case tha collector shall pay over all moneys collected by him and make his return of non-resident taxes, and renew his bond in a penalty twice the amount of the taxes remaining uncollected, approved by the proper officers upon filing the same, as the original bond is required to be filed, and delivering a certified copy thereof to such treasurer. Eeceivers of taxes who have filed a bond as required by statute shall not be required to renew their bonds. This section shall not affect any special law relating to the extension of time for the collection of taxes, nor be construed to extend the time for the payment of the CoLLECTioif OF Taxes. 435 Tax Law, § 86. state tax by the county treasurer, as required by this chapter." [Tax Law (L. 1896, ch. 908), § 85; Heydecker's Gen. L. {2d ed.), p. 1885.J § 27. Filling vacancy in office of collector; notice of appoint- ment to county treasurer; warrant to be delivered to new col- lector. If a person chosen to the office of collector of a town shall refuse to serve or be disabled from entering upon or completing the duties of his office from any cause, the town board shall forthwith ap- point a collector for the remainder of the year, who shall give the same undertaking, be subject to the same duties and penalties and have the same powers and compensation as the collector in whose place he was appointed.'' The supervisor of the town shall forth- with give notice of such appointment to the county treasurer. Such appointment shall not exonerate the former collector or his sureties from any liability incurred by him or them. If a war- rant shall have been issued by the board of supervisors before the appointment of a collector to fill a vacancy or before the appoint- ment of a collector under this section, the original warrant, if obtainable, shall be delivered to the collector so appointed and 17. Provision of County licivs, applicable to extensions. The fol- lowing section of the County Law (sec. 149) covers the same ground as the above section of the Tax Law. The Tax Law is a later enactment and will control if inconsistent with the provisions of such section of the County Law: "The county treasurer may extend the time for the collection of taxes in any town or ward, but no extension shall be permitted until the collector of taxes of the town, city or ward in which such extension shall be asked shall pay over to the county treasurer all the taxes collected by him, and renew his undertaking as the supervisor of his town shall approve, and furnish evidence by his oath, and other competent testimony, if any, as such treasurer shall require, that he has been unable, for cause stated, to collect all the taxes within the time required by his warrant; but such extension shall not in any case be made beyond the first day of April in any year, un- less ninety per cent, of such taxes shall have been collected and paid over to him." [County Law (L. 1892, ch. 686), sec. 149.] For form of application of supervisor for extension of time for collection of taxes, see Form No. 48, post. For form of order of treasurer granting extension, see Form No. 49, post. 18. Vacancies are created in the manner prescribed by section 20 of the Public Officers Law. See ante, p. 270. As to filling vacancies generally in town offices, see section 65 of the Town Law, ante, p. 271. For provisions respecting collector's undertaking, see sections 52 and 53 of the Town Law and notes thereunder, ante, p. 262. 436 Taxation. Tax Law, §§ 87, 88. ahall give him tJie same powers as if originally issued to him. If such warrant is not obtainable, a new one shall be issued by the chairman and clerk of the board of supervisors of the county, directed to the collector appointed, with the same force and effect as if originally issued to him. Upon any such appointment, the supervisor of the town or ward, if he shall deem it necessary, may extend the time limited for the collection of taxes for a, period not exceeding thirty days, and forthwith give notice of such extension to the county treasurer. [Tax Law (L. 1896, ch. 908), § 86; Heydecker's Gen. L. {2d ed.), p. 1886.J § 28. Sheriff to collect taxes in case of collector's failure to execute bond, unless vacancy be filled; duties of sheriff there- under. If the collector of any tax district in the state shall neglect or refuse to execute an official bond or undertaking as required by law, or the supervisor of the town shall refuse or neglect' to ap^ prove and file the same, within the tiriie prescribed by law, and a new collector shall not have been appointed within ten days after the time when such bond or undertaking should have been filed, the board of supervisors shall deliver the tax-roll or a copy thereof with the warrant annexed, tO' the sheriff, who shall give a like undertaking as is required from the collector, and who shall then proceed with the collection of the taxes levied therein in like man- ner as collectors are authorized by law to do, and with like powers and subject to the same duties and obligations. Every such war- rant shall require all payments therein specified to be made by the sheriff within sixty days after the receipt of the warrant by him. The expense of the collection of such taxes by him, if any, over and above the fees lawfully chargeable by the collector, shall, be audited by the board of supervisors and shall be a charge upon the town. [Tax Law {L. 1896, cJi. 908), § 87 ; Heydecker's Gen. L. (2d ed.), p. 1886.] § 29. Collector's bond, satisfaction of, by county treasurer; form of satisfaction; filing thereof. Upon the settlement of the account of taxes directed to be col- lected by a collector in any town or city, except in the city of New York, the county treasurer shall, if requested, and if the collector shall have fully paid over or duly accounted for all the taxes which Collection of Taxes. 437 Tax Law, § 89. he was by law to collect, give to such collector or any of his sure- ties, a written certificate of such settlement, duly acknowledged, and upon the filing thereof in the office of the clerk where the undertaking is recorded, the clerk shall enter satisfaction of such undertaking which shall thereby be discharged ;" except that in counties containing cities of the first class such satisfaction when so entereid shall only discharge the lien of said bond or undei^ taking upK>n the real estate of the collector and his sureties, but the liability of the collector and his sureties upon such bond or undertaking for a failure upon the part of such collector to pay over moneys collected by him shall be in no wise impaired. [_Tax Law (L. 1896, ch. 908), § 88, as amended by L. 1899, ch. 321; Heydecker's Gen. L. {2d ed.), p. 1887.] § 30. Reassessment of unpaid taxes on resident real prop- erty ; supervisor to include in tax-roll ; rate of interest on unpaid taxes ; to be regarded as nonresident thereafter. When the tax on any real property, not assessed as non-resident, is returned as unpaid and so remains, the county treasurer shall immediately deliver a transcript thereof to the supervisor of the tax district in which such tax was assessed. Such supervisor shall, if in his power, within thirty days thereafter, cause an accurate description of such real property to be made and re- turned to said treasurer, with the correct amount of taxes thereon, each kind of tax being stated separately, and if necessary, he may cause a survey and map of any of said real property to be made, and the expense of such survey and map on, or for each lot or 19. Satisfaction of collector's nndertaking. By section 53 of the Town Law, ante, p. 263, the undertaking of a collector must be filed by the supervisor in the office of the county clerk, and it is to be entered in a book provided for that purpose in the same manner as judgments are entered of record; and every such undertaking is a lien on the real estate of the col- lector and his sureties until it is satisfied. The certificate of the county clerk that the taxes collected by the collector have been fully paid over or duly accounted for constitutes, when filed in the office of the county clerk, a satisfaction of the undertaking of the collector. Hoir collector can be released. There are but two ways in which a collector receiving a valid warrant can be released. 1. By paying the proper officer the gross sum he is required to collect; 2. By returning warrant with an itemized account of unpaid taxes duly verified. The alleged loss of the assessment-roll will not excuse him. Village of Olean v. King, 5 N. Y. St. Eep. 169. 438 Taxation. Tax Law, §§ 90, 91. parcel shall be returned to said treasurer, and be a legal charge upon such real property and be collected with the taxes thereon. The amount of such tax shall bear interest at the rate of eight per centum per annum from the first day of February until paid, or until the sale of such prope'rty to satisfy such tax by the county treasurer, or if the property is located in a county embracing a portion of the forest preserve, until the return of such unpaid tax to the comptroller. And such real property and the tax thereon shall be regarded for all purposes of assessment, collection and sale as non-resident, and subject to all the provisions of the Tax Law in relation to non-resident real property and non-resi- dent taxe& [Tax Law (L. 1896, ch. 908), § 89, as amended by L. 1902, ch. 171; Eeydecher's Gen. L. {2d ed.), p. 1887.] § 31. County treasurer to pay money to creditors of county. Each county treasurer shall pay to the creditors of the county from the moneys paid to him by the collectors of taxes of the several towns therein, such sums and in such manner as the board of supervisors of the county direct. [Tax Law (L. 1896, ch. 908), § m; Eeydecher's Gen. L. {U ed.), p. 1887.] § 32. County treasurer to be charged with amount of state tax; when state tax is to be paid over; county treasurer may borrow money for payment of state tax; interest on amount withheld. The comptroller shall charge each county treasurer with the amount of the state tax levied on his county, except the tax for schools, crediting him with his fees, if any, but no fees shall be allowed by the comptroller for such portion of the state tax as is credited by him for unpaid non-resident taxes. The county treasurer of each county shall, after retaining his fees thereon, at the rate of one per centum thereof, which shall not, however, in any case exceed fifteen hundred dollars, for all taxes for state purposes, including school^, pay the state tax to the treasurer of the state, as follows: One^third of the state tax exclusive of the state tax for schools on or before the fifteenth day of February, one-third thereof on or before the fifteenth day of April, and unless othcnvise provided by law, the balance thereof on or before the fifteenth day of May in each year, and notify the comptroller Collection of Taxes. 439 Tax Law, § 91. of suck payment. Whenever the state tax for schools, payable by any county, shall exceed the apporfcionment to such county of state school moneys as made by the state supe'rinteodent of public instruetio'- in accordance with the provisions of the Consolidated School Law, such excess shall be paid by the treasurer of such county to the treasurer of the state on or before the fifteenth day of March in each year, and such treasurer shall notify the state superintendent of public instruction of such payment. If there are not sufEcient funds in the county treasury standing to the credit of any town to pay the state tax chargeable thereto, the treasurer shall borrow sufficient money upon the credit of the county find charge the same against such town, with interest thereon until the same is paid. If any county treasurer shall not pay over the state tax, including state tax for schools, as herein directed, the co^mptroller shall charge on all sums withheld such rate of interest as shall be sufficient to repay all expenditures in- curred by the state in borrowing money equivalent to the amount so withheld, and such additional rate as he shall deem proper, not exceeding ten per centum, from the dates hereinbefore provided for such payments in each year, which shall be regarded as funds in the hands of the county treasurer belonging to the state and for which his sureties and county shall be liable. The fees of the county treasurer for collecting and paying over the school tax shall be avowed and paid by the superintendent of public instruc- tion.'" [Tax Law (L. 1896, ch. 908), § 91, as amended by L. 20. References. This section probably supersedes sub. 5 of sec. 141 of pay over one-half of the state tax on or before April 15th, and the other half the County Law (see cmte, p. 89), which authorizes the county treasurer to on or before May 15th. Uncollected state taxes. Under the system of taxation in force in this state, the state deals not with individuals, but with counties as representing divisions or arrears of taxation. The share or quota of each county is charged against it, and it is for each county to make up any deficiency in the collec- tions, save that the counties outside of New York are credited for uncollected taxes on non-resident lands. Mayor, etc, of New York v. Davenport, 92 N. Y. 604. But a county's proportion of the state tax is payable by the county treas- urer. In case of his failure or neglect to pay to the state the tax due, or to render an account thereof to the comptroller, it is not until the remedies against him and against his bondsmen have been exhausted and the loss by reason of that default has been thus ascertained, that the county is required to act or any duty is attached to it. National Bank of Ballston Spa v. Board of Supervisors, 106 N. Y. 488; 13 N, E. 439. 440 Taxation. Tax Law, §§ 92, 93. 1898, ch. 361, and L. 1902, ch. 378; Heydecker's Gen. L. (23 ed.), p. 1888.] § 33. State comptroller to state accounts with county treas- iirer; to institute proceedings against county treasurer for fail- ure to pay over. The comptroller shall state annually on June first, the account of each cjounty treasurer, and if any part of a state tax is unpaid at that date, the comptroller shall transmit by mail to the county treasurer a copy of such accounts and a requisition that he must pay the balance due the state within thirty days, and if the tax is not paid within such time, the comptroller shall, unless he is satisfied by due proof that the treasurer has not received such balance, and has used due diligence in collecting the same, forth- with deliver a copy of the account to the attorney-general, who shall take the necessary proceedings to collect the same of the county treasurer or his sureties or otherwise, with interest as pro- vided by the last preceding section. The comptroller may also, in his discretion, direct the board of supervisors of the county to institute the necessary proceedings on the undertaking of such county treasurer and sureties. The comptroller shall also trans- mit to the board of supervisors on or before October tenth, a statement of account betweea his office and the county treasurer. [Tax Law (L. 1896, ch. 908), § 92; Heydecker's Gen. L. (2d ed.), p. 1888.J § 34. Losses by default of collector or treasurer, how borne. All losses sustained, and all deficiencies in any taxes, or in the payments to be made therefrom, by reason of the default of any collector, shall be chargeable to the town, or city, of which he is collector. If occasioned by the default of the treasurer of any county in the discharge of his oflScial duties, such losses shall be chargeable to such county. Any judgment against such treasurer for any such loss or deficiency on account of the state tax upon which an execution shall have been issued and returned unsatis- fied shall be conclusive as to the fact of such loss or deficiency, and the amount of such deficiency shall thereupon become a char£!;o against such county, and the board of supervisors thereof shall add all such losses or deficiencies to the next year's taxes of such town, city or county, and levy the same thereon. [Too; CoixECTioN OF Taxes. 441 Tax Law, | 94; Penal Code, § 475. Law (L. 1896, ch. 908), § 93; HeydecJcer's Gen. L. {2d ed.), p. 1889.] § 35- Collector to give receipts to each person paying a tax; form of receipts ; to be provided by board of supervisors. The collector shall deliver a receipt to each person paying a tax, specifying the date of such payment, the name of such person, the description of the property as showii on the ass'essmentrroll, the name of t^e person to whom the same is assessed, th'e amount of such tax, and the date of the delivery to him of the assessment- roll on account of which such a tax was paid. For the purpose of giving such receipt, each collector shall have a book of blank receipts, so arranged that when a receipt is torn therefrom a cor- responding stub will remain. The state board of tax commis- sioners shall prescribe the form of such receipts, stubs and books, and they shall be furnished to the collector by the board of super- visors, at the expense of the county. At the time of giving such a receipt, the collector shall make tiie same entries on the corre- sponding stub as are required to be made on the receipt. Such book shall be subject to public inspection and shall be filed by the collector vdth his return, together vdth the assessmentrroll in the office of the county treasurer. [Tax Law (L. 1896, ch. 908), § 94, as amended by L. 1897, ch. 489 ; Heydecker's Gen. L. (2d ed.), p. 1889.J § 36. Obstructing officer in collecting taxes. A person who wilfully obstructs or hinders a public officer from collecting any revenue, taxes or other sum of money in which, or in any part of which the people of this state are directly or indi- rectly interested, and which such officer is by law empowered to collect, is guilty of a misdemeanor. [Penal Code, § 475.] 442 Taxation. Tax Law, § 100. CHAPTER XXX. SALES BY COUNTY TEEASUEEE FOB UNPAID TAXES AND EEDEMPTION OF LANDSJ SOLD.l Section 1. Assessment-roll to be returned by collector to county treasurer; county treasurer to transmit accounts, etc., if his county em- braces a part of the forest preserve. 2. Sale of lands by county treasurer for unpaid taxes in counties embracing no portion of the forest preserve. 3. List of property to be sold and notice of a .sale to be published; sale. 4. Owner may redeem within one year. 4a. Redemption of real property stricken from tax rolls. 5. Conveyance by county treasurer, if real property sold be not re- deemed. 6. Effect of conveyance. 7. Purchase money, when to be refunded by boards of supervisors. 8. County treasurer to transmit to comptroller list of lands to be sold; sale of lands owned by the state or upon which it has a lien. 9. Provisions relative to comptroller to apply to treasurer. 10. Expense of publishing notice to redeem. § I. Assessment-roll to be returned by collector to county treasurer; county treasurer to transmit accounts, etc., if his coimty embraces a part of the forest preserve. The collector shall return the original assessment-roll to the county treas- urer, and when the treasurer finds an account of unpaid taxes on real prop- erty or unpaid taxes oh corporations, received from a collector to be a true transcript of such original assessment-roll to which the collector's warrant is attached, with the descriptions furnished by the supervisor as provided in section eighty-nine, he shall add to it a certificate that he has examined and compared the account with such roll and found it to be correct, and after crediting the collector with the amount thereof, he shall, except in Saint Lawrence, Lewis, Clinton and Oneida counties, in case his county embraces a portion of the forest preserve, before the first day of May next ensuing, trans- mit such account, affidavit and certificate to the comptroller who may before acting thereon return any such account to the county treasurer for correc- tion, who shall make such correction and return to the comptroller in one 1. See Greene's Annotated Tax Laws, 1903, for a more complete statement of the law relating to tax sales by the comptroller and county treasurers. The scope of this work will not warrant the insertion of the provisions of the Tax Law relating to the duties of the comptroller as to the collection of non-resident taxes. Such duties are prescribed by art. 5 of the Tax Law, and will be found in full with annotations in the above mentioned work. Sales by County Teeasueee foe Unpaid Taxes. 443 Tax Law, §§ 150, 151. month thereafter or as the comptroller may otherwise direct. [Tatv Law {L. 1896, oh. 908), § 100, as amended hy L. 1898, oh. 362, L. 1902, oh. 171, and L. 1906, oh. 189; Eeydeoker's Qen. L. (2d ed.) , p. 1890.] § 2. Sale of lands by county treasurer for unpaid taxes in counties embracing no portion of the forest preserve. Whenever any tax charged on real estate, in the counties of Saint Law- rence, Lewis, Clinton and Oneida or in a county not including a portion of the forest preserve, is returned to the county treasurer, he snail not return the same to tue comptroller, but if such tax, with interest thereon at the rate of ten per centum per annum, computed from the first day of February, after the same is levied, shall remain unpaid for six months Irom that date, such county treasurer shall advertise and sell such real estate as herein provided for the payment of such tax and interest and the expenses of such sale. The expense of publication of the notice of sale and the list of lands to be sold and the expense of conducting the sale, and the expense of publication of the notice of unredeemed lands, if thereafter redeemed, shall be a cliarge on the land liable to be sold and snail be added to the tax and interest. Tue county treasurer of the county of Rockland may defer the sale of any parcel of non- resident real estate in such county for unpaid taxes, until tne unpaid taxes thereon with accrued interest shall amount in the aggregate to tue sum of two dollars. [Taa> Law (L. 1886, oh. 90S), § 150, as amended iy L. loD3, oh. 3G2, L. 1901, ch. 261, L. 1902, oh. 171, L. 1903, oh. 170, and L. 1906, ch. 189; Hey decker's Gen. L. (2d ed.), p. 1909.] j§ 3. List of property to be sold and notice of a sale to be published; sale. The county treasurer shall immediately after the expiration of such six months cause to be published at least once in each week lor six weeks, in two newspapers designated for the publication of the session laws, a list of real estate so liable to be sold, together with a notice that such real estate will, on a day at the expiration of said six weeks specified in such notice, and the succeeding days, be sold at public auction at the court-house in the county where the same is situated, to discharge the taxes, interest and expenses that may be due thereon at the time of such sale. Such list shall contain the name of the owner or occupant of each piece of real estate to be sold, as the same appears upon the assessment roll of the year in which unpaid taxes were assessed, a brief description of such real estate, and the total amount of such unpaid taxes for the year advertised, which said total amount shall in- clude all taxes, interest, expenses and other charges against the property for tlie year advertised. The comptroller may prescribe the form and manner of preparing such list, which when so prescribed shall be followed so far as possible by the several counties of the state. No such list shall be published until the same shall have been submitted to and approved by the state comp- troller. On the days mentioned in such notice the county treasurer shall be- gin the sale of said real estate and continue the same from day to day. The charges for publishing such notice shall be seventy-five cents per folio for the first insertion, and fifty cents per folio for each subsequent insertion. The counties of Saint Lawrence, Lewis, Clinton and Oneida, and the counties of the state other than those in the forest preserve are empowered to acquire and hold such lands. Within twenty days after the time for redemption haa expired the county treasurer of each of the counties of Saint Lawrence, Lewis, Clinton and Oneida shall file with the comptroller a certified statement of all tracts or parcels of land situated in the forest preserve which have been bid in by the county and have not been redeemed, and shall sell and convey to the state any tract or parcel of land specified in such statement, which the comp- troller shall designate within six months after such statement is filed, upon the payment of the taxes, Interest and expenses due thereon at the time of i44 Taxatiok-. Tax Law, §| 152, 153. the sale and also all taxes assessed thereon since such sale, and the comp- troller shall draw his warrant on the state treasurer for the amount thereof or credit the county with such amount on the books of his office. After the expiration of such six months in the counties of Saint Lawrence, Lewis, Clin- ton and Oneida, and after the time for redemption has expired in any other county, the county treasurer is authorized in the name of the board of su- pervisors of the county to sell and convey under his hand and seal such lands as have not been conveyed to the state in the manner and upon such terms as the board of supervisors of the county may direct. [Tax Law (L. 1896, ch. 908), § 151, as amended by L. 1898, ch. 362, L. 1905, ch. 445, and L. 1906, ch. 189; Eeydecker's Gen. L. (2d ed.) , p. 1910.] § 4. Owner may redeem within one year. The owner, occupant or any other person having an interest in any real es- tate sold for taxes as aforesaid, may redeem the same at any time within one year after the last day of such sale, by paying to the county treasurer of the county, for the use of the purchaser, the sum mentioned in his certificate, to- gether with interest thereon at the rate of ten per centum per annum, to be computed from the date of such certificate, and any tax which the holder of said certificate shall have paid between the days of sale and redemption, together with the share of the expense of the publication of notices to redeem tlie real estate sold in such county for unpaid taxes, as apportioned by the county treasurer to the real estate so redeemed, which expense shall be in the first instance a county charge and shall be at the same rate as that pro- vided for the publication of notices of tax sales. In case any parcel of real estate mentioned in such notice to redeem shall not be redeemed within the one year allowed by law for such redemption then and in that event the share of the expense of the publication of notices to redeem such unredeemed real es- tate sold in any such county for unpaid taxes as apportioned by the county treasurer, together with interest thereon for one year at the rate of ten per centum per annum, shall be laid before the board of supervisors of such county for re-assessment as are other taxes and shall be by such board of su- pervisors re-assessed upon the assessment-roll of the current year against such real estate and shall be a lien thereon. [Tax Law (L. 1896, ch. 908), § 152, as amended hy L. 1904, ch. 535; Eeydecker's Gen. L. (2d ed.) , p. 1911.] § 4a. Redemption of real property stricken from tax rolls. Tue real property struck down to a county at said tax sale and omitted from the tax rolls as provided in section fifty of this act shall not be sub- ject to further sale after having been once so sold for taxes. The real prop- erty so omitted from the tax rolls may be redeemed by the owner, occupant or any person having an interest in the same, provided the county has not acquired a title in fee to such real property, upon the payment to the county treasurer for the use and benefit of the county of a sum equal to the gross amount of the taxes, expenses of such sale, penalty and interest thereon, to- gether with the tax and interest thereon which would have been due on said real property had it been taxed during each of the years it was so omitted from the tax rolls. The said taxes for each of the yeara during which said real estate is so omitted from the tax rolls shall be computed on the basis of the assessed valuations returned on said real property by the assessors of the several tax districts and at the rate fixed by the board of supervisors as the tax rate for the tax district within which such real estate is situated. [Tax Law (L. 1896, ch. 908), § 152a, added L. 1905, ch. 447.] § 5. Conveyance by county treasurer, if real property sold be not redeemed. If such real estate, or any portion thereof, be not redeemed as herein provided, the county treasurer shall execute to the pur- Sales by County Treasurer foe Unpaid Taxes. 445 Tax Law, §§ 154, 155. chaser a conveyance of the real estate so sold, the description of •which real estate shall include a specific statement of -whose title or interest is thereby conveyed, so far as appears on the record, ■which conveyance shall vest in tlie grantee an absolute estate in fee, subject, however, to all claims the county or state may have thereon for taxes or liens or incumbrance. The county treasurer shall receive from the purchaser fifty cents for preparing such conveyance, and ten cents additional for each piece or parcel of land described therein, exceeding the first. All purchases made for the county shall be included in one conveyance, for which the county treasurer shall receive ten dollars. Every such conveyance shall be executed by the treasurer of the county, under his hand and seal, and may be recorded in the same manner and with like effect as a conveyance of real estate properly acknowledged or proven. The money received by the county treasurer on every such sale shall be applied by him, after deducting the expenses thereof, in like manner as if the same had been paid to him by the collectors of the several towns. \_Tax Law (L. 1896, ch. 908), § 153, as amended by L. 1898, ch. 339; Heydecker's Oen. L. {2d ed.), p. 1911.] § 6. Effect of conveyance. A purchaser or his legal representative may, ufwn receiving a conveyance under and by virtue thereof, possess and enjoy for his own use the real es.tate described in such conveyance, unless re- deemed as herein provided, and after the expiration of the time to redeem the same, may cause the occupant of such real estate to be removed therefrom, and the possession to be delivered to him in the same manner and by the same proceedings, and before the same ofiScers as in the case of a tenant holding over after the expiration of his term without permission of his landlord. [Tax Law (L. 1896, ch. 908), § 154; Heydecker's Gen. L. {2d ed.), p. 1911.J § 7. Purchase money, when to be refunded by boards of supervisors. Whenever any purchaser under such sale shall be unable to regain possession of the real estate purchased by him by reason of error or irregularity in the assessment or levying of a tax, or in proceedings for the collection thereof, the board of supervisors of the county shall refund the purchase money so paid, with inter- est upon the same being presented and audited as other county 446 Taxatioit. Tax Law, §§ 156, 157. charges, and such moneys shall be charged over to the tax district where the irregularity arose. [.Tax Law (L. 1896, eft. 908), § 155; Hey decker's Gen. L. (2d ed.),p. 1912.] § 8. County treasurer to transmit to comptroller list of lands to be sold; sale of lands owned by the state or upon which it has a lien. Tlie county treasurer of any county not emBracing a portion of the forest preserve shall, at least two months prior to any tax sale to be held by him, transmit to the comptroller an accurate and complete list of all the lands in such county to be sold thereat. The state comptroller shall, at least two weeks prior to any such tax sale, transmit to such county treasurer a list of all lands advertised to be sold at such tax sale, belonging to the state, or shall then be mortgaged to the commissioners for loaning certain moneys of the United States, or against which the state holds a bond or lien, for any part of the purchase money thereof, or for which the state may then hold a tax sale certificate. The county treasurer conducting such sale shall bid in for the state all lands described in the list transmitted to him by the comp- troller, and shall, at the close of such sale, transmit to the comptroller a veri- fied and itemized statement showing the amount of each bid made in the name of the state thereat, and the state comptroller shall, within ten days after the receipt by him of such statement, draw hig warrant on the state treasurer for the amount thereof or credit the county with the amount of such statement on the books of his office. [Tax Law (L. 1896, ch. 908), § 156; Eeydecker's Gen. L. (2d ed.) , p. 1912.] § g. Provisions relative to comptroller to apply to treasurer. The provisions of article six of this act, entitled " sales by comptroller for unpaid taxes and redemption of lands " shall, in so far as it is not otherwise herein provided, govern and control the action of the county treasurer,2 who shall perform the duties therein devolved upon the comptroller and the same rights and remedies shall be deemed to exist under the provisions of this article as are provided for in said article six. [Tax Law (L. 1896, ch. 908), § 157; Eeydecker's Gen. L. (2d ed.) , p. 1912.] § 10. Expense of publishing notice to redeem. Where a tax sale has been held by a, county treasurer pursuant to this article, the expense of publishing the notice to redeem as required by sec- tion one hundred and thirty of this chapter shall be apportioned as equi- table as may be between the several pieces or parcels included therein. The amount so apportioned to any parcel shall be paid to the county treasurer by the purchaser at the tax sale upon the execution of a conveyance to him. If a parcel of land is redeemed subsequent to the publication of the notice, the person redeeming shall pay to the county treasurer, in addition to the amount required by section one hundred and fifty-two, the expense of pub- lishing the notice to redeem the same. If a parcel of land is bid in bv the county and is not redeemed, the expense of publishing the notice to redeem shall be a county charge. The money received by a county treasurer for the expense of publishing the redemption notices shall be applied by him to pay the publishers therefor. [Tax Law (L. 1898, ch. 908), § 159, added L 1905 ch. 278.] 2. The provisions of article 6 of the Tax XiSLvr which are applicable under the above provision, and which control the action of the county treas- urer in regard to the sale of non-resident lands for unpaid taxes, are con- tained in full with annotations in Greene's Annotated Tax Laws, 1903. See, also, Heydecker's Gen. Laws, vol. 2, pp. 1894-1909. Mortgages of Real Propebty. 446a Tax Law, §§ 290, 291. CHAPTER XXX-A. Mortgages of Keal Property Within this State. Section 1. Definitions. 2. Exemption from local taxation. 3. Exemptions. 4. Recording tax. 5. Payment of taxes. 6. Effect of non-payment of tax. 7. Trust mortgages. 8. Apportionment by state board of tax commiasioners. 9. Payment over and distribution of tax. 10. Expenses of officers. 11. Supervisory power of state board of tax commissioners and state comptroller. 12. Tax on prior advance mortgages. § I. Definitions. The words real property and real estate as used in this article, in addition to the definition thereof contained in section two of this chapter shall be understood to include everything a convey- ance or mortgage of which can be recorded as a conveyance or mortgage of real property under the laws of this state. The words mortgage of real property as used in this article include every mortgage by which a lien is created over or imposed on real prop- erty or which affects the title to real property, notwithstanding ihat it may also be a lien on personal or other property or that personal or other property may form part of the security for the debt or debts secured by such mortgage. Executory contracts for the sale of real property under which the vendee has or is entitled to possession shall be deemed to be mortgages for the purposes of this article, and shall be assessed at the amount unpaid on such contracts. Tax Law, § 290, as amended by L. 1906, ch. 532, in effect July 1, 1906.] § 2. Exemption from local taxation. All mortgages of real property situated within the state which are taxed by this article and the debts and the obligations which they secure, together with the paper writings evidencing the same, shall be exempt from other taxation by the state, counties, cities, towns, villages, school districts and other local subdivisions of the state, except tiiat such mortgages s'hall not be exeanpt from the 44:6b Taxatioit. Tax Law, §§ 292, 293, 294. taxes imposed by sections twenty-four, one hundred eigbty-seven, one hundred eighty-seven-a., one hundred eighty-seven-b and article ten of the tax law; but the exemption conferred by this section shall not be construed to impair or in any manner affect the title of any purchaser of land or real estate which may be sold for non- payment of taxes levied by any local authority. \_Tax Law, § 291, as amended by L. 1906, ch. 532, in effect July 1, 1906.] § 3. Exemptions. No mortgage of real property situated within this state shall be exempt, and no person or corporation owning any debt or obli- gation secured by mortgage of real property situated within this state shall be exempt, from the taxes imposed by this article by reason of anything contained in any other statute, or by reason of any provision in any private act or charter which is subject to amendment or repeal by the legislature, or by reason of non-resi- dence within this state or for any other cause. [Tax Law, § 292, as amended hy L. 1906, ch. 532, in. effect July 1, 1906.] § 4. Recording tax. A tax of fifty cents for each one hundred dollars and each re- maining major fraction thereof of principal debt or obligation which is, or under any contingency may be secured by mortgage of real property situated within the state recorded on or after the first day of July, nineteen hundred and six, is hereby imposed on each such mortgage, and shall be collected and paid as provided in this article- [Tax Law, § 293, as amended by L. 1906, ch. 532, m effect July 1, 1906.] § 5. Payment of taxes. The taxes imposed by this article shall be payable on the re^ cording of each mortgage of real property subject to taxes there- under. Such taxes shall be paid to the recording officer of any county in which the real property or any part thereof is situated. It shall be the duty of such recording officer to indorse upon each mortgage a receipt for the amount of the tax so paid. Any mort- gage so indorsed may thereupon or thereafter be recorded by any recording officer and the receipt for such tax indorsed upon each mortgage shall be recorded therewith. The record of such receipt shall be conclusive proof that the amount of tax stated therein has been paid upon such mortgage. [Tax Law, § 294, a,s amended by L. 1906, ch. 532, in effect July 1, 1906.] Mortgages of Eeal Peopeett. 4460 Tax Law, §§ 293, 296. § 6. Effect of non-payment of taxes. No mortgage of real property shall be recorded by any county clerk or register on or after the first day of July, nineteen hun- dred and six, unless there shall be paid the tax imposed by and as in this aj-ticle provided. No mortgage of real property which is subject to the taxes imposed by this article shall be released, discharged of record or received in evidence in any action or pro- ceeding, nor shall any assignment of or agreement extending any such mortgage be recorded unless the taxes imposed thereon by this article shall have been paid as provided in this article. No judgment or final order in any action or proceeding shall be made for the foreclosure or enforcement of any mortgage v^hich is sub- ject to the taxes imposed by this article or of any debt or obliga- tion secured by or which secures any such mortgage, unless the taxes imposed by this article shall have been paid as provided in this article. ^Tax Law, § 293, as amended hy L. 1906, ch. 532, m eifect Jvly 1, 1906.] § 7- Trust mortgages. In the case of mortgages made by corporations in trust to secure payment of bonds or obligations issued or to be issued thereafter, if the total amount or principal indebtedness which under any contingency may be advanced or accrue or which may become secured by any such mortgage which is subject to this article has not been advanced or accrued thereon or become secured thereby before such mortgage is recorded, it may contain at the end thereof a statement of the amount which at the time of the execution and delivery thereof has been advanced or accmed thereon, or which is then secured by such mortgage; thereupon the tax payable on recording of the mortgage shall be computed on the basis of the amount so stated to have been so advanced or accrued thereon or which is stated to be secured thereby. Such statement shall there- after at all times be binding upon and conclusive against the mortgagee, the holders of any bonds or obligations secured by such mortgage, and all persons claiming through the mortgage any interest in the mortgage or in the mortgaged premises. The tax for such sums of principal indebtedness as may be advanced, accrue or become secured after the execution and delivery of any such, mortgage shall be payable at or before the time when such sums are advanced, accrue or become secured. Such additional tax shall be paid to the recording officer where such mortgage has been or is first recorded and a receipt therefor shall be indorsed upon the mortgage and payment therefor shall be noted in the 446d Taxation. Tax Law, § 297. maxgin of the record of such mortgage and the note of such pay- ment or additional payment shall have the same force and effect as the record of receipt of the tax which under this article is payable at or before the recording of the mortgage. [Tax Law, § 296, as amended % L. 1906, ch. 532, in effect July 1, 1906.] % 8- Apportionment by state board of tax commissioners. When the real property covered by a mortgage is assessed in more than one county it shall he the duty of the state board of tax commissioners to ascertain the assessed value of the property in each county and to apportion the amount upon which the tax shall be paid to the recording oflScer in each of the aaid counties upon the basis of the relative assessment. Where the mortgage is a first lien upon real property situate in one tax district and a subse- quent lien upon real property situate in another tax district it shall be their duty 'to apportion the amount of tax properly to be credited to said tax districts by ascertaining the valuation of each parcel as appears from the last preceding asseesment>roll of the tax district in which such parcel is located after deducting therefrom the taxable amount of any prior lien. When the real property covered by a mortgage is located partly within the state and partly without the state it shall be the duty of the state board of tax co'mmissioners to determine what proportion shall be tax- able under this article by determining the relative value of the mortgaged property vnthin this state as compared to the total value of the entire mortgaged property, taking into consideration in so doing the amount of all prior incumbrances upon such prop- erty or any portion thereof. If a mortgage covering property located partly within the state and partly without the state, is presented for record before such determination has been made, then there may be presented to the recording officer with such mortgage, a statement in duplicate verified by the mortgagor or an officer or duly authorized agent or attorney of the mortgagor, specifying the value of the property covered by the mortgage within the state and the property covered by the mortgage without the state, stated separately. One of such statements shall be filed by the recording officer and the other shall be transmitted by him to the state comptroller. The tax payable under this article before the ■determination by the state board of tax commissioners, shall be computed upon such proportion of the principal indebtedness secured by the mortgage asi the value of the mortgaged property within the state shall bear to the total value of the entire mortgaged MoETGAGES OF Real Peopeett. 446e Tax Law, § 297. property as set fortii in such statement. The state comptroller shall present the statement transmitted to him or a certified copy thereof to the state board of tax commissioners, who shall there- upon on not less than ten days' notice, serve personally or by mail upon the person mating sudi statement, the mortgagee and upon the comptroller, proceed to determine what proportion of the prin- cipal indebtedness secured by the mortgage shall be used as the measure of taxation within the state under the provisions of this article. They may also determine at the same time the propor- tion of the tax which shall be paid by the recording ofScer who has received the same, to the several county treasurers of the respective counties in the state, in which parts of the mortgaged property are situated, and also the proportion of the tax to be distributed under the provisions of this article to be credited to each town or city within a county. The state board of tax com- missioners shall report their determination to the state comp- troller, who shall file a certified copy of such determination with the recording officer of each county in which any part of the mortgaged property is situated. The comptroller shall serve a copy of such certificate personally or by mail upon the person making such statement and upon the mortgagee together with a notice requiring the payment to the proper recording officer within ten days thereafter, of the amount of the tax on such mortgage, if any, which under the determination of said board remains unpaid. Such additional tax shall become due and be deemed unpaid upon the expiration of such period of ten days. The state board of tax commissioners shall adopt rules to govern their pro- cedure and the manner of taking evidence in these matters and may require certified statements to be furnished either by boards of assessors or recording officers of the respective counties in re- lation thereto, and immediately upon making their determina- tion they shall file a certificate thereof with the recording officer of each county within which a portion of the mortgage property is situated ; and a minute of such determination shall be entered in the margin of the record of the said mortgage, and whenever the tax upon a mortgage secured by real property assessed in two or more counties shall have been paid, as provided by this article it shall also be the duty of the state board of tax commisgioners to equitably apportion between the respective counties the amount upon which such tax is to be computed and to file the certificate of their determination with the recording officer, and thereupon said recording officer shall pay over to the several county treas- 446f Taxation. Tax Law, § 298. urers of tihe respective counties or to the ebaml)eiug made to him of such failure, in the manner provided by the Town Law for the recovery of penalties given by law to a town for its use. Such penalties when so collected shall be paid into the town fund provided by this article for the payment of damages incurred by dogs killing sheep or angora goats in such town. [County Law (L. 1892, ch. 68G), § 127, as added by L. 1896, ch. 680, and amended by L. 1902, oh. 38; EeydecTcer's Gen. L. (2(i ed.), p. 1236.] § ig. Adoption by county of dog registration provision. The board of supervisors of any county may, by resolution adopted at an annual meeting, determine that the provisions of sections one hundred and twenty-eight to one hundred and thirty-six, both inclusive, of this article shall apply to such county or to any specified town therein, after a date to be designated in such resolution, which date shall be subsequent to the last pub- lication of the resolution as herein required, but no such resolution shall be adopted affecting any town in such county separately, except upon the writ- ten application of the town board of such town. Such resolution shall also prescrihe ^■he annual registration fee to be paid within the several towns in such county, or within the town affected by it, for every dog over four months old. A certified copy of such resolution shall be filed in the offices of the sec- retary of state and of the county clerk of such county, and also in the office of the clerk of the town affected by any such resolution if it relates to a single town; and such resolution, together with sections one hundred and twenty- eight to one hundred and thirty-six, both inclusive of this article shall be published once in each week for six successive weeks in at least two news- papers published in the county to be designated by the board of supervisors, one of which shall be a newspaper published in the town specially affected, if such resolution relates to a single town and there be a newspaper pub- lished therein. After the date specified in such resolution which shall be sub- sequent to such publication no taxes upon dogs shall be assessed in any town or village in such county affected by such resolution, and the board of super- visors may at any subsequent meeting thereof prescribe a. different annual registration fee but must publish such change at least once each week for three successive weeks in at least two newspapers to be designated by the board of supervisors, but such registration fee must be uniform in any one year in all the towns of the county to which such sections of this article are then applicable. The board of supervisors of such county may thereafter by resolution adopted, filed and published in like manner determine that the provisions of such sections shall not apply to such county, or to any sep- arate town therein to which such provisions have been made to apply as aforesaid, and after the date specified in such resolution the provisions of law 470 Division Fences; Strayed Animals; Dogs. County Law, §§ 129, 130. for assessment and collection of taxes on dogs shall apply to such county or to any separate town affected hy the resolution last above mentioned, as if the resolution applying such sections had not been adopted. [County Law (L. 1892, ch. 686), § 128, as amended by L. 1901, oh. 455, and amended by L. 1902, oh. 158, and L. 1906, ch. 212.] ;§ 20. Payment of fees; issuance of tags; definition of dog. Within thirty days after the date specified in any such resolution making the aforesaid sections of this article applicable, to any county or to some specified town, every person resident within a town to which such resolution applies, owning or harboring a. dog over four months old shall pay to the town clerk of the town in which he resides, the registration fee prescribed by such resolution; and every person who shall thereafter acquire or harbor such a dog for which such registration fee has not been paid shall pay such fee within ten days after acquiring or harboring the same. A fee so paid shall entitle such dog to registration until the thirty-first day of December following such payment; and thereafter on or before the tenth day of Janu- ary in each year a like fee shall be paid by a person owning or harboring such dog. Upon the receipt thereof, the town clerk shall enter in a book kept for that purpose, the name of such owner or person, a description of such dog, and the date of the payment of the registration fee; and shall furnish for the use of such dog a suitable metallic tag stamped with the year of issuance and with a number corresponding with the registration number of such dog. Such tag shall be worn by such dog at all times during the year for which tne registration fee shall be so paid. The town clerk shall furnish a duplicate of such tag, whenever the same shall be lost, upon payment of the cost thereof. The expense of procuring such tags shall be paid in the same manner as other town charges from the moneys received from the reg- istration fees. The term dog, as used in sections one hundred and twenty- eight to one hundred and thirty-six, both inclusive, of this article, includes bitch. [County Law (L. 1892, ch. 686), § 129, as added by L. 1901, ch. 455, and amended by L. 1902, ch. 158, and L. 1906, oh. 212.] § 21. Duties of assessors. The assessors of each town in such county shall annually, at the time of the completion of their assessment-roll as provided by law, make a list contain- ing the name of every person resident within their town liable to pay a reg- istration fee for dogs as provided by section one hundred and twenty-nine of this article, together vpith the number of dogs owned or harbored by such Dogs ; Duties of Town and County Officeks. 471 County Law, §§ 131, l:,2. person and fortnwith deliver such list signed by them to the town clerk. [County Law, § 130, as added by L. 1901, ch. 455; Heydecker's Gen. L. (2rf ed.), p. 1237.] § 22. Duty of town clerk. The town clerk of each town wherein said resolution is applicable in such county, when he shall be informed by such list or otherwise, that there is any dog which has not been registered, shall forthwith bring an action as pre- scribed in the next section against the owner of such dog or the person harboring the same, or he shall forthwith give written notice to any constable of the town requiring him to take such dog into his possession, and dispose of the same as prescribed in section one hundred and thirty-three of this article. [County Law, § 131, as added by L. 1901, ch. 455, and amended by L. 1906, cA. 212; Heydecker's Oen. L. (2d ed.), p. 1327.] § 23. Penalties; actions therefor. Every person liable to pay a registration fee for a dog who shall fail to pay the same as herein provided, or who shall knowingly permit any dog, owned or harbored by him, to be at large without wearing a tag issued by the town clerk, shall forfeit the sum of five dollars, to be recovered in an action brought before a justice of the peace of the town wherein the person owning or harboring such dog may be, in the name of such town, upon the complaint of the town clerk; and the justice before whom a judgment for such penalty is recovered shall direct in the execution issued upon such judgment, that, in case of the failure to collect the whole of such judgment besides costs, the dog for which such registration fee has not been so paid, or which has been so permitted to be at large, shall be taken into the jK)ssession of the constable receiving such execution and forthwith killed by shooting and thereupon it shall be the duty of such constable to take such dog into his pos- session and forthwith kill the same. A judgment so recovered shall not constitute a bar to a further action to recover such pen- alty brought subsequent to the recovery of such judgment so long as such violation shall continue, nor shall the recovery or collection of such judgment exempt the person against whom the same is recovered from a compliance with any provision of sections one hundred and twenty-eight to one hundred and thirty-six, both inclusive, of this article. [County Law, § 132, as added by L. 1901, ch. 455; Heydecher's Gen. L. {2d ed.), p. 1238.] 4Y2 Division Fences; Strayed Animals; Dogs. County Law, §§ 133, 134, 135. § 24. Seizure of dogs not tagged or registered. Each constable in such county where such resolution shall be made applicable to the whole county or in the town to which such resolution shall be made applicable, where such resolution shall be made applicable to one or more towns only shall after the expiration of such thirty days from the date specified in such reso- lution seize and keep in his possession, until disposed of as herein provided, every dog running at large in his county, or town, and not wearing such tag and every dog of which he shall be informed by the town clerk of his town by written notice. He shall forthwith post a notice in a conspicuous place in the office of the town clerk, containing a description of the dog so seized, and a statement of the time of seizure thereof, and that the said dog will be killed at the end of seventy-two hours from the time of posting, such notice stating the hour of guoh posting, unless the same is regis- tered and the fee for seizing the same as herein provided is paid within such time and shall also serve a copy of the notice so posted, at least forty-eight hours before such dog shall be killed, upon the owner or person harboring such dog, provided that he be known to such constable or can with reasonable diligence be ascertained by him within said county, personally or by leaving the same at his last known place of residence with a person of suitable age and discretion. The constable shall at the end of seventy-two hours from the time of posting and after so serving such notice kill such dog by shooting, unless the same shall before the expiration of that time be registered and a tag procured for the same as provided in section one hundred and twenty-nine, and in addition thereto, the sum of two dollars be paid to such constable for his fees, in which case such dog shall be released. Every constable shall be entitled to receive a fee of one dollar for each dog seized and killed by him under provisions of this section or of section one hundred and thirty-four of this article, to be paid as other town charges are paid from moneys received from registration fees. [County Lmw, § 133, as added hy L. 1901, ch. 455, arid amended by li 1902, ch. 158, and L. 1906, ch. 212.] The value of any dog destroyed by any constable except as herein provided may be recovered by the owner of such dog from either such constable or the town wherein such dog is destroyed. [County Law, § 134, as added by L. 1901, ch. 455 ; Heydecker's Gen. L. {2d ed.), p. 1329.] § 25. Disposition of registration fees and penalties. The trivm clerk shall fit the e-nd of every calendar month pay to the Ku pprvisor nil fees roppivpd by him durins' such mniith for the registration cf dnjTs find bitches under this prticV. ]pss the sum of Dogs; Duties of Town and County Officees. 473 County Law, § 13 J. twenty-five oents' for each dog and hitcii registered, wliicli may be retained by him as his fee therefor. A justice of the peace before whom a penalty is recovered as provided in section one hundred and thirty-two of this article, shall forthwith pay one-half thereof, when collected, to the supervisor, and one^half to the town clerk for his fees in making the complaint in the action in which such penalty is recovered. The money paid to the supervisor pursuant to this section on account of registration fees and penalties shall, except as otherwise provided herein, be applied for the same pur- poses as provided by law with respect to taxes collected upon dogs. ^County Law, % 135, as added hy L. 1901, ch. 455 ; Heydecker's Gen. L. (2d ed.), p. 1239.] § 26. Actions for injury or destruction of unregistered dogs. ISTo person shall hereafter maintain an action for an injury to or the destruction of any dog, unless it shall affirmatively appear that such dog has been duly registered as provided by section one hundred and twenty-nine of this articla jSTothing in this act shall apply to an incorporated city of the state. ^County Law, § 136, as added by L. 1901, ch. 455; Heydecker's Gen. L. {2d ed,), p. 1239.] Eelief of Poor. CHAPTER XXXIV. StJPEEINTENDENT OF THE POOR; ALMS-HOUSES. SxcnoiT 1. Election, appointment, qualifications and terms of office of superintendent of the poor. 2. Undertaking, how executed and approved; contents. 3. Powers and duties of county superintendents of the poor. 4. One of superintendents of the poor may be appointed as keeper of almshouse; compensation. 5. County superintendent may direct overseers of the poor to take charge of county poor. 6. Superintendents to provide for support of idiots and lunatics. 7. Pestilence in almshouse; inmates to be removed. 8. County treasurer to keep accounts with towns for moneys paid on account of poor; superintendent to furnish statement. 9. Superintendents to make annual apportionment to towns of amount expended for support of poor. 10. Amount chargeable to towns to be added to tax levy. 11. Superintendent's estimate for expense of maintaining county poor; supervisors to cause sufficient amount to be raised. 12. Superintendent to make report to state board of charities; con- tents of report. 13. Almshouse register; what to contain; officers to furnish infor- mation. 14. Board of supervisors or town board may make rules and regula- tions as to furnishing temporary relief. 15. Failure of officer required to make statement or report as to the poor, how punished. 16. Children not to be sent to almshouses. 17. Poor children not to be committed to almshouse as vagrants; truants or disorderly persons; support of poor children in families or charitable institutions. § I. Election, appointment, qualifications and terms of office of superintendent of the poor. There shall continue to be elected or appointed in each of the counties one or more superintendents of the poor as heretofore; hiut no supervisor of a town, or county treasurer, shall be elected (475) 476 Relief of Pooe. County Law, § 210. or appointed to such office.' The board of supervisors of any county having, or entitled to have three or more superintendemta of the poor, may, at an annual meeting thereof, determine by resolution that thereafter only one county superintendent of the poor shall be elected ; but no superintendent of the poor shall be elected or appointed in such county until the general election next preceding the expiration of the terms of the superintendents in office, or the office shall be vacant.' The term of any superin- tendent in office, or of any person duly elected thereto on the pas- sage of such resolution, shall not be affected thereby. Such board may also, in counties having and entitled to have but one superin- tendent of the poor, in like manner determine that thereafter three superintendents of the poor be elected for such county. After the passage of a resolution, as herein provided, the powers herein conferred shall not be again exercised within a period of five years. Such resolution shall not take effect until the next calen- dar year succeeding its adoption. 1. Removal of superintendents. A county superintendent of the poor ds removable by the governor after an opportunity has been given to him to be heard in his defense. Public Officers Law, see. 23, ante, p. 183. The expense of such removal is a county charge. See County Law, sec 230, sub. 16, ante, p. 39. As to proceedings before the governor for removal, see Public Officers Law, sees. 24, 25, ante, p. 184. Snper-risor not to be superintendent of the poor. The disqualifica- tion of a supervisor to the office of a superintendent of the poor applies to supervisors of wards of cities. People ex rel. Furman v. Clute, 50 N. T. 451. In this case it was also held that the prohibition makes a supervisor not only ineligible to hold office of superintendent, but also ineligible to an elec- tion or appointment thereto. It was also contended in this case that the re- striction imposed upon a supervisor and a county treasurer was unconstitu- tional, since it impairs the right of suffrage by limiting the right of the elector to select and vote for a candidate from the whole body of electors, and thus interfered with his constitutional right to vote; but the court held that the act permitting the election of superintendents of the poor having been passed after the adoption of the constitutional provision, the right to vote for such officers was a privilege granted by the legislature, and could be limited by it. 2. Determining nnmber of superintendents. In the case of People ex rel. Hatfield v. Comstock. 78 N. Y. 356, it was held that superintendents of the poor are county officers whose appointment or election may be pro- vided for by the board of supervisors as the legislature shall direct, under art. 10, sec. 2 of the Constitution. The delegation to the board of supervisors of the power of determiiing the number of superintendents and of filling vacancies is constitutional. SUPEEINTENDENT OF THE PoOE J AlMS-HOUSES. 477 County Law, § 210. There shall continue, 1. To be elected annually in each of the counties so having and being entitled to three county superintendents one county super- intendent of the poor, who shall hold his office for three years from and including the first day of January succeeding his eleo- tion, and until his successor is duly elected and qualifies ; 2. To be appointed by the board of supervisors, if in session, otherwise by the county judge, a county superintendent of the poor, "when a vacancy shall occur in such office, and the person so appointed shall hold the office until and including the last day of December succeeding his appointment, and until his successor shall be elected and qualifies; 3. To be elected a county superintendent of the poor in a county "when a vacancy shall occur in such office, and the term of which shall not expire on the last day of the next succeeding December, and the person so elected shall hold the office for such unexpired term, which shall be designated upon the ballots of the electors, or until his successor shall be elected and qualifies ; 4. To be elected in each of the counties so having, and entitled to have but one superintendent, a superintendent of the poor, who shall hold his office for three years from and including the first day of January succeeding his election, and until his successor is duly elected and qualifies; 5. To be appointed by the board of supervisors, if in session, otherwise by the county judge, a superintendent of the poor, in a county having and being entitled to but one superintendent, when a vacancy shall occur in such office; and the person so appointed shall hold the office until and including the last day of December sucoeeding his appointment, and until his successor shall be elected and qualifies; 6. To be elected in the succeeding year after the board of super- visors of a county having but one superintendent of the poor, «hall have adopted a resolution to have three superintendents, if the term of the superintendent in office expires with such year, three superintendents of the poor for such county, for the terms of one, two and three years respectively, which terms shall be re- spectively designated upon the ballots of the electors voting for such officers. If the term of the superintendent in office will not expire with such succeeding yonr, there shall be elected two super- intendents of the poor for such county, for such terms, to be so ers of such houses, and physicians, matrons and all other necessary officers and servants, and vest such power in them for the government of such houses, and the poor therein, as shall be necessary, reserving to such poor persons who may be placed under the care of such keepers, matrons, officers or servants, the right of appeal to the superintendents.' [Amended ly L. 1903, ch. 340.] 5. Purchase all necessary furniture, implements, food and materials for the maintenance of the poor in such houses, and 5. General 8nperiiiteiideii.ce of poor persons. By sub. 1 of the above section superintendents are now given the general superintendence of all matters relating to the poor. Under the old law they only had control of county poor persons, and a general supervisory jurisdiction over all ques- tions relating to the settlement of the poor and of the respective liabilities of the towns and counties; and all the powers conferred upoit county superin- tendents to support and maintain the county poor, were required to be exer- cised at the county poorhouse, or at such other places as might have been pro- vided for that purpose by the direction of the board of supervisors. People ex rel. Commissioners of Emigration, 27 Barb. 562. 6. Appointment of beeper by board of supervisors. Section 4 of the Poor Law, post, p. 482, authorizes the board of supervisors to appoint one of the superinatendents of the poor as keeper of the county almshouse. Unless one of such superintendents has been appointed by the board of super- visors as provided in that section, the above sub-division authorizes the county superintendents to employ such a keeper. Whenever the board of supervisors exercises this power and appoints one of the superintendents as such keeper, the term of oflSce of the keeper pre- viously appointed by the superintendents terminates, although the year for which he was employed has not expired. People ex rel. MoGormAclc v. Weldon, 14 N. Y. Supp. 447 ; 39 N. Y. St. Rep. 49. Term of office of keeper. The superintendents of the poor have no power to fix by contract the duration of the keeper's term. He holds his position only during the pleasure of the appointing power. Abrams v. Hor- ton, 18 App. Div. 208, 45 N. Y. Supp. 887. 480 Relief of Pooe. Poor Law, § 3. for their employment in. labor, and use, sell and dispose of tihe proceeds of such labor as they shall deem expedient. 6. Prescribe the rat© of allowance to be made for bringing poor persons to the county alms-house, subject to such alterations as the board of supervisors may by general resolution xriake. 1. Authorize the keepers of such houses to certify the amount due for bringing such poor persons; which amount shall be paid by the county treasurer on the production of such certificate, countersigned and allowed by the coimty superintendents of the poor. 8. Summarily decide any dispute that shall arise concerning the settlement of any poor person, upon a hearing of the parties, and for that purpose may issue subpoenas to compel the attend- ance of witnesses, with the like powers to enforce such process, as is given to a justice of the peace in an action pending before him ; their decisions shall be filed in the office of the county clerk within thirty days after they are made, and shall be conclusive and final upon all parties interested, unless an appeal therefrom shall be taken, as provided in this chapter. 9. Direct the commencement of suits by any overseer of the poor who shall be entitled tO' prosecute for any penalties, or upon any recognizance, bonds or securities taken for the indemnity of any town or of the coimty ; and in case of the neglect of any such overseer, to commence and conduct such suits, without the au- thority of such overseer, in the name of such superintendents. 10. Draw on the county treasurer for all necessary expenses incurred in the discharge of their duties, which draft shall be paid by such treasurer out of the moneys placed in his hands for the support of the poor.' 7. Draft on. county treasurer. The board of supervisors of » county have no right to direct a county treasurer not to recognize the draft of a superintendent of the poor payable to his order, nor to pay any such draft unless the object for -which the money was to be paid was specified in the order. People ex rel. Serven v. Demarest, 16 Hun, 123. The court in this case said: "The superintendents give security that they will render a true account of all moneys received and expended to the supervisors, and the supervisors audit the account. It will be seen that the superintendents are an independent board. They can purchase independently, and draw moneys from the county treasurer independently. The expenditure is to be submitted to the board of supervisors. If, after the settlement of the accounts, there is any sum due to the people from the superintendents, the bond will be enforced." SUPEEINTENDENT OF THE PoOEJ AxMS-HOUSES. 481 Poor Law, § 3. 11. Audit and settle all accounts of overseers of the poor, jus- tices of the peace, and all other persons, for services relating to the support, relief or transportation of the county poor ; and draw on the county treasurer for the amount of the accounts which they shall so audit and settle.' 12. Furnish necessary relief to such of the county poor as may require only temporary assistance, or are so disabled that they cannot be safely removed to the county alms-house, or to the county poor wiio can be properly provided for elsewhere than at the county alms-house at an expense not exceeding that of their support at such alms-house.' The above sub-division should be considered in connection with the pro- vision contained at the end of this section to the effect • that the board of supervisors may fix the maximum sum which may be expended by the super- intendent during the year, and that when such limitation is fixed, the county treasurer cannot pay orders in excess of such sum without the approval of the chairman of the board of supervisors or a committee of such board. 8. Andit of accounts. It was intimated in the case of Hayes u. Bimonds, 9 Barb. 260, that the purchase of material and employment of labor by superintendents, for which they are authorized to contract, were not the class of accounts to which the statute from which the above sub-division was taken had reference. It is not reasonable to suppose that the statute can be so interpreted as to allow the superintendents to audit accounts arising from their own contracts and so make them sit as judges upon ques- tions relating to their own conduct, and their own corporate liability. Ncary V. RoUnsoru. 98 N. Y. 84. In the latter case it was held that the superintendents could not audit the account of an attorney retained by them for services rendered in bastardy proceedings instituted by them. The superintendent may properly employ professional assistance in such cases, but the costs incurred are a charge against the county and must be audited by the board of supervisors. Superintendents of the poor are not bound to audit the accounts of physi- cians and others for services rendered in aid of county paupers by request of overseers of the poor of the several towns, although the services were ren- dered in pursuance of orders for temporary relief. Such accounts may be very numerous, and occasionally very trifling; and it is peculiarly fit that they should first be adjusted by the overseer, and charged by him in a gen- eral account. Ex-Parte Oreen and Brown, 4 Hull, 558. If superintendents refuse to audit and settle the accounts specified in this sub-division the proper remedy is by writ of certiorari. It follows then that the proceedings to determine such accounts are judicial in their nature. Vedder v. Superintendents of Schenectady County, 5 Denio, 564. 9. Temporary Telief. Under the law as it existed prior to the Poor Law of 1896, the county poor requiring temporary relief could not be sup- ported by the superintendents at a place other than the county almshouse. Gallup V. Bell, 20 Hun, 172; People v. Commissioners of Emigration, 27 Barb. 662. This rule is changed by the provisions of the above sub-division. 31 482 Kelief of Pooe. Poor Law, § 4. 13. Eender to the board of supervisors of their county, at their annual meeting, a verified account of all moneys received and expended by them, or under their direction, and of all of their proceedings in such manner and form as may be required by the board. 14. Pay over all moneys remaining in their hands, Avithin fifteen days after the expiration of their terms of office, to the county treasurer, or their successors. 15. Administer oaths and take affidavits in all matters per- taining to their office, and elicit, by examination under oath, statements of facts from applicants for relief. Expenditures by the superintendent of the poor in the administration of his de- partment are subject to the following limitations: The board of supervisors, at its annual meeting, may fix the maximum sum which may be expended by the superintendent, at his discretion, during the next ensuing year, and may provide that expenditures in excess of that sum shall be made only with the written approval o£ the chairman of the board of supervisors, or of a committee of the board, composed of not exceeding three members. If such limitation is fixed and such provision made, the county treasurer shall not pay any draft or order of the superintendent in excess of the sum so fixed by the board, unless it is accompanied with the written approval of such chairman or committee. [Poor Law (L. 1896, ch. 225), § 3, as amended by L. 1897, ch. 507; Hey- decker's Gen. L. {2d ed.), p. 2201. J § 4. One of superintendents of the poor may be appointed as keeper of alms-house; compensation. The board of saipervisors of any county may, by resolution, appoint as keeper of its county alms-house one of the superin- tendents of the poor of such county, who shall hold such office until the expiration of his term as superintendent or until the board of supervisors, by resolution, shall determine that he shall County poor are defined in section 2 of the Poor Law as such persons as are required by law to be supported at the expense of the county. The distinction between town and county poor may be abolished by a resolution of the board of supervisors; in such case the poor of the county are to be maintained at the expense of the county and thus become county poor; see Poor Law, sec. 134, post, p. 582. If a poor person has not gained a settlement in a town or city, he is a county poor person, and maintainable at the ex- pense of the county. Poor Law, sec. 42, sub. 2, post, p. 536. SUPEEINTENDENT OF THE PoOE; AlMS-HOUSBS. 483 Poor Law, §§ 5, 6. no longeo" act in such capacity.'" The board of supervisors may- fix the compensation such superintendent shall receive for acting as such keeper, and such compensation sliall be a county charge.'^ While a resolution of the board of supervisors directing such superintendent to act as keeper of the county alms-house is in force, the superintendents shall not employ a keeper thereof. [Poor Law (L. 1896, ch. 225), § 4 ; Heydecker's Gen. L. {2d ed.), p. 2203.] § 5. County superintendent may direct overseers of the poor to take charge of county poor. Whenever the county superintendents take charge of the support of any county poor person, in counties -where no almsrhouse is provided, they may authorize the overseers of the poor of the town in which such poor person may be, to continue to support him, on such terms and under such regulations as they shall pre- scribe; and thereafter no moneys shall be paid to such overseers for the support of such poor person, without the order of the superintendents; or the superintendents may remove such poor person to any other town, and there provide for his support, in eoioh manner as they shall deem expedient [Poor Law (L. 1896, ch. 225), § 5; Heydecker's Gen. L. (2d ed.), p. 2203.] § 6. Superintendents to provide for support of idiots and lunatics. The superintendents of the poor shall provide for the support of poor persons that may be idiots or lunatics, at other places than in the alms-house, in such manner as shall be provided by law for the care, support and maintenance of such poor persona" 10. A keeper of a connty alma-honse may be appointed by the super- intendents of the poor in case the supervisors do not appoint one of such superintendents as keeper as provided in the above section. See Poor Law, sec. 3, sub. 4, ante. 11. CompeiiBation of all superintendents of the poor is to be fixed by the board of supervisors as provided in sec. 12, sub. 5, of the County Law. If the superintendent is also keeper of the almshouse, his compensation may be made to include his compensation as such keeper. 12. Support of insane. Lunatics cannot now be maintained at an almshouse. All pauper insane must be transferred to a, state hospital. The superintendents of the poor are bound to see that all such insane are so transferred. People ex rel. State Commission v. Superintendents, 20 N. Y. Supp. 10; 47 N. Y. St. Eep. 367. i84 Kemef of Pooe. Poor Law, § 7. {Poor Law (L. 1896, ch. 225), § Q; Hey decker's Gen. L. {2ded.), p. 2204.] § 7. Pestilence in alms-house; inmates to be removed. Wlieaiever any pestilence of infectious or contagious disease shall exist in any county aimsrlious© or in its vicinity, and the physician thereof shall certify that such pestilence or disease is likely to endanger the health of the persons supported thereat, the superintendents, of the poor of such county shall ca.use the persons supported at such almsrhouse or any of them, to be removed to such other suitable place in the same county as shall be designated by the board of health of the city, town or village, "within which such alms-house shall be, there to be maintained and provided for at the expense of the county, with all necessary medical care and attendance, until they can be safely returned to the county alms- house from which they were taken, or otherwise discharged. iPoor Law (L. 1896, ch. 225), § 7; Heydecker's Gen. L. (2rf ed.), p. 2204.] By the Insanity Law, the poor and indigent insane of the county are to be committed to the state hospitals for the insane and there maintained at a state expense. Insanity Law, sec. 65, post, p. 497. If an applicant for relief as a poor person, is, in the opinion of the super- intendent insane, it would be his duty to investigate the facts and take pro- ceedings under sees. 60-62 of the Insanity Law (post, p. 496), for his com- mitment to a state hospital for the insane. If an inmate of an almshouse becomes insane, the superintendent should take the necessary steps to secure his transfer to a state hospital. Maintenance of idiots. There are three state institutions for the care and custody of idiots ; the Syracuse State Institution for Feeble Minded Children (State Charities Law, sec. 60) ; State Custodial Asylum for Feeble Minded Women at Newark (State Charities Law, sec. 80) ; and the Rome State Custodial Asylum ( State Charities Law, sec. 90 ) . Idiots who are residents in a county may be transferred to such institutions and either supported as a state charge, or at a county expense aa pro^'ided by law, or the rules and regulations of the institution. See Gumming & Gilbert's Poor, Insanity and State Charities Laws, pp. 278-289. See, also, post, pp. .503-505. Epileptics. The Craig Colony for Epileptics, established at Sonyea, Livingston county, is for the purpose of caring for and treating poor and indigent persons suffering from epilepsy to the extent of the accommodations there provided. See State Charities Law, sees. 100-115. It is the duty of the county superintendent to provide for the commitment of such persons to such colony. Application may be made to the county superintendent of the poor for placing a child in such colony and, upon compliance with the terms of the statute, it is the duty of the superintendent to place such child therein. See post, p. 506. SUPEEINTENDENT OF THE PoOB J AlMS-HOUSES. 485 Poor Law, §§ 8, 9. § 8. County treasurer to keep accounts with towns for moneys paid on account of poor; superintendent to furnish statement. In counties where there are town poor, the county treasurer thereof shall open and keep an account with each town, in which the town shall be credited with all the moneys received from the same, or from its ofEcers, and shall be charged with the moneys paid for the support of its poor. If there be a county alms-house in such county, the superintendents of the poor shall, each year, before the annual meeting of the board of supeirvisors, furnish to the county treasurer a statement of the sums cliargcd by them as herein directed, to the several towns for the support of their poor, which shall be charged to such towns, respectively, by the county treasurer in his account." \_Poor Law (L. 1896, ch. 225), § 8; Heydecker's Gen. L. (2d ed.), p. 2204.] § g. Superintendents to make annual apportionment to towns of amount expended for support of poor. In counties having an alms-house, and where there are town poor, the superintendents shall annually, and during the week preceding the annual meeting of the board of supervisors, make out a statement of all the expenses incurred by them the preced- ing year for the support of the town poor, and of the moneys re- ceived therefor, exhibiting the deficiency, if any, in the funds pro- vided for defraying such expenses, and they shall apportion the deficiency among the several towns in proportion to the number and expenses of the town poor of such towns, respectively, who 13. To-nm accounts. The money to be credited to the towns is the money which is received from the county or its officers. People v. Tlarris, 16 How. 256. The amount to be charged to the towns on account of their poor main- tained at the county almshouse is to be determined by the amount actually expended by the county for such maintenance. The statute contemplates that the benefits resulting from the almshouse and the property connected therewith, shall be given to the county and towns, in respect to the poor supported at such almshouse without regard to the general obligation of the towns to support their own poor. The towns cannot be charged with the products of the almshouse farm, the labor of the poor in carrying on the business of the almshouse and the occupancy by the town poor. They are only chargeable with their pro rata share of the deficiency. City of Roches- ter V. Supervisors of Monroe County, 22 How. Pr. 248. All orders made for the payment of expenses incurred in the main- tenance of the county poor should be drawn upon the fund created by this eection. No action will lie aeainst the superintendents for failure to pay such expenses until a demand is made of them for such an order. 486 Relief of Pooe. Poor Law, §§ 10, 11, 12. shall have been provided for by the superintendents, and shall charge the towns with such proportion, which statement shall be by them delivered to the county treasurer. [Poor Law {L. 1896, ch. 225), § 9; Heydecker's Gen. L. (2d ed.), p. 2204.] § 10. Amount chargeable to towns to be added to tax levy. At the annual meeting of the board of supervisors, the county treasurer shall lay before them the account kept by him ; and if it shall appear that there is a balance against any town, the board shall add the same to the amount of taxes to be levied and col- lected upon such town, with the other contingent exj)enses thereof, togefjier with such sum for interest as will reimburse and satisfy any advances that may be made, or that may have been made, by the county treasurer for such town, which moneys, when collected, shall be paid to the county treasurer. [Poor Law {L. 1896, ch. 225), § 10; Heydecker's Oen. L. (2d ed.), p. 2205.] § II. Superintendent's estimate for expense of maintaining county poor ; supervisors to cause sufficient amount to be raised. The supeo-intendenta of the poor shall annually present to the board of supervisors, at their annual meeting, an estimate of the sum which, in their opinion, will be necessary during the ensuing year for the support of the county poor ; and such board of super- visors shall cause such sum as they may deem, necessary for that purpose, to be assessed, levied and collected, in the same manner as other contingent expenses of the county, to be paid to the county treasurer and to be by him kept as a separate fund, distinct from the other funds of the county. [Poor Law (L. 1896, ch. 225), § 11; Heydecker's Gen. L. (2d ed.), p. 2205.] § 12. Superintendent to make report to state board of chari- ties ; contents of report. The superintendents of the poor of every county shall, on or before the first day of December in each year, make reports cover- ing the year ending September thirtieth, to the state board of charities in such form as the board shall direct, showing the num- ber of the town poor and of tiie county poor that have been re- lieved or supported in their county the year preceding October first; the whole expense of such support, the amount paid for transportation of poor persons, and any other items not part of the actual expenses of maintaining the poor, and the allowance SUPEEINTENDENT OF THE PoOE ; iVlMSHOUSES. 487 Poor Law, § 138. made to superintendents, overseers, justices, keepers, matrons, officers and other employes of the superintendents ; the actual value of the labor of the poor persons maintained, and the estimated amount saved in the expense of their support in consequence of their labor ; the sex and native country of every such poor person, with the causes, either direct or indirect, which tave operated to render such persons poor, so far as the same can be ascertained ; and shall include in such reports a statement of the name and age of, and of the names and residence of the parents of, every poor child who has been placed by them in a family during the year, with tihe name and residence of the family with whom every such child was placed, and the occupation of the head of the family, together with such other items of information in respect to their character and condition as the state board of charities shall direct/ [Poor Law (L. 1896, ch. 225), § 12; Eeydecker's Gen. L. (2d ed.), p. 2205.] § 13. Alms-house register: what to contain; officers to fur- nish information. In addition to the general register of the inmates of the various alms-houses, there shall be kept a record of the sex, age, birth place, tirth of parents, education, habits, occupation, condition of an- cestors and family relations, and cause of dependence of each person at the time of admission, with such other facts and par- ticulars in relation thereto as may be required by the state board of charities, upon forms prescribed and furnished by such board. Superintendents and overseers of the poor, and other officers charged with the relief and support of poor persons, shall furnish to the keepers or other officers in charge of such alms-houses, as full information as practicable in relation to each, person sent or brought by them to such alms-house, and such keepers or other officers, shall record the information ascertained at the time of the admission of such person, on the forms so furnished. All such records shall be preserved in such alms-houses, and the keepers and other officers in charge thereof shall make copies of the same on the first day of each month, and immediately for- ward such copies to the state board of charities. [Poor Law (L. 1896, ch. 225), § 138; Eeydecker's Gen. L. {2d. ed.), p. 2242.] 14. Forms of reports to be made by superintendent to the state board of charities are prescribed and furnished by such board. 488 Relief op Pooe. Poor Law, §§ 13, 14. § 14. Board of supervisors or town board may make rules. and regulations as to furnishing temporary relief. Tke board of supervisors of any county may make such, rules and regulations as it may deem proper in regard to the manner of furnishing temporary or out door relief to the poor in the several towns in said county, and provided the board of supervisors shall have failed to make any such rules and regulations, the to>wn board of any town may make such rules and regulations as it may deem proper in regard to furnishing temporary or out door relief to the poor in their respective towns, by the overseer or the over- seers of the poor thereof, and also in regard to the amount such overseer or overseers of the poor may eixpeiid for the relief of each person or family, and after the board of supervisors of any county, or the town board of any town, shall have made such rules and. regulations, it shall not be neoeeeary for the overseers of the poor of the towns in said county, where such rules and regulations were made by the board of supervisors, or if in a town, by the- said town board, to procure an order from the supervisor of the town, or the sanction of the superintendent of the poor to expend money for the relief of any person or family, unices the board of supervisors of such county or the town board of such town shall so direct; but this section shall not apply to the counties of Wew^ York and Kings. [Poor Law (L. 1896, ch. 225), § 13, as amended iy L. 1897, ch. 48; Heydecker's Oen. L, {2d ed.), p.. 2206.] § 15. Failure of officer required to make statement or report as to the poor, how punished. Any superintendent of the poor or other ofBcer or person having been an officer, who shall neglect, or refuse to. render any account, statement or report required by this chapter [the Poor Law], or shall wilfully make any false report, or shall neglect to pay over any money within the time required by law, shall forfeit two hundred dollars to the town or county of which he is or was an officer, and shall be liable to an action for all moneys which shall be in his hands after the time the same should have been paid over, with interest thereon at the rate of ten per centum per an- num fiom the time the same should have been paid over. The state board of charities shall give notice to the district attorney of the oonnty of every neglect to malte the report required to be made to that board, and every officer or board to whom any suck SUPERINTENDIINT OF THE PoOR J AlMS-HOUSES. 489 L. 1884, ch. 438, § 2, account, statement, report or payment should have been made, shall give notice to such district attorney of every neglect or failure to make the same; and such district' attorney shall, on receiving such notice or in any way receiving satisfactory evidence of such default, prosecute for the recovery of such penalties or moneys in the name of the town or county entitled thereto, and the sum recovered, if for the benefit of the town, shall be paid to the over- seer of the poor thereof, and if for the benefit of the county, shall be paid into the county treasury, to be expended by the overseer or superintendent of the poor for the support of the poor of such town or county.'" [Poor Law (L. 1896, ch. 225, § 14; Hey- decher's Gen. L. (2d ed.), p. 2206.] § 1 6. Children not to be sent to alms-houses. It shall not be lawful for any county superintendent or over- seer of the poor, board of charity or other officer, to send any child between the ages of two and sixteen years, as a pauper, to any county poor-house or alms-house for support and care, or to detain any child between the ages of two and sixteen years in such poor-house or alms-house; but such county supe'rintendents, over- seers of the poor, boards of charities or other officers shall provide for such child or children, in families, orphan asylums, hospitals, or other appropriate institutions, as provided by law. The boards of supervisors of the several counties of the state are hereby di- rected tO' take such action in the matter as may be necessary to carry out the provisions of this section. When any such child shall be so provided for or placed in any orphan asylum or such other institution, such child shall, when practicable, be so provided for or placed in such asylum or such other institution as shall then be controlled by persons of the same religious faith as the parents of such child."" [L. 1884-, ch. 438, § 2.] 15. Application of section. This section applies to all officers required under the Poor Law to make an account, statement or report. The state- ments, accounts and reports of superintendents are required by sec. 3, sub. 1, 3, 8, 14, ante, p. 479, sec. 8, ante, p. 485, s.-'c. 9, ante, p. 485, sec. 11, ante, p. 486, and sec. 12, ante, p. 486. Those of overseers of poor are prescribed under see. 25, post, p. 525, sec. 26, post, p. 526, sec. 27, post, p. 528. By this section the penalty is made uniform and applies to all violations of the sec- tions specified. 16. Placing ont destitute children by poor officer. A local officer charged with the relief of the poor cannot place out a destitute child unless duly licensed by the State Board of Charities. L. 1898, ch. 264, sec. 2. 490 Relief of Pooit. Poor Law, § 56. § 17. Poor children not to be committed to alms-house as vagrants, truants or disorderly persons ; support of poor children in families or charitable institutions. No justice of the peace, board of charities, police juatioe, or other magistrate, or court, shall commit any child under sixteen years of age, as a vagrant, truant or disorderly person, to any jail or county alms-house, but to some reformatory, or other in- stitution, as provided for in the case of juvenile delinquents ; and ■when such commitments are made, the justice of the peace, board of charities, police justice, or other magistrate or court making the same, shall immediately give notice to the superintendents of the poor or other authorities having charge of the poor of the county in vrhich the commitment vras made, giving the name and age of the person committed, to what institution, and the time for which committed ; nor shall any county superintendents, ovei^ seers of the poor, board of charity, or other officer, send any child under the age of sixteen years, as a poor person, to any county alms-house, for support and care, or retain any such child in such alms-house, but shall provide for such child or children in families, orphan asylums, hospitals, or other appropriate institutions for the support and care of children as provided by law, except that a child under two years of age may be sent with its mother, who is a poor person, to any county ahnsrhouse, but not longer than until it is two years of age. The boards of supervisors of the several counties, and board of estimate and apportionment of the county of New York, and the appropriate board or body in the county of Kings shall take such action in the matter as may be necessary to carry out the provisions of this section. When any such child is committed to an orphan asylum or reformatory, it shall, when practicable, be committed to an asylum or reforma- tory that is governed or controlled by persons of the same religious faith as the parents of such child. [Poor Law (L. 1896, cA. 225), § 56; Heydecher^s Oen. L. (2d ed.), p. 2219.] AxMS-HousESj PowEES OF State Boaed OF Chaeities. 491 Poor Law, §| 115, 116. CHAPTER XXXV. AlMS-HOtrSESj: POWEES OF STATE BOAED OF CHAEITTES. Section 1. Duties of the state board of charities relating to the poor. 2. Visitation and inspection of almshouses by state board; com- missioners and officers to be admitted. 3. Investigation by board or committee; orders thereon as to treatment of inmates, &c. 4. Almshouse construction and administration; approval of plans by board. 5. Attorney-general and district attorneys to aid board in legal investigations. 6. State, non-resident and alien poor in county almshouses. 7. Visit of almshouses by the state charities aid association. ,§ I. Duties of the state board of charities relating to the poor. The State Board of Charities shall: 1. Investigate the condition of the poor seeking public aid and devise measures for their relief. 2. Administer the laws provididng for the care, support and removal of state and alien poor and the support of Indian poor persons. 3. Advise the officers of alms-houses in the performance of their official duties. 4. Collect statistical information in respect to the property, receipts and expenditures of all alms-houses, and the number and condition of the inmates thereof. IPoor Law (L. 1896, ch. 225), § 115; Heydecker's Gen. L. (2J ed.), p. 2235.] § 2. Visitation and inspection of alms-houses by state board; commissioners and officers to be admitted. Any commissioner or officer of the State Board of Charities, or any iijspecfcor duly appointed by it for that purpose, may visit and inspect any alms-house in this state. On such visits inquiry shall be made to ascertain : 1. Whether the rules and regulations of the board, in respect to such alms-house, are fully complied with. 2. Its methods of industrial, educational and moral training, if any, and whether the same are best adapted to the needs of its inmates. 492 Relief of Pooe. Poor Law, § 117. 3. The condition of its finances generally. 4. The methods of government and discipline of its inmates. 5. The qualifications and general conduct of its officers and employes. 6. The condition of its grounds, buildings and other property. 7. Any other matter connected with, or petinent to, its usaful- nees and good management. Any oommissioner or officer of the board, or inspector duly appointed by it, shall have free access to the grounds, buildings, books and papers relating to such alms-house, and may require from the officers and persons in charge, any information it may deem necessary. Such board may prepare regulations according to age, and provide blanks and forms upon which such informa- tion shall be furnished, in a clear, uniform and prompt manner for the use of the board ; any such officer or inspector who shall divulge or communicate to any person without the knowledge and consent of such board, any facts or information obtained in pur- suance of the provisions of this chapter, shall be guilty of a mis- demeanor, and shall at once be removed from office. The annual reports of each year shall give the results of such inquiry, with the opinion and conclusions of the board relating to the same. Any officer, superintendent or employe of any such alms-house who shall willfully refuse to admit any member, officer or inspector of the board, for the purpose of visitation and inspection, and who shall refuse or neglect to furnish the opinion required by the board, or any of its members, officers or inspectors, shall be guilty of a misdemeanor, and subject to a fine of one hundred dollars for each such refusal or neglect. The rights and powers hereby conferred may be enforced by an order of the Supreme Court after such notice as the court may prescribe, and an opportunity to be heard thereon, or by indictment by the grand jury of the county, or both. [Poor Law (L. 1896, ch. 225), § 116; Hey- decker's Gen. L. (2d ed.), p. 2236.J § 3. Investigation by board or committee; orders thereon as to treatment of inmates, etc. The board may, by order, direct an investigation by a com- mittee of one or more of its members, of the officers and managers of any alms-house, or of the conduct of its officers and employees ; and the commissioner or commissioners so designated to make Alms-houses; Powers of State Boaed op Chaeities, 493 Poor Law, §§ 118, 119. such investigation may issue compulsory process for the attendance of witnesses and the production of books and papers, administer oaths, examine persons under oath, and exercise the same powers in respect tO' such proceeding as belong to referees appointed by the Supreme Court. If it shall appear, after such investigation, that the inmates of the alms-house are cruelly, negligently or improperly treated, or inadequate provision is made for their sustenance, clothing, care and supervision, or other condition necessary to their comfort and well being, such board may issue an order in the name of the people, and under its oiEcial seal, directed to the proper ofScer of such alms-house, requiring him to modify such treatment or apply such remedy, or both, as shall therein be specified. Before such order is issued it must be approved by a justice of the Supreme Court, after such notice as he may prescribe, and an opportunity to be heard thereon, and any person to whom such an order is directed who shall willfully refuse to obey the same shall, upon conviction, be deemed guilty of a misdemeanor. \^Poor Law (L. 1896, ch. 225), § 117; Heydeckers Gen. L. (2d ed.), p. 2237.J § 4. Alms-house construction and administration; approveil of plans by board. No alms-house shall be built or reconstructed, in whole or in partj except on plans and designs approved in writing by the state board of charities. It shall be the duty of such board tO' call the attention, in writing or otherwise, of the board of supervisors and the superintendent of the poor, or other proper officer, in any county, of any abuses, defects or evils, which, on inspection, it may find in the almsrhouse of such county, or in the administra- tion thereof, and such county officer shall take proper action thereon, with a view to proper remedies, in accordance with the advice of such board. [Poor Law {L. 1896, ch, 225), § 118; Heydeckers Gen. L. (2d ed.), p. 2237.] § 5. Attorney-general and district attorneys to aid board in legal investigations. If, in the opinion of the state board of charities, or any three members thereof, any matter in regard to the management or affairs of any sueh alms-house, or any inmate or person in any way connected therewith, require legal investigation or action of 494 E.ELIEF OF POOE. Poor Law, §§ 120, 121. any kind, notice thereof may be given by the board, or any three members thereof, to the attorney-general, who shall thereupon make inquiry and take such proceedings in the premises as he may deem necess-ary and proper. It shall be the duty of the at- torney-general and of every district attorney -when so required to furnish such legal assistance, counsel or advice as the board may require in the discharge of its duties under this chapter. ^Poor Law {L. 1896, ck. 225), § 119; Heydecher's Gen. L. {2d ed.), p. 2237.] § 6. State, nonresident and alien poor in county alms-houses. The state board of charities, and any of its members or officers, may, at any time, visit and inspect any alms-house to ascertain if any inmates are state charges, nonresidents, or alien poor; and it may cause to be removed to the state or country from which he came, any such nonresident or alien poor found in any such alms- house. IPoiyrLaw (L. 1896, ch. 226), § 120; Heydecher's Gen. L. {2d ed.), p. 2238.] § 7. Visit of alms-houses by the state charities aid association. Any justice of the Supreme Court, on written application of the state charities aid association, through its president or other officer designated by its board of managers, may grant to such persons as may be named in such application, orders to enable such persons, or any of them, as visitors of such association, to visit, inspect and examine, in behalf of such association, any alms- house within the state. The person so appointed to visit, inspect and examine such alms^-house and alms-houses, shall reside in the county or counties from which such alms-house or alms-houses receive their or some of their inmates, and such appointment shall be made by a justice of the Supreme Court of the judicial district in which such visitors reside. Each order shall specify the alms- house to be visited, ins'pected and examined, and the name of each person by whom such visitation, inspection and examination shall be made, and shall be in force for one year from the date on which it shall have been granted, unless sooner revoked. All persons in charge of any such alms-house shall admit each person named in any such order into every part of such alms- house, and render to such person every possible facility to enable him to make in a thorough manner such visit, inspection and Alms-houses; Powees of State Boabd of Chakities. 495 Poor Law, § 121. examination, which are hereby declared to be for a public purpose and to be made with a view to public benefit. Obedience to the orders herein authorized shall be enforced in the same manner as obedience is enforced to an order or mandate of a court of record. Such association shall make an annual rerport to the stafe board of charities upon matters relating to the alms-house subject to its visitation. Such reports shall be made on or before the first day of November for each preceding fiscal year. [Poor Law {L. 1896, ch. 225), § 121; Heydecker's Oen. L. {2d ed.), p. 2238.J 496 Relief of Pooe. Insanity Law, § 62. CHAPTER XXXVI. SUPPORT OF THE IISTSANE^ IDIOTS AND EPILBPTIOS. Section 1. Application by poor officers for commitment of the insane. 2. Costs of commitment of insane persons charge on county, city or town securing commitment. 3. Poor and indigent insane supported by state; patients com- mitted by order of criminal court charge on county. 4. Relatives to support insane other than the poor and indigent; duties of poor officers. 6. Superintendents and overseers of the poor to see that insane poor be granted relief; hospitals to which insane to be com- mitted. 6. Apprehension and confinement of dangerous insane; duties of superintendents and overseers of the poor. 7. Discharge of patients; duties of superintendents of the poor. 8. Manner of receiving pupils at the Syracuse State Institution for Feeble Minded Children. 9. Discharge of state pupils from such institution; expense of re- turn to be audited by superintendent of the poor. 10. Expense of clothing state pupils to be paid by county; support of pupils to be paid by parents and relatives; expense of re- moval. 11. Commitments to Rome State Custodial Asylum; duties of super- intendent of the poor. 12. Admission of patients to Craig Colong for Epileptics; appli- cations by superintendents of the poor; poor epileptics to be placed in colony. 13. Support of state patients at Craig Colony; payment of ex- pense of clothing by counties. 14. Apportionment of state patients among counties. 15. State, non-resident and alien poor not to be admitted to cer- tain institutions. § I. Application by poor officers for commitment of the insane. An oveirseer of tihe poor of a town or a superintendeait of tte poor of a county in whioh. an alleged insane person may be, may apply to a judge of a court of record for an order committing such, person to a state Kospital for the insane. Notice of an applica- tion for such, oonunitmeait by auch. officeir must be served personally on tJie alleged insane person, and upon "the husband or wife, fahter or mother or next of kin of such alleged insane person, if there be any such known to be residing within th.6 county, and if not, upon the person with, whom such alleged insane person may SUPPOBT OF THE InSANE, IdIOTS AND EPILEPTICS. 497 Insanity Law, §§ 64, 65. reside, or at whose kous© lie may be." The prooeedingsi to deter- mine the question of insanity of the person alleged to be insane are then to be conducted the same in all respects as where the commitment is sought by other persons. See Insanity Law {L. 1896, ch. 545, § 62, as amended by L. 1903, ch. 146 ; Heydecker's Gen. L. (2ded.), p. 2321. § 2. Costs of commitment of insane persons charge on county, city or town securing commitment. The costs necessarily incurred in determining the question of the insanity of a poor or indigent or other person under this act, or under section twenty- six, chapter four hundred and forty-six of the laws of eighteen hundred and seventy-four, including the fees allowed by the judge or justice ordering the commitment to the medical examiners or medical witnesses called by him and other necessary expenses, and in securing the admission of such person into a state hospital and the expense of providing proper clothing for such person in accordance with the rules and regulations adopted by the commission, shall be a charge upon the town, city or county securing the commitment; but in the city of New York all fees of medical examiners and medical witnesses appointed or called by a judge of any court in said city for the purpose of determining the question of the insanity of any such person, and not hereto- fore paid, may be audited and allowed in the first instance either by the judge or justice appointing the medical examiners or by the comptroller of said city, and shall be paid by the chamberlain of said city on the warrant of the comptroller from the court fund and charged to the proper county within said city. If the person sought to be committed is not a poor or indigent person, the costs and expenses of the proceeding to determine his insanity and secure his commitment paid by any town, city or county may be collected by it from the estate of such person, or from the persons legally liable for his mainte- nance, and the same shall be a charge upon the estate of such person, or the same shall be paid by the persons legally liable for his maintenance. [Insanity Law (L. 1896, ch. 545), § 64; as amended by L. 1904, oh. 428; Bel/decker's Oen. L. (2d ed.), p. 2323.] § 3. Poor and indigent insane supported by state; patients committed by order of criminal court charge on county. All poor and indigent insane persons not in confinement under criminal proceedings, shall, without unnecessary delay, be trans- ferred to a state hospital and there wholly supported by the state. The costs necessarily incurred in the transfer of patients to state hospitals shall be a charge upon the state. The commission shall secure from the patient's estate and from relatives or friends who are liable or may be willing to assume the costs of support of inmates of state hospitals supported by the state, reimburse- ment, in whole or in part, of the money thus expended, either directly or through the treasurers of the respective hospitals, as 498 Relief of Pooe. Insanity Law, § 66. provided in seation forty-two of this act. The commission may appoint agents, whose duty is shall be to secure from relatives and friends who are liable therefor, or who may be willing to assume the cost of support of any of the inmates of state hospitals as are being supported by tlie state, reimbursement in whole or in part of the money so expended. The compensation of each agen* shall not ©xoeed five dollars a day, and the necessary traveling and other incidental expenses incurred by him, to be approved by the comp- troller. The commission may fix a rate to be paid for the sup- port of the inmates of state hospitals by relatives liable for such support or by those not liable for such support, but willing to assume the coat thereof; but such rate shall be sufficient to cover a proper proportion of the cost of maintenance and of necessary repairs and improvements. The maintenance of any inmate of a state hospital, committed thereto upon a court order arising out of any criminal action, shall be paid by the county from which such inmate was committed. [Insanity Law (L. 1896, ch. 545), g 65, a^ amended by L. 1900, ch. 380, and L. 1901, ch. 546 ; Hey- decher's Gen. L. (2d ed.), p. 2324. J § 4. Relatives to support insane other than the poor and in- digent; duties of poor officers. The father, mother, husband, wife and children of an insane person, if of sufficient ability, and the committee or guardian of his pel son and estate, if his estate is sufficient for the purpose, shall cause him to be properly and suitably eared for and main- tained.' The commission and the superintendent of the poor of the county, and the overseer of the poor of the iawn where any such insane person may be, or in the city of 'New York, the com- missioners of public charities, may inquire into the manner in which any such person is cared for and maintained; and if, in the judgment of any of them, he is not properly or suitably cared for, may apply to a judge of a court r{ record for an order to commit him to a state hospital under the provisions of this article but such order shall not be made unless the judge finds and certi- 1. Relatives of poor and indigent persons who are insane may be com- pelled to support such insane persons. Code Criminal Proc, sees. 914-920, post, p. .556. By the preceding section of the Insanity Law, see. 65, the com- mission in lunacy or the treasurer of each state hospital are authorized to secure from the patient's estate or from his relatives, reimbursement for the whole or a part of the money expended by the state in the care and main- tenance of such patient. SUPPOET OF THE InSANE, IdIOTS AND EPILEPTICS. 499 Insanity Law, § 67. fiee in the order tJiat such insane person is not properly or suitably oared for by such relative or committee, or that it is dangerous to the public to allow him to be oared for and maintained by such relative or committee. The costs and charges of the commitment and transfer of such insane person to a state hospital shall be paid by the committee, or the father, mother, husband, wife or children of such person, to be recovered in an action brought in the name of the people by the commission, the superintendent of the poor of the county, or the overseer of the poor of the town where such insane person may be, or in the city of New York in the name of the commissioners of public charities. In all claims of the state upon relatives liable for the support of a patient, or upon moneys or property held by said patient, the state shall be deemed a preferred creditor. [Insanity Law {L. 1896, ch. 545), § 66, as amended by L. 1900, ch. 380.] § 5. Superintendents and overseers of the poor to see that in- sane poor be granted relief ; hospitals to which insane to be com- mitted. All county superintendents of the poor, overseers of the poor and other city, town or county authorities, having duties to p>er- form relating to the insane poor, are charged with the duty of seing that all poor and indigent insane persons within their re- spective municipalities, are timely granted the necessary relief conferred by this chapter, and, when so ordered by a judge, as herein provided, or by the commission, shall see that tliey are, without unnecessary delay, transferred to the proper institutions provided for their care and treatment as the wards of the state. Before sending a person to any such institution, they shall see that he is in a state of bodily cleanliness and comfortably clothed with suitable or new clothing, in accordance with the regulations prescribed by the commission.' The commission may, by order, direct that any person it deems unsuitable therefor shall not be so employed or act as such attendant. Each patient shall be sent 2. New clothing. A regulation adopted by tlie state commission in lunacy that each patient be furnished by the county with new clothing be- fore his admission into a state hospital is reasonable and must be obeyed. People ex rel. Croft v. Mwnhattan State Hospital, 5 App. Div. 249; 39 N. Y. Supp. 158. Cost of new clothing is a charge upon the county, or town securing the patient's commitment. Insanity Law, sec. 64, ante, p. 497. The cost of transfer is a state charge. Insanity Law, sec. 65, ante, p. 497. 500 Relief of Pooe. Insanity Law, § 68. to tke state hospital, ■within the district embracing the county from which he is committed, except that the commission may, in their discretion, direct otherwise, but private or public insane patients, for whom homeopathic care and treatment may be de- sired by their relatives, friends or guardians, may be committed to the Middletown State Homeopathic hospital, or to the Gowanda State Homeopathic hospital, from any of the counties of the state, in the discretion of the judge granting the order of commitment; ajid the hospital to whidi any patient is ordered to be sent shall, by and under the regulations made by such commission, send a trained attendant to bring the patient to the hospital. Each female committed to any institution for the insane shall be ac- companied by a female attendant, imless accompanied by her father, brother, husband, or son. After the patient has been delivered to the proper officers of the hospital, the care and custody of the municipality frora which he is sent shall cease. [Insanity Law (L. 1896, ch. 545), § 67, as amended hy L. 1899, ch. 481, and L. 1903, ch. 146; Heydeckers Gen. L. {2d ed.), p. 2325.J § 6. Apprehension and coniinenient of dangerous insane; duties of superintendents and overseers of the poor. When an insane person is possessed of sufficient property to naaintain himself, or his father, mother, husband, wife or chil- dren are of sufficient ability to maintain him, and his insanity is such as to endanger his own person, or the person and property of others, the co'mmittee of his person and estate, or such father, mother, husband, wife, or children must provide a suitable place for his confinement, and there maintain him in such manner as shall be approved by the proper legal authority. The county superintendent of the poor and the overseers of the poor of towns an.d cities, the coimmissioners of public charities in the city of New York, and the commissioners of charities and correction in the city of Brooklyn, are required to see that tlie provisions of this section are carried into effect in the most humane and sjoeedy manner. Upon the refusal or neglect of a committee, guardian or relative of an insane person to cause him to be confined, as required in this chapter, the officers named in this section shall apply to a judge of a court of record of the city or county or to a justice of the Supreme Court of the judicial district in which such insane person may reside or be found, who, upon being satisfied, upon proper proofs, that saich person is dangerously in- SUPPOBT OF THE InSANE, IdIOTS AND EPILEPTICS. 501 Insanity Law, § 68. sane and improperly at. large, shall issue a precept to one or more of the officers named, commanding them to apprehend and oonfine such insane person in some comfortable and safe place; and siuch officers in apprehending such insane person shall possess all the powers of a peace officer executing a warrant of arrest in a crim- inal proceeding.' Unless an order of commitment has bean previ- ously granted, such officers shall forthwith make application for the proper order for his commitment to the proper institution for the care, custody and treatment of the insane, as authorized by this chapter, and if such order is granted, such officer shall take the necessary legal steps to have him transferred to such institu- tion. In no case shall any such insane person be confined in any other place than a state hospital or duly licensed institution for the insane, for a period longer than ten days, nor shall such per- son be committed as a disorderly person to any prison, jail or lockup for criminals, unless he be violent and dangerous, and there is no other suitable place for his confinement, nor shall he be confined in the same room ^^ath a person charged with or con- victed of crime. Any person apparently insane, and conducting himself in a manner which in a sane person would be disorderly, may be arrested by any peace officer and confined in some safe and comfortable place imtil the question of his sanity be determined, as prescribed by this chapter.' The officer making such arrest shall immediately notify the superintendent of the poor of the county, or the overseers of the poor of the town or city, or, in the city of New York, the commissioners of public charities, or, in the city of Brooklyn, the commissioners of charities and correc- tion, who shall forthwith take proper measures for the determina- tion of the question of the insanity of such person." [^Insanity 3. Arrest of a dangerous insane person, force may be used. Penal Code, sec. 223, sub. 6. 4. TTnlaivfnl confinement; harsh treatment. A person who confines an idot, lunatic or insane person, in any other manner or in any other place than as authorized by law, and a person guilty of harsh, cruel or unkind treatment of or any neglect of duty towards any idiot, lunatic or insane per- son under confinement, whether lawfully or unlawfully confined, is guilty of a misdemeanor. Penal Code, sec. 377. 5. Application of section. The above section relates to dangerously insane persons. The father is therein required to provide a suitable place for his lunatic son's confinement, and upon his refusal or neglect so to do, legal proceedings may be instituted, and a commitment ordered on proper proof. Long Island State Hospital v. Stuart, 22 Misc. 48, 51; 49 N. Y. Supp. 372. 502 Kelief of Pooe. Insanity Law, § 74. Law (L. 1896, ch. 545), § 68; Heydecker's Gen. L. (2d ed.), p. 2326.] § 7. Discharge of patients; duties of superintendent of the poor. The superintendeait of a state hospital, on filing his written certificate with the commission, may discharge any patient, except one held upon an order of a court or judge having criminal juris- diction in an action or proceeding arising out of a criminal offense a,t any time, as follows: 1. A patient who, in his judgment, is recovered. la. A patient who, in his opinion, is a dotard, not insane. 2. Any patient who is not recovered but whose discharge, in ithe judgment of the superintendent, will not be detrimemtai to the public welfare, or injurious to the patient; provided, how- ever, that before making such certificate, the superintendent shall satisfy himself, by sufficient proof, that friends or relatives of the patient are willing and financially able to receive and properly caie for such patient after his discharge. When the superin- tendent is unwilling to certify to the discharge of an unrecovered patient upon request, and so certifies in writing, giving his rea- sons therefor, any judge of a court of record in the judicial district in which the hospital is situated may, upon such certifi- cate and an opportunity of a hearing thereon being accorded the sui)erirtendent, and upon siuch other proofs as may be produced before him, direct, by order, the discharge of such patient, upon such security to the people of the state as he may require, for the good behavior and maintenance of the patient. The certificate and the proof and the order granted thereon shall be filed in the clcik's office of the county in which the hospital is situated, and a certified copy of the order in the hospital from which the patient is discharged. The superintendent may giant a parole to a pa- tient, not exceeding thirty days, under general conditions pre- scribed by the commission. The commission may, by order, dis- charge any patient in its judgment improperly detained in any in- stitution. A poor and indigent patient discharged by the superin- tendent, because he is an idiot, or a dotard not insane, or an epi- leptic, not insane, or because he is not a proper case for treatment within the meaning of this chapter, shall be received and cared for by the superintendent of the poor or other authority having similar powers, in the county from which he was committed. A patient, held upon an order of a court or judge having criminal jurisdic- tion, in an action or proceeding arising from a criminal offense. Support of the Insane, Idiots and Epileptics. 503 state Charities Law, § 68. may be discharged upon the superintendent's ceTtificate of re- covery, approved by any such court or judge. [Insanity Law (L. 1896, ch. 54.5), § 74, as amended by L. 1905, ch. 490; Heydecker's Gen.L. {2ded.),p. 2329.] § 8. Manner of receiving pupils at the Syracuse State Institu- tion for Feeble-minded Children.' There shall be recived and gratuitously supported in the in- stitution one hundred and twenty feble-miuded children, as state pupils, who shall be selected from those whose parenta or guar- dians are unable to provide for their support, in equal numbers as far as may be, from each judicial district. Such additional number of feeble-minded children as can be conveniently a<3O0m- modated shall be recedved into the institution on such terms as shall be just. If the number of feeble-minded children admitted shall not equal the capacity of the institution, such additional number of nonteachable idiots may be admitted as can be con- veniently acoommodated. Feeble-minded children shall be re- ceived into the institution upon the written request of the person by whom they are sent, stating the name in full, age, place of nativity, if known, the town, city or county in which each resides, and whether such child, hii parents or guardian, are able to pro- vide for his support, in whole or in part, and if in part only what part, the degree of relationship or other circumstances of connec- tion between him and the person requesting his admission, which staemont must be verified by the affidavit of two disinterested persons, residents of the same county as the child and acquainted with the facts and circumstances stated, and certified to be cred- ible by the county judge of the county. Such judge must also further certify that such child is an eligible and proper candidate for admission to such institution. Feeble-minded children may also be received into such institution upon the ofiicial application of a county suj)erintcndeint of the poor, or the commissioners of charity of a city of the state having such officei-s. In the admis- sion of feeble-minded ehildreai, preference shall be given to poor or indigent children over all others, and to such as are able or have parents able to support them only in part, over those who are or who have parents who are able to wholly saipport such ehil- 6. The Syracuse State Institution for Feeble-minded Children is established and managed pursuant to article 4 of the State Charities Law. See Heydecker's Gen. L. (2nd ed.), p 2115. 504 Eelief op Pooe. State Charities Law, §§ 69, 70. ^ren. [State Charities Lam (L. 1896, ch. 546), § 68; Hey- decker's Qen. L. (2d ed.), p. 2119.J § g. Discharge of state pupils from such institution; expense of return to be audited by superintendent of the poor. WlLsa the manager shall direct a state pupil to be disdharged from the institution, the superintendent thereof may return him to the county from which he w^as sent, and deliver him to the keeper of the alms-house thereof, and the superintendent of the poor of the county shall audit and pay the actual and reaaonahle expenses of such return.' If any town, county or person is legally liabde for the support of such pupil, such expenses may be re- covered by action in the name of the county by such superintendent of the poor. If the superintendent of the poor neglect or refuse to pay such expenses on demand, the treasurer of the instdtutioin may pay the same and charge the amount to the county; and the treasurer of the county shall pay the same with interest after thirty days, out of any funds in his hands not otherwise appro- priated; and the supervisors shall raise the amount so paid as other county charges. {_State Charities Law {L. 1896, ch. 546), § 69 ; Heydecker's Gen. L. (2d ed.), p. 2120.] § 10. Expense of clothing state pupils to be paid by county ; support of pupils to be paid by parents and relatives ; expense of removal. The supervisors of any county from which state pupils may have been received shall cause to be raised annually, while such pupils remain in the institution, the sum of thirty dollars for each pupil, for the purpose of furnishing suitable clothing, which shall be paid to the treasurer of the institution on or before the first day of April.' The superintendent may agree with the parent, guar- dian or committee of a feeble-minded child, or with any person, for the support, maintenance and clothing of such a child at the institution, upon such terms and conditions as may be prescribed, in the by-laws, or approved by the managers. Every parent, 7. Andlt of accounts by superintendent of the poor. See Poor Law, sec. 3, ante, p. 478. 8. Andit of expense of clothing to be paid by counties. See County Law, sec. 12, ante, p. 45. The accounts against the several counties for the expense of such clothing should be itemized and verified as provided in County Law, sec. 24, ante, p. 28. Support of the Insane, Idiots and Epileptics. 505 State Charities Law, § 94. guardian, oommittee, or other person applying for the admission into the institution of a feeblemiinded child who is able, or whose parents or guardians are of sufHcient ability to provide for his maintenance therein, shall at the time of his admission, deliver to the superintendent an undertaking, with one or more sureties, to be approved by the managers, oonditioned for the payment to the treasurer of the institution of the amount agreed to be paid for the support, maintenance and clothing of such feeble-minded child, and for the removal of such child from the institution with- out expense thereto, within twenty days after the service of the notice hereinafter provided. If snoh child, his parents or guai^ dians are of sufficient ability to pay only a part of the expense of supporting and maintaining him, such undertating shall be only for his removal from the institution as above mentioned ; and the superintendent may take security by note or other written agree' ment, with or without sureties, as he may deem proper, for such part of such eixpensesi as such child, his parents or guardians are able to pay, subject, however, to the approval of the managers in the maimeir that shall be prescribed in the by-laws. Notice to remove a pupil shall be in writing, signed by the superintendent and directed to the parents, guardians, oommittee or other person upon whose request the pupil was received at the institution, at the place of residence mentioned in such request, and deposited in the post-office at Syracuse with the postage prepaid. If the pupil shall not be removed from the institution within twenty days after service of such notice, according to the conditions of the agreement and undertaking, he may be removed and disposed of by the suf>erintendent as herein provided, iu' relation to state pupils, and the provisions of this article respecting the payment and recovery of the expenses of the removal and disposition of a state pupil, shall be equally applicable to expenses incurred under this section. [State Charities Law (L. 1896, ch. 546), § 70; Hey decker's Oen. L. {2d ed.), p. 21 20. J § II. Commitments to Rome State Custodial Asylum ;* duties of superintendent of the poor. The superintendents of the poor of the various counties of the state, may commit to such asylum, if vacancies exist therein, such 9. The Borne State Custodial Asylnm is established and managed pur- suant to State Charities Law, art. 6. See Heydecker's Gen. L. (2nd ed.), p, 2122. 506 Kblief of Pooe. State Charities Law, § 109. feeble-minded persons and idiots residing in their respective coun- ties, who are indigent or inmates of county alms-houses, according to the by-laws and regulations of the asylum. All commitments shall be in the form prescribed by the board of managers. Insane idiots or epileptics shall not be committed to such asylum. Feeble- minded persons and idiots other than the poor and indigent may be admitted to the asylum, if vacancies exist, after providing for the care and custody of the poor and indigent feeble-minded per- sons and idiots at a rate which shall not exceed the weekly per capita cost of maintaining all inmates as determined yearly by the board of managers. The maintenance of the institution and the poor and indigent inmates thereof shall be a charge upon the state. [State Charities Law (L. 1896, ch. 546), § 94, as amended by L. 1904, ch. 462 ; Heydecker's Gen. L. {'id ed.), p. 2123.] § 12. Admission of patients to Craig Colony for Epileptics;" applications by superintendents of the poor ; poor epileptics to be placed in colony. There shall be received and gratuitously supported in the col- ony, epilepticB residing in the state, who, if of age, are unable, or, if under age, whose parents o^r guardians are unable to provide for their soip'port therein; and who shall be designated as state patients. Such additional number of epileptics as can be con- veniently accommodated shall be receiived into the colony by the managers on such terms as shall be just, and shall be designated as private patients. Epileptic children shall be received into the oolonly only upon the written request of the persons desiring to send them, stating the najtne, age, place of nativity, if known, the town., city O'r county in which such children respectively reside, and the ability of their respective parents, or guardians or others to provide for their support in whole or in part, and if in part only, stating what part; and stating also the degree of relation- ship or other circumstanoes of connection between the patients and the persons requesting their admission ; which statement in all cases, of state patients must be verified by the afiidavits of the petitioners and of two disinterested persons, and accompanied by the opinion of a qualified physician, all residents of the same county vrith the epileptic patient, and acquainted with the facts and circumstances stated, and who must be certified to be credible 10. Craig Colony for Epileptics was established and is managed pur- suant to State Charities Law. See Ileydeeker's Gen. L. {2nd ed.), p. 2130. Support of the Insane, Idiots and Epileptics, 507 State Charities Law, § 109. lyy the oounty judge or surrogate of tihe oountiy; and such judge or surrogate must also certify, in each case, that such state patient, in his opinion, is an eligible and proper candidate for admission to the colony. State patients may also' be' received into the col- ony upon the official application of a county superintendent of the poor, or of the poor authorities of any city. It shall be tlie duty of the superintendent of the poor in every county and of the poor authorities of every city to furnish annually to the state board of charities, a list of all epileptics in their respective juris- dictions, so far as the same can be ascertained, v^ith such particu- lars as to the condition of each epileptic as shall be prescribed by the said state board. Whenever an epileptic shall become a charge for his or her maintenance on any of the towns, cities or counties of this state, it shall be the duty of all poor authorities of such city, and of the county superintendents of the pwor, and of the supervisors of such county, tO' place such epileptic in the said col- ony. Any parent, guardian or friend of an epileptic child within this state may make application to the poor authorities rf any city, or the superintendent of the poor of any county or the board of supervisors or any supervisor of any town, ward or city whei-e such child resides, showing by satisfactoiy affidavit or ctlier proof that the health, morals, comfort or welfare of such child may be endangered or not properly cared for if not placed in such colony ; and thereupon it shall be the duty of such officer or board to whom such application may be made to place such child in said colony. The board of supervisors shall provide for the support of such patients, except those properly sup'ported by the state, and may recover for the same from the parents or guardians of such children." In the admission of patients' preference, shall always be given to poor or indigent epileptics, or the epileptic cliildren of poor or indigent persons, over all others; and prefer- ence shall always be given to such as are able to support themselves only in part, or who have parents able to support them only in part, over those who are able or who have parents, who. are able wholly to furnish such support. [Stafc Charities Law (L. 1896, ch. 546), § 109 ; Ileydrcl-rr's Gen. L. (2d cd.), p. 2130.] 11. Acconnts for support of patients chargeable to a county should be submitted to the clerk of the board of supervisors in the manner prescribed by sec. 47 of the State Charities Law. See post, p. 588. As to the audit of such accounts by the board of supervisors, see County Law, see. 12, ante, p. 21. 508 Belief of Pooe. State Charities Law, §§ 110, 111, 16, § 13. Support of state patients at Craig Colony; payment of expense of clothing by counties. State patiemtB shall be provided with proper board, lodging, medical treatment, care and tuition; and the managers of the colony shall recjeive for each state patient snppo'rted therein a sum not exceeding two hundred and fifty dollars per annum; which payments, if any, shall be made by the treasurer of the state, on the warrant of the comptroller, to the treasurer of the said colony, on his presenting the bill of the actual time and number of patients in the colony, signed and verified by the superintendent and treas- urer of the colony and by the president and secretary of its board of managers. The supervisors of any county from which such patients may have been received into the colony shall cause to be raised annually while such patients remain in the colony, the sum of thirty dollars for each of such state patients for the purpose of furnishing suitable clothing, and the same shall be paid to the treasurer of the colony on or before the first day of April of each year." [State Charities Law {L. 1896, ch. 546), § 110 ; Hey- decher's Gen. L. (2i ed.), p. 2131.] § 14. Apportionment of state patients among counties. Whenever applications are made at one time for admission of more state patients than can be properly accommodated in the col- ony, the managers shall so apportion the number received, that each county may be represented in a ratio of its dependent epi- leptic population tO' the dependent epileptic population of the state, as shown by statistics furnished by the state board of chari- ties. [State Charities Lmw (L. 1896, ch. 546), § 111; Heydeck- er's Gen. L. (2d ed.), p. 2132.] § 15. State, nonresident and alien poor not to be admitted to certain institutions. A poor person shall not be admitted as an inmate into a state institution for the feeble-minded, or epileptics, unless a resident of the state for one year next preceding the application for his 12. Clothing accounts. The superintendent of the colony is required by section 46 of the State Charities Law to report to the clerk of the board of supervisors of each county the number of patients committed to such colony from such county. See post, p. 587. The accounts for such clothing are to be itemized and verified as provided in sec. 24 of the County Law, fKtst, p. 28. Such accounts are then to be audited by the board of super- visors. SUPPOET OF THE InSANE, IdIOTS AND EPILEPTICS. 509 State Charities Law, § 16. admission. The state board of charities, and any of its members or officers, may, at any time, visit and inspect any institution subject to its supervision to ascertain if any inmates supported therein at a state, county or municipal expense are state charges, nonresidents, or alien poor ; and it may cause to be removed to the state or country from which he came any such nonresident or alien poor found in any such institution. [State Charities Law {L. 1896, ch. 546), § 16 ; Hey decker's Gen. L. {2d ed.), p. 2107.] 510 Relief of Pooe. Consolidated School Law, tit. 15, 5 40. CHAPTER XXXVII. EDUCATION AND SUPPOET OF THE BLIND, AND THE DEAF AND DUMB. Seotiow 1. Appointment as state pupils in schools for the blind and th» deaf and dumb. 2. Maintenance of indigent state pupils in New York Institution for the Blind in New York; duties of boards of supervisors in respect thereto. 3. Admission of pupils to New York State School for the Blind at Batavia; application for admission. 4. Clothing and traveling expenses of those admitted to State School for the Blind; when to be furnished or paid for by the county. 6, Itemized accounts against counties, payment of such accounts. 6. Pupils admitted to New York Institution and to State School for the Blind. 7. List of deaf and dumb to be furnished to state superintendent of public instruction. 8. Indigent deaf-mutes to be placed in institutions; application for admission; when expense a, charge against county. 8. Provisions of act of 1863 applicable to Institution for Im- proved Instruction of Deaf-Mutes. 10. Pupils may be sent to Western New York Institution for Deaf- Mutes. 11. Admission of pupils to Northern New York Institution for Deaf-Mutes at Malone. 12. Veriiication of bills for support of pupils at New York Institu- tion for the Instruction of the Deaf and Dumb. 13. Clothing for indigent deaf and dumb pupils charge upon county. § I. Appointment as state pupils in schools for the blind and the deaf and dumb. All deaf and dumb persona resident in this/ state and upwards of twelve years of age, who shall have been resident in this state for one year immediately preceding the application, or, if a minor, whose parent or parents, or, if an orphan, whose nearest friend shall have been resident in this state for one year immediately preceding the application, shall be eligible to appointments as state pupils in one of the deaf and dumb institutions of this state, authorized by law to receive such pupils; and all blind persons of suitable age and similar qualifications shall be eligible to appoint^- ment to the Institution for the Blind in the City of New York, or in the village of Batavia, as follows : All such as are reeideoits The Blih^d and the Deaf and Dumb. 511 Consolidated School Law, tit. 15, § 40. of the counties of New York, Kings, Queens, Suffolk, Nassau, Eichmond, Westchester, Putnam and Eockland, shall be sent to the Institution for the Blind in the City of New York. Those who reside in other counties of the state shall he sent to the insti- tution for the blind in the village of Batavia. All such appoint- ments, with the exception of those to the institution for the blind in the village of Batavia, shiall be made by the superintendent of public instruction, upon application, and in those cases in which, in his opinon, the parents or guardians of the applicants are able to bear a portion of the expense, he may impose conditions whereby some proportionate share of expense of educating and clothing such pupils shall be paid by their parents, guardians, or friends in such manner and at such times as the superintendent shall designate, which conditions he may modify from time to time, if he stall deem it expedient to do so. ^Consolidated School Law, tit. 15, § 40, as amended by L. 1903, ch. 62. J § 2. Maintenance of indigent state pupils in New York In- stitution for the Blind in New York; duties of boards of super- visors in respect thereto. The supervisors of any county in this state from which state pupils shall be sent to and received in the said institution, whose parents or guardians shall, in the opinion of the superintendent of public instruction, be unable tO' furnish them with suitable cloth- ing are hereby authorized and directed, in every year while such pupils are in said institution, to raise and appropriate thirty dol- lars for each of said pupils, and to pay the sum so raised to the said institution, to be by it applied to furnishing such pupils with suitable clothing while in said institution. And if in any case all or any of said moneys are not expended before the expiration of the periods of appointment of such pupils, then the unexpended residue shall go into the general clothing fund of the said institu- tion, to be by it devoted to furnishing state pupils with suitable clothing. If said sums shall not be paid to the said institution within six months after the annual meeting of the supervisors of any of said counties, the sums so unpaid shall bear interest at the rate of seven per centum per annum, from tbe expiration of said six months until the same be paid. The supervisors of any county in this state from whose pauper institutions pupils shall be sent to the said institution for the blind, shall raise, appropTiate and pay to the order of the comptroller of the state, towards the ex- 512 Relief of Pooe. L. 1870, ch. 166, §§ 3, 4; L. 1867, ch. 744, § 1. pense of educating and clothing such pupils, a sum equal to that ■which the county would have to pay to support the pupils aa paupers at home. lAmended hy L. 1862, ch. 351.] As to counties of New York, Kings, Queens and Suffolk. The supervisors of tihe oo'unties of New York or Kings, Queensi and Suffolk, from which state pupils shall be sent to and received in said institution, whose parents or guardians shall, in the opinion of the s.uperintemdent of public instruction, be unable to furnish tliem with suitable clothing, are hereby authorized and directed, in every year while such pupils are in said institution, to raise and appropriate fifty dollars for each of said pupils from said counties respectively, and to pay the sum so raised to the said in- stitution, to be by it applied to furnishing such pupils with suit- able clothing while in said institution. [L. 1870, ch. 166, § 3, as amended hy L. 1871, ch. 166.] If in any year hereafter there shall be any surplus of the amount above required to be paid yearly by the said counties for clothing for pupils from said counties, respectively, then such sur- plus shall be deducted pro rata the ensuing year from the amount above required to be paiid by the siaid counties respectively. [Idem,, §4.J § 3. Admission of pupils to Nevir York State School for the Blind at Batavia; application for admission. All blind persons of suitable age and capacity for instruction, who are legal residents of the state, shall be entitled to the privi- leges of the New York State Institution for the Blind,^ without charge, and for such a period of time in each individual case as may be deemed expedient by the board of trustees of said institu- tion ; provided, that whenever more persons apply for admission at one time than can be properly accommodated in the institu- tion, the trustees shall so apportion the number received, that each county may be represented in the ratio of its blind population to the total blind population of the state ; and provided further, that the children of citizens who died in the United States service, or from wounds received therein during the late rebellion, shall take precedence over all others. [L. 1867, ch. 744, § 1 ; Heydecker's Gen. L. (2cZ ed.), p. 4713.] 1. New York State Institntion for the Blind. The name of this institution was changed by L. 1895, ch. 563, to the "New York State School for the Blind." The Blind and the Deaf and Dumb. 513 L. 1867, ch. 744, §§ 2, 3, 13, 14. Blind persons from without the state may be received into the institution upon tke payment of an adequate sum, fixed by the trustees, for their boarding and instruction; provided that such applicant stall in no case exclude those from the state of New- York. [Idem, § 2.J Applications for admission into the institution shall be made to the board of trustees in such manner as they may direct, but the board shall require such application to be accompanied by a cer- tificate from the county judge or county clerk of the county or the supervisor or town clerk of the town, or the mayor of the city where the applicant resides, setting forth that the applicant is a legal resident of the town, county and state claimed as his or her residence." [Idem, § 3, as amended by L. 1872, ch. 616.] § 4. Clothing and traveling expenses of those admitted to State School for the Blind; when to be furnished or paid for by the county. When any blind person shall, upon proper application, be ad- mitted into the institution, it shall be the duty of his or her par- ents, guardians or other friends, to suitably provide such person with clothing at the time of entrance and during continuance therein, and likewise to defray his or her traveling expenses to and from the institution at the time of entrance and discharge, as well as at the beginning and close of each session of the school, aud at any other time when it shall become necessary to send such person home on account of sickness or other exigency. And when- ever it shall be deemed necessary by the trustees to have such per- son permanently removed from the institution, in accordance with the by-laws and regulations thereof, the same shall be promptly removed upon their order, by his or her parents, guard- ians or other friends. [L. 1867, ch. 744, § 13 ; Heydecher's Gen. L. {2d ed.), p. 4715.J If the friends of any pupil from within the state of New York shall fail through neglect •r inability to provide the same with proper clothing or with funds to defray his or her necessary travel- ing expenses to and from the institution, or to remove him or her 2. As to admission of state pupils and the duties of the state superin- tendent of public instruction in relation thereto, see Consolidated School Law (L. 1894, ch. 556), tit. 15, sees. 40-43. L. 1865, ch. 587, sees. 11 and 12, are superseded, in efifect, by the above sections of the act of 1867. 33 514 Relief of Poob. L. 1867, eh. 744, §§ 15, 16. ■therefrom, as required in the preceding section, the trustees shall furnish such clothing, pay such traveling expenses, or remove such pupil to the care of the overseers of the poor of his or her town- ship, and charge the cost of the same to the county to which the pupil belongs, provided that the annual amount of such expendi- tures on account of any one pupil shall not exceed the sum of sixty dollars. And in case of the death of any pupil at the institu- tion, whose remains shall not be removed or funeral expenses borne by the friends thereof, the trustees, shall defray the neces- sary burial expenses, and charge the same to his or her county as aforesaid. Upon the completion of their course of training in the industrial department, the trustees may furnish to such worthy poor piipils as may need it, an outfit of machinery and tools for commencing business, at a cost not exceeding seventy-five dollars each, and charge the same to the proper county, as aforesaid. \_Idem., § 14, as amended by L. 1873, ch. 463.] § 5. Itemized accounts against counties, payment of such accounts. On the first day of October in each year, the trustees shall cause to be made out against the respective counties concerned, itemized accounts, separate in each case, of the expenditures au- thorized by the preceding section of this act, and forward the same to the board of supervisors chargeable with the account.' The board shall thereupon direct the county treasurer to pay the amount so charged tO' the treasurer of the institution for the blind, on or before the first day of March next ensuing. [L. 1867, ch. 744, § 15 ■ Ileydeckers Gen. L. (2d ed.), p. 4716.] The counties against which the said accounts shall be made out as aforesaid, shall cause their respective treasurers, in the name of their respective counties, to collect the same, by legal process, if necessary, from the parents or estates of the pTipils who have the ability toi pay, on whose account the said expenditures shall 3. As to presemtatioa of accounts against a county, and the audit thereof by the board of supervisors, see ch. Ill, ante. As to reports of officers of institutions in which the instruction and maintenance of public is a charge against a county to the clerk of the board of supervisors, see L. 1880, ch. 347, sec. 3, post, p. 585, and State Charities Law, sec. 46, post, p. 587. As to form and contents of accounts to be rendered by such institutions to the clerk of the board of supervisors, see L. 1880, ch. 347, sec. 5, as amended by L. 1881, ch. 273, fiost, p. 585, and State Charities Law, see. 46, post, p. 587. The Blind and the Deaf and Dumb. 515 L. 1867, ch. 744, § 22; L. 1832, ch. 223, § 1. have been made ; provided that at least five hundred dollars' value of the property of such parents or estate shall be exempt from the payment of the accounts aforesaid.' \_Idem, § 16. J § 6. Pupils admitted to New York Institution and to State School for the Blind. The JSTew York institution for the blind [in New York], shall continue to have the custody, charge, maintenance and education of all such pupils as are now intrusted to them by the state, and of any others who may be appointed prior to the opening of 'the state institution at Batavia ; and shall receive compensation from the state for the maintenance, education and support of said pupils in the same manner as is now, or has heretofore been pro- vided, and shall receive the same amount per capita from the counties from which said pupils are respectively appointed as is now paid, for their clothing, until such period as the New York state institution for the blind [State School for the Blind], shall be ready to receive such pupils, and sh-all then, without reference to the term of years for which said pupils have been appointed under existing laws, and received by said New York institution for the blind, transfer said pupils to said state institution ; pro^ vided, however, that they shall retain and continue to reoeive all pupils heretofore appointed or hereafter to be appointed, from the counties of New York and Kings under the appointment of the superintendent of public instruction, in like manner as is now pro- vided by law, to be received, maintained and educated by the said New York institution for the blind, which shall be compensated for their maintenance and education by the state ; and for their clothing by the counties from which they are appointed, in like manner as» is now done. [L. 1867, ch. 744, § 22 ; Hey decker' a Gen. L. {Med.), p. 4717.] § 7. List of deaf and dumb to be furnished to state superin- tendent of public instruction. It shall be the duty of the overseers of the poor in each town to furnish the superintendent of common schools with a list of the deaf and dumb persons in their respective towns, so far as they can ascertain them, with such particulars in relation to the eon- 4. Money raised by towns and counties for the care and support of inmates of charitable institutions, see L. 1895, ch. 754, sec. 1, post, p. 587. 516 Relief of Pooe, L. 1832, ch. 223, § 2; L. 1863, ch. 325, |§ 1, 2. dition of each as shall be prescribed by the said superintendent. [L. 1832, ch. 223, § l.j From the list thus obtained the superintendent may select, as state pupils, such as are properly embraced within the provisions of the existing laws, and make such regulations and give such di- rections to parents and guardians in relation to the admission of pupils, at stated periods, as will remove the inconvenience of hav- ing pupils of the same class entering the school at different per- iods. [Idem, § 2.] § 8. Indigent deaf-mutes to be placed in institutions ; applica- tion for admission ; vi^hen expense a charge against county. Whenever a deaf-mute child, under the age of twelve years, shall become a charge for its maintenance on any of the towns or counties of this state, or shall be liable to become such charge, it shall be the duty of the overseers of the poor of the town, or of the supervisors of such county, to place such child in the New York Institution for the Deaf and Dumb, or in the Institution for the Improved Instruction of Deaf-Mutes, or in the Le Cou- teulx St. Mary's Institution for the Improved Instruction of Deaf-Mutes, in the city of Buffalo, or in the Central New York Institution for Deaf-Mutes, in the city of Rome, or in any insti- tution of the state for the education of deaf-mutes. [L. 1863, ch. 325, § 1, 05 amended by L. 1870, ch. 180, L. 1871, ch. 548, and L. 1875, ch. 213; Heydecker's Gen. L. (2d ed.), p. 4719.J Any parent, guardian or friend of a deaf-mute child, within this state, over the age of five years and under the age of twelve years, may make application to the overseer of the poor of any town or to any supervisor of the county where such child may be, showing by satisfactory affidavit or other proof, that the health, morals or comfort of such child may be endangered, or not prop- erly cared for, and thereupon it shall be the duty of such overseer or supervisor to place such child in the New York Institution for the Deaf and Dumb, or in the Institution for the Improved In- struction of Deaf-Mutes, or in the Le Couteulx Saint Mary's In- stitution for the Improved Instruction of Deaf-Mutes in the city of Buffalo, or in the Central New York Institution for Deaf- Mutes in the city of Rome, or in the Albany Home School for the Oral Instruction of the Deaf at Albany, or in any institution in the state, for the education of deaf-mutes, as to which the board of state charities shall have made and filed with the superintendent The Blind and the Deaf and Dumb. 517 L. 1863, ch. 325, §§ 3, 4; L. 1870, ch. 180, § 2. of public instruction a certificate to the effect that said institution has been duly organized and is prepared for the reception and in- struction of such pupils. [^Idem, % 2, as amended by L. 1870, ch. 180, L. 1871, ch. 548, L. 1875, ch. 213, L. 1892, ch. 36.J The children placed in said institutions, in pursuance of the foregoing sections, shall be maintained therein at the expense of the county from whence they came, provided that such expense shall not exceed three hundred dollars each per year, until they attain tbe age of twelve years, unless the directors of the institu- tion to which a child has been sent shall find that such child is not a proper subject to remain in said institution. \^Idem, § 3, as amended hy L. 1875, ch. 213.J The expenses for the board, tuition and clothing for such deaf- mute children, placed as aforesaid in be by him charged to the county, if such person be a coimty charge, if not, to be charged to the town where such relief was afforded ; but no greater sum than ten dollars shall be expended or paid for the relief of any one poor person, or one family, without the sanction, in writing," of one of the superintendents of the poor of the county, which shall be presented to the county treasurer, with the order of the supervisor, except when the board of super- visors has made rules and regulations as prescribed in section thirteen of this chapter.' [Poor Law (L. 1896, ch. 226), § 23; Eeydeclp.r's Gen. L. {2d ed.), p. 220S.] 4. Article 5 of the Poor Law relates to the relief of poor or indigent soldiers, sailors and marines, and their families. 5. For form of supervisor's order for the expenditure of money for the temporary relief of a poor person, see Form No. 66, post. 6. For form of the written sanction of a county superintendent of the poor for the expenditure of a greater sum than $10 in the temporary relief of a poor person, see Form No. 67, post. 7. Power of overseer as to tem.porary relief. The question of the propriety of granting relief is primarily in the sound discretion of the over- 524 Relief of Poor. Poor Law, § 24. § 6. Relief of poor persons in counties having no alms-house. If application for relief be made in any county where there is no county almsi-house, the overseer of the poor of the town where such application is made shall inquire into the facts and circum- stances of the case, and with the written approval of the supervisor of such town, make an order in writing for such allowance, weekly or othei-v/ise, as they shall think required by the necessities of such poor person. If such poor person has a legal settlement in such town, or in any other town in the same county, the overseer shall apply the moneys so allowed to the relief and support of such poor person. The moneys so paid by him, or contracted to be paid, when the poor person had no legal settlement in the town, and charged to the tO'Wn in which he had a legal settlement, shall be drawn by such overseer from the county treasurer on producing such order. If such person has no legal settlement in such county, the ovei'seer shall, within ten days after granting to him any relief, seer. If the overseer applies for an order for the granting of relief to a poor person, and the order is given by the supervisor, the presumption is that both the overseer and the supervisor examined into the necessities of the particular case, and that the condition of the poor person was such as to warrant the issuing of the order, and that the poor person was entitled to relief. See City of Albany v. McNamara, 117 N. Y. 168; 22 N. E. 931. A liability in excess of $10 cannot be incurred by the overseer without the sanction of one of the superintendents of the poor, but except in such a case, the overseer's power of granting temporary relief is independent of the con- trol of the superintendents of the poor. Gere v. Supervisors, 7 How. Pr. 255. Where an overseer refuses or neglects to apply for an order for the relief of a poor person settled in his town, an action will not lie against such overseer in behalf of a person who has supported such poor person at his own expense, voluntarily, and without request from such overseer. Milklaer V. Rockfeller, 6 Cow. 276. Order for relief. Under the law as it existed prior to 1896 the order was to be issued by a justice of the peace; under the present law such order is issued by the supervisor. The requirement of an order is a statutory protection against extravagant or improper expenditure by overseers of the poor. Osterhoudt v. Rigney, 98 N. Y. 222, 237. If no fraud is shown and no injury results to u. taxpayer, such taxpayer cannot maintain an action against an overseer of the poor for expending more than $10 for the relief of a poor person without the written consent of the supervisor. Cohb v. Bemsdelk 14 N. Y. Supp. 93; 37 N. Y. St. Rep. 457. The inquiry as to the necessity of the order need not be made jointly by the overseer and supervisor. The order is the act of the supervisor and may be based upon his own examination. As has been already stated, it is presumed that the overseer has determined as to the necessity of the relief before making his application for an order. See Adams v. Supervisors of Columbia County, 8 Johns. 323. PowEES AND Duties op Oveeseebs of the Pooe. 525 Poor Law, § 25. give notice thereof, and that such person has no legal settlement in such county, to one of the county superinteoidents, and until the county superintendents skall take charge of the support of such poor person, the overseer shall provide for his relief and support, and the expense thereof from the time of giving sniah. notice shiall be paid to such overseer by the county treasurer, on the production of such order and of proof by affidavit of the time of tiie giving of suck notice, and shall be by him charged to the county.' [Poor Law {L. 1896, ch. 225), § 24; Hey decker's Gen. L. {2d ed.), p. 2208.] § 7. Overseer to examine monthly the needs of the poor sup- ported in his town ; settlement of accounts ; form of accounts and verification. The overseer of the poor of a town or city shall at least once each month, examine into the condition and necessities of each person supported by the town or city out of the coimty alms-house, and provide within the provisions of this chapter for such allow- ances, weekly or otherwise as the circumstances may in his judg- ment require.' All accounts for care, support, supplies or attend- ance, connected with the maintenance of such poor person or family, shall be settled, once in three months, and paid if there be 8. Relief in connties having no alms-honse. The law as it existed prior to 1896 was construed in the case of Bobbins v. Walcott, 66 Barb. 62, where the court used the following language : " In those counties in which there is no poor house an overseer is authorized to make an order for the allowance of such sum, weekly or otherwise, as the necessities of the poor person may require. If such pauper has a legal settlement in the town where the application is made, or in any other town of the same county, the overseer is required to apply the money to the relief of such pauper. The money paid by the overseer, or contracted to be paid pursuant to such order, shall be drawn by him from the county treasury on producing the order. If such pauper has not a legal settlement in some town of the county in which the application is made, then notice is to be given to the superin- tendent of the poor, and the overseer may support the pauper after such notice and until the superintendent assumes his support, and the overseer is to be paid therefor from the county treasury." 9. The poor persons to whom allowances may be made as provided in this section, are those who, under sec. 20 of the Poor Law, ante, p. 520, are relieved and provided for at a place other than an alms-house; those under gee. 23 of the Poor Law, be presented to the town board at its first meeting held on the Tuesday- preceding the biennial meeting and on a corresponding date in each alternate year (Town Law, sec. 161, post, p. 803), at the same time as the accounts of other town officers. The object of the report provided for by this section is to enable the town board to make an estimate of the amount that will bo required during the ensuing year for the support of the poor. PowEBS AND Duties of Oveeseees of the Pooe. 529 Poor Law, § 27. estimate of the sum wliioh they ahall deem necessary for tlie tempo- rary and out door relief and support of the poor in their town for the ensuing year, and in counties where there is no county alms- house, their estimate of such sum as they shall deem necessary to be raised and collected therein for the support of the poor for the ensuing year. If such board shall approve the statement and esti- mate so made or any part thereof, they shall so certify in duplicate, one of which certificates shall be filed in the office of the town clerk, and the other shall be laid by the STipervisor of the town, before the board of supervisors of the county, on the first day of its next annual meeting. The board of supervisors shall cause the amount of such deficiency and estimates, as so certified, together with the sums voted by such town for the relief of the poor therein to be levied and collected in such town, in the same manner as other town charges, to be paid to the overseers of the poor of such town, and the warrants attached to the tax-rolls in such county shall direct accordingly. The moneys so raised shall be received by such overseers, and applied toward the payment of such de- ficiency, and for the maintenance and support of the poor, for whose relief such estimates were made." The to'wn board shall also, on or before the first day of December, annually certify to the county superintendents, the name, age, sex, and native country, 14. Wliere estimates are not made. Under ch. 334, L. 1845, from which in part the above section was derived, it appeared that an overseer of the poor instead of pursuing the system provided by the above section, procured supplies upon his own credit and presented his accounts annually to the board of audit for allowance, the amount audited being put in the schedule of accounts and levied by the board of supervisors with other town charges. It was held that the failure to follow the requirements of the statute did not deprive the overseer of his power to provide for the relief of the poor, and that the advances made by him were properly audited and charged against the town; that while the overseer was not bound to furnish supplies upon his own credit, and the act contemplates that he shall be put in funds in advance, under the provisions of the section, authorizing the town board to include in its estimate such sum as shall be necessary " to supply any deficiency in a preceding year," it had power to audit all sums expended where no provision had been made therefor the preceding year. Osterhoudt v. Rigney, 98 N. Y. 222. Special toirii meetings may be called for the purpose of raising money for the support of the poor. Town Law, sec. 23, ante, p. 200. For form of report of overseer of the poor and of estimate of amounts required to be raised, for the support of the poor during the ensuing year, see Form No. 72, post. 34 530 Relief of Pooe. Poor Law, §§ 28, 137. of ©very poor person relieved and supported by such oveirseers dur- ing the preceding year, with the causes which shall have operated to reader them such poor persons, the amount expended for the use of each peirson, as allowed by the board, and the amount al- lowed to each overseer for services rendered in relation to tempo- rary or town relief. The town board shall include in such auuual statement to the county superintendents, and the co\mty superin- tendents shall include in their own report to the state board of charities, a statemeut of the name and age, and of the names and residence of the parents of every child who has been placed by such overseers in a family during the preceding year, with the name and address of the family with whom each child is placed, and the occupation of the head of the family. [Poor Law (L. 1896, ch. 223), § 27; Heydecker's Gen. L. {2d ed.), p. 2211.] § 10. Accounts of town officers. The accounts of any town officer for personal or official services rendered by him, in relation to the town poor, shall be audited and settled by the town board and charged to such tO'Wn. But no al- lowance for time or seirvices shall be made to any officer for attend- ing any boiard solely for the purpose of having his account audited or paid.'" [Poor Law (L. 1896, ch. 225), § 28 ; Heydecker's Gen. L. (2d ed.), p. 2212.] § II. Supervisor to report to clerk of board of supervisors, abstract of accounts of overseers of the poor. The supervisor of every town in counties where all the poor are not a county charge, shall report to the clerk of the board of super- visors, within fifteen days after the accounts of the overseers of the poor have been settled by the town board at its first annual meeting in each year, an abstract of all such accounts, which shall exhibit the number of poor persons that have been relieved or supported in such town the preceding year, sipecifying the number of county poor, and tO'Vm poor, the whole expense of such support, the allow- ance mnde to overseers, justices, constables or other officers, which shall not comprise any part of the actual expenses of maintaining 15. Accounts of town officers for services rendered in relation to the town poor are to be audited at the second meeting of the town board, held on the Thursday preceding the annual meeting of the board of supervisors. The form of accounts and the verification thereof by afBdavit are to be made in accordance with the provisions of sees. 167, 168 of the Town Law. See post, p. 811. Powers and Duties of Overseers of the Poor. 531 L. 1895, ch. 170, §§ 1, 2, 3; Poor Law, § 30. the poor." [Poor Law (L. 1896, ch. 225), § 137; Heydecker's Oen. L. (2d ed.), p. 2241.] § 12. Persons bitten by mad dogs to be sent to Pasteur In- stitute. Overseers of the poor or other officers having charge of the dis- pensation of public charity in the several counties of this state may hereafter send to the Pasteur institute in the city of New York all persons duly certified by regular physicians to have been bitten by rabid animals, or otherwise put in danger of infection with rabies. [L. 1895, ch. Y70, § 1, as amended by L. 1901, ch. 482.J The transportation of such persons, with necessary attendant or attendants, to and from the city of New York, shall be a charge upon the counties in which they reside. The sustenance, nursing and preventive treatment of such persons, for the time adjudged necessary, shall be provided by the Pasteur institute of the city of New York. [Idem, § 2.J The charges for the services of the Pastenr institute of the city of New York shall be paid as is provided for the several poor persons by section forty-two of chapter two hundred and twenty- five of the laws of eighteen hundred and ninety-six, at a rate not exceeding one hundred dollars a patient. [Idem, % 3, as amended by L. 1901, ch. 482.] § 13. Treatment of poor persons in hospitals. In all counties of this sitate in which there are not adequate hospital accommodations for indigent persons requiring medical or surgical care and treatment, or in which no appropriations of money are made for this specific purpose, it shall be the duty of county superintendents of the poor, upon the certificate of a physi- cian approved by the board of supervisors, or of the overseers of the poor in the several towns of such counties, upon the certifi- cate of a physician approved by the supervisor of the town, as their jurisdiction over the several cases may require, to send all such indigent persons requiring medical or surgical care and treat- ment Lo the nearest hospital, thei iuTOrporation and management of which have been approved by the state board of charities, provided transpoitation to such hospital can be safely accomplished. The 16. Tor form of report of supervisor to the clerk of the board of super- visors of abstracts of overseer's accounts, see Form No. 73, post. 532 Relief of Pooe. Poor Law, § 30. charge for the care and treatment of such indigent persons in such hospitals, as herein provided, shall not exceed one dollar per day for each person, which shall be paid by the several counties or toiwnsi from which such persons are semt, and provision for which shall be made in th0 annual budgets of such counties and towns. [Poor Law, § 30, as added by L. 1901^ ch. 103 ; Heydecker's Gen. L. (2d ed.), p. 2212. J Settlement and Place of Beliej". 533 Poor Law, § 40. CHAPTER XXXIX. SETTLEMENT AND PLACE OF BELIEF OF POOR PEESON3. SxcnoN 1. Settlements of poor persons, how gained; separate settlement of minor. 2. Settlement of married women; when determined by that of parents. 3. Poor person not to be removed, but supported in the town where he may be. 4. Proceedings to determine settlement; notice to appear before county superintendents. 6. Hearing before superintendents; decision. 6. Effect of failure of overseer to provide for poor person, when notified by overseer of other town; board of supervisors to charge support of poor person to proper town. 7. Superintendent to determine who are county poor; proceedings for such determination. 8. Support of county poor in counties having no alms-house; pro- ceedings to determine who are county poor. 9. AH decisions of superintendents of the poor to be entered in books; copy to be filed with county clerk. 10. Appeals to county court from decisions of county superinr tendents of the poor ; decision on appeal. 11. Unlawfully removing or enticing a poor person from one town to another a misdemeanor. 12. Proceedings where a, person has been enticed or has come from one town or county to another. 13. Upon receipt of notice superintendent or overseer to take poor person or serve denial of removal. 14. In case of neglect to deny removal, support of poor person to be a charge upon the town and county from which removed; actions to recover. 15. Actions to recover, to be brought within three months from service of denial. 16. Penalty for bringing foreign poor into state; action to recover penalty; person found guilty, to transport poor person out of state. § I. Settlements of poor persons, how gained; separate settle- ment of minor. Every person of full age, who shall be a resident and inhabitant of any town or city for one year, and the members of his family who shall not have gained a separate settlement, shall be deemed settled in such tovm or city, and shall so remain until he shall have gained a like settlement in some other town or city in this state, or shall remove ffom this state and remain therefro^m one 534 Relief of Pooe. Poor Law, § 40. year.' A minor may be emancipated from his or her father or mother and gain a separate settlement: 1. If a male, by being married and residing one year separately from the family of his father or mother. 2. If a female, by being married and having lived with her hus^ band ; in which case the husband's settlement shall be deemed that of the wife. 1. Settlement in general. It ia the purpose of the law that the settle- ment of a poor person is gained by his residence in a town or city for a period of one year. Such settlement continues until he has gained a like settlement in some other town or city. L. 1897, ch. 203, added a new sec. 57 to art. 3 of the Poor Law, which provided that a person who has gained a setlement in a town or city loses the same by continuous residence else- where for one year. This provision radically changed the existing law by relieving a town or city from the obligation of supporting a poor person after he has finally left its boundaries and has resided continuously for one year in other municipalities. People ex rel. May v. Maynard, 160 N. Y. 453; 55 N. E. 9; Matter of Connellan, 25 Misc. 592; 56 N. Y. Supp. 157. But the act of 1897, eh. 203, was repealed by L. 1900, ch. 345, the effect of which was to restore the law as it existed prior to the enactment of the act of 1897. The vords " resident and inhabitant," as used in this section, mean the locality of existence as permanently and firmly fixed, as is legally con- veyed by the word " domicile.'' Matter of Town of Hector, 24 N. Y. Supp. 475. In the case of City of Syracuse v. County of Onondaga, 25 Misc. 370; 55 N. Y. Supp. 634, it was held that a person who comes to a city in January, and then rents a house to which, in March following, he takes his wife, his family and household goods and resides there with them until February in the year following, when he leaves the city and disappears, has gained a settlement in the city within the meaning of the above section. Italian laborers temporarily employed in constructing a railroad, do not by their presence in a, town gain a settlement therein. Matter of Touon of Hector, 24 N. Y. Supp. 475. Settlement remains nntil another is gained. A person cannot gain a settlement in any town until he shall have resided there for at least one year; when a settlement is thus legally gained in a town it must necessarily remain there until one is subsequently established in some other town or county. Bitterly v. Murray, 63 How. Pr. 367. In the case of Matter of Town of Hector, 24 N. Y. Supp. 475, it was said: "It has long been eettled law that every person has a domicile somewhere. If he has not acquired one elsewhere he retains his domicile of origin, and to effect a change of domicile the fact and intent must concur; that is, there must be not only a change of residence, but an intention to abandon the former domicile, and acquire another as the sole domicile." The continuous absence of a poor person from a city, without proof of his actual residence or intention, is not such a continuous residence elsewhere for one year as deprives him of his settlement in the city, and such city Settlement and Place of Relief. 535 Poor Law, § 41. 3. By being bound as an appremtiae and serving one year by virtue of such indentures.' 4. By being hired and actually serving one year for wages, to be paid such minor. [Poor Law (L. 1896, ch. 225), § 40; Hey- deckar's Gen. L. {2d ed.), p. 2213.] § 2. Settlement of married women; when determined by that of parents. A wcman of full age, by marrying, shall acquire the settlement of her husband. Until a poor person shall have gained a settle- ment in his or her own right, his or her settlement shall be deemed that of the father, if living, if not, then of the mother ; but no child bom in any alms-house shall gain any settlement merely by reason of the place of such birth ; neither shall any child bom while the mother is such poor person, gain any settlement by reason of the place of its birth. No residence of any such poor person in any almsrhouse, while such person, or any member of his or her family is supported or relieved at the expense of any other town, city, county or state, shall operate to give such poor person a settle- is, therefore, liable to support the wife of such poor person. City of Byra- cuse V. County of Onondaga, 25 Misc. 371; 55 N. Y. Supp. 634. Settlement of children. A place of birth of an infant pauper is prima facie his place of settlement, but it may be removed to the last legal settlement of the parents when discovered. Overseers of Vernon v. Overseers of Smithville, 17 Johns. 89; and see, also, Delavergne v. Noxon, 14 Johns. 333; Overseers of Berne v. Overseers of Knox, 6 Cow. 433. The settlement of a child follows that of the father, if he have any; if not, the settlement of the mother. Overseers of Miskayuna v. Overseers of Albany, 2 Cow. 537. No act of the father of a minor son can divest the son of his derivative settlement. Adams v. Foster, 20 Johns. 452. Until a poor person acquires a settlement in his own right, his settlement is that of his father or mother; and when his mother becomes a resident of a city and he follows her to that place, a, residence and settlement are initiated. Btillwell V. Kennedy, 51 Hun, 114; 5 N. Y. Supp. 407. Although the child does not reside with his father and is not under his immediate charge or control, such child nevertheless has a derivative settlement in the same town as his father. Adams v. Oaks, 20 Johns. 282. 2. Settlement of apprentices. If with the privity and consent of his master, an apprentice serves another person two years, he thereby gains a (Settlement. Overseers of Ouilderlcmd v. Overseers of Knox, 5 Cow. 363. The fact that the indenture by which an apprentice was bound out is void is not material; if an apprentice has served one year by virtue of such indenture, he has gained a separate settlement. Overseers of Hudson v. Overseers of Taghhanac, 13 Johns, 245; Overseers of Owasco v. Overseers of OsiaegatcUe, 5 Cow. 527; Overseeirs of Hamilton v. Overseers of Eaton, « Cow, 658. 536 Relief of Pooe. Poor Law, § 42. ment in tlie town wkeire such actual residence may be.' [Poor Law (L. 1896, ch. 225), § 41; Heydecher's Gen. L. {2d ed.), p. 2213.] § 3. Poor person not to be removed, but supported in the town •where he may be. No parson shall be removed as a poor person from any city or town to any other city or town of the same or any other county, nor from any county to any other county except as hereinafter pro- vided ; but every poor person, except the state poor, shall be sup- ported in the town or county where he may be,' as follows : 1. If he has gained a settlement in any town or city in such county, he shall be maintained by such town or city. 2. n he has' not gained a settlement in any town or city in the county in which he shall become poor, sick or infirm, he shall be supported and relieved by the superintendents, of the poor at the expense of the county." 3. Construction of section. The disjunctive " or " is to be under- stood after the word " alms-house " in the last sentence of the above section. Thus read, the revision of the Poor Law in 1896 did not so change the con- ditions of settlement that a poor person residing in a town or city for more that one year, while relieved at the expense of the county, ceases to be a county charge, and becomes thereafter chargeable to the town or city. People ex rel. French v. Lyke, 159 N. Y. 149 ; 53 N. E. 802. Since the enactment of the above section, a person supported by the county, if not an inmate of an alms-house, may gain a. settlement in a, town by a residence therein for one year. Matter of Connellan, 25 Misc. 592; 56 N. Y. Supp. 157. 4. Tie place of support of a poor person is in the town or county where he may be. Overseers of 'Norwich v. Overseers of Pharsalia, 15 N. Y. 341; Matter of McGutcheon, 25 Misc. 592; 56 N. Y. Supp. 370. 5. Effect of settlement. If a poor person has gained a settlement in a town or city, he is to be maintained at the expense of such town or city, except in a county where the distinction between the town and county poor has been abolished. If he has not gained a settlement in the town where he may be, he is to be supported and relieved by the county superintendents of the poor at the expense of the county. See, also. Matter of Town of Sector, 24 N. Y. Supp. 475 ; Matter of Connellan, 25 Misc. 592. Where a person who had gained a, settlement in a county where the dis- tinction between town and county poor exists, moved from that town to a city in the same county and he there became poor, and was relieved by the overseer of the poor of the city, where he continued to reside, the bill for his maintenance being paid by the town from which he came, until a year from the taking effect of the act of 1897, which has since been repealed, he then l:prainc u, county charge by force of subdivision 2 of the above section. People ex rcl. May v. J\!avn(trd Wf) y.. Y. 153: 55 >T. E. 9. Settlement and Place of Relief. 537 Poor Law, § 43. 3. If such, person be in a oO'Unty where the distinction between town and county poor is abolished, he shall, in like manner, be supported at the expense of the county, and in both, oases, proceed- ings for his relief &hall be had as herein provided. 4. If such poor person be in a county where the respective towns are liable to support their poor, and has. gained a settlement in some town of the same county other than that in which he may then be, he shall be supported at the expense of the town or city where he may be, and the overseers shall, within ten days after the applica- tion for relief, give notice in writing to an. overseer of the town to which ho shall belong, requiring him to provide for the support and relief of such poor person.' [Poor Law (L. 1896, ch. 225), § 42 ; Eeydechers Gen. L. (2d ed.), p. 2214.] § 4. Proceedings to determine settlement; notice to appear before county superintendents. If, within ten days after the service of such notice, the overseer to whom the same was directed, shall not proceed to contest the allegation of the settlement of such poor person, by giving the notice hereinafter directed, he or his successors, and the town which he or they represent, shall be precluded from contesting or denying such settlement. He may, within the time mentioned, give written notice to the overseer of the town where sucb person may be, and from whom he has received the notice specified in the last section, that he will appear before the county siuperintendents, at a place and on a day therein to be specified, which day shall be at least ten days and not more than thirty days from the time of the service of such notice of hearing, to contest the alleged settle- ment. If the county superintendents fail to appear at the time and place so appointed, they shall, at the request of the overseers of either town, appoint some place, and some other day, for the hearing of such allegations, and cause at least five days' notice thereof to be given to such overseers ; and no poor person shall be deemed to have gained a settlement, when the proper notice to contest the settlement have been served, until there has been a hear- ing before the superintendent thereof, and an order by them made and filed in the office of the county clerk, fixing the settlement of 6. For form of notice to be given by the overseers of one town to those of another, requiring the overseers of the town in which the poor person has a residence to provide for his support, see Form No. 74, post. 538 Belief of Pooe. Poor Law, §§ 44, 45. aucli poor person.' [Poor Law (L. 1896, ch^ 225), § 43; Hey- decher's Gen. L. {2d ed.), p. 2214.] § 5. Hearing before superintendents; decision. The county superintendents shall conveme wheneveT required by any overseer pursuant to such notice, and shall hear and determine the controversy, and may award costs, not exceeding fifteen dollars, to the prevailing party, which may be recovered in an action in a <50urt of oompeitent jurisdiction. Witnesses may be allowed fees as in courts of record.' The decision of tho superintendent shall be final and conclusive, unlessi an appeal therefrom shall be taken as provided by this chapter." [Poor Law {L. 1896, ch. 225), § UiHeydeclcer's Gen. L. (2d ed.), p. 2215.] § 6. Effect of failure of overseer to provide for poor person, when notified by overseer of other town ; board of supervisors to charge support of poor person to proper town. The overseers of the poor of the town in which it may be alleged any i^oor person has gained a settlement, may, at any time after receiving such notice requiring them to provide for such person, take and receive such poor person to their town, and there support tim ; if they omit to do so, or shall fail to obtain the decision of 7. Object of proceedings. In speaking of the sections of the old re- "vised statutes from which this and the succeeding section were derived, Judge Westbrook said in the case of Sitterly v. Murray, 63 How. Pr. 370 : " The object and scheme of the statute seem to be to provide for the settlement of all persons under the poor laws, no matter what their previous financial condition may have been, and whether they were ever paupers before or not, and to fix the liability of the proper town for their support and maintenance, whenever by misfortune or otherwise, they should become a charge upon the public. This is the reasonable and natural conclusion to be drawn from the various provisions of the statute and from the language of these particu- lar sections." For form of notice of overseers of the poor to appear before the county superintendent of the poor and contest the alleged settlement of a poor person, see Form No. 75, post. The provisions of this section in regard to the time within which such notice must be served are mandatory, and a failure to comply with the statute will result in the defeat of the town so failing. Matter of Merville, 23 Misc. 398; 52 N. Y. Supp. 254. 8. For form of subpoena in case of dispute concerning settlement of poor persons, see Form No. 76, post. 9. For form of decision of superintendents concerning the settlement of poor persons, see Form No. 77, post. Settlement and Place of Relief, 539 Poor Law, § 46. the county superintendents, so as to exonerate them from th.e main- tenance of such poor person, the charge of giving audi notice, and the expense of maintaining such person, after being allowed by the county superintendents, shall be laid before the board of super- visors at their annual meetings from year to year, as long as such expenses shall be incurred, and the supervisors shail annually add the amount of such charges to the tax to be laid upon the town to which such poor person belongs, together with such sum in addition thereto, as will pay the tovsm incurring such expense, the interest thereon, frO'm the time of expenditure to the time of repayment, which sum shall be assessed, levied and collected in the sajtne man- ner as other charges of such town. Such moneys when collected shall lie paid to the county treasurer and be by him credited to the account of the town which incurred the expenses. [Poor Law (L. 1896, ch. 225), § 45; Heydecker's Gen. L. (2d ed.), p. 2215.] § 7. Superintendent to determine who are county poor; pro- ceedings for such determination. The support of any poor person shall not be charged to the ijounty, without the approval of the superintendents. If a poor person be sent to the county alms-house as a county poor person, the Fuporintendemts, in counties where there are town poor, shall immediately inquire into the facts, and if they are of opinion that euch person has a legal settlement in any town of the county, they shall, v;ithin thirty days after such poor person shall have been received, give notice to the overseers of the poor of the town to whieh such poor person belongs that the expenses of such support will be charged to such tovwi unless the overseers within such time as the superintendents shall appoint, not less than twenty days thereafter, show that such town ought not to be so charged.'" On the application of the overseers the superintendents shall re^ examine the matter and take testimony in relation thereto, and decide the question ; which decision shall be conclusive, unless an appeal tijerefrom shall be taken in the manner provided in this chapter." [Poor Law (L. 1896, ch. 225), § 46 ; Heydecker's Gen. L. (2d ed.), p. 2215.] 10. For form of anperintendent's notice that poor persons will be supported at the expense of <%, town in a county where the town support their own poor, see Form No. 78, post. 11. For form of decision of superintendents after re-examining settle- ment of poor ppr'"n rn nnnlifation of overseers, see Form No. 79, post. 6-iO Relief of Pooe. Poor Law, §| 47, 48, 49. § 8. Support of county poor in counties having no alms- house; proceedings to determine who are county poor. In counties having no alms'-house, no person sihall be supported as a county poor person, witiiout the direction of at least one super- in ten den U In such oases the overseers of the poor, where such person may be, shall, within ten days after granting him relief, give notice thereof and that such person is not chargeable to their town, to one of the superinteccidents who shall inquire into the cir- cumstances, and if satisfied that such poor person has not gained a legal settlement in any town of the county, and is not a state poor person, he shall give a certificate to that effect, and that such poor person is chargeable to the county. He shall report every such case to the board of superintendents at their next meeting, who shall affirm such certfioate, or, on giving at least eight daysi* notice to the overseers of the poor of the town interested may annul the same. After hearing the allegations and proofs in the premises, if the superintendent to whom the overseers have given such notice shall neglect or refuse to give such certificate, the overseers may apply to the board of superintendents, who shall summarily hear and determine the matter, and whose decision shall be conclusive^ unless an appeal therefrom shall be taken in the manner provided in this chapter. Such appeal may also be taken from the refusal of one superintendent to grant such certificate when there is but one superintendent in the county. [Poor Law (L. 1896, ch. 225), § 47 ; Heydecker's Gen. L. {'id ed.), p. 2216.] § g. All decisions of superintendents of the poor to be entered in books; copy to be filed with county clerk. The decisions of county superintendents in relation to the settle^' ment of poor persons, or to their being a charge upon the county, shall be entered in books to be provided for that purpose, and certi- fied by the signature of such of the superintendents' as make the same ; and a duplicate thereof, certified in the same manner, shall be filed in the office of the county clerk within thirty days after making such decision. [Poor Law (L. 1896, ch. 225), § 48; Heydecker's Gen. L. (2d ed.), p. 2216.] § 10. Appeals to County Court from decisions of county superintendents of the poor ; decision on appeal. Any or either of the parties interested in a decision of the supei- intendent of the poor, or in any dispute that shall arise concerning Settlement and Place of Relief. 541 Poor Law, § 50. the settlemeiit of any poor person, may appeal from sucih decision to tihe County Court of the county in which such decision shall be made by sei-ving upon the other parties interested therein, within thirty days after service upon the appellant of a notice of the same, a notice of appeal, which shall be signed by the appellant or his attorney, and which shall specify the grounds of the appeal." The hearing of such appeal may be brought on by either party in or out of term, upon notice of fourteen days. Upon such appeal a new trial of the matters in dispute shall be had in the County Court without a jury, and a decision of the County Court therein shall be final and conclusive, and the same costs shall be awarded as are allowed on appeals to said court. For the purposes of this chapter the County Court shall be deemed open at all times. [Poor Law (L. 1896, ch. 225), § 49 ; Heydecker's Gen. L. {2d ed.), p. 2216.] § II. Unlawfully removing or enticing a poor person from one town to another a misdemeanor. Any person who shall send, remove or entice to remove, or bring, or csause to be sent, removed or brought, any poor or indigent per- son, from any city, town or county, to any other city, town or county, without legal authority, and there leave such person for the purpose of avoiding the charge of such poor or indigent person upon the city, town or county from which he is so sent, removed or brought or enticed to remove, shall forfeit fifty dollars, to be recovered by and in the name of the town, city or county to which such poor person shall be sent, brought or removed, or enticed to remove, and shall be guilty of a misdemeanor." [Poor Law (L. 1896, ch. 225), § 50; Heydecker's Gen. L. {2d ed.), p. 2217.J 12. For form o£ notice of decision of superintendents as to settlement of poor persons, and of appeal to county court from decision of superin- tendents, see Forms Nos. 80, 81, post. 13. TTnlatrfnl removal of poor person. The criminal liability is also provided for by the following section of the Penal Code: " § 675a. Any person who shall send, remove, or entice to remove, or bring, or cause to be sent, removed or brought, any poor or indigent person, from any city, town or county, to any other city, town or county without legal authority, and there leave such person for the purpose of avoiding the charge of such poor or indigent person upon the city, town or county, from which he is so sent, removed or brought or enticed to remove, shall be guilty of a misdemeanor, and on conviction, shall be imprisoned not exceeding six months, or fined not exceeding one hundred dollars or both." (Added by L. 1896, <;h. 550.) 542 Relief of Pooe, Poor Law, § 51. § 12. Proceedings where a person has been enticed or has come from one town or county to another. A poor person so removed, brought or enticed, or who shall of hisi own accord come or stray from one city, town or county, into any other city, town or county, not legally chargeable with his sup- port, shall be maintained by the county superintendents of the county where he may be." They may give notice to either of the over&iiers of the poor of the town, or city from which he was' brought or enticed, or came as aforesaid, if such town or city be liable for his support, and if there be no town or city in the county from which lie was brought or enticed or came liable for his support, then to either of the county superintendents' of the poor of such county, within ten days after acquiring knowledge of such im- ^JOTien action vrill lie. The action will not lie against a person re- moving a poor person from one county to another, unless it appear that such removal was with the intent of subjecting such county to the charge of supporting such poor person. Coe v. Smith, 24 Wend. 341. It cannot be doubted but that the intent with which the removal was effected is thff gravamen of the criminal offense. Foster v. Gronkhite, 35 N. Y. 139. The penalty is incurred when any person removes, or entices the pauper to re- move, without legal authority, with intent to make the county to whicb the removal shall be made, chargeable with the pauper's support. Cortland Co. V. Herkimer Co., 44 N. Y. 22. In the latter case it was held that the superintendent might testify directly as to the intent with which he did an act when the intent is a fact material to the issue. 14. Effect of revision. The above section of the Poor Law was derived from R. S., pt. 1, ch. 20, tit. 1, sec. 59, as amended by L. 1885, eh. 546; L. 1888, ch. 486. The commissioners in the revision disregarded the amend- ment of 1888 and retained the law as amended by the act of 1885. As the law now stands proceedings to compel the support of a poor person who has, of his own accord, moved to a county not legally chargeable with his support, may be instituted against the county properly chargeable with his support. This change vitiates the doctrine laid down in the case of Coe v. Smith, 24 Wend. 341, and followed in Foster v. Gronkhite, 35 N. Y. 141, and Cort- land Go. v. Herkimer Co., 44 id. 22, that: "An action will not lie by the superintendents of the poor of one county against the super- intendents of another county for the maintenance of a pauper removed from the county of the latter without legal authority, into the county of the former, when the removal is made at the request of the pauper, so that he may be under the care of his family and friend.'i, and without any intent on the part of the person removing him to make the county into which h ■ is removed ohargi';'ible with his support.'' But the provisions of L. 1885, ch. 540, from which this section is taken, did not authorize an action by the Buperintendent of the poor for the support of a pauper against a county Settlement and Place of Kelief. 543 Poor Law, § 52. proper removal, informing ttLem of such impropeir removal, and requiring them forthwitli to take diarge of soioh poor person." If there be no overseers or superintendents of the poor in such town, city or county, such notice shall be given to the person, by what- ever name known, who has charge and care of the poor in such locality. [Poor Law (L. 1896, ch. 225), § 51; Heydecker's Gen. L. (2d ed.), p. 2217.J § 13. Upon receipt of notice superintendent or overseer to take poor person or serve denial of removal. The county superintendents, or overseers, or other persons to whom such notice may be directed may, after the service of such notice, take and remove such poor person to their county, town or from which he voluntarily removed at a time when he was not a pauper. Bellows V Counter, 6 N. Y. Supp. 73. The term " poor person " as used in this section does not mean an able- bodied man who has always maintained himself and family by his own exertions, and who has come into another county and there, without fault upon his part, by means of an accident become unable to support him- self. Such a man is many degrees removed from the condition of a pauper. It is only where a poor person, who at the time of his coming into another county was a poor person that the liability of the town or county from whence he came exists. Wood v. Bimmons, 51 Hun, 325; 4 N. Y. Supp. 368. It may be questioned as to whether this case would now apply under the definition of a poor person given in section 2 of the Poor Law. Poor person to be supported. A superintendent of the poor who finds a pauper in his county has no right to remove him to another county where he believes he belongs; he must provide for his support and then pursue his remedy against the other county. Smith v. Brundag% 17 Wk. Dig. 266. If a poor person, not having a settlement in this state, is illegally moved by the overseers of one town into another town, and is there supported, the overseers of the town into which he was moved may maintain an action against the overseers of the town procuring his illegal removal, for the amount expended in the support of such poor person, upon the principle that the burden of supporting such poor person was unjustly thrown upon such town, and such town should be exonerated by the town benefiting from such illegal removal. Pittstown v. Plaitsburgh, 15 Johns. 436. 15. Sufficiency of notice. Notice by a superintendent of the poor to an overseer of another county that a person, who has gained a settlement in the latter county, is supported as a pauper in the county of the super- intendent giving such notice, but which does not aver that the person was a pauper while in the county from which he moved or that his change of habitation was improper, is insufficient to sustain an action for the amount of his support. McKay v. Welsh, 6 N. Y. Supp. 358. For form of notice of improper removal of a poor person from a town, city or county, see Form No. 82, post. 544 Belief of Poob. Poor Law, § 53. city, and there support kim, and pay the expense of such notioe, and of the support of such person;" or they shall, within thirty days after receiving such notice, by a written instrument under their hands, notify the county superintendents from whom such notice was received, or either of them, that they deny the allegation of soich improper enticing or removal, or that their town, city or county is liable for the support of such poor person." [Poor Law {L. 1896, ch. 225), § 52; Heydecker's Gen. L. {%d ed.), p. 2218. j § 14. In case of neglect to deny removal, support of poor per- son to be a charge upon the town and county from which re- moved ; actions to recover. If there shall be a neglect to take and remove such poor person, and to serve notioe of such denial within the time above prescribed, the county superintendents and overseers, respeotivly, whose duty it was so to do, their successors, and their respective counties, cities or tovTiis, shall be deemed to have acquiesced in the allegations con- tained in such first notice, and shall be forever precluded from contesting the same, and their counties, cities and towns, respec- tively, shall be liable for the expenses of the support of such poor person, which may be recovered from time to time, by county soiperintendente incurring such expenses, in the name of their county in actions against the county, city or town so liable. [Poor Law (L. 1896, ch. 225), § 53; Heydecker's Gen. L. (2d ed.), p. 2218.] 16. Expense of support. When a poor person removes or is removed from a town in one county to a town in another county, not chargeable with his support, and is there necessarily relieved by the overseer of the poor of that town, the expense incurred and the burden of thereafter maintaining such poor person is, as between that town and its county, a charge on the county, provided the overseer gives the superintendent of the poor of his county notice of the circumstances of the case, as provided by law. Stillwell V. Coons, 122 N. Y. 242; 25 N. E. 316. 17. Denial of removal. For form of notice of denial of removal of poor persons, see Form No. 83, post. The denial of liability need not follow the language of the section, but it is sufficient if it contains an unequivocal denial of the liability asserted in the notice of improper removal. Stillwell v. Coons, 122 N. Y. 242; 25 N. E. 316. If such denial be served by mail, and is received and retained by the party upon whom it is served without objection, the service is sufficient. Stillwell V. Kennedy^ 51 Hun, 114; 5 N. Y. Supp. 407. Settlement and Place of Relief. 545 Poor Law, §§ 54, 55. § 15. Actions to recover, to be brought within three months from service of denial. Upon service of any such notice of denial, the county superin- tendents upon whom the same may be served, shall, within three jnonths, commence an action in the name of their county, against the town, city or county so liable for the expenses incrurred in the support, of such poor person, and prosecute the same to effect; if they neglect to do so, their town, city or county shall be precluded from all claim against the town, city or county to whose officers such iirbt notice was directed. [Poor Law (L. 1896, ch. 225), § 54; Eey decker's Gen. L. {2d ed.), p. 2218.] § 16. Penalty for bringing foreign poor into state; action to recover penalty; person found guilty, to transport poor person out of state. Any person who shiill knowingly bring or remove, or cause to be brought or removed, any poor person from any place without this state, into any coimty, city ot town within it, and there leave or attempt to leave such poor person, with intent to make any such county, city or town, or the state, wrongfully chargeable with his support, shall forfeit fifty dollars, to be leoovered by an action in a court of competent jurisdiction in the county, and in the name of the county, city or towTi into which such poor person shall be brought, and shall bo obliged to convey such person out of the state, or support him at his own expense, and shall be guilty of a misdemeanor, and the court or magistrate before whom any person shall be convicted for a violation of this section shall require of such per.son satisfactory security that he will within a reasonable time, to be named by the court or magistrate, transport such person out of the state, or indemnify the town, city or county for all charges and expenses which may be incurred in his support; and if such person shall refuse to give such security when so required, the c-)urt or magistrate shall commit him to the common jail of the county for a term not exceeding three months. [Poor Law (L. 189(), ch. 225), § 55 ; EeydecTcer's Gen. L. (2d ed.), p. 2218.J 35 54:6 Belief of Pooe. Poor Law, § 60. CHAPTER XL. SUPPOET OF BASTAEDS. SEcnow 1. Penalty for removal of mother of bastard; support of mother. 2. Definition of bastard. 3. Who liable for support of bastard. 4. Mother and child poor persons; proceedings in case of removal of mother from one town or county to another. 6. Mother and bastard to be supported as other poor persons. 6. Mother and child not to be removed without her consent. 7. Overseers to notify superintendents of cases of bastardy, when county is chargeable. 8. Superintendents to provide for mother and child. 9. Until taken charge of by superintendents, to be supported by overseers. 10. Overseers of town to support bastard and mother, whether chargeable or not. 11. Moneys received by overseers from parents of bastards, how applied and accounted for. 12. When moneys received on account of bastard chargeable to county; how to be disposed of. 13. Disputes concerning settlement of bastard, how determined. 14. Proceedings when bastard is chargeable to another town. 15. Mode of ascertaining sum to be allowed for support of bastard. 16. When mother and child to be removed to county alms-house. 17. Superintendents and overseers may compromise with father of bastard; when mother may receive money. § I. Penalty for removal of mother of bastard; support of mother. If the mother of any bastard, or of any child likely to be bom a bastard, shall be removed, brought or enticed into any county, city or town from any other county, city or town of this state, for the purpose of avoiding the charge of such bastard or child upon the county, eity or town from which she shall have been brought or enticed to remove, the same penalties shall be imposed on every such person so bringing, removing or enticing such mother to re- move, as are provided in the case of the fraudulent removal of a poor person.^ Such mother, if unable to support herself, shall be 1. Penalties for removal of poor person from one town or city to another. See Poor Law, sec. 50, ante, p. 541. The unlawful removal of a poor person from one town or city to another is a misdemeanor. Penal Code, sec. 675a; see ante, p. 541. Support oh' Bastaeds. 547 Code Criminal Procedure, §§ 838, 839; Poor Law, § 61. supported during her confinement and recovery therefrom, and her child shall he supported, by the county superintendents of the poor of the county where she shall be, if no provision be made by the father of such child." [Poor Law (L. 1896, ch. 225), § 60; Heydecker's Gen. L. (2d ed.), p. 2220.] § 2. Definition of bastard. A bastard is a child who is begotten and bom, 1. Out of lawful matrimony ; 2. While the husband of its mother was separate from her, for a whole year previous to its birth ; or, 3. During the separation of its mother from her husband, pur- suant to a judgment of a competent court. [Code of Crimimil Procedure, § 838.] § 3. Who liable for support of bastard. The father and mother of a bastard are liable for its support. In case of their neglect or inability, it must be supported by the county, city or town in which it is born.' [Code of Criminal Pro- cedure, § 839, as amended by L. 1904, ch. 520.] § 4. Mother and child poor persons; proceedings in case of removal of mother from one town or county to another. Such mother and her child shall, in all respects, be deemed poor persons ; and the same proceedings may be had by the county superintendents to charge the town, city or county from which she was removed or enticed, for the expense of supporting her and her child, as are provided in the case of poor persons fraudulently or clandestinely removed; and an action may be maintained in 2. The motber and child, in all cases relating to bastardy, are deemed poor persons from the fact that they are likely to become chargeable to the county as poor persons. Xeary v. Robinson, 27 Hun, 145. 3. Proceedings to compel support of bastard by fatber. Title 5 of the Code of Criminal Procedure (sees. 838-886), prescribe a method of compelling a putative father of a bastard to support the mother during her confinement and the bastard after birth. It is made the duty of the superin- tendent of the poor or the overseer in case a woman is delivered of a bastard or is pregnant with a child likely to become a bastard, and which is charge- able to the county or town, to apply to a justice of the peace or police justice to inquire into the facts. Code Grim. Proc, sec. 840. For procedure in such cases and decisions relative thereto, see Camming & Gilbert's Poor, Insanity and State Charities Laws, pp. 61-88. 548 Relief of Poor. Poor Law, §§ 62, 63. the same manner for said eixpenses and for all expenses properly incurred in apprehending the father of such child, or in seeking to compel its support by such father or its mother. \_Poor Law (L. 1896, ch. 225), § 61; Eeydecker's Oen. L. {2d ed.), p. 2221.] § 5. Mother and bastard to be supported as other poor persons. The mother of every bastard, who shall be unable to support herself, during her confinement and recovery therefrom, and every bastard, after it is born, shall be supported as other poor persons are required tO' be supported by the provisions of this chapter, at the expense of the city or town where such bastard shall be born, if the mother have a legal settlement in such city or town, and if it be required to support its own poor ; if the mother have a settlement in any other city or town of the same county, which is required to support its own poor, then at the expense of such other city or town ; in all other cases, they shall be supported at the expense of the county where such bastard shall be born. IPoor Law ( L. 1896, ch. 225), § 62; Eeydecker's Oen. L. (2d ed.), p. 2221.] § 6. Mother and child not to be removed without her consent. The mother and her child shall not be removed from any city or town to any other city or town in the same county, nor from one county to any other county, in any case whatever, unless voluntar- ily taken to the county, city or town liable for their support., by the county superintendents of such county or the overseers of the poor of such city or town. [Poor Law (L. 1896, ch. 225), § 63 ; Eey- decker's Gen. L. (2d ed.), p. 2221.] 4. Proceedings to compel support of mother or child by proper county or town, see Poor Law, sees. 51-54, ante, p. 542. The settlement of a bastard child is the last legal settlement of the mother, however such settlement may have been acquired. There is in this respect no distinction between an acquired settlement, and one that is merely derivative. Overseers of Canajoharie v. Overseers of Johnstcitm, 17 Johns. 41. If the mother has no setlement within the state, her bastard child must be adjudged settled where it was born. Wynkoop v. Overseers of Neno Tor!:, 3 Johns, 15. A bastard child is settled in the town where it was born, until it acquires a settlement for itself, and the justices of the peace of such a, town may make an order of filiation and maintenance, though the legal settlement of the mother be elsewhere. Delavergue v. Noxon, 14 Johns. 333. Support of Bastards. 54-9 Poor Law, §§ 64, 65, 66, 67. § 7. Overseers to notify superintendents of cases of bastardy, when county is chargeable. The overseers of the poor of any city or town where a woman shall be pregnant with a child, likely to be born a bastard, or where a bastard shall be bora, which child or bastard shall be chargeable, or likely to become chargeable to the county, shall, immediately on receiving information of such fact, give notice thereof to the county superintendents, or one of them. \^Poor Law (L. 1896, ch. 225), § 64; Heydecker's Oen. L. (2d ed.), p. 2221.] § 8. Superintendents to provide for mother and child. The county superintendents shall provide for the support of such bastard and its mother, in the same manner as for the poor of such county.' [Poor Law (L. 1896, ch. 225), § 65; Heydeck- er's Gen. L. (2d ed.), p. 2222.] § 9. Until taken charge of by superintendents, to be supported by overseers. Until the county superintendents take charge of and provide for the support of such bastard and its mother so chargeable to the county, the overseers of the poor of the city or town shall maintain and provide for them ; and for that purpose, the same proceedings shall be had as for the support of a poor person chargeable to the county, who cannot be conveniently removed to the county alms-house. [Poor Law (L. 1896, ch. 225), § 66; Heydecker's Gen. L. (2d ed.), p. 2222. J § 10. Overseers of town to support bastard and mother, whether chargeable or not. Wliere a woman shall be pregnant of a child likely to be bom a bastard, or to become chargeable to a city or town, or where a 5. Neglect of dnty by poor officers. The neglect of the superintendent to provide for the support of a bastard and its mother is a misdemeanor. The following section of the Penal Code provides the punishment: § 117b. Nef/Irct of duty by superintendent or overseer of the poor. — The county superintendent of the poor, or any overseer of the poor, whose duty it shall be to provide for the support of any bastard and the sustenance of its mother, who shall neglect to perform such duty, shall be guilty of a misde- meanor and shall, on conviction, be liable to a fine of two hundred and fifty dollars or to imprisonmpnt not exceeding one year, or both such fine and imprisonment. [Thus added by L. 1896, ch. 550.] 650 Relief of Pooe. Poor Law, § 68. ^Dastard shall be born chargeable, or likely to become chargeable, to a city or town, the overseers of the poor of the city or town where such bastard shall be bom, or likely to be bom, whether the mother have a legal settlement therein or not, shall provide for the support of such child and the sustenance of its mother during her confinement and recovery therefrom, in the same manner as they are authorized by this chapter to provide for and sup'port the poor of their city or town." [Poor Law {L. 1896, ch. 225), § 67; Heydecker's Gen. L. (2d ed.), p. 2222.] § II. Moneys received by overseers from parents of bastard, how applied and accounted for. Where any money shall be paid to any overseer, pursuant to the order of any two justices, by any putative father, or by the mother of any bastard, the overseers may expend the same di- rectly, in the support of such child, and the sustenance of its mother as aforesaid, without paying the same into the county treasury.' They shall annually account, on oath, to the board of town auditors, or to the proper auditing board of a city, at the 6. The neglect of an overseer of the poop to provide for the support of the bastard and its mother is a misdemeanor. See Penal Code, sec. 117b, in preceding "note. 7. Order of filiation. If a person has been adjudged to be the father of a bastard by the magistrates before proceedings have been instituted, the order of filiation must specify the svim to be paid weekly by the father for the support of the bastard; and if the mother be indigent the sum to be paid for her support during her confinement and recovery. See Code Crim. Pro- cedure, sec. 850. Such father must thereupon give an undertaking to the effect that he will pay the amounts for the support of the bastard and mother, as specified in the order. Code Crim. Procedure, sec. 851. If the mother is possessed of property in her own right she may be com- pelled to pay for the support of the child. Code of Crim. Procedure, sec. 857. Prosecution of undertaking. The following sections of the Code of Criminal Procedure authorize superintendents of the poor and overseers of the poor to compel the support of a bastard and of its mother: "Sec. 881. — If an undertaking for the appearance at the County Court of a person charged as the father or mother of a bastard, be forfeited, the court may order it to be prosecuted; and the sum mentioned therein may be re- covered, and when collected, must, except in the city of New York, be paid to the county treasurer, and by him credited to the town in the same county, liable to the support of the bastard, or if there be none, to the county. In the city of New York, the court must order the undertaking to be prosecuted by the commissioners of charities and corrections, and when collected, it Support of Bastaeds. 551 Poor Law, § 68. same time that other town or city ofEcers are required to account for expenditures of all moneys so received by them, and shall pay over the balance in their hands, and under like penalties, as are provided by this chapter, in respect to the poor moneys in their must be paid into the city treasury. In every other county, it must be prose- cuted by the district attorney. "Sec. 882. — When an undertaking to obey an order, in relation to the sup- port of a bastard, or of a child likely to be born a bastard, or of its mother, is forfeited, it may be prosecuted in the name of the county superintendents of the county, or the overseers of the poor of the town, which was liable for the support of the bastard, or which may have incurred any expense in the support of the bastard, or of its mother, during her confinement or re- covery; or in the city of New York, in the name of the corporation of that city." Action on undertaking. A bond to indemnify a town concerning a tastard child is broken, and an action may be maintained upon it as soon as the town becomes liable or bound to maintain the child; and an action may be maintained upon it without actual disbursement, advance or pay- ment by the town. Rockefeller v. Dormelly, 8 Cow. 623. Evidence that the mother is of sufficient ability to support the bastard child is not admissible in discharge of the defendants, but proof of her hav- ing in fact maintained the child would be proper. People v. Corbett erson who is insane, blind, old, lame, impotent or decrepit, so as to be unable by work to maintain himself, must, at their own charge, relieve and maintain him in a manner to be approved bv the overseers of the poor of the town where he is, or in the city of New York, by the commissioners of public charities.' If such 1. Iiiability of relatives. The duties of children to their parents arise from a principle of natural justice and retribution. For to those who gave us existence we naturally owe subjection and obedience during our minority and honor and reverence ever aftnr ; they who protected the weakness of our infancy are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper Support of Pooh Peesons by Relatives. 557 Code Criminal Procedure, § 915. poor person be insane, he shall be maintained in the manner pre- soribed by the insanity law. The father, mother, husband, wife or children of a poor insane person legally committed to and con- fined in an institution supported in whole or in part by the state, shall be liable, if of sufficient ability, for the support and mainten- ance of such insane person from the time of his reception in such institution.^ [Code Criminal Procedure, § 914, as amended by L. 1893, ch. 399.J § 2. Overseers to apply to court for order compelling support of poor person by relatives. If a relative of a poor person fail to relieve and maintain him, as provided in the last section, the overseers of the poor of the Xovro. where he is, or in the city of Xew York, the commissioners of public charities may apply to the court of general sessions of the county of IsTew York or to the county court of any other county where the poor person dwells, for an order to compel such relief, upon at least five days' written notice, served personally, or by leaving it at the last place of residence of the person to whom it ought in return to be supported by that offspring in case they stand in need of assistance. 1 Blackstone's Com. 453. At common law no legal duty rests upon a child to support his indigent parent, and until proceedings to charge him with such support are taken as provided by statute, he is not liable therefor. Frazer v. DeWitt, 49 Hun, 63; IN. Y. Supp. 467; see, also, Edxcwrds v. Davis, 16 Johns. 281, where it was held that the liability of a child to support his parents who are infirm, destitute or aged, is wholly created by statute, and therefore the law does not imply a promise from the child to pay for necessaries furnished, without his request to an indigent parent. Iiiability of husband for support of irife. The common law affords no means of compelling a husband to support his wife otherwise than by making him liable to third persons who have supplied her with necessaries after he has improperly refused so to do, and the statute providing for the compulsory support of indigent relatives does not apply to husband and wife. People ex rel. Eehlheck v. Walsh, 11 Hun, 292. The wife of a man who is abundantly able to provide for her cannot be deemed a poor person. Superintendents of the poor cannot, therefore, maintain an action in their ofiBcial capacities against a husband for boarding, clothing and medical aid furnished to his wife as a pauper. 'Norton v. Rhodes, 18 Barb. 100. 2. Insane poor. If a poor person is insane, he is to be committed to a state hospital for the insane, to be there supported at the expense of the state. If there is any one legally liable for his support under the above section, action may be taken by the poor officers, the commission in lunacy, or the hospital authorities against such person to compel him to support or contribute toward the support of the insane person so maintained. See Insanity Law, sees. 42, 66-69, ante, p. 498. 558 Kelibf of Poor. Code Criminal Procedure, §§ 916, 917. is directed, in case of his absence, with a person of suitable age and discretion. If such poor person be insane and legally com- mitted to and confined in an institution supported in whole or in part by the state, and his relatives refuse or neglect to pay for his support and maintenance therein, application may be made by the treasurer of such institution in the manner provided in this sec- tion for an order directing the relatives liable therefor to make such payment. [Code Criminal Procedure, § 915, as amended by L. 1898, ch. 399, avd L. 1904, ch. 520.] § 3. Court to hear cause and make order of support. At the time appointed in the notice, the court or a judge thereof must proceed summarily to hear the allegations, and proofs of the parties, and must order such of the relatives of the poor person mentioned in section nine hundred and fourteen, as were served with the notice and are of sufficient ability, to relieve and main- tain him, specifying in the order the sum to bei paid weekly for his support, and requiring it to be paid by the father, or if there be none, or if he be not of siufficient ability, then by the children, or if there be none, or if they be not of sufficient ability, then by the mother. If the application be made to secure an order compelling relatives to pay for the maintenane© of insane poor persons com- mitted to and confined in an institution supporttd in whole or in part by the state such order shall specify the sum to be paid for his maintenance by his relatives liable therefor, from the time of his reception in such institution tO' the time of making such order, and also the sum to be paid weekly for his future maintenanoe in such ijiEtitution. The relatives served with such notice shall be deejned to be of sufficient ability, unless the contrary shall affirma- tively appear to the satisfaction of the court or a judge thereof. [Code Criminal Procedure, § 916, as amended by L. 1898, ch. 399.] § 4. Support; when to be apportioned among different rela- tives. If it appear that any such relative is unable to wholly maintain the poor person or to pay for his maintenance if confined in a state institution for the insane but is able to contribute toward his sup- port, ihe court or a judge thereof may direct two or more relatives of different deigrees, to maintain him or to^ pay for his mnintenanc© jv. siicli f!Ti insHlution if insane, prescribing the proportion which SuppoET OF Poor Persons by Relatives. 559 Code Criminal Procedure, § 918. eacih must contribute for that purpose; and if it appear that the relatives are not of sufBcient ability wholly to maintain him, or to pay for his maintenance in such an institution, if insane, but are able to contribute something, the court or a judge thereof must direct the sum, in proportion to their ability, which they shall pay weekly for that purpose. If it appears that the relatives who are liable for the maintenance of an insane poor person confined in a state institution for the insane are not able to pay the whole amount due for such maintenance from the time of such poor person's ad- mission to such institution, the court or a judge theroif must direct the sum to be paid for such maintenance in proportion to the ability of the relatives liable therefor." [Code Criminal Pro- cedure, § 917, as amended hy L. 1898, ch. 399. J § 5. Order to prescribe time during which support is to con- tinue, or may be indefinite ; when and how order may be varied. The order may specify the time during which the relatives must maintain the poor person, or during which any of the sums directed by the court or a judge thereof are to be paid or it may be indefi- nite or until the further order of the court or a judge thereof.* If the order be for payment of a weekly sum for the maintenance of an insane poor person in a state institution, the order shall specify that such sum shall be paid as long as such insane poor person is maintained in such institution. The court or a judge thereof may 3. Contribution, effect of. This section authorizes the court to require ■persons equally liable for the support of an indigent parent to contribute toward such support according to their ability, and where one of two per- sons is unable to contribute his entire proportion of such support, the court is authorized to require him to contribute according to his ability, and to require the other to pay the residue. Stone v. Burgess, 47 N. Y. 521; 2 Lans. 439. And an order reciting that the two are of sufficient ability, and directing the proportion each one is to pay, if the proportion is unequal, is, in effect, a determination that the one required to pay the less sum is unable to pay his full' proportion, but is able to pay the sum fixed, and such order is valid. Id. 4. Order, in effect a judgment. So long as an order, made by a court ■of sessions, directing the relative of a poor person to pay a specified sum ■periodically to the superintendent of the poor for the support of such poor person, remains unchanged, such relative is liable to pay the sum therein ^prescribed. If he or she desires to be relieved therefrom application should be made under the above section of the code for an amendment of the order. Aldridgc v. Walker, 73 Hun, 281; 57 St. Rep. 273; 20 N. Y. Supp. CO.). Such an order is not void because it gives no option to such person either to support her daughter or to pay the amount provided, and if it is irregu- 560 Relief of Pooe. Code Criminal Procedure, §§ 919, 920. from time to time vary the order, as circumstances may require, on the application either of any relative affected by it, or of any officjer on whose application the order was made, upon tan days' written notice. [Code Criminal Procedure, § 918, as amended hy L. 1898, ch. 399.J § 6. Costs, by whom paid, and how enforced. The costs and expenses of the applicatiom must be ascertained by the courti, and paid by the relatives against whom the order is made; and the payment thereof, and obedience to the order of maintenance, and to any order for the payment of money, may be enforced by attachment. [Code Criminal Procedure, § 919.] § 7. Action on the order on failure to comply therewith. If a relative, required by an order of the court or a judge thereof to relieve and maintain a poor person, neglect to do so in the manner approved by the officers mentioned in section nine hundred and fourteen, and neglect to pay to them weekly the sum prescribed by the court or a judge thereof for every week the order tain an action against the relative, and recover therein the sum prescribed by the court or a judge thei-eof for every week the order has been disobeyed, to the time of the recovery, with costs, for the use of the poor." If the order directs a relative to pay for the maintenance of an insane poor person in a state institution, and lar the remedy is by appeal, and the question of its irregularity cannot be properly raised in an action brought to collect the amount directed to be paid by such person. While the determination provided for by this title is denominated an order, it is a final determination of the matter, and in effect a judgment. Id. Notice. The notice required by this section should be served upon the officer making application for the order compelling the relative to support the poor person. 5. WTien action will lie. Defendant is not in default of an order of the court requiring him to support his mother at his own house when he has to support her for about a year, and she leaves without any just cause and does not return, he being willing to receive and support her in his family. Converse v. McArthur, 17 Barb. 410. When an order is made requiring the relative of a person to support him, and fixing a sum to be paid weekly, the relative may provide for the support of the pauper, at such place and in such manner as he shall deem proper, provided the place and manner are approved by the overseer, and it is not until he has neglected or refused to do this that he is liable for the sum directed to be paid. Duel v. Lamb, 1 T. & C. 66. Support of Poor Persons by Eelatives. 561 Code Criminal Procedure, |§ 899, 900, 901, 902. auch relative refuses or neglects to pay the amount apeoified therein, an action may be brought by the treasurer of sack institu- tion in its corporate name to recover the amount due to such insti- tution by virtue of such order. [Code Criminal Procedure, § 920, as amended by L. 1898, ch. 399.] § 8. Husbands abandoning wives or children are disorderly persons. Persons who actually abandon their wives or obildren, without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means; and persons who threaten to run away and leave their wives or children a burden upon the public are disorderly persons.' [Code Criminal Procedure, § 899, subs. 1, 2. J On oomplaint to a magistrate that a husband is a disorderly person a warrant will i^ue for his arrest. If the magistrate is satisfied that he is a disorderly person he may require him to give an undertaking to the effect that he will " support his wife and chil- dren, and will indemnify the county, city, village or town, against their becoming within one year chargeable upon the public." [Code Criminal Procedure, §§ 900, 901.] If the husband gives the undertaliing, he must be discharged, but if not, the magistrate must convict him as a disorderly person and take a certificate in the form prescribed by the statute. [Code Criminal Procedure, 6. Object of statute. The statute is designed to protect the public against the burden of supporting a wife and children when the husband, without just cause, neglects or refuses to perform his legal obligation in that regard. It does not impose any new duty upon a husband toward his wife, but simply declares that unreasonable neglect or refusal to perform certain existing obligations, in a case where such conduct will result in imposing a burden upon the public, shall be punishable as a crime. A husband is not to be restricted by the statute in his right to determine the place and manner of supporting his wife. If he neglects or refuses to properly provide for her, or so maltreats her that she would be justified in refusing her submission to his requirements, he may be deemed a disorderly person under the above statute. People ex rel. Douglas v. Naehr, 30 Hun, 461. But a husband cannot be made a vagrant and a disorderly person by not complying with any condition in respect to support which the wife may see fit to impose. The husband has a right to select his. own residence and the support that the .statute was intended to secure is the necessaries of life, or such as the party had been accustomed to and the husband Is able to provide. People v. Petit, 74 N. Y. 320; see, also, Lute v. Shelley, 40 Hun, 197. 36 562 Relief of Pooe. Code Criminal Procedure, §§ 902, 903, 905, 921. § 902. j Sucsh certificate constitutes a record of oonvietian and the magistrate must by a warrant commit the husband to a county jail or a penitentiary for not exceeding six months at hard labor, or until he gives the security prescribed by statute. \_Gode Crim- inal Procedure, §§ 902, 903.] If the husband fails to support his wife and children and the undertiaJdng has been given, such undertaking may be prosecuted by the county superintendents of the poor or the overseers of the poor of the tO'Wn, and the sum collected must be paid into the county treasurer for the benefit of the poor. '[Code Criminal Procedure, § 905.] § g. Absconding parents or husband, seizure of property of, for support of children or wife; application for warrant. When the father, or the mother being a widow or living separate from her husband, absconds from the children, or a husband from his wife', leaving any of them chargeable or likely to becoime charge^ able upon the public, the officers mentioned in section nine hundred and fourte'en may apply to any two justices of the peace or police justices in the county in which any real or personal property of the father, mother or husband is situated, for a warrant to seize the same.' Upon due proof of the facts, the magistate must issue his warrant, authorizing the ofiicers so applying to take and seize the prO'perty of the person so absconding. Whenever any child shall be committed to an institution pursuant to any provision of law, any criminal court, or magistrate may issue a warrant for the arrest of the father of the child, and examine into his ability to maintain such child in whole or in part; and if satisfied that 7. WJio may maintain proceedings. One of two overseers of the poor 19 authorized to institute and carry on proceedings for the seizure of prop- erty of one who has absconded, leaving his wife or child chargeable to the town. When only one overseer acts, the consent of the other will be pre- sumed. Downing v. Rugar, 21 Wend. 178. Evidence. It is the duty of the court, before confirming the warrant and seizure and directing the sale of property, to require the overseers to produce some evidence to establish the case charged in the warrant, against the party whose property is seized, and the case may be contested by such party. Read v. Triannlc. 23 Barb. 236. Snms paid to institution to be credited to town, etc. In cases of commitment of a child to an institution, the above section authorizes a maci!=trato tn order the father to pay a sum for the child's support which is to be cTo.lit"d bv the institution to the city, town or county against any sum due for maintenance. People v. Dickson, 57 Hun, 315. Support of Poor Persons by Kelatives. 563 Code Criminal Procedure, §§ 922, 923, 924. such fa,ther is able to contribute toward tibe support of the child, then such court or magistrate shall, by order, require the weekly payment by such father of such sum and in such manner as shall be in said order directed, towards the maintenance of such child in such institution, which amount when paid shall be credited by the institution to the city, town or county against any sums due to it therefrom on account of the maintenance of the child. [Code Criminal Procedure, § 921, as amended by L. 1903, ch. 13. J § 10. Overseer may seize property; sale or transfer void; in- ventory of property seized. The officers so applying may seize and take the property, wherever it may be found in the same county ; and are vested wdth all the right and title thereto, which the person absconding then tad. The sale or transfer of any personal property, left in the county from which be absconded, made after the issuing of the warrant, whether in payment of an antecedent debt or for a new consideration, is absolutely void. The officers must immediately make an inventory of the property seized by them, and return it, together with their proceedings, to the next. County Court of the county where they reside, there to be filed. [Code Criminal Procedure, § 922.] § II. Warrant and seizure, when confirmed or discharged by court. The court, upon inquiring into the ciroumstances of the case, may confirm or discharge, the warrant and seizure ; and if it be confirmed, must, from time to time, direct what part of the per- sonal property must be sold, and how much of the proceeds of the siaJe, and of the rents and profits of the real property, if any, are to be applied toward the maintenance of the children or wife of the person absconding. [Code Criminal Procedure, § 923.J § 12. Warrant to be discharged upon return of parent or hus- band, or upon security. If the party agains.t whom the warrant issued, return and support the wife or children so abandoned, or give security satisfactory to any two justices of the peace or police justices in the city, village or town, to the overseers of the poor of the town, or in the city of New York, to the oommissionersi of charities 564 Relief of Pooe. Code Criminal Procedurefl §§ 925, 926. and corrections, that tiie wife or cjhildren so abandoned sihall not be chargeable to tKe town or county, then the warrant must be disdiarged by an order of the magistrates, and the property taken by virtiue thereof restored to the party. [Code Criminal Pro- cedure, § 924. J § 13. Sale of property seized, and application of its proceeds. The officers must sell at public auction the property ordered to be sold, and receive the rents and profits of the real property of the person absconding, and in those cities, villages or towns which are required to support their oavh poor, the officers charged therewith must apply the same to the support of the wife or chil- dren so abandoned ; and for that purpose must draw on the county treasurer, or in the city of iN'ew York, upon the comptroller, for the proceeds as directed by special statutes. They must also ac- count to the County Court of "the county, for all money so reoeived by them, and for the application thereof, from time to time, and may be compelled by that court to render that account at any time. [Code Criminal Procedure , § 925.] § 14. When superintendent of poor has power of overseer. In those counties where all the poor are a charge upon the county, the superintendents! of the poor are v*ted with the same powers, as are given by this title to the overseers of the poor of a town, in respect to compelling relatives to maintain poor per- sons, and in respect to the seizure of the property of a parent absconding and abandoning bis family; and are entitled to the same remedies in their names, and must perform the duties required by this title, of overseers and are subject to the same obligations and control.' [Code Criminal Procedure, § 926.] 8. For provisions relating to abolition or restoration of distinction between town and county poor, see Poor Law, see. 134, post, p. 582. Maintenance of actions by poor officers. An action cannot be main- tained by superintendents of the poor for boarding, clothing and medical aid furnished to his wife as a pauper; notwithstanding he has maltreated her and expelled her from his house without just cause, and refused to provide toT her, though of sufficient ability to do so. Norton v. Rhodes, 18 Barb. 190. It was held proper for the overseers of the town of Cazenovia to begin proceedings against a father to compel him to support his poor and infirm Bon. Tillotson v. Smith, 12 N. Y. St. Rep. 331. Support of Poor Peeisons by Relatives. 565 L. 1878, ch. 304, § 1. § 15. Sale of property of absconding parents; application, to court; application of proceeds for benefit of minors; accounting of guardians. When 'property of absconding persons to he applied to support of families; how application made. — Whenever thei father, or the mother being a widow or living separate from her husband, has absconded or shall abscond from hisi or her children or a husband from his wife, leaving any of such children or such wife charge- able, or likely to become chargeable upon the public for their sup- port, and any real or personal estate of such father, or mother, or husband, has been or shall be seized by a superintendent of the poor or an overseer of the poor, or by a board of charities (or by other officers authorized to make such seizure), by warrant of the justices of the peace of the county where such real or personal property may be situated, and the Court of Sessions of the county wherein such superintendent or overseer of the poor or board of charities, or other officers authorized to make such seizure resides, has confirmed, or shall confirm, said warrant and seizure and has heretofore directed, or shall hereafter direct what part of any of the said personal property shall be sold and how much if any of the proceeds of such sale and of the rents and profits of the real estate, if any, be applied toward the maintenance of the children or wife of the person so absconding, then the siaid superintendent or overseer of the poor, board of charities or other officers so author- ized and directed, shall apply the said proceeds of sale of said personal property, or rents and profits of the real estate (as the case may be) : First, to the payment of such taxes and assess- ments as may be outstanding and existing liens upon the said real estate, and repairs necessary to be made upon said real estate; and premiums for insurance on the buildings on said real estate and the balance, if any, directly to the maintaining, bringing up and ]- -Qviding for the wife, child or children so left and aban- doned, as the same may be required fro'm time to time; and for all such expenditures they shall take proper vouchers, and from the rents and profits thereafter received from any real estate so seized they shall first pay all legal taxes and assessments, as they shall be assessed against said real estate and such premiums for insurances and expenses for such repairs thereon as they may deem necessary for the protection and preservation of said real estate, and the balance of said rents and pro-fits shall be applied 566' Reliei' of Pooe. L. 1878, eh. 304, §§ 2, 3, 4. by said overseiers, superinteadents, boards of ciiarities, or other persons authorized to make such seizures, to the maintainiug, bringing up, and providing for the wife, child, or children so left and abandoned, and proper vouchers shall be taken thereof. [L. 1878, ch. 304, § 1; Hey decker s Gen. L. {2d ed.), p. 4735.] Guardians for minors; proceeds not to he mingled with other funds; officer to give security and to account. — Whenever any child or children, entitled to the benefits provided by this act, shall be a minor or minors vyho'Se mother is dead and wbose father has absconded from his children, or whose mother, being a widow or living apart from her husband, has absconded from her children, and such minor or minors shall have no guardian, the Court of Sessions having jurisdiction of this matter shall appoint some suitable person guardian ad litem, or nest friend of sueh minor or minors, whose duty it shall be tO' see that the provisions of this act are carried into effect. The proceeds of the sale of said j)er- sonal property and the rents and profits of said real estate shall not be mingled or placed with any other funds held or owned by the officer or ofiicers receiving the same, but shall be kept separate and distinct. Such superintendent, overseer of the poor, board of charities or other authorized officer shall give security for the faithful performance of the duties hereby imposed in such form and in such sum as the aforesaid court may direct, and shall ac- count to the Court of Sessions for all moneys so received by them and for the application tbereof from time to time and may be compelled by the said court to render such account at any tima \_Idem, § 2.] Notice of accounting. — iSTotice of such accounting shall be given to the wife or children, so left and abandoned, as the case may be, and to the guardian of such children, if any of them be minors. And in the event that no guardian or next friend has been ap- pointed, as hereinbefore provided, the said court shall, prior to such accounting being had, appoint some suitable person to at- tend upon such accounting in behalf of said minors, and notice of such appointment and of such accounting shall be given to the person so appointed. {Idem, § 3.] Penalties; how applied. — All penalties received from the prose- cution of any recognizance given by any person who shall have abandoned or neglected his wife or children, or who shall have threatened to run away and leave his wife or children a burden on the public, shall be retained by the officer at whose instance such Support of Poor Persons by Eelatives. 567 Poor Law, §§ 130, 131, 132. recognizance was prosecuted, and applied for the same purpose and in the same manner as in the first section of this act provided for the disposition of the proceeds of the sales of personal property and the rents and profits of real estate seized under the provisions of this act. [Idem, § 4.] § 1 6. Superintendent or overseer may redeem real property of absconding father or husband, sold at sheriff's sale. County superintendents and overseers of the poor may redeem real property, vsrhich may have been seized by them pursuant t» sections 921 to 926 of the Code of Criminal Procedure, the same as judgment creditors under sections 1430 to 1478 of the Code of Civil Procedure. ISTo such redemption shall be made, unless at the time of such redemption, the seizure of the property sought to be redeemed, shall have been confirmed by the County Court of the county where the premises' may be situated, nor unless such property shall, at the time of making soioh redemption, be held by the superintendents or overseers, under and by virtue of such seizure. [Poor Law (L. 1896, ch. 225), § 130; Heydeck- er's Gen. L. (2d ed.), p. 2239. J § 17. How superintendent or overseer may acquire title. To entitle such superintendents or overseers to acquire the title of the original purchaser, or to be substituted as purchaser, from any other creditor, they shall present! to and leave with STichi pur- chaser or creditor, or the officer who made the sale, the following evidence of their right : 1. A copy of the order of the County Court, confirming the warrant and seizure of such property, duly verified by the clerk of the court. 2. Any affidavit of one of the superintendents or overseers that such property is held by them under such warrant and seizure, and that the same have not been discharged, but are then in full force. [Poor Laio (L. 1896, ch. 225), § 131; Heydecker's Gen. L. (2d ed.), p. 2239. J § 18. Money used for redemption; howr repaid. The superintendents or overseers of the poor may, for the pur- pose of making such redemption, use any moneys in their hands belonging to the poor funds of their respective towns or counties, which moneys shall be replaced, together mth the interest thereon, 568 Relief of Pook. Poor Law, § 133. out of tha first moneys -which may be received by them from the rent or sale of the premises so redeemed. [^Poor Law {L. 1896, ch. 225), § 132; Heydecker's Gen. L. (2d ed.), p. 2240.] § 19. When warrant of seizure may be discharged. If such redemption shall be made, and the person against whom the warrant wasi issTied and seizure made shall apply to have the warrant discharged, he shall, before such warrant and seizure are discharged, in addition to the security required to be given by section nine hundred and twenty-four of the Code of Criminal Pi-ocedure, pay to such superintendents or overseers the sum paid by them to redeem such property, together with interest thereon, from the time of such redemption. \_Poor Law (L. 1896, ch. 225), § 133; Heydecker's Gen. L. (2d ed.), p. 2240.] Relief of Soldiers, Sailors and Mabines. 569 Poor Law, § 80. CHAPTER XLII. RELIEF OF VETEEAIT SOLDIERS, SAILORS AND MARINES. Section 1. Kelief to veteran soldiers, sailors and marines; not to be sent to alms-houses; duty of Grand Army of Republic. 2. Grand Army post commander to file notice and undertaking. 3. Poor or indigent soldiers, etc., without families to be sent to soldiers' home. 4. Board of supervisors to designate persons to conduct burial of soldiers, sailors or marines; where burial made. 5. Headstones to be provided for soldiers' graves at expense ol eounty; board of supervisors to audit coat thereof. § I. Relief to veteran soldiers, sailors and marines ; not to be sent to alms-houses ; duty of Grand Army of Republic. ITo poor or indigent soldier, sailor, or marine who ias served in tihe military or naval service of the United States, nor his fam- ily nor the families of any who may be deceased, shall be sent to any alms-house, but shall be relieved and provided for at their homes in the city or town where they may reside, so far as practi- cable, provided such soldier, sailor or marine or the families of those deceased, are, and have been, residents of the state for one year and the proper auditing board of such city or town in those oounties where the poor are a county charge, the superin- tendent, if but one, or superintendentsi of the poor as such auditing board in those counties shall provide such sum or sums of money as may be necessary to be drawn upon by the commander and quar- termaster of any post of the Grand Army of the Eepublic of the city or town, made upon the written recommendation of the relief committee of such post ; or if there be no post in a town or city in which it is necessary that such relief should be granted upon the like request of the commander and quartermaster and recom- mendation of the relief committee of a Grand Army post located in the nearest town or city, to the town or city, requested to so furnish, relief, and such written request and recommeindation shall be sufficient authority for the expenditures so made' [^Poor Law I. Power to determine tvlio lo entitled to relief. Under the above section the power to determine who are indigent persona and families, the necessity for their relief, the measure thereof, the place where and the cir- cumstances under which the same shall be administered, is not vested ex- clusively in a relief committee of a Grand Array post, but the proper oflScers of the town, city or county, having jurisdiction to raise and appropriate 5Y0 Kelibc of Pooe. Poor Law, § 81. (i. 1896, ch. 225), § 80, as amended hy L. 1899, ch. 83, and L. 1900, ch. 475; Heydecher's Gen. L. {U ed.), p. 2225.] § 2. Grand Army post commander to file notice and under- taking. The commander of any such post which shall undertake to super- vise relief of poor veterans or their families, as herein provided, before his acts shall become operative in any town, city or county, shall file with the clerk of such town, city or county, a notice that such post intends tO' undertake such supervision of relief, which notice shall contain the names of the relief committee, commander and other officers of the post ; and also an undertaking to such city, town or county, with sufficiant and satisfactory sureties for the faithful and honest discharge of his duties under this article ; such undertaking, tO' be approved by the treasurer of the city or county, or the supervisor of the tovsm, from which such relief is to be received.'' Such commander shall annually thereafter, during the month of October, file a similar notice with said city or town clerk, with a detailed statement of the amount of relief requested by him during the preceding year, with the names of all persons for whom such relief shall have been requested, together with a brief state- ment in each case from the relief committee upon whose recom- mendation the relief waa^ requested,' provided, however that in cities of the first class said notice and said detailed statemeint shall be filed with the comptroller of such city, and said undertaking shall be approved by him, and provided further that in any city of the first class which is now, or may hereafter be divided into boroughsi, a duplicate of such notice and of such detailed stateanent shall be filed with the commissioner of charities' for the borough in which the headquarters of such post is situated, and it shall be money for the relief of the poor, have jurisdiction and control over the same, and may determine the amount of money necessary. The Grand Army post may apply to the auditing board of the municipality for such sum of money as it deems necessary, and that board may exercise its judgment and discretion as to the amount to be appropriated; and where it has so done, its determination is final and not subject to review by any court. People ex rel. Crammond v. Common Council, 136 N. Y. 489; 32 N. E. 984. 2. For form of notice of commander of post of Grand Army as to the relief of poor persons, etc., see Form No. 86, post. 3. Tor form of request of officers of Grand Army post for the relief of veterans with a statement of the relief committee upon whose recommenda- tion the relief was requested, see Form No. 87, post. Relief of Soldiehs, Sailors and Maeines. 671 Poor Law, § 81. ihe duty oi such commissioner to annually include in his estimate of the amounts necessary for the support of his department such Slum or sums of money as may be necessary to carry into effect the provisions of sections eighty, eighty-one, eighty-two, eighty-three and eighty-four of this act., and the proper officers charged with the duty of making the budget of any such city shall annually include therein such sum or sums of money as may be necessary for that purpose. Moneys actually laid out and expended by any such post for the relief specified in section eighty of this act shall be reimbursed quarterly to such post by the comptroller on voueh- erg duly verified by the commander and quartermaster of said post, showing the date and amount of each payment, the certificate of the post relief oommittee, signed by at least three members, none of whom shall have received any of the relief granted by the post for which reimbursement is asked, showing that the person relieved was an actual resident of such city, and that they recom- mended each payment, and the receipt of the recipient for each payment, or in case such receipt could not be obtained, a statement of such fact., with the reason why such receipt could not be ob- tained. Such vouchers shall be made in duplicate on blanks to be supplied by the comptroller and shall be presented to the com- missioner of charities for the borough in which the headquarters of the post is situated, and if such commissioner is satisfied that sueh moneys have been actually expended as in said voucher stated, he shall approve the same and file one of the said duplicates in his office and forward the other to the comptroller, who shall pay the same by a warrant drawn to the order of the said commander. And provided further, that in any city, county or borough in which Grand Army posts have organized or may organize a memorial and executive committee, the latter shall be regarded as a post of the Grand Army of the Eepublic. And the diairman, treasurer or almoner and bureau of relief, or relief committee referred to, shall exercise the same privileges and powers as the commander, quartermaster and relief committee of a post, on complying with the requirements of this and the preceding section. Wilful false swearing to such voucher shall be deemed perjury and shall be punishable as such. [Poor Law (L. 1896, ch. 225), § 81, as amended by L. 1898, ch. 337, and L. 1899, ch. 462; Heydecker's Gen. L. (2d ed.), p. 2226.] 572 Eeliep of Pooe. Poor Law, §§ 82, 83. § 3. Poor or indigent soldiers, etc., without families to be sent to soldiers' home. Poor or indigent soldiers, sailors or marines provided for in this article, who are not insane, and who Kave no families or friends with whom they may be domiciled, may be sent to a soldiers' home.' Any poor or indigent soldier, sailor or marine provided for in this chapter, or any member of the family of any living or deceased soldier, sailor or marine, who may be insane., shall, upon recom- mendation of the commander and relief committee of such post of tiie Grand Army of the Eepublic, within the jurisdiction of which th.e case may occur, be sent to^ the proper state hospital for the insane. [Poor Law (L. 1896, ch. 225), § 82; Eeydecher's Gen. L. {2d ed.), p. 2227.] § 4. Board of supervisors to designate persons to conduct burial of soldiers, sailors or marines ; where burial made. The board of supervisors in each of the counties shall designate some proper person or authority, other than that designated for the care of poor persons, or the custody of criminals, who shall cause to be interred the body of any honorably discharged soldier, sailor or marine, who has served in the military or naval service of the United States, or the body of the wife or widow of any soldier, sailor or marine, married to him previous to 1890, who shall die such widow, and who shall hereafter die without leaving sufficient means to defray his or her funeral expenses, but such ex- penses shall in no case exceed thirty-iive dollars.' If the deceased has relatives or friends who desire to conduct the burial, but are unable or unwilling to pay the charges therefor, such sum shall be paid by the county treasurer upon due proof of the claim, and of the death and burial of the soldier, sailor or marine, or of the wife or widow of such soldier, sailor or marine, to the person so conducting such burial. Such interment shall not be made in a cemetery or cemetery plot used exclusively for the burial of 4. Soldiers' homes. The New York State Soldiers' and Sailors' Home at Bath is managed by a board of trustees, under the provisions of sees. 40 and 41 of L. 1893, ch. 227, and admissions to such home are regulated pur- suant to section 42 of that act. The New York State Home for the aged dependent veteran and his wife, veterans' mothers, widows and army nurses, is located at Oxford, N. Y., and is established, managed, and admissions thereto are regulated by L. 1894, ch. 468, entitled " An act to provide for the establishment of a home for the aged and dependent veteran and his wife, veterans' mothers, widows and army nurses, residents of New York." 5. Burial plots in towns. It is provided by L. 1902, ch. 206, that town boards shall purchase and maintain burial plots for use of soldiers. See post, p. 822. Relief of Soldiebs, Sailors and Marines. SYS Poor Law, § 84. poor persons deceased. ^Poor Law, {L. 1896, ch. 225), § 83, as amended by L. 1900, ch. 24, and L. 1903, ch. 96 ; Heydecker's Gen. L. (2d ed.), p. 2228.J § 5. Headstones to be provided for soldiers' graves at expense of county ; board of supervisors to audit cost thereof. The grave of any such deceased soldier, sailor or marine shall be marked by a headstone oontaining the name of the deceased, and, if possible, the organization to which he belonged, or in whioh he served ; such headstone shall cost not more than fifteen dollars, and shall be of such design and material as. shall be approved by the board of supervisors*, and the expense of such burial and head- stone as provided for in this article, shall be a charge upon, and shall be paid by the county in which the said soldier, sailor or marine shall have died ; and the board of supervisors of such county is hereby authorized and directed to audit the account and pay the expense of such burial in the same maimer as other accounts against said county are audited and paid ; provided, however, that in case such deceased soldier, sailor or marine shall be at the time of his death an inmate of any state institution, including state hospitals and soldiers' homes, or any institution supported by the sitate and supported at public expense therein, the expense of such burials and headstones shall be a charge upon the county of hia legal residence. [Poor Law (L. 1896, ch. 225), § 84; HeydecJc- er'a Qen. L. {2d ed.), p. 2228.] 57^ Relies" of Pook. Poor Law, § 90. CHAPTER XLIII. THE STATE POOE. Sxonoif 1. Who are state poor, and how relieved. 2. Notice to be given to county clerks of location of Btat« alms- houses. 3. State poor to be conveyed to state alms-houses. 4. Punishment for leaving alms-honse. 6. Expenses for support. 6. Duty of keepers; superintendent of state and alien poor to keep record of names. 7. Visitation of alms-houses by superintendent of state And alien poor. 8. Insane state poor. 9. Care and binding out of state poor children. 10. Transfer to other states or counties. 11. Powers of superintendent of state and alien poor. 12. Indian poor persons; removal to county alms-house. 13. Contracts for support of Indian poor persons. 14. Expenses for support of Indian poor persons. 15. Duty of keepers; superintendent of state and alien poor to keep record. |§ I. Who are state poor, and how relieved. Any poor person who shall not have resided sixty days in any county in this state within one year preceding the time of an application by him for aid to any smperintendent or overseer of the poor, or other officer charged with the support and relief of poor persons, shall be deemed to be a state poor person, and shall be maintained as in this article provided. The state board, of charities shall, from time to time, on behalf of the state, contract for such time, and on such terms as it may deem proper, with the authorities of not more than fifteen counties or cities of this state, for the reception and support, in the alms-houses of such counties or cities respectively, of such poor persons as may be committed thereto. Such board may establish rulea and regulations for the discipline, employment, treatment and care of such poor persona, and for their disoharge. Every such contract shall be in writing, and filed in the office of such board. Such alms-houses, while used for the purposes of this article, shall be appropriately desig- nated by such board and known as state alms-houses. Such board may, from time to time, direct the transfer of any such poor per- aon from one alms-hous© to another, and may give notice from The State Pooe. 575 Poor Law, §§ 91, 92. time to time to oounties, to which alms-houses they shall send poor pereons. [Poor Law (L. 1896, ch. 225), § 90; Heydecker's Gen. L. {Ued.),p. 2229.J § 2. Notice to be given to county clerks of location of state alms-houses. Such board shall give notice to the county clerksi of the several counties of the locatioai of each of such alms-houses, vrho thereufwn shall cause such notice to be duly promulgated to the superintend- ents and overseers of the poor, and other officers charged with the support and relief of poor persons' in their respective oounties. A circular from the superintendent of state and alien poor ap- pointed by such board shall accompany such notice, giving all necessary infoi-mation respecting the commitment, support and oare of the state poor in such alms-houses, according to the pro- visions of this article. [Poor Law {L. 1896, ch. 225), § 91; Heydecker's Gen. L. (2d ed.), p. 2230.] § 3. State poor to be conveyed to state alms-houses. County superintendents of the poor, or officers exercising like powers, on satisfactory proof being made that the person so apply- ing for relief as a state poor person, as defined by this chapter, is soich poor person, shall, by a warrant issued to any proper per- son or ofiBcer, cause such person, if not a child under sixteen years of age, to be conveyed to the nearest state alms-house, where he shall be maintained until duly discharged, but a child under two years of age may be sent with its mother, who is a state poor per- son, to such state alms-house, but not longer than until it is two years of age. All testimony taken in any such preceding, shall be forwarded, vrithin five days thereafter, to the superintendent of state and alien poor, and a verified statement of the expenses incurred by the person in making such removal, shall be sent to such superintendent. Such board shall examine and audit the same, and allow the whole, or such parts thereof, as have been actually and necessarily incurred ; provided that no allowance shall be made to any person for his time or service in making such removal. All such accounts for expense, when so audited and allowed, shall be paid by the state treasurer, on the warrant of the comptroller, to the person incurring the same. [Poor Law (L. 1896, ch. 225), § 92; Heydecker's Gen. L. (2d ed.), p. 2230.] 576 Relief of Pooe. Poor Law, §§ 93, 94, 95. § 4. Punishment for leaving alms-house. An inmate of a sitat© alms-kouse, vrho shall leave tKe same with- out being duly discharged, and within one year thereafter is found in any city or town of this state soliciting public or private aid, stall be punished by confinement in the county jail of the county in which he is so found, or in any work-house of this state in such county, for a term not exceeding three months, by any court of competent jurisdiction ; and it shall be the duty of every superin- tendeoit and overseer of the poor and other officers charged with the support and relief of poor persons, to cause, as far as may be, the provisions of this section to be enforced. [Poor Law {L. 1896, ch. 225), § 9B; Hey decker's Gen. L. (2d ed.), p. 2230.] § 5. Expenses for support. The expenses for the support, treatmeiat and care of all poor persons who stall be sent as state poor to such alms-houses, shall be paid quarterly, on the first day of January, April, July and OotO'ber in each year, to tbe treasurer of the county, or proper city officers incurring the same, by the treasurer of the state, on the Wairant of the comptroller ; but no such expenses shall be paid to any county or city, until an account of the number of persons thus supported, and the time that each shall have been respectively maintained, shall have been rendered in due form and approved by the state board of charities. [Poor Law (L. 1896, ch. 225), § 94; Heydecker's Gen. L. {2d ed.), p. 2231.] § 6. Duty of keepers; superintendent of state and alien poor to keep record of names. The keeper or principal officer in charge of such almsr-house shall enter the names of all persons received by him pursuant to this article, with such particulars in reference to each as the board, from time to time may prescribe, together with the name of the superintendent by whom the commitment was made, in a book to be kept for that purpose. Within three days after the admis- sion of any such person, such keeper or principal officer shall trans- mit the name of such person, with the particulars hereinbefore mentioned, to the superintendent of states and alien poor; and notice of the death, discharge or absconding of any such person sihall in like manner and within the time above named, be thus sent to such superintendent. Such superintendent shall cause The State Pooe. 577 Poor Law, § 96. th.e names of sudh. persons in each such alms-house furnished as above provided for, to be entered in a book to be kept for that purpose in the office of such board, and he shall verify th© correct- ness thereof by comparison -with the books kept in such almsrhouse, and by personal examination of the several inmates thereof, and in any other manner the board may from time to time direct; and he shall furnish the board, in tabulated statements, on or before the second Tt^esday in January, annually, the number of inmates maintained in each and all of such alms-houses during the preced- ing year, the number discharged, transferred to other institutions, bound out or removed from the state, and the number who died or left without permission during the year, with such other par- ticulars and information as the board may require. {^Poor Law (L. 1896, ch. 225), § 95 ; Heydecker's Gen. L. {2d ed.), p. 2231.] § 7. Visitation of alms-houses by superintendent of state and alien poor. The superintendent of state and alien poor shall visit and in- spect each of such alms-houses, at least once in each three months, and at such other times as he may deem expedient, or as the board may direct. And he shall also visit and inspect all alms-houses in which are Indians who are poor persons at least once a year. For the purposes of all such inspections, the superintendent shall possess all the powers of a member of the board and the further powers hereinafter mentioned. The officer in charge of each and eivery alms-house shall give to such superintendent free access to all parts of the ground, buildings, hospitals and other arrange- ments connected therewith, and to every inmate thereof, and ex- tend to him the same facilities for the inspection of such alms- Louse and its inmates, as is required by law to be extended to such board of commissioners; and, in default thereof, such officer shall be subject to the same penalty as if access were denied to any member of the board. Such board shall also cause each of such almshouses to be visited periodically by some of its members, who shall examine into their condition and management, respedr ively, and make such report thereof to the board as may be deemed proper. [Poor Law (L. 1896, ch. 225), § 96; Heydecker's Gen. L. (2d ed.), p. 2232.] 37 578 E.ELIEF or Pooe. Poor Law, §§ 97, 98, 99, 100. § 8. Insane state poor. If any inmate of any such alms-house beoomes insane, audi superintendent of state and alien poor s.liall cause his removal to the appcropriate state hospital for the insane, and he shall be re^ ceived by the officer in charge of such hospital, and be maintained therein until duly discharged. [Poor Law (L. 1896, ch. 225), § 91 ; Heydeckers Gen. L. (2d ed.), p. 2232.] § g. Care and binding out of state poor children. Such sup^ntendent of state and alien poor shall cause the state poor children, under sixteen years of age, unless committed with the mother asi hereinbefore provided by this chapter, to be maintained and cared for at such orphan asylums in this state as he may deem proper ; and the expenses thereof shall be paid by the state treasurer on the certificate of such superintendent and the "warrant of the comptroller. Such superintendent, in his discre- tion, may bind out a state poor orphan or indigent child which may be committed to any such state alms-house, or placed in any orphan asylum, if a male child under twenty-one years, if a female under the age of eighteen, to be clerks, apprentioes or servants until such child, if a male, be twenty-one years old, or if a female, shall be eighteen years old, which binding shall be as effectual as if such child had bound himself with the consent of his parents or other legal guardian. [^Poor Law (L. 1896, ch. 225), § 98;Heydecker's Gen. L. (2d ed.), p. 2232.J § 10. Transfer to other states or countries. When any person becomes an inmate of any such alma-house,^ and expresses a preference to be sent to any state or country where he may have a legal settlement, or friends willing to support him or to aid in supporting him, the superintendent of state and alien poor may cause his removal to such state or country, provided, in the judgment of the superintendent, the interests of the state and the welfare of such poor person will be thereby promoted. \^Poor Law (L. 1896, ch. 225), § 99; Heydecker's Gen. L. (2d ed.), p. 2233.] § II. Powers of superintendent of state and alien poor. The superintendent of state and alien poor shall possess and exercise the like powers, and be subject to the like duties as to the state poor as superintendents of the poor exercise and are subject The State Pooe. 579 Poor Law, § 101. to in the care and support of county poor. In the absence or ill- ness of the superintendent such powers and duties may be pre- formed and discharged, by any person appointed by the state board of charities for such purpose. \_Poor Law (L. 1896, ch. 225), § 100; Heydecker's Gen. L. (2d ed.), p. 2233.] § 12. Indian poor persons; removal to county alms-house. Every Indian residing within this state or upon any of the In- dian reservations of this state, who is a poor person within the meaning of this chapter, shall be maintained as provided in this article Upon application being made by such Indian poor per- son to the superintendent of the poor of the county where such Indian resides, or to any other officer charged with the suppwrt and relief of the poor, and on satisfactory proof being made that such Indian is a poor person as defined in this chapter, such super- intendent or other officer shall by warrant, cause such Indian to be conveyed to the alms-house of the county where such Indian resides, where he shall be maintained at state expense. Immedi- ately upon the removal of such Indian who is a poor person to such almsrhouse, all testimony taken and all facts relating thereto, together with a verified statement of the expenses incurred in making such removal, shall be transmitted to the state board of charities. Such board shall examine all matters relating thereto, and if satisfied that such removal was proper, and that the ex- penses thereof were actually and necessarily incurred, shall audit and allow the amount of such expenses, which when so audited and allowed shall be paid by the state treasurer, on the warrant of the comptroller, to the person incurring the same. If, however, it shall appear to the satisfaction of such super- intendent that the Indian poor person making application for relief is in such physical condition as tO' make it improper to remove him to the alms-house, the superintendent may, subject to such rules and regulations as may bo prescribed by the state board of charities, provide for the care and support of such Indian poor person, without removing him to the alms-house, and the expenses incurred in such care and support shall be paid by the state treasurer on the warrant of the comptroller, upon the order and allowance thereof by the state board of charities as in cases of support of Indian poor persons in alms-hous-es. [Poor Law (L. 1896, ch. 225), § 101 ; Heydecker's Gen. L. {2d ed.), p. 2233.] 580 Relief of Pook. Poor Law, §§ 102, 103, 104. § 13. Contracts for support of Indian poor persons. The state board of charities, shall from time to time, on tehalf of the Sitate, contract with the proper ofEcers of the county within which such Indians who are poor persons, reside, on such terms ajid for such times as it may deem proper, for the reception and snipiport in the alms^-house of soich counties of such Indians who are poor persons as may be committed thereto. Such board may establish rulesi and regulations for the discipline, treatment and care of such Indians and provide for their discharge. Every such contract shall be in writing and filed in the office of such board. [Poo?- Law (L. 1896, ch. 225), § 102 ; Heydecher's Gen. L. (2d ed.), p. 2234.] § 14. Expenses for support of Indian poor persons. The expenses for the support, treatment and care of all Indiana who are poor persons and shall be sent to such county alms-house pursuant to this! chapter, shall be paid quarterly on the first day of January, April, July and October in each year, to the treasurer of the county wherein such Indians are supported, by the sta.t0 treasurer, on the warrant of the comptroller, but no such expenses shall be paid until an account of the number of Indians thus supported, and the time that each shall have been respectively maintained shall have been rendered in due form and approved by the sta,te board of charities. [^Poor Law (L. 1896, ch. 225),. § 103; Heydecher's Gen. L. {U ed.), p. 2234.] § 15. Duty of keepers; superintendent of state and alien poor to keep record. The keeper or principal officer in charge of such alms-house shall enter the names of all Indiana committed thereto', with such particulars in relation thereto as the state board of charities may prescribe. Immediately upon the admission of any such Indian, »uch keeper or principal officer shall transmit by mail the names of such Indians, with the particulars hereinbefore mentioned, to the superintendent of state and alien poor ; and notice of the death, discharge or absconding of any such Indian shall in like manner be transmitted to such superintendent. Such superintendent shall cause the names of such Indians in such county alms-house to be entered in a book to be kept for that purpose in the office of such board, and he shall verify the correctness thereof by oompnrison with the books kepti in the alms-house by personal examination of The State Pooe. 581 Poor Law, § 104. sucli Indians or in suoh other manner as the board may direct; and he shall furnish the board in tabulated statements, annually on or before the second Tuesday in January, the number of In- dians maintained in all such county alms-houses during the pre- ceding year, the number discharged, bound out, removed from the state, and the number who died or left without permission during the year, with such other information as the board may require. [Poor Law (L. 1896, ck. 225), § 101 j Heydecker's Gen. L. {2d ed.), p. 2234.] 582 Belief of Pook. Poor Law, § 134, CHAPTER XLIV. DISTIITCTION BETWEEN TO'WH' AND COUNTY POOE AND OTHEB MIS- CELLANEOUS PROVISIONS RELATING TO THE POOE. SEonoiT 1. Boards of supervisors may abolish or revive distinction be- tween town and county poor. 2. Overseers to pay town poor moneys to county treasurer, within three months after notice of abolition of distinction between town and county poor. 3. Town poor money, invested, to be under control of overseer; may be applied to town expenses when distinction between town and county poor is abolished. 4. Poor persons owning property. 5. Reports of and accounts with benevolent institutions in which inmates are supported at county or town expense. 6. Eeport of superintendents of benevolent institutions to clerks of boards of supervisors. 7. Money raised by towns and counties for the care and support of inmates of charitable institutions. 8. Reports to clerk of board of supervisors of appointments and commitals to charitable institutions. 9. Reports by officers of certain institutions to clerks of super- visors and cities. 10. Verified accounts against counties, cities and towns. 11. Pauper, when not admitted to asylum. 12. Commitment to the " Shelter for Unprotected Girls " at Syra- cuse; board of supervisors to pay expenses of inmates. § I. Boards of supervisors may abolish or revive distinction between tov?n and county poor. The board of supervisors of any county may, at an annual meetr ing or at a special meeting called for that purpose, by resolution, abolish, or revive the distinction between town and county poor of such county, by a vote of two-thirds of all the members elected to such board, and until such abolition or revival, such county, or the towns thcTein, shall continue to maintain and support their poor as at the time when this chapter shall take effect. The clerk of the board shall, within thirty days after such determination, serve, or cause to be served, a copy of the resolution upon the clerk of each town, village or city within such county, and upon each of the superintendents and overseers of the poor therein. Upon filing such determination to abolish the distinction between town and county poor, duly certified by the clerk of the board in the ofiioe of the county clerk, the poor of the county shall thereafter Town and County Poor; Miscellaneous Pbovisions. 583 Poor Law, §§ 135, 136. be maintained, and the expense thereof defrayed, by the county; and all costs and ehargesi attending the examinations, conveyance, support and necessary expenses of poor persons therein, shall be a charge upon the county. Such charges and expenses shall be reported by the superintendent of the poor, to the board of super- visors, and shall be assessed, levied and ooUeoted the same aa other county charges. IPoor Law {L. 1896, ch. 225), § 134; Heydecker's Gen. L. (2d ed.), p. 2240.J § 2. Overseers to pay town poor moneys to county treasurer, ^vithin three months after notice of abolition of distinction be- tween town and county poor. Within three months after notice shall have been served upon the overseers of the poor, that the distinction between town and county poor has been abolished, they shall pay over all moneys which shall remain in their hands as overseers for the use of their town, after discharging all demands against them, to the county treasairer, to be applied by him toward the future taxes of such town; and all moneys thereafter received by them, as such, over- seers, for the use of ihe poor of their town, shall be paid by them to the county treasurer within three months after receiving the same, and by him credited to the tO'Wn whose overseers shall have paid the same. It shall be the duty of all officers or persons to pay to the county treasurer all moneys which, shall be received for, or owing by thean to the overseers of the poor of any such town, for the use of the poor thereof, pursuant to any law or obli- gation requiring the same to be paid to such overseers, and cred- ited by such county treasurer to the town for whose use such moneys were received or owing. Any overseer or other person having received or owing such moneys, who shall neglect or refuse to pay the same within thirty days after demand thereof, shall be liable to an action therefor, with interest at the rate of ten per cent, thereon, by such county treasurer, in the name of his county. [Poor Law (L. 1896, ch. 225), § 135 ; Heydecker's Oen. L. (2d ed.), p. 2241.J § 3. Town poor money, invested, to be under control of over- seer ; m,ay be applied to town expenses when distinction between town and county poor is abolished. When any town shall have any money raised for the support of the poor, invested in the name of the overseers of the poor of '584 Relief of Pooe. Poor Law, § 57; L. 1880, eh. 347, i§ 1, 2. sudb town, suah. overseers shall continue to have the oontrol thereof, and shall apply the interest arisiing therefrom to the support of the poor of their town, so long as such town shall be liable to sup- port its own poor, but when relieved from such liability by a vote of the supervisors of the county, the money so raised and invested shall be applied to the payment of such taxes upon the town, as the inhabitants thereof shall at an annual town meeting, or a special town meeting called for that purpose, determine. \_Poor Law (L. 1896, ch. 225), § 136; Heydecker's Gen. L. (2d ed.), p. 2241.] § 4. Poor persons owning property. If it shall at any time be ascertained that any person, who has been assisted by or received support from any town, city or county, has real or personal property, or if any such person shall die, leav- ing real or j)6rsonal property, an action may be maintained in any court of competent jurisdiction, by the overseer of the poor of the town or oily, or the superintendent of the poor of any county which has furnished or provided such assistance or support, or any part thereof, against such person or his or her estate, to recover such Slums of money as may have been expended by their town, city or county in the assistance and support of such person during the period of ten years next preceding such discovery or death. \^Poor Law, § 57, as inserted by L. 1901, ch. 664; Heydecker's Gen. L. {2d ed.), p. 2220.] § 5. Reports of and accounts with benevolent institutions in which inmates are supported at county or town expense. Benevolent institutions; wliat are. — Each of the asylums, re- formatories, homes, retreats, penitentiaries, jails, or other institu- tion of this state, in which the board, instruction, care or clothing of persons committed thereto is, or shall be, a charge against any county of this state, or town therein, shall be known for the pur- poses of this act as one of the state benevolent institutions of the state, [iy. 1880, ch. 347, § 1; Heydecker's Gen. L. {2d ed.), p. 4707.J Reports hy committing officer. — It shall be the duty of every judge, justice, superintendent of the poor, overseer of the poor, supervisor, or other person, who by law is authorized to make commitments or appointments to any of the state benevolent insti- tutions of the state, to make a report, in writing to the clerk of the board of siupervisors of the county so liable, or of the county in Town and County Poor; Miscellaneous Provisions. 585 L. 1880, ch. 347, §§ 3, 4, 5. which any town is so liable for the board, inatniotion, care, or clothing Tnentioned in section one of this act; said report shall be made within ten. days after making such commitment or ap- pointment, and shall show, when knO'Wn, the nationality, age, sex, and residence of each person so appointed or committed, and the length of time of such appointment or commitment. \_Idem, § 2. J Reports by officers of instituti-on. — It shall be the duty of the keeper, superintendent, warden, secretary, director, or other proper officer of each of the state benevolent, institutions of the state, within ten days after receiving any person into any of the institu- tions mentioned in section one of this act, whose board, care, in- struction, tuition, or clothing shall be chargeable to any town or county, to make a report in writing to the clerk of the board of supervisors of the county so liable, or of which any town is so liable. Such report shall show when such persons were received into siaid institution, and when known, the name, age, sex, nation- ality, residence, length of time of commitment or appointment, the name of the officer making such commitment or appointment, and the sum chargeable per week, month or year for such person. [Idem, § 3.] Death, removal or discharge of occupants to he reported. — In ease of the death, removal or discharge of any j>erson committed or appointed to any of the institutions mentioned in this act, it shall be the duty of the officers mentioned in section three of this act, to immediately report to the clerk of the board of supervisors of the respective county the date of such death, removal or discharge. ildem, § 4. J Sworn statement of accounts. — It shall be the duty of the offi- cers mentioned in section three of this act, annually, on or before the fifth day of October, to present to the clerk of the board of supervisors of the county liable for the board, instruction, care or clothing mentioned in this act, or of the county in which any town is so liable, a sworn statement of the account of such insti- tution, with such county or town, up to fii*st day of said October, and in case of a claim for clothing, an itemized statement of the same, and in case any part of the board, care, tuition, or clothing has been paid by any person or persons, the account shall show what sum has been so paid, and accompanying such account shall be a report showing the name, age, sex, nationality, and residence of each person mentioned in the account, the name of the officer who made the commitment or appointment, the date and length 586 Relief of Pooe. L. 1880, ch. 347, §§ 6, 7, 8, 9; L. 1876, eh. 54. of commitment or appointment, the time to which the account haa been paid, and the amount claimed to the first day of aaid October, the sum per week or per annum charged, and if no part of such account has been paid by any person or persons, the report shall show such fact, duly verified. \^Idem, § 5, as amended by L. 1881, ch. 273.] Penalty for neglect. — Any officer mentioned in this act who shall refuse or neglect to make the reports required by this act shall not be entitled to receive any compensation or pay for any ser- vices, aialary or otherwise, from any town or county to which he is required to make such report. [Idem, § 6.] Report to he filed. — The clerk of the board of supervisors who shall receive any report or account in pursuance of the provisions of this act shall carefully file the same and present the same to the reepeotdve boards of supervisors on the second day of the annual meeting of the board next succeeding the receipt of the same. [Idem, § 7. J Poor-houses exempt. — The poor-houses in the several counties of this state are hereby exempted from the provisions of this act. [Idem, § 8.] Kings county exempt. — Nothing in this act contained shall be held to apply to the county of Kings. [Idem, § 9.] § 6. Report of superintendents of benevolent institutions to clerks of boards of supervisors. It shall be the duty of the superintendent, warden or other proper officer in charge of each of the benevolent institutio'ns of this state, in which are persons whose maintenance, treatment, tuition or clothing is a charge against any county of this state, to make a re- port' on or before the fifteenth day of September, in each year, to the clerk of the board of supervisors of the ewmty to which such maintenance, treatment, tuition or clothing is chargeable, which report shall show the name, age, sex, color and nationality of every person in such institution, chargeable to such county; also, when each person was received into such institution, from what town sent, for what term received, to what time the expense of each such person has been paid, and the amount chargeable to such county for each such person for the ensuing year, which report shall be verified by the oath or affirmation of the person making the same. [L. 1876, ch. 54; HeydecTcer's Gen. L. {2d ed.), p. 4706.] Town and County Poor; Miscellaneous Provisions. 587 L. 1895, ph. 754, § 1 ; State Charities Law, §S 45, 46. § 7. Money raised by towns and counties for the care and sup- port of inmates of charitable institutions. Boards of estimate and apportionment, conjnon councils, boards of aldermeoi, boards of supervisors, town boards, boards of trustees of villages, and all other boards or officjers of counties, cities, town and villages, authorized to appropriate and raise money by taxa- tion and make payments therefrom, are hereby authorized in their disca-ebion to appropriate and to raise money by taxation and to make payments from said moneys, and from any moneys received from any other source and properly applicable thereto, to chari- table, eleemosynary, correctional and reformatory institutions wholly or partly under private control, for the oare, support and maintenance of their inmates, of the moneys which are or may be appropriated therefor; such payments to be made only for such inmates as are received and retained therein pursuant to rules established by the state board of charities. [L. 1895, ch. 754, § l.J ;§ 7a. Reports with relation to children placed in family homes. The superintendents of the poor of counties, the overseers of the poor of cities and towns and all other public officers by whatsoever name or title known who are authorized by law to place out dependent children in family homes by adoption, indenture or otherwise, are hereby required to report to the state board of charities on blanks provided by such board, the particulars with relation to each child so placed out. Such report shall state the name, age and sex of the child so placed out, together with the father's full name and residence, the mother's full name and residen.ie, and the religious faith of the parents. The report shall also state the full names and residence of the heads of the family with whom Kuch child is placed, their relationship to the child, if any, the religious faith of the heads of such family, and their occu- pation or occupations, together with such further information as the state board of charities may require on the blanks provided. Such reports for the preceding months shall be filed with the state board of charities on or before the tenth day of each month. [Poor Law {L. 1896, ch. 225), § 141a, added hy L. 1905, ch. 273.] § 8. Reports to clerk of board of supervisors of appoint- ments and commitals to charitable institutions. Every judge, justice, superintendent or overseer of the poor, supervisor or other person who is authorized by law to make appointments or commitments to any state charitable institution, except alms-houses, in which the board, instruction, care or clothing is a charge against any county, town or city, shall make a written report to the clerk of the board of supervisors of the county, or of the county in which any town is situated, or to the city clerk of any city, which are liable for any such board, instruction, care or clothing, within ten days after such appointment or commitment, and shall therein state, when known, the nationality, age, sex and residence of each person so appointed or committed and the length of time of such appointment or com- mitment. [State Charities Law {L. 1896, ch. 546), § 51, as amended hy L. 1902, ch. 252; Eeydecker's Oen. L. (2d ed.), p. 2114.] 588 Relief of Pooe. state Charities Law, § 47. § 9. Reports by officers of certain institutions to clerks of supervisors and cities. The keeper, superintendent, secretary, director or other proper officer of a state charitable institution to which any person is com- mitted or appointed, whose board, care, instruction, tuition or clothing shall be chargeable to any city, town or county, shall make a written report to the clerk of such city or to the clerk of the board of supervisors of the county, or of the county in which such town is situated, within ten days after receiving such person therein. Such report shall state when such person was received into the institution, and, when known, the name, age, sex, nationality, residence, length of time of commitment or appointment, the name of the officer making the same, and the sum charge- able per week, month or year for such person. If any person so appointed or committed to any such institution shall die, be removed or discharged, such officers shall immediately report to the clerk of the board of supervisors of the county, or of the county in which such town is situated, or to the city clerk of the city from which such person was committed or appointed, the date of such death, removal or discharge. [State Charities Law (L. 1896, ch. 546), § 52, as amended by L. 1902, ch. 252; Heydecker's Gen. L. (2d ed.) , p. 2114.] § 10. Verified accounts against counties, cities and towns. The officers mentioned in the last section shall annually, on 01 before the fifteenth day of October, present to the clerk of the board of supervisors of the county, or of the county in which such town is situated, or to the city clerk of a city from which anj such person is committed and appointed, a verified report and statement of the account of such institution with such county., town or city, up to the first day of October, and in case of a claim, for clothing, an itemized statement of the same; and if a part oi the board, care, tuition or clothing has been paid by any person, or persons, the account shall show what sum has been so paid ; and the report shall show the name, age, sex, nationality and residence of each person mentioned in the account, the name of the officer who made the appointment or commitment, and the date and length of the same, and the time to which the account has been paid, and the amount claimed to such first day of October, the sum per week or per annum charged, and if no part of such ac- count has been paid, the report shall show such fact. Any officer who shall refuse or neglect to make such report shall not be entitled to receive any compensation or pay for any services, salary or otherwise, from any town, city or county affected thereby. The clerk of the board of supervisors who shall receive any such report or account shall file and present the same to the board of super- visors of his county on the second day of the annual meeting of the board next after the receipt of the same. [State Charities Town and County Poor; Miscellaneous Peovisions.. 589' L. 1880, ch. 549, § 1 ; L. 1881, ch. 218, § 1. Law (L. 1896, ch. 546), § 53, as amended by L. 1902, ch. 252; Eeydecker's Gen. L. (2d ed.), p. 2114.] § II. Pauper, when not admitted to asylum. Hereafter no pauper who has not resided within the state for at least one year next prior to application for his or her admission into any state asylum for the idiotic, blind, insane, or deaf and dumb, shall be admitted as an inmate therein. [L. 1880, ch. 549, extract from § 1, p. 798.] § 12. Commitment to the " Shelter for Unprotected Girls " at Syracuse ; boards of supervisors to pay expenses of inmates. Any magistrate within the fifth, sixth, seventh or eighth judicial district may commit girls under the age of eighteen years, of Protestant faith or parentage, who may be committed under the provisions of sections 291 and 292 of the Penal Code, or as vagrants or on any conviction of misdemeanor, to the Shelter for Unprotected Girls at Syracuse. [L. 1881, ch. 218, § 1.] It is also provided in section 8 of such act, as amended by L. 1887, ch. 313, and L. 1893, ch. 53, that " Each board of super- visors of the several counties within the fifth, sixth, seventh and eighth judicial districts of this state, is hereby authorized and directed to audit the bills for boarding any inmate of said institu- tion received therein, from the county of such board, by virtue of any of the provisions of section one of this act, at such prices as such board of supervisors may deem just and reasonable, and the bills so audited shall be paid by the! county treasurer of such county. When any such bill is so audited and paid, it shall be apportioned by said board among the various cities and towns in such county as such board shall deem equitable, and the amount so apportioned to any city or tovsm shall be redmbursed by such city or town to such county." Highways and Beidges. CHAPTER XLV. HIGHWAY COMMISSIONBES AND OVEESEEES ; GBNEEAL POWEES AND DUTIES. SxCTIOir 1. When more than one highway commissioner, one to be desig- nated as treasurer. 2. Powers of one commissioner. 3. Division of town into highway commissioner districts; notice to be published. 4. Duties of commissioners when town is divided into highway commissioner districts. 5. General powers and duties of highway commissioner. 6. Commissioners to cause mile-stones and guide-boards to be erected; guide-boards, what to designate. 7. Turnpike companies to erect mile-stones and guide-posts. 8. Commissioner may purchase scraper and plow; upon petition of taxpayers of highway district to purchase road machine; tax for payment of machine; list of taxpayers chargeable to be returned by commissioner; custody of machines. 9. When commissioner and town board may purchase stone crusher; purchase of material. 10. Stone crushers, custody of. 11. Overseer of highways, with consent of commissioner and ap- proval of town board, may acquire gravel beds; acquisition of, by condemnation; payment of expenses; termination of right. 12. Commissioner may cause vote to be taken as to raising addi- tional tax for highway purposes. 13. Commissioner may, in certain cases, expend more than sum raised, in repair of highways and bridges. 14. Extraordinary repairs, special session of the town board to audit claims on account of. 15. Damages for change of grade; claim for damages to be pre- sented to town board; determination of damages. 16. Highway accounts; commissioner's certificate to be attached. 17. Upon complaint, commissioner to examine toll bridge; notice to owners to repair; repairs to be made immediately; penalty for neglect. (591) 592 Highways and Bridges. Highway Law, § 2. Section 18. Commissioners may consent to laying drainage, sewer and water pipes in highways; application therefor; contents of consent. 19. Commissioners may maintain actions on account of injuries to highways. 20. Liability of towns for defective highways. 21. Action by town against commissioner if defect was caused by his negligence. 22. Town board to audit claim for damages caused by defective highway or bridge; audit of unpaid judgment. 23. Commissioners to report to town board; contents of report; statement of improvements and estimated cost thereof. 24. Expenditure of money voted at town meeting for wire fencing to prevent snow blockade; duties of commissioners of highways. 25. Overseers of highways, general duties of; weeds to be cut down; stones to be removed. 26. Opening of highways obstructed by snow or otherwise, when highway labor has been worked; overseer may call out per- sons; penalty for failure to respond. 27. Penalties for failure of overseer to perform duties. 28. Commissioner to prosecute overseers for penalties; costs and expenses a town charge; penalty for failure of commissioner to prosecute. 29. Compensation of overseers. § I. When more than one highway commissioner, one to be designated as treasurer. When tlieire is more than one conunissioner of highways in any town, they shall designate one of their number to be treasurer. If they fail so to do, the commissioner longest in office shall be the treasurer; and all money collected for highway purposes, or belonging to the highway fund of the town, shall be paid to him. Before receiving such money, he shall execute to the town an un- dertaking, to be approved by the supervisor, tO' the effect that he will faithfully account and pay over to any officer or person en- titled thereto, any money that may come into his hands as such treasurer.' [Highway Law (L. 1890, ch. 568), § 2; Heydecker's Gen. L. (2ded.),p. 1301. J 1. Undertaking. Each commissioner of highways is required to execute an undertaking for the faithful performance of his duties and a proper accounting of all moneys that shall come into his hands. See Town Law, Bee. 63, ante, p. 261. For form of undertaking, see Form No. 22, post. Highway Commissionees and Oveeseeks. 593 Highway Law, §§ 3, 25. § 2. Powers of one commissioner. When any town has but one commissioneo* of highways, the term, commissioners of highways!, when used in this chapter, shall mean such one ooimmissioner." [Highwuy Law {L. 1890, ch. 568), § 3; Heydecker's Gen. L. {2d ed.), p. 1301.] § 3. Division of town into highway commissioner districts; notice to be published. \Ylien a town has deterrained upon having two or three commis- sioners of highways, the town board may at a regular or special meeting thereof divide the town into two or three highway com- 2. Number of highiray commissioners. The electors of a. town at a biennial town meeting may determine by ballot whether there shall be one, two or three highway commissioners. See Town Law, sec. 15, ante, p. 235. Such section also provides that " when there shall be but one commissioner of highways in any town, he shall possess all the powers and discharge all the duties of commissioners of highways as prescribed by statute." Tie election of highway commissioners is regulated by sec. 12 of the Town Law, ante, p. 227 ; and their terms of office are prescribed by sec. 13 of such law. See ante, p. 228. Where a town is divided into highway com- sioner districts, one commissioner is to reside in each district. See High- way Law, sec. 25, post, p. 593. References. Commissioners of highways act with the assessors as fence viewers of the town. See Town Law, sec. 21, ante, p. 447. As to their powers and duties as fence viewers, see Town Law, sees. 100-108, ante, p. 448. Eligibility of commissioners. See Town Law, sec. 50, wnte, p. 254. Oath of office, form of, and when and how to be taken. See Town Law, Bee. 51; Public Officers Law, sec. 10, ante, p. 256. Effect of failure to take oath. See Public Officers Law, sec. 13, ante, p. 257. For form of oath of office, see Form No. 6, post. Undertaking of commissioner of highways to be executed. See Town Law, see. 63, ante^ p. 261. Liabilities of sureties on undertaking. See Town Law, sec. 66, ante, p. 266. Effect of undertaking. See Public Officers Law, sec. 12, ante, p. 268. Effect of failure to execute. See Public Officers Law, sec. 13, ante, p. 257. Resignation of commissioners may be made to any three justices of the peace, see Town Law, sec. 64, ante, p. 269; and should be filed with the town clerk. See Public Officers Law, sec. 21, ante, p. 270. Removal of commissioners by Appellate Division of the Supreme Court. See Public Officers Law, sec. 25a, ante, p. 270. Vacancies, how created, see Public Officers Law, sec. 20, 30 HlGJlWAYS AND BeIDGES. Highway Law, § 21. sioners of highways to recover such penalty, knowing the same to have been incurred, or within twenty days after a sworn statement has been laid before them showing that a party is liable to such penalty, shall be guilty of a misdemeanor.36 [Thus amended by L. 1898, oh. 352, L. 1901, ch. 54, and L. 1902, ch. 160.] 6. Cause the monuments erected or to be erected, as the boundaries of highways, to be kept up and renewed, so that the extent of such highway boundaries may be publicly known. [Highway Law (L. 1890, ch. 568), § 20; Heydeckers den. h. (2d ed.), p. 1310.] § 26. Opening of highways obstructed by snow or otherwise, when highway labor has been worlsed; overseer may call out persons; penalty for failure to respond. Whenever the labor in any district has been worked out, commuted for, or returned to the supervisor in a town under the labor system of taxation for working its highways, or in those towns that have adopted the money system of ta.xation for working the highways, and the town has not been divided into highway districts, the moneys voted at the town meeting for the removal ot obstructions caused by snow and the prevention of such obstructions has been expended and the highways are obstructed by snow, and notice has been given to the overseer or highway commissioner in writing, by any two or more inhabitants of the town, liable to the payment of highway tax, requesting the removal of such obstruction, tlie overseer of highways in such district or the highway commissioner of the town shall immediately call upon all persons, corporations and occupants of lands owned by non-residents liable to highway tax therein or in the locality where such obstruction exists, to assist in removing such obstruction and such labor so called for by the overseer or highway commissioner, shall be assessed upon those liable to perform the same or in the locality where such obstruction exists, in propor- tion to their original assessments. Whenever in a town that has adopted the money system of taxation for working the highways, and has been divided into highway districts, the moneys, if any, voted at the town meeting for the removal of obstructions caused by snow and the prevention of such obstruc- tions has been expended, or in which no money was voted at the town meet- ing for such purpose, and the highways in any district are obstructed by snow, the overseer of highways of such district shall immediately call upon the persons and corporations in such district assessed for highway labor in pursuance of subdivision six of section thirty-three of this chapter to assist in removing such obstruction, and shall credit such persons or corporations with the days' labor so performed. Should any persons, corporations or occu- pants of lands owned by non-residents so called out neglect or refuse to ap- pear at the place designated by the overseer or the commissioner of high- ways, or to commute at a, dollar a day within twenty-four hours after due notice, the overseer or commissioner of highways shall cause the obstruction to be immediately removed and on or betore September first of each year, or at such other time as the board of supervisors may by resolution pre- scribe, make out a list of all persons, corporations or occupants of lands 35. Injurious substances in highways. It is provided by section 661 of the Penal Code that: "A person who willfully throws, drops or places, or causes to be thrown, dropped or placed upon any road, highway, street or public place, any glass, nails, pieces of metal or other substance which might wound, disable or injure any animal, is guilty of a misdemeanor." And by section 664a of the Penal Code it is provided that any person who throws such substances in a highway or on a cycle path or sidewalk, used by bicycles, which might injure or puncture the tires of such bicycles, is guilty of a mis- demeanor. Highway Commissioners and Oveeseees. 621 Highway Law, § 22. owned by non-residents who shall fail to work out such labor or commute therefor, with the number of days not worked or commuted for by each, charging for each day in such list at the rate of one dollar and fifty cents per day, verified to the effect that such persons, corporations or occupants of lands owned by non-residents have been notified to appear and perform such labor or commute therefor, and that the same has not been performed or commuted; said list shall be certified by the commissioner of highways of such town to tlie town board and by said town board to the board of super- visors, and the amount of such arrearages shall be levied by such board of supervisors against and collected from the real or personal estate of such persons and corporations and from the real estate owned by non-residents specified in such list in the manner now provided by law for the return, as- sessment and collection of arrearages for unperformed highway labor. Each overseer of highways and highway commissioner neglecting to perform such duty shall be liable to a penalty of fi\e dollars per day, for every day he neglects, without good and sufficient reasons, to have such highway opened after receiving such written notice, and for each day after September first or the day so fixed, he neglects to make out, verify and deliver such list, the penalty to be collected in justice's* court, by the supervisor in the name of the town, and paid over to the highway fund of the town. No persons or corporations shall be allowed any sum for highway labor performed in re- moving obstructions caused by snow unless authorized or directed by the overseer or commissioner of highways to perform such labor. No moneys collected or received under section fifty-three shall be appropriated for re- moving obstructions caused by snow or preventing such obs1ructions.36 [High- way Law (L. 1890, ch. 568), § 21, as amended by L. 190-2, ch. 323, L. 1904, ch. 478, and L. 1905, ch. 672; Beydecker's Gen. L. (2d ed.) , p. 1311.] § 27. Penalties for failure of overseer to perform duties. Every overseer of highways who shall refuse or neglect'"' 1. To warn the persons and corporations assessed to work on the high- ways, when he shall have been required so to do, by the commissioners or either of thera,38 2. To collect the moneys that may arise from fines or commutations, 3. To perform any of the duties required by this chapter, or which may be enjoined on him by the commissioners of highways of his town, and for the omission of which no other penalty is provided, shall for every such refusal or neglect, forfeit the sum of ten dollars.39 [Highway Law (L. 1890, ch. 568), § 22; Heydecker's Gen. L. (2d ed.) , p. 1311.] 36. Wire fences to prevent snow blockade may be constructed if au- thority is granted by a town meeting as provided by L. 1890, ch. 291, see ante, p. 610. A person removing a fence along a highway for the purpose of preventing the drifting of snow is allowed an abatement of his highway tax. See Highway Law, sec. 72, post, p. 657. 37. Penalty for refusal to serve. If any person chosen or appointed to the office of overseer of highways shall refuse to serve he shall forfeit to the town the sum of $10. Town Law, sec. 55. 38. As to notice to taxpayers to work upon the highways, see Highway Law, sees. 60-61, post, p. 647. 39. For penalty for failure to furnish list of persons who have failed to perform highway labor, see Highway Law, sec. 67, post, p. 652. For neg- lect or refusal to render the annual return required by law to highway com- missioners, see Highway Law, sec. 69, post, p. 653. * So in original. 622 Highways and Beidges. Highway Law, §§ 23, 24. § 28. Commissioner to prosecute overseers for penalties ; costs and expenses a town charge ; penalty for failure of commissioner to prosecute. The commissioners of highways shall prosecute, in the name of the town, every overseer of highways, for any penalties known to the commissioners t» have been incurred by the overseer.4i> They shall also upon the complaint of any resident of the town, that any such penalty has been incurred, prose- cute such overseer therefor, if satisfied that the complaint is well founded. The costs and expenses incurred by the commissioners in good faith, in such proceedings, shall be a town charge, to be audited by the town board. If the commissioners refuse or neglect to prosecute for any such penalty for thirty days after such complaint slial] have been made, the complainant may prose- cute therefor in the name of the town, upon indemnifying the town for thw costs and expenses of such prosecution, in such manner as the supervisor may approve. If the commissioner shall neglect or refuse to prosecute for any such penalty, knowing that the same has been incurred, he shall be liable to a penalty of ten dollars for every such neglect or refusal, to be recovered by action, in the name of the town, brought by the supervisor, or by any tax- payer Oi the town who may indemnify the town, for the coats and expenses of the action, in such manner as the supervisor may approve. [Highway Law (1890, ch. 568), § 23; Heydecker's Gen. L. (2d ed.) , p. 1312.] § 29. Compensation of overseers. If any overseer shall be employed more days in executing the several duties enjoined upon him by this chapter, than he is assessed to work on the high- ways, he shall be paid for the excess, at the rate of twelve and a half cents per hour for each day, and be allowed to retain the same out of the money which may come into his hands under this chapter ; but he shall not be per- mitted to commute for the days he is assessed, nor be entitled to receive any greater sum as compensation, pursuant to this section, than the amount of money in his hands applicable thereto. [Highway Law (L. 1890, ch. 568 )^ § 24, as amended ly L. 1899, ch. 78; Heydecker's Gen. L. {2d ed.), p. 1312.] § 30. Drains or ditches for the free passage of water. The highway commissioner of any town may, when authorized by the town board, enter upon any lands adjacent to the highway therein for the purpose of opening any existing ditch or drain, or dig a new ditch or drain for the free passage of water for the purpose of draining such highway. When so authorized by the town board, such commissioner of highways may subject to the approval of such board agree with the owner of any such land upon the amount of damages, if any, sustained by him in consequence of such entry upon his lands in performance of the work hereby authorized, and the amount of damages so agreed upon shall be a town charge and shall be audited and paid the same as other town charges. If the commissioner of highways is unable to agree with such owner upon the amount of damages thus sustained, the amount thereof shall be ascertained, determined and paid in the same manner as damages are so ascertained, determined and paid where new high- ways are laid out and opened, and the commissioners and land owners are unable to agree upon the amount thereof. [Highway Law, § 27, as added by L. 1906, ch. 101.] 40. See preceding section and notes thereunder. Assessment of Highway Labob. 623 CHAPTER XLVI. ASSESSMENT OF HIGHWAY LABOB. SxcnoiT 1. Meetings of commissioners. 2. Overseers of highways to deliver to town clerk list of taxable inhabitants of his district. 3. Commissioners to make out lists of nonresident lands. 4. Commissioners to assess highway labor; assessment, how made. 5. Separate valuations to be made by assessors of lands partly within city or village; assessments to be made by commis- sioners on lands without city or village. 6. Town clerk to copy list and transmit to overseers; acceptance by overseers is acceptance of ofiBce. 7. Overseers may add names of persons omitted, and new in- habitants. 8. Nonresidents may appeal to County Court from assessment of highway labor. 9. Commissioners may credit on assessment of persons living on private road. 10. Assessment of lands not owned by occupant; owner not to be assessed twice. 11. Tenant may deduct assessment from rent due. 12. Commissioners may re-assess number of days not worked. 13. Commissioners may assess persons or property omitted by town assessors. 14. Overseer may make new assessment when labor assessed is insufficient. 15. Commissioners may authorize owners of property to plant trees and construct sidewalks along highways. 16. Abatement of tax for planting shade trees along highways to be allowed by overseers of highways. 17. Commissioners of highways to authorize expenditure of labor or money upon sidewalks. 18. Certificate of anticipation on account of labor on sidewalks to be issued by overseer of highways. 19. Certificate of anticipation may be transferred. 20. Commissioners to abate tax on account of watering trough. 21. Systems of highway taxation defined. 22. Town may change its system. 23. Application for a vote to change system; who shall sign applica- tion and yote thereon. 24. When change to take effect. 26. Levy of tax under money system; property in villages exempt from taxation for highways; state to pay for benefit of town raising money for highway purposes twenty-five per cent, of amount raised. 26. State to share expense of maintaining certain countj roads. 624 Highways and Bridges. Highway Law, §§ 30, 31, 32. § I. Meetings of commissioners. The commissioners of highways of each town shall meet within eighteen days after the annual town meeting, at the town clerk's office, on such day as they shall agree upon, and afterwards at such other times and places asi they shall think proper.' l_High- way Law (L. 1890, ch. 568), § 30; Heydecker's Gen. L. (2d ed.), p. 1314.] § 2. Overseers of highways to deliver to town clerk list of taxable inhabitants of his district. Each of the overseers of highways shall deliver to the clerk of the town, within sixteen days after his ap'pointmeiit, a list sub- scribed by him, of the names of all the inhabitants in his highway district, who are liable to work on the highways;' and the town clerk shall deliver such liste to the commissioners of highways. [Highway Law (L. 1890, ch. 568), § 31; Heydecker's Gen. L. (2d ed.), p. 1314.] § 3. Commissioners to make out lists of nonresident lands. The commissioners of highways in each town, before making the assessment of highway labor, shall make out a list and statement, of the contents of all unoccupied lote, pieces or parcels of land within the town, owned by nonresidents; every lot sO' designated, shall be described in the same manner as is required from assessors, 1. Meetings of commissioners. There may be in each town one, two or three commissioners of highways. Town Law, sec. 15, as amended by L. 1903, ch. 57, ante, p. 235. If there are three commissioners, a majority con- stitute a quorum for the transaction of business. See Statutory Construc- tion Law, sec. 19. Time of meeting. The law evidently contemplates the meeting of the commissioners at a stated time once in each year. Since annual town meet- ings have been abolished and biennial town meetings substituted, it would seem proper that the annual meeting of the commissioners should be held at the corresponding time in each alternate year. The commissioners are required on the fifteenth day of April in each year to make a written appointment of overseers of highways in the several districts of the town, and if there are two or more commissioners in the town they will probably meet on such day for such purpose. 2. Delivery of list. The provision requiring an overseer to deliver a, list of the taxpayers in his district to the town clerk is merely directory, his omission to do so does not avoid an assessment made by commissioners of highways against the persons liable. Binehart v. Young, 2 Lans. 354. Assessment of Highway Labor. 625 Highway Law, § 33. and its value shall be set down opposite to tlie description ; sutii value shall be the same as was affixed to the lot in the last assess^ ment-roll of the town ; and if such lot was not separately valued in such roll, then in proportion to the valuation which shall have been affixed to the whole tract, of which such lot shall be a part. [Higway Law {L. 1890, ch. 568), § Z2; Hey decker's Gen. L. (2i ed.),p. 1314.] § 4. Commissioners to assess highway labor ; assessment, how made. The commissioners of highways shall, at their first or some subsequent meeting, ascertain, assess and apportion the highway labor to be peirformed in their town, in the then ensuing year, as follows : 1. Number of days assessed. — The whole number of days work to be assessed in each year, shall be ascertained, and shall be at least three times the number of taxable inhabitants in the town. 2. Persons assessed; exemptions. — Every male inhabitant being above the age of twenty-one years excepting all honorably dis^ charged soldiers and sailors who lost an arm or a leg in the mili- tary or naval ser\'ice of the United States, or who are unable to perform manual labor by reason of injuries received, or disabilities incurred in such service, members of any fire company formed or created pursuant to any statute' and situated within such town, persons seventy years of age, clergj-men and priests of every de- nomination, paupers, idiots and lunatics shall be assessed at least one day. [As amended by L. 1898, ch. 353, and L. 1903, ch. 172.J 3. Residue to be assessed against property. — The residue of such days work, shall be apportioned and assessed upon the estate, real 3. Assessment of nonresident for purpose of taxation generally, see Tax Law sec. 29, ante, p. 369, and cases cited thereunder. For form of assessment of nonresident land for highway purposes, see Form No. 102, post. 4. Assessment for high-way purposes. Nonresident lands are subieot to assessment for highw.ny purposes to the same extent as other p'opeity. Chamberlain v. Taylor, 3fi Hun, 24. If such lands are unoccupied the as- sessment is made against the land itself, but if occupied by a, resident of the town, the assessment is made against the occupant in the same manner as resident land. See Highway Law, sec. 33, sub. 3, post^ p. 626; Ensign v. Barse, 107 N. Y. 329; 14 N. E. 400. 40 626 Highways and Beidges. Highway Law, § 33. and personal, of every inhabitaiit of tihe town, including corpora- tions liable to taxation therein," as the same shall appear by the lasit assessmentrroll of the town, and upon eaeh tract or parcel of land owned by non-residents of the town contained in the list made by the commissioners, excepting such as are occupied by an inhabi- tant of the town, which shall be assessed to the occupant. The assessment of labor for personal property, must be in the district in which the owner resides, and real property in the district where it is situated, except that the assessment of labor upon the prop- erty of corporations, may be in any district or districts of the town, and such labor may be worked out or commuted for, as if the corporation were an inhabitant of the district; but the real prop- erty within an incorporated village or city, exempted from the jurisdiction of the commissioners of highways of the town, and personal property of an inhabitant thereof, shall not be assessed for highway labor by the commissioners of highways of the town. Whenever the assessors of any town shall have omitted to assess any inhabitant, corporation or property therein, the commissioners of highways shall assess the same, and ap'portion the highway labor as above provided. 4. Assessment^oll, how made. — The commissioners shall affix to the name of each person named in the lists furnished by the •overseers, and of assessable corporations, and to the description of each tract or parcel of land contained in the list prepared by them of non-resident lands, the number of days which such person or 5. Assessment of corporations. Before the statute was amended to permit the taxation for highway purposes of'a corporation, it was held that a corporation was not a person liable to work on the highway; since the statute imposed not a tax but a personal service, and "corporations having no souls have no bodies." Bank of Ithaca v. King, 12 Wend. 390. 6. Assessment o£ nonresident lands. The statute provides in effect that the lands of a nonresident occupied by a nonresident's agent or servant should be assessed the same as resident lands. Ensign u. Barse, 107 N. Y. 329; 14 N. E. 400. Assessment-roll of toxra. Commissioners of highways in apportioning highway labor must follow the last town assessment-roll in determining the amount of labor to be assessed to each resident of the town, even tliougli it includes or excludes lands lying partly in one and partly in another town. Hampton v. Hamsher, 46 Hun, 144; 10 N. Y. St. Rep. 769, affd. 124 N. Y. 634; and the commissioners have no discretionary power to make corrections in the roll. Trustees of Angelica v. Morse, 56 Barb. 380. If a corporation appears to have been assessed in such a roll it is to be assessed for highway labor, whether or not such corporation was rightfully included in such as- sessment-roll. People ex rel. Hudson River R, Co. v. Pierce, 31 Barb. 138. I Assessment of Highway Laboe. 627 L. 1871, ch. 171, § 1. tract shall be assessed for highway labor, as herein directed, and the com- missioners shall subscribe such lists, and file them with the town clerk. 5. New highway, when may be worked independently. — If the commission- ers of highways shall neglect for one year, after any highway shall have been |laid out, and title thereto acquired, to open or worlc the same, or any part thereof, and any inhabitant or corporation of the town, in or through which the highway runs, shall give ten days' notice to the commissioners of the town, that they desire to apply the whole or any part of their highway labor to the working of such highway, the commissioners shall assign such inhabitants and corporations to such highway district, direct the highway labor for which they are annually assessed to be applied to the same, and cause the same to be worked and put in good order for vehicles and travelers within one year, under the direction of any of such inhabitants, whom such com- missioners may appoint as an overseer of the labor so to be applied to such highway; and when the number of days labor assessed in the current year to such inhabitants, as the annual highway tax, is not sufficient to put such highway in good order, the inhabitants and corporations may anticipate the whole or any part of the highway labor assessed, and to be assessed against them, for a period not exceeding three years, but from no one of the districts of the town shall more than one-half of its annual labor be taxed and ap- plied to any highway not embraced in such district. 6. Removal of obstruction caused by snoic. — In a town which has adopted the money system of taxation for working its highways, and which has been divided into highway districts, and in which the money, if any, voted at the town meeting is deemed by the commissioner of highways insufficient for the removal of obstructions caused by snow and the prevention of such obstruc- tions, or in which no money is voted at the town meeting for such purpose, the commissioner of highways shall annually on or before November fifteenth make an estimate of the probable number of days' labor needed during the following year for the removal of obstructions caused by snow in the high- ways and for the prevention of such obstructions, and shall assess such days' labor as provided by this subdivision. Every person liable to assessment under subdivision two of this section shall be assessed one day. The bal- ance of such estimated number of days shall, in the same manner as is pro- vided by subdivision three of this section for the assessment of highway labor in towns under the labor system, be assessed upon the estates, real and personal, of persons liable to assessment under such subdivision. Copies of the lists of persons and corporations assessed shall be prepared by the com- missioner and delivered to the several overseers in the town in the manner provided by section thirty-four of this chapter. [Highway Law (L. 1890, ch. 568), § ZZ.subd. 6, added by L. 1905, ch. 672.] § 5. Separate valuations to be made by assessors of lands partly within city or village; assessments to be made by com- missioners on lands without city or village. In all cases where there is an incorporated village or city within the limits of any town, which is by law a separate road district, and there shall be any real estate, owned by any person or corporation, situated partly within the limits of such village or city and partly without said village or city, it shall be the duty of the assessors of such town^ after fixing the valuation of the whole of such real estate as now by law required, to determine what pro- portion of such valuation is on account of that part of said real estate lying without the limits of said city or village, and designate the same upon their assessment-list. [L. 1871, ch. 171, § 1; Heydeoker's Gen. L. (2d ed.), p. 4497.] 628 Highways and Bridges. L. 1871, ch. 171, § 2; Highway Law, §§ 34, 35. The valuation of the real estate lying without the limita of any city or ■village, so fixed and determined by the assessor, shall be the valuation on which the commissioners of highways of towns shall assess highway labor against the owner or owners of such real estate; and in no case shall the commissioners of highways assess any highway labor on property situated within the limits of any incorporated city or village which is by law a sepa- rate road district.7 [7dem, § 2.] § 6. Town clerk to copy list and transmit to overseers; ac- ceptance by overseers is acceptance of office. The commissioners of highways shall direct the clerk of the town to make copies of such lists, and shall subscribe such copies, after which they shall cause the several copies to be delivered to the respective overseers of high- ways of the several districts in which the highway labor is assessed, and the acceptance of the list by any overseer to whom the same may be delivered, shall be deemed conclusive evidence of his acceptance of the ofBce of overseer. [Highway Law (i. 1890, ch. 568), § 34; Hey decker's Gen. L. {2d ed.), p. 1316.] §' 7. Overseers may add names of persons omitted, and new inhabitants. The names of persons or corporations omitted from any such list, and of new inhabitants,? shall from time to time be added to the several lists, and they shall be assessed by the overseers in proportion to their real and per- sonal estate to work on the highways as others assessed by the commissioners on such lists, subject to an appeal to the commissioners of highways. [High- way Law {L. 1890, ch. 568), § 35; Heydecker's Gen. L. (Zd ed.), p. 1316.] 7. Exemption of lands within incorporated village from highway tax in towns which have adopted the money system of taxation, see Highway Law, sec. 53, post, p. 637. Section 33, sub. 3, of the Highway Law (see section preceding), provides that: "Real property within an incorporated village or city exempted from the jurisdiction of the commissioners of highways of the town and personal property of an inhabitant thereof shall not be assessed for highway labor by the commissioners of highways of the town." 8 Ne-w imtabitants. A person is not a " new inh.ibitant," within the meaning of the statute, unless he has been a non-resident of the town, di- rectly prior to his moving into the highway district. He cannot be regarded as a new inhabitant by moving from one district to another in the same town although if he owns land in the latter district for which he has not been assessed therein, his name may be added to the tax list thereof as having been omitted. Rinehart v. Young, 2 Lans. 354. Assessment of Highway Laboe. 629 Highway Law, §§ 30^ 31. 38. § 8. Non-residents may appeal to County Court from assess- ment of highway labor. Whenever any non-resident owner of unoccupied lands shall conceive him- self aggrieved by any assessment of any commissioner of highways, such owner, or his agent, may, within thirty days after such assessment, appeal to the county judge of the county in which such land is situated, who shall, within twenty days thereafter, hear and decide such appeal, the owner or agent giving notice to the commissioners of highways of the time of the hearing before the judge, and his decision thereupon shall be final and con- clusive.9 [Highway Law (L. 1890, ch. 568), § 30; Heydecker's Gen. L. (2d ed.), p. 1316.] § g. Commissioners may credit on assessment of persons liv- ing on private road. The commissioners of highways of each town shall credit to such persons as live on private roads and work the same, so much on account of their assessments PS the commissioners may deem necessary to work such private roads, or shall anne.K tlie private roads to some of the highway districts.'" In any town in which the money system of taxation has been adopted, the commissioner or commissioners of highways shall ascertain the value of the work which he or they may deem necessary to be ilone in each year upon such private road by any person living on th(> same and issue to him a statement containing the name of such person, the location of such road, the amount of work so deemed necessary to be done and the value thereof. Such state- ment shall be presented to the town board at its annual meeting for the audit of town accounts, and if approved by such board, and such work shall have been done an order shall be issued directing the supervisor to pay the sum specified in such statement to the person therein named, or his assignee, out of the money in the hands of the supervisor available for highway purposes. The amount so paid in any year shall not exceed tlie amount payable by the person named in such statement on account of the money levied in such town for the repair of highways as provided in section fifty-three of this chapter. This section shall not apply to private roads, or rights of way over lands of the owner thereof used Iby him for his own convenience. [Eighicay Law (L 1890, ch. 508), § 37, as amended by L. 1906, ch. 149; Heydecker's Gen. L. '{2d cd.), p. 1316.] § lo. Assessment of lands not owned by occupant; owner not to be assessed twice. Whenever the commissioners of highways shall assess the occu- pant, for any land not owned by such occupant, they shall dis- tinguish in their assessment lists, the amount charged upon such land, from the personal tax, if any, of the occupant thereof; but 9. For form of appeal bv non-resident to County Court from assessment for high-way labor, see Form Xo. 103, post. For form of notice of such ap- peal to commissioners, see Form No. 104, post. 10. Credit to person living on private roads. It is made the duty of the highway commissioner to credit to such persons as live on private roads and work the same, as much on account of their assessment as such commissioner may deem necessary to work such private roads; or he shall annex such roads to some of the districts of the town. Matter of Montezuma, 14 N. Y. Supp. 845; 38 N. Y. St. Rep. 970. 630 Highways and Bridges. Highway Law, §§ 39, 40, 41. Y/hem any siudh land shall be assesseid in the name of tihie ocoupaiit, the o^wner thereof shall not be assessed during the same year to work on the highways, on account of the same land. [Highway Law {L. 1890, ch. 568), § 38; Heydecher's Gen. L. (2d ed.), p. 1316.] § II. Tenant may deduct assessment from rent due. Whenevex any tenant of any land for a less term than twenty- five yearsi, sball be assessed to work on the highways for such land, and shall actually perform such work, or commute therefor, he diall be entitled to a deduction from the rent due, or to become due from him for such land, equal to the full amount of such assess- ment, estimating the same at the rat© of one dollar per day, unless otherwise provided for by agreement between the tenant and his landlord. [Highway Law (L. 1890, ch. 568), § 39; Heydecher's Gen. L. (2d ed.), p. 1317.] § 12. Commissioners may re-assess number of days not worked. If it shall appear from the annual return of any overseer of highways, th,at any person or corporation who was assessed to work on the highways (other than non-residents), has neglected 'to work the whole number of days assessed, and has not commuted for, or otherwise satisfied such deficiency, the commissioners of highways shall reassess the deficiency to the person so delinquent, at the next assessment for work for highway purposes, and add it -to his annual assessment; such reassessment shall not exonerate -any overseer of highways from any penalty which he may have incurred under the provisions of this chapter. [Highway Law (L. 1890, ch. 568), § 4:0; Heydecher's Gen. L. {2d ed.), p. 1317.] § 13. Commissioners may assess persons or property omitted lay town assessors. Whenever the assessorsi of any town shall have omitted to assess any inhabitant or property in their town, the commissioners of bighways shall assess the persons and property so omitted, and shall apportiou highway labor upon such persons or property, in ■the same manner as if they had been duly assessed upon the last assessment-roll. [Highway Law (L. 1890, ch. 568), § 41; Hey- decher's Gen. L. {2d ed.), p. 1317.] Assessment of Highway Labok. 631 Highway Law, §§ 42, 43. § 14. Overseer may make new assessment when labor assessed is insufficient. When the quantity of labor assessed on the inhabitants of any district by the commissioners of highways, shall be deemed in- sufficdeint by the overseer of the district to keep the highways therein in repair, such overseer shall make another assessment on the actual residents of the district, in the same proportion, as near as may be, and not exceeding one-third of the number of days asi- sessed in the siam© year by the oommissionerrs, on the inhabitanta of the district; and the labor so assessed by an overseer, shall be performed or commuted for in like manner, as if the same had been assessed by commissioners of highways." [Highway Law (L. 1890, ch. 568), § 42 ; Heydecker's Gen. L. (2d ed.), p. 1317.] § 15. Commissioners may authorize owners of property to plant trees and construct sidewalks along highways. The commissioners of highways may, by an order in writing duly certified by a majority of them, authorize the ovwiers of property adjoining the highways, at their own expense, to locate and plant trees, and locate and construct sidewalks along the highways in conformity vidth the topography thereof, which order, with a map or diagram showing the location of the sidewalk and tree planting, certified by the commissioners, shall be filed in the office of the clerk of the town where the highway is located, within ten days after the making of the order." [Highway Law (L. 1890, ch. 568), § 43; Heydcclccr's Gen. L. {2d ed.), p. 1317.] 11. Aditional assessments should be made whenever it appears to the overseer that the amount assessed is insufficient to maintain the highways in proper condition. See Farman v. Totcn of ElUnqton, 46 Hun, 41; 10 N. Y. St. Rep. 840 ; Weed v. Village of Ballston, 76 N. Y. 329. Fop form of new assessment by overseer of highways, see Form No. 105, post. 12. Rights of abntting aimers. An owner of land, abutting upon a country road, has substantial rights both in the surface and in the soil on the sides of such road. He has a. right of light, air and access, and to cultivate the road, and by statutory authority to plant trees along the road in front of his property; and a pole upon the roadside, supporting electric wires, in- terfering with growing trees, and preventing the planting of new ones, is an unsightly structure and may be dangerous, and is an infringement upon the rights of the abutting owner. It is of no consequence to what uses the pole and wire are to be put after they are erected. Palmer v. Larchmont Electrio Co., 6 App. Div. 12; 39 N. Y. Supp. 522. Side-walks as part of highway. Sidewalks are a part of the highway, and the owners of the adjoining lands have no greater duty in regard to 632 Highways and Beidges. Highway Law, § 44. I 1 6. Abatement of tax for planting shade trees along high- ways to be allowed by overseers of highways. Any inhabitant liable to highway tax, who shall hereafter, pur- suant to such an order, transplant by the side of the highway adjoining his premises, any forest shade trees, fruit trees, or any nut bearing trees, suitable for shade trees, shall be allowed by the overseers of highways, or other officeT having charge of the highway, in abatement of his highway tax, one dollar for everj' four trees set out; but all trees must have been set out the year previous to such allowance, and be living and well protected from animals at the time of the allowance, and not further than eight feet from the outside line of any highway three rods wide, and not more than one additional foot further therefrom, for eaoh additional rod in width of highway, and not less than seventy feet apart, on the same side of the highway, if elms, or fifty feet, if other trees ; trees transplanted by the side of the highway, in place of trees which have died, shall be allowed for in the same keeping them in repair than they have in regard to any other part of the highway. Village of Fulton v. Tucker, 3 Hun, 529. A town, which con- structs a highway with a sidewalk in an incorporated village is under the same obligation to keep it in order as exists in the case of the center of the street. Birngruber v. Tovyn of Eastchester, 54 App. Div. 80; 66 N. Y. Supp. 278; and, see. Clapper v. Town of Waterford, 131 N. Y. 382; 30 N. E. 240. Section 652 of the Penal Code provides that: "A person who wilfully and without authority or necessity drives any team, vehicle, cattle, sheep, horse, swine or other animal along upon a sidewalk is punishable by a fine of fifty dollars, or imprisonment in the county jail not exceeding thirty days, or both." Shade trees. The statute authorizes abutting owners to set out shade trees without regard to the ownership of the fee. Edsall v. Howell, 86 Hun, 424; 33 N. Y. Supp. 892. But the setting out of shade trees, or the building of a sidewalk is not such an occupation as can be made the foundation of claim to the title of the fee by adverse possession as against the true owner.. Bliss V. Johnson, 94 N. Y. 235. Shade trees belong to the owners of the adjoining land. See Highway Law, sec. 156, post. Any person wilfully injuring such trees is guilty of a, mis- demeanor. Penal Code, sec. 640, sub. 2. Any person who hitches a, horse or other animal to, or near enough to, to injure any shade tree, or who shall cut down or mutilate any such tree is punishable by a fine of not more than ten dollars nor less than one dollar for each tree cut down or mutilated. See L. 1875, ch. 215, as amended by L. 1881, ch. 344; Greene on Highways, p. 51. For form of order of commissioners of highways permitting the con- struction of sidewalks or the planting of shade trees, see Form No. 106, fOlt. Assessment of Highway Labor. 633 Highway Law, §§ 45, 46. manner. Such abatement of highway tax to any person, shall not exceed one- quarter of his annual highway tax in any one year; but such abatement shall be allowed by the overseers of highways, or other officers having charge of the highway, annually, until it shall have equalled the whole number of trees set out, at the rate herein specified. [Highway Law (L. 1890, ch. 568), S 44; Heydecker's Gen. L. {2d ed.) , p. 1318.] ,§ 17. Commissioners of highways to authorize expenditure of labor or money upon sidewalks. The commissioners of highways of any town, may, upon the written appli- cation of a majority of the inhabitants in any highway district, subject to assessment for highway labor therein, authorize not more than one-quarter of the highway labor of the district, or of ■ the commutation money received therefor, to be expended under the direction of the overseer of highways of the district, in the construction, repairs and improvement of any sidewalks within the limits of the district, and may by writing signed by them, filed with the town clerk, authorize not more than one-fourth of the highway labor of the district, to be anticipated for not more than three years, for constructing, improving or repairing any such sidewalk; 33 and thereupon any person or corporation, assessed for highway labor in the district, may, for such purpose, anticipate his or its asseesment for highway labor for the term prescribed by the commissioners, and may perform such labor, under the direction of the overseer, within such time, or commute therefor. The commissioner of highways of any town which has adopted the money system of taxation for improving its highways may with the consent of the town board, expend a portion of the money raised for the maintenance of its highways in maintaining and repairing existing sidewalks in such town. The town board of any such town may on the petition of not less than twenty- five taxpayers of the town, by resolution, direct the commissioner of high- ways to construct a sidewalk along a described portion of any highway of the town, in a manner and not exceeding an expense to be specified in the resolution, and the expense of constructing such sidewalk shall be a town charge, and assessed and levied in the same manner as money raised for the maintenance of highways in such town. [Highway Law (L. 1890, ch. 568), § 45, as amended by L. 1904, ch. 688; Heydecker's Oen. L. {2d ed.), p. 1318.] § 18. Certificate of anticipation on account of labor on side- walks to be issued by overseer of highways. The overseer shall give to such person or corporation, upon the per- formance of such labor or commutation therefor, a certificate signed by him, showing the number of days labor so anticipated and worked, or commuted for by such person or corporation ; H and in each succeeding year, upon presentation of such certificate, 13. Fop form of application to expend highway tax for sidewalk, see Form No. 107, post. And for form of authority to so expend such tax, see Form No. 108, post. 14. For form of certificate showing number of days anticipated and ■worked, see Form No. 109, post. 634 Highways and Beidges. Highway Law, §§ 47, 48. the person or corporation shall be credited and allowed by tiie overseer of highways, with the performance of the number of daya labor assessed for such year, until the credit shall equal the num- ber of days stated in the certificate to have been anticipated, and shall endorse thereon a statement signed by him, showing the credit and allowance. [Highway Law (L. 1890, ch. 568), § 46; Heydecker's Gen. L. (2d ed.), p. 1318.] § 19. Certificate of anticipation may be transferred. Such certificate may be transferred to any grantee, upon a voluntary grant of the real property upon which such highway labor is assessable, and if such real property is transferred other- wise than by voluntary grant, it shall be deemed to have been transferred to the person succeeding thereto, and in the hands of any such transferee, it shall have the same effect as when held by the original owner.'" [Highway Law (L. 1890), ch. 568, § 47; Eyedecker's Gen. L. (2d ed.), p. 1319.] § 20. Commissioners to abate tax on account of watering trough. The commissioners of highways shall annually abate three dol- lars from the highway tax of any inhabitant of a highway district, who shall construct on his own land therein, and keep in repair a watering trough beside the public highway, well supplied with fresh water, the surface of which shall be two or more feet above the level of the ground, and easily accessible for horses with vehicles ; but the number of such watering troughs in the district, and their location, shall be designated by the commissioners." In a town in which the highways are worked or repaired by the money system of taxation, the commissioners of highways shall annually issue to each person to whom such an abatement is al- lowed, a certificate specifying the amount thereof." [Highway Law (L. 1890, ch. 668), § 48, as amended by L. 1897, ch. 227; Heyedcker's Gen. L. (2d ed.), p. 1319.] 15. For form of asslgninent to be endorsed on back of certificate of anticipation in case of transfer, see Form No. 110, post. 16. Abatement of tolls for maintenance of watering trough along toll road. See L. 1869, ch. 131; Greene on Highways, p. 351; Heydecker's Gen. L. (2d ed.), p. 4845. 17. For form of certificate of abatement, see Form No. Ill, post. Assessment of Highway Laboe. 635 Highway Law, §§ 49, 50, 51, 52. § 21. Systems of highway taxation defined. The system of taxation for working and repairing highways, as hereinbefore provided, shall be known as "The Labor System of Taxation," and the system^ hereinafter provided, shall be known as " The Money System of Taxation." [Highwa-y Law (L. 1890, ch. 568), § 49; Heydecker's Gen. L. (2d ed.), p. 1319.] § 22. Town may change its system. Any town may change its systean of taxation for working and repairing itfi highways by complying with the following pro- visions relating thereto. [Highway Law (L. 1890, ch. 568), g 50; Heydecker's Gen. L. (2d ed.), p. 1319.] § 23. Application for a vote to change system ; who shall sign application and vote thereon. Upon the written request of twenty-five taxpayers of any town, the electors thereof may, at a special or biennial town meeting vote by ballot upon the question of changing the system of taxation for working the hghway; but no person residing in an incorporated village or city, exempted from the jurisdic- tion of commissioners of highways of the town, shall sign such request, or vote upon such question.is A town which has adopted the money system of taxation for working and repairing its highways, in pursuance of this Sec- tion, cannot again vote upon the question of changing its system of taxation, until at least four years have elapsed since the money system of taxation was adopted. [Highway Law (L. 1890, ch. 568), § 51, as amended by L. 1895, ch. 386, L. 1900, ch. 25, and L. 1905, ch. 108; Heydecker's Gen. L. (2d ed.), p. 1319.] § 24. When change to take effect. When a town shall have voted to change the system of taxation for working and repairing the highways as herein provided, such change, except in so far as it affects the duties of the town assessors in indicating and placing on the asaessment-roll the property and persons subject to assessment and taxation for the repair of high- ways and of the highway commissioners and town board in deter- mining and certifying the amount of such tax, shall not take effect until the next annual meeting of the board of supervisors, after the town meeting at which it was decided to make the change ; and 18. Submission of proposition. An application for the submission of a proposition to change the system of taxation for working the highways must be filed with the town clerk twenty days before the town meeting. Town Law, sec. 32, ante, p. 208. Notice of the submission of such proposition must be posted at least ten days before such town meeting in at least four of the most public places of the town. Idem. For form of application for the submission of such a proposition, aM Torm No. 112, post. 636 Highways and Bridges. Highway Law, § 53. until STich annual meeting of the board of supervisors tihe former system of repairing highways and of taxation therefor shall remain in force in said town ; provided, however, that when such change shall have been voted at a town meeting held subsequent to the first day of July in any year, it shall not take effect, except as to the duties required to be performed by the town officers specified herein, until the second annual meeting of the board of super- visors next succeeding such town meeting. In each tovrai of West- chester county such, change shall be for a term of not less than five years. [Highway Law (L. 1890, ch. 568), § 52, as amended by L. 1895, ch. 386, and L. 1901, ch. 50 ; Heydecher's Qen. L. (2d ed.), p. 1319.] § 25. Levy of tax under money system; property in villages exempt from taxation for highways; state to pay for benefit of town raising money for highway purposes twenty-five per cent, of amount raised. Any town voting in favor of the money system shall annually raise by tax, to be levied and collected the same as other town taxes, for the repair of the highways, an annual sum of money, which shall be equal to at least one-half the value at the commuta- tion rates, of the highway labor which should be assessable under the labor system, but in any town in which there may be an in- corporated village, which forms a separate road district, and .wherein the roads and streets are maintained at the expense of such village, all property within such village shall be exempt from the levy and collection of such tax for the repair of highways of such town ; and the assessors of such town are hereby required to indicate on the assessment-roll the property included in such in- corporated village, in a column separate from that containing a list of tlie property in the town not included in such village, and shall also place on the assessment-roll the names of all persons liable to poll tax who are not residents of such villagei, and the board of supervisors are directed to levy a tax of one dollar on each person liable to poll tax as thus indicated ; but this act shall not apply to assessments made for damages and charges for laying out or altering any road, or for removing any obstruction caused by snow or preventing any such obstruction, or for erecting or re- pairing any bridge in such town. The amount of such tax shall be determined by the commissioners of highway and the town. Assessment of Highway Laboe. 637 Highway Law, § 53. toard, who shall certify the same to the board of supervisors, the same as any other town charge. The clerk of the board of super- visors of each county containing a town which has voted for the money system shall, on or before the first day of January of each year transmit to the state comptroller a statement certified by him, and signed and verified by the chairman of such board, stat- ing the name of each town so voting, and the amount of money tax levied therein for the repair of highways during the preceding year. The comptroller shall draw his warrant upon the state treasurer in favor of the treasurer of the county in which such town is situated, for an amount equal to fifty per centum of the amount so levied in each town. The county treasurer shall pay the amount so paid to him on account of the money tax levied in any such town to the supervisor of the town, to be used for the repair and permanent improvement of such highways therein. The sum paid by the state to any town, except to to^vns the assessed value of whose real and personal property is less than one million dollars, by virtue of this section shall not exceed, in any one year, one- tenth of one per centum of the taxable property of such town. All moneys collected for the repair and construction of highways in any town under this section and all moneys received from the state as provided herein, shall be paid to the supervisor of the town, who shall be the custodian thereof and shall be accountable there- for. Before receiving any such moneys the supervisor shall give an undertaking to the town in an amount and with such sureties as shall be approved by the town board, conditioned for the faithful disbursement, safe-keeping and accounting for the moneys that may come into his hands under this section. Such undertaking shall be filed in the office of the town clerk. The moneys collected and received under this section shall be paid out by the supervisor upon the order of the highway commissioner for the repair and permanent improvement of the highways of the tovsm, in such manner as the commissioner of highways and the town board may determine and direct." [Highway Law (L. 1890, ch. 568), § 53, as amended hy L. 1898, ch. 351; L. 1902, ch. 156, L. 1903, cW. 228; L. 1904, ch. 183, and 478; Heydecker's Gen L. (2d ed.), p. 1320.J 19. Fuller Law. The amendment to this section by L. 1898, ch. 351, is known as the Fuller Law from the name of its introducer. By that amend- ment state aid at a rate of 25 per cent, of the amount raised for highway purposes, was accorded to all towns adopting the money system of taxation. The rate was increased to 50 per cent, by L. 1902, ch. 156, known as the Plank. 638 Highways and Bridges. Highway Law, § 53b. § 26. State to share expense of maintaining certain county roads. Whenever any county has heretofore oonatruoted, in pursoianoe of thisi chapter, or of any other general or special law, a oounl^ road or roads, without expense to the state, the state shall be liabki to annually oontribute toward the expense of maintaining such road or roads' fifty per centum of the amount appropriated by such county for the maintenance of such road or roads during the pre- ceding year. The clerk of the board of supervisors of a county entitled to a contribution from the state toward the maintenance of its roads under this section shall annually, on or before the first day of January, transmit to the state comptroller a statement certified by him and signed and verified by the chairman of such board, stating the amount appropriated by the board of supervisors of such county for the maintenance of such county road or roads during the preceding year. The comptroller shall draw his war- rant upon the stat-e treasurer in favor of the treasurer of such county, for an amount equal to fifty per centum of the amount so appropriated. Such money shall be applicable to the repair and permanent improvement of such county road or roads, and shall be expended in the same manner as money appropriated by the county for such purpose. The sum paid by the state to any county by virtue of this section shall not exceed in any one year, one-tenth of one per centum of the taxable property of such county. [Highway Law, § 53&, as added by L. 1903, ch. 269.] Act. It will be noticed that the amount to be paid by the state to each town is limited to one-tenth of one per cent, of the taxable property in the town. Exemption of villages. By the above section villages are exempt from any taxes for the maintenance and repair of highways lying outside thereof. But this does not relieve them from assessments made for damages and charges for laying out or altering any road or erecting and repairing a bridge in the town. The section is general, and applies to every case where an incor- porated village within a town may be a separate road district. Thus from a certain class of public charges or expenses connected with the highways the villages are exempt, while to another class they are subject. Bonds issued by a town for the construction and repair of highways and bridges therein would be a charge upon the whole town including the villages within it. Matter of Shafter v. Carrol, 18 App. Div. 390, 392 ; 46 N. Y. Supp. 202. Contracts to be filed. All commissioners of highways in towns which have adopted the money system of taxation are required to file all contracts made by them by and on behalf of the towns, for the construction, care and maintenance of the public highways located therein, within ten days after such contracts are made, in the office of the town clerk. L. 1895, oh. 717, sec. 2; see Greene on Highways, p. 371; Heydecker's Gen. L. (2d ed.), p. 4496. ' Assessment of Highway Laboe. 638a Highway Law, §§ 27, 28. !§' 27. Highway commissioners to report to state engineer; form of accounts to be prescribed by state engineer. Reports ta state engineer. — The supervisor and the highway commissioner or commissioners of every town receiving state aid pursuant to section fifty-three of the highway law, shall annually in the month, of ISTovembeT make a verified report to the state engineer, in form to be prescribed by him, showing the totfol amount of money received during the preceding year for the con- struction or maintenance of highways or bridges or for other highway purposes, indicating the source thereof, together with all expenditures for the improvement, repair and mainttenanoe of highways, for the repair and maintenance of bridges, for the construction of new bridges, for damages and charges in laying out or altering highways, for the removal of obstructions caused by snow, for the purchase of machinery, tools and implements, for highway commissioner's salary or per diem allowance, or for any other highway purpose, and also showing the machinery, tools and implements owned by the town and the districts thereof and the value of the same. The state engineer may also require additional information from any other town officer in such form as he may deem necessary to carry into effect the purposes of tihis section. A c^artified copy of such report shall also be filed hj the supervisor with the clerk of the board of supervisors who shall cause the same to be printed in the annual proceedings of the board of supervisers. The tO'Wn board shall cause a certified copy of the report to be published in a newspaper published in ithe town, or if no newspaper is published in the town, them it may cause such publication in a newspaper published within the county and having the greatest circulation within the town. The expense of such publication, which shall not exceed ten dollars, shall be a town charge. The clerk of the board of supervisors shall transimit three printed copies of the journal of proceedings of the board containing such report to each, the comptroller and state engineer and surveyor. [^Highway Law, § 27, as added hy L. 1906, ch. 363.] Highway accounts. — The state engineer shall prescribe the form of blank to be used by the highway commissioner and supervisor in keeping account of money received and paid out for highway or bridge purposes or other purposes in connection with the high- ways. The state engineer shall also prescribe the form of order to be used by the highway commissioner in giving an order upon the supervisor. The supervisor and highway commissioner shall use such blanks and forms as the state engineer may prescribe, and all such orders and records of accounts shall be filed in the town clerk's office and preserved as a part of the town records. IHighway Law, § 28, as added hy L. 1906, ch. 363.] County Koad System. 639| Highway Law, § 54. CHAPTER XLVII, COUNTY EOAD SYSTEM; COUNTY SUPEEVISION. Section 1. Board of supervisors may adopt county road system; designa- tion and map to be filed with county clerk. 2. County engineer to be appointed by board of supervisors. 2a. Highways, survey and classification of. 2b. Maintenance of improved highways. 2c. Rules, etc., for repairs on same. 2d. When state engineer and surveyor may refuse to cause further improvement. 3. Expense of constructing and maintaining county roads a county charge; money therefor, how raised. 4. Bonds may be issued for construction of county roads. 6. County roads exempt from jurisdiction of town highway officers ; money system in towns of county adopting county road system. 6. Application of proceeds of bonds. 7. Adoption of article 8, relating to county supervision of highways. 8. County engineer and deputy in counties adopting such article; period of emploj'ment and salary. 9. Duties of county engineer; supervision of highways. 10. Contracts for the construction of highways in such counties; plans and specifications. 11. Construction and repair of bridges. 12. Examination of bridges by county engineer. 13. Issue of town bonds for the erection of bridges. 14. Reports of commissioners of highways to county engineer. 15. Report of county engineer to board of supervisors. 16. Adoption of resolution to return to former system. § I. Board of supervisors may adopt county road system; designation and map to be filed with county clerk. The board of supcTvisors of any coainty may, by a vote of a ma- jority of the members thereof, by resolution, adopt the county road system, and shall as soon as practicable after the adoption of sucb resolution, cause to be designated as county roads, such portions of the public highways in such county as they shall deem advisa- ble, outside of the limits of any city in such county, and shall cause such designation and a map of such county roads to be filed in the clerk's office of such county; the roads so designated shall, so far as practicable, be leading market roads in such county. [Highway Law (L. 1890, ch. 568), § 54, as added hy L. 1893, ch. 333, and amended hy L. 1895, ch. 375; Heydecker's G&ih, L. (2d ed.), p. 1321.J 640 Highways and Beidges. Highway Law, §§ 55, 55a. § 2. County engineer to be appointed by board of supervisors; powers and duties. The board of supervisors of any county may appoint a county engineer, who shall he removal at its pleasure. The term of office of each county engineer so appointed shall be three years, unless sooner removed, and his salary shall be fixed by the board of super- visors and be a county charge. The county engineer shall visit and examine the highways in each town of the county and advise and direct the commissioners of highways how to best repair, maintain and improve the same. After such examination the county engineer shall establish such grades and indicate such means of drainage, repairs and improvements as seems to him to be necessary. The county engineer shall forward to the state engineer and surveyor and to the clerk of the board of supervisors of the county at such times as shall be fixed by the state engineer and surveyor, his report of the conditions of the highways in each town of the county. He shall carefully inspect the highways in the county which have been improved pursuant to the provisions of chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, and shall furnish a detailed report showing the required repairs and the estimated cost thereof to the state engi- neeir and surveyor at such times as shall be fixed by the state engi- neer and surveyor. The work of repairing, improving or erecting bridges in any town of such county shall be done under the general supervision of the county engineer pursuant to plans prepared or approved by him. A county superintendent of highways may be appointed in any county by the board of supervisors instead of a county engineer and when so appointed, he shall have all the powers and perform all the duties herein prescribed for a county engineer. ^Highway Law (L. 1890, ch. 568), § 55, as added by L. 1893, ch. 333, and amended by L. 1901, ch. 239, L. 1902, ch. 52, and L. 1904, ch. 609.] § 2a. Highways, survey and classification of. The board of supervisors of any county may cause the highways of the county to be surveyed and designated upon a map in two classes: First, those which have been improved under the pro- visions of chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, and the acts amendatory thereof, or are deemed to be of sufficient public importance to come vsdthin the purposes of that chapter ; second, all other highways of the county which may, however, be further classified by such board of super- visors if deemed of sufficiently different degrees of relative im- portance for common traffic and travel. Such survey and map shall be made by the county engineer, if there be one, and copies thereof shall be filed in the office of the state engineer and sur- Highways and Beidqes. 640a Highway Law, §§ 55b, 55c. veyor, the county clerk of the county, and of each town clerk there- of. Ke-surveys and amended maps may be similarly made and filed. [Highway Law (L. 1890, ch. 568), §55a, added by L. 1904, ch. 609.] § 2b. Maintenance of improved highways. All highways which have been, or shall hereafter be improved pursuant to the provisions of such chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, shall be main- tained by the commissioners of highways of the town or towns, where the same are located in accordance with such directions as shall be given for such maintenance by the state engineer and sur- veyor and such plans, specifications, rules and regulations in addi- tion thereto as may be prescribed therefor by the county engineer, if there be one, and approved by the state engineer and surveyor ; so far as practicable, such improved highways shall be maintained by contract. If any of the commissioners of highways shall fail or neglect to properly provide for the care and maintenance of such improved highways within such time and in such manner as may be prescribed, the county engineer, if there be one, may cause the same to be performed and the expense thereof shall be paid by the county treasurer out of any funds in his possession not otherwise appropriated, upon whom such county engineer shall make a draft therefor and the amount thereof shall be included by the board of supervisors of such county in its next annual tax levy as a county charge, unJess the saane be apportioned upon the town or towns wbich. such board deems benefited thereby, in which case it shall be included in the tax so levied upon the town or town to which it shall be apportioned. Nothing herein shall be deemed to limit the powers of tlie state engineer or surveyor over any such roads. The board of supervisors of any county, may, by a resolution duly passed, determine that the maintenance of such improved highways or any other highways within the county shall be under the sole control and care of the county engineer, subject to the rides and regulations of the state engineer and surveyor, and upon the adop- tion of siuch plan by the board of supervisors, the expense of said maintenance shall be paid by the county treasurer upon the draft of the county engineer therefor, and the same shall be levied as a county or town charges as above provided. \Hiqhway Law {L. 1890, ch. 568), § r,5b, added hy L. 1904, ch. 609.] § 20. Rules, etc., for repairs on same. Commissioners of highways in the several towns of this state, within which any highways have been improved, or may hereafter be improved pursuant to the provisions of such chapter one hun- dred and fifteen of the laws of ei'^hteen hundred and ninety-eight or which have adopted or may hereafter odopt the money systerQ 640b County Koad System. Highway Law, §§ 55d, 56. of highway taxes pursuant to sections fifty, fifty-one, fifty-two and fifty-three of the Highway Law, shall comply with the directions of the state engineer and surveyor, and the plans, specifications, riiles and regulations in addition thereto of the county engineer, if there be one, when approved by the state engineer and surveyor, for the repair and maintenance of the highways thereof, and the state engineer and surveyor may by notice to the comptroller, cause him to withhold from any town the moneys otherwise due from the state under said section fifty-three in which the highway com- missioners shall have failed to comply with this section. \_HigTi- way Law (L. 1890, ch. 568), § 55c, added hy L. 1904, ch. 609.] § 2d. When state engineer .and surveyor may refuse to cause further improvement. The state engineer and surveyor may also refuse to cause the improvement of any further highways pursuant to said chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, in any county until the board of supervisors of such county has duly appointed a county engineer, whenever he deems it necessary for the proper care and maintenance of such highways and may also in any county containing towns which have adopted the money system of highway taxes, in which county the whole moneys collected and received pursuant to said section fifty-three exceed ten thousand dollars, by notice to the comptroller cause him to withhold from the towns in such county which may have adopted such money system of highway taxes, the moneys otherwise due from the state under said section fifty-three until the board of supervisors of such county has duly appointed a county engineer, whenever he likewise deems it necessary for the proper repair and maintenance of the highways of the town. [Highway Law (L. 1890, ch. 568), § 55d, added hy L. 1904, oh. 609.] § 3. Expense of constructing and maintaining county roads a county charge; money therefor, how raised. The expense of improving, repairing and maintaining the county roads of each county, shall be a county charge, and in any county in which during the past five years, there has been expended at least the sum of five hundred thou- sand dollars for macadamizing purposes, the expense of constructing, improv- ing, maintaining and repairing such county roads, shall be annually appor- tioned by the board of supervisors of the county, upon the various towns and cities within the county, as the said board may deem just. The money neces- sary to improve and maintain the county roads or to pay the principal and interest of any bonds issued as provided in the next section, shall be levied and collected at the same time and in the same manner as money for other county charges is levied and collected. The board of supervisors shall desig- nate the amount of money to be expended upon each county road, and may make rules and regulations for the government of the county engineer and regulating the expenditure of such money. [Highway Law (L. 1890, ch. 568), § 56, as «.dded by L. 1893, oh. 333, and amended by L. 1895, ch. 375; Heydeck- er'a Oen. L. (8d ed.Q, p. 1322. County Road System. 641 Highway Law, §§ 57, 58, 59a. § 4. Bonds may be issued for construction of county roads. Tlie board of supervisors of such county may borrow money from time to time for the construction, maintenance and repair o£ the county roads in such county, and except in cities and incorpo- rated villages for the building and maintenance of sidewalks at such places as the board may direct, provided, however, that wheret- ever any property owner petitions the board for the building of a sidewalk in front of his premises, and such property owner shall pay one-half of the cost of said improvement, it shall be the duty of the board to build such sidewalk in such manner as such board may deem best, and may issue the bonds or other evidences of indebted- ness of the county Iherefor; but such bonds or other evidences of indebtedness shall not bear a rate of interest exceeding five per cen- tum per annum, and shall not be for a longer term than twenty years, and shall not bo sold for less than par. [Highway Law (L. 1890, ch. 568), § 57, as added hy L. ISO.'',, ch. 3.3^, and amended by L. 1904, ch. 646; Heydecker's Gen. L. {2d ed.), p. 1322.] § 5. County roads exempt from jurisdiction of town highway ofScers ; money system in towns of county adopting county road system. The county roads in any county shall be exclusively under the jurisdiction of the board of supervisors and the county engineer of the county, and exempt, from the jurisdiction of the highway officers or officers performing the duty of highway commissioners of the several towns and villages in which such county roads are located. The system of taxation for working and repairing the highways other than the county roads in a town in a, county in which the county road system is adopted, shall be the money system of taxation, provided, however, that in the county of Queens, the system, as now provided by s.pecial act shall be continued. [High- way Law (L. 1890, ch. 568), § 58, as added by L. 1893, ch. 333, an damended by L. 1895, ch. 375 ; Heydecker's Gen. L. {2d ed.), p. 1322.] § 6. Application of proceeds of bonds. If the proceeds of any county bonds issued for the construction of certain specified highways shall exceed the amount necessary for the cons.truction of said highways, the board of supervisors may, in their discretion, apply such excess or any part thereof to ■the construction and improvement of other roads already adopted into the county road system ; or to the maintenance of the roads for the construction of which said bonds were issued ; or to the pay- ment of interest or principal, or both, of said bonds. [Highway Law {L. 1890, ch. 568), § 59a, as added by L. 1898, ch. 641; Heydecker's Gen. L. {2d ed.), p. 1323.] 642 Highways and Bridges. Highway Law, §§ 180, 181, 182. § 7. Adoption of article 8, relating to county supervision of highways. Tlie board of supervisors of any county may, by resolutioo duly passed at an annual or special meeting thereof, adopt the proviso ions of this article (art. 8 of the Highway Law). No part hereof shall be in force or effect in any county, unless such resolution is adopted. [Highway Law (L. 1890, ch. 568), § ISO, as added hy L. 1902, ch. 396.] § 8. County engineer and deputy in counties adopting such article ; period of employment and salary. There may be a county engineer in every such county who shall be appointed by the board of supervisors thereof in the manner provided by section fifty-five of the Highway Law ; and all the pro- visions of such section, and of any other act relating to the ofiice of county engineer, shall apply to the county engineer appointed hereundoi:. The board of supervisors may in its discretion appoint a deputy who shall assist such county engineer in the performance of his duties. The county engineer shall give his entire time and attention to' the construction and improvement of highways and bridges in the county, for such portion of the year as the local conditions shall permit of operations, which period shall be fixed by the board of supervisors at the time the appointment is made, and the salary fixed by such board shall be regulated according to the period of time during which such engineer and his deputy will be so employed. [Highway Law (L. 1890, ch. 568), § 181, as added by L. 1902, ch. 396.] § 9. Duties of county engineer; supervision of highways. The county engineer shall personally examine the various for- mations and deposits of gravel and stone in his county, for the purpose of asceTtaining the materials which are best available for the improvement of the highways therein. He shall obtain from the state engineer and surveyor copies of the specifications and rules and regulations prescribed by him for the improvement and maintenance of highways under statutes provided therefor. The county engineer and the oommissioners of highways shall comply with such rules and regulations in all cases where they are suited to local conditions, and to the amount of money which is available in the several towns for highway purposes. The county engineeir shall, when called upon by the commissioner of highways of any County Road System. 643 Highway Law, § 183. town in. the oounty, visit and examine suoli highways as the oom- missioner may indicate as needing improvement. After such ex- amination the oounty engineer shall, in oonsultation with the com- missioner of such town, establish grades and give such lines and in- dicate such means of drainage and methods of improvemeait as seem to him best suited to the local conditions and the funds available for such improvement. He shall visit the highways which are being improved or constructed, and give such further directions and establish such further lines and grades as are needed for the successful completion of the work. The county en- gineer shall supervise and direct the maintenance of all highways which have been constructed and improved by state aid, pursuant to the provisions of chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, and the acts amendatory thereof, in accordance with directions which shall be given for such maintenance by the state engineer and surveyor, and such rules and regulations as may be prescribed therefor. [Highway Law (L. 1890, ch. 568), § 182, as added by L. 1902, ch. 396.] § 10. Contracts for the construction of highways in such counties; plans and specifications. The town board in any town of such oounty which has adopted the money system, upon the recommendation of the county engi- neer, may provide that the construction of new highways, or the permanent improvement or reconstruction of existing highways shall be done under contracts. All such contracts shall be awarded in accordance with plans and specifications to be furnished by the county engineer to the lowest responsible bidders, after advertise- ment once a week for three consecutive weeks in a. newspaper pub- lished in the town where the work is to be performed or, if no newspaper is published therein, in a newspaper published at some other place in the county nearest to such town. All bids for such work shall be opened in public and shall be filed in the office of the town clerk. No such contract shall be awarded, unless it be ap- proved by the county engineer as to its form and sufficiency. The person to whom such contract is awarded shall execute a bond to the town in a sum equal to the amount of the contract, with two or more sureties to be approved by the town board, conditioned for the faithful compliance with the terms of the contract and the plans and specifications, and for a payment of all damages which may accrue to the town because of a violation thereof. When 644 Highways and Bridges. Highway Law, §§ 184, 185, 186. Buch work is completed pursuant to tlie terms of such comtract and the plana and specifications therefor, and accepted by the county eaigineer and town board as being in accordance therewith, the cost of the work under the contract shall be paid in the same man- ner as other town charges. No money shall be paid under' such contract, unless a certificate has been issued to the contractor by the county engineer to the effect that the Work has been done under and in accordance with the terms of such contract and the plans and specifications. All work under any such contract shall be under the supervision of the county engineer or some person desig- nated by him. {Highway Law (L. 1890, ch. 668), § 183, as added by L. 1902, ch. 396.] § II. Construction and repair of bridges. The work of repairing, improving or erecting bridges in such county shall be done under the general supervision of the county engineer, pursuant to plans prepared by him. The town, board may, on the recommendation of the county engineer, provide for the performance of such work by contract, awarded as prescribed in the preceding section. The provisions of the preceding section relating to contracts and payments thereunder shall apply to con- tracts awarded under this section. [Highway Law {L, 1880, ch. 568), § 184, as added by L. 1902, ch. 396.] § 12. Examination of bridges by county engineer. The county engineer shall examine all bridges in his county hav- ing a span of more than twenty feet, at least once in each year and shall report the condition thereof and make such suggestions and recommendations in respect thereto as he may deem necessary, to the town board, if such bridge is wholly maintained by a to'wn, and if not, to the board of supervisors of his county. [Highway Law (L. 1890, ch. 568), § 185, as added by L. 1902, ch. 396.] § 13. Issue of town bonds for the erection of bridges. No town in any such county shall issue bonds for the erection or reconstruction! of a bridge for more than one thousand dollars, unless a proposition therefor has been submitted and adopted as provided, by law, at a biennial or special town meeting duly called therefor, and in no event shall the board of supervisors or town board authorize the issue of bonds, unless such a proposition has County Road System. 645 Highway Law, §§ 187, 188. "been adopted. [Highway Law (L. 1890, ch. 568), § 186, as added hy L. 1902, ch. 396.J § 14. Reports of commissioners of highways to county engineer. The commissioner of highways in each town in any such county shall on or hefore the first day of ISTovember in each year, or at such other times as the board of super\'isors of such county may direct, make a written report to the county engineer stating the condition of the highways and bridges in his town and the amount expended thereon under contracts or otherwise during the preced- ing year, and such other facts in relation tO' such highways and bridges as may be required by the county engineer. The form of such report shall be prescribed by the county engineer. A copy of such report shall be filed in the office of the town clerk. [Iligh- way Law (L. 1890, ch. 568), § 187, as added by L. 1902, ch. 396.J § 15. Report of county engineer to board of supervisors. The county engineer shall report, to the board of supervisors at its annual session : 1. The condition of the highways in the several tovims of his county. 2. The amount expended by the several towns under contraots for the construction and improvement of highways. 3. The amount raised in each tovsm for general highway pur- poses, and generally the manner in which the amount so raised has been expended. 4. The condition of the bridges in the several towns of his county, and the amount expended thereon under contracts ap- proved by him. 5. Suggestions and recommendations as to methods of highway construction and repairs, which will best promote the permanent improvement and better condition of the highways in his county. 6. Such other matters in connection with the highways and bridges of his county as may seem to him of importance. The board of supervisors may require a further report or othei- information concerning the highways and bridges of such county, [Highway Lam) (L. 1890, ch. 568), § 188, as added by L. 1902, ch. 396.] 646 Highways and Beidges. Highway Law, § 189. § 1 6. Adoption of resolution to return to former system. At any time after the expiration of five years from the passage of a resolution adopting the provisions of this article (art. 8 of Highway Law), a resolution may be passed by such board of supervisors at its annual meeting to return to the former system of controlling and regulating the affairs of the towns of such county, relating to highways and bridges. Upon the adoption of such resolution the office of county engineer shall be abolished, and the provisions of the Highway Law and all other statutes re- lating to highways and bridges shall be applicable to the high- ways and bridges of such county as if the board of supervisora thereof had not adopted the provisions of this article. [Highweuif Imv (L. 1890, ch. 568), § 189, as added hy L. 1902, ch. 396.] Peeeoemance of Highway Laboj^ 647 Highway Law, § 60. CHAPTER XLVIII. PBBFOEMANCE OF HIGHWAY LABOR; DUTIES OF OVBESEEES ; ABATB- MENT OF TAX. SkgzioH 1. Overseers to give residents notice to work; notice to corpora- tions, how served. 2. Overseers to give notice to agents of nonresidents; when notice to be filed in office of town clerk. 3. Commutation at rate of one dollar per day; corporations to pay commutation money to highway commissioners. 4. Teams and implements overseer may require; credit therefor. 6. Persons assessed may furnish substitute; day's labor. 6. Penalties for neglect or failure to work or commute; for idle- ness or faithlessness ; recovery of penalties ; overseer may excuse omission. 7. Overseer to return list of persons who have not worked or com- muted for highway taxes; commissioner to present lists to town board; town board to certify unperformed labor to board of supervisors. 8. Penalty for failure of overseer to present list. 9. Board of supervisors to levy arrearages for highway labor; collection thereof. 10. Overseer to render account to commissioners; contents; p(^y- ment of unexpended moneys; penalty for failure. 11. Noxious weeds, briers and brush in highways; penalties. 12. Overseers to notify occupants to remove weeds, brush and briers; effect of failure ; commissioners to certify statement of amount expended to supervisors. 13. Duty of highway commissioners in towns adopting money system relating to noxious weeds. 14. Highways on the division lines of a town or village or city; allotment of portion to be worked by each. 16. Highway tax may be abated for removal of fence to prevent snow drifts. 16. Overseer may allow abatement of highway tax for erection and maintenance of street lamps. 17. Rebate of tax for using wagon tires of the width of four inches; afSdavit. § I. Overseers to give residents notice to work; notice to cor- porations, how served. Every overseer of highways shall give at leas.t twenty-four hours' notice to all residents of his disitrict, and oorporationa as- sessed to work upon the highways therein, of the time and place 648 Highways and Bridges. Highway Law, § 61. at "whiicih ihesy are to appear for tihat purpose, and witih what teams and implements, and that they will be. allowed at the rate of one day for every eight hours of work on the highways; between seven o'clodc in the forenoon and siix o'clock in the afternoon.' The notice to corporations shall be served personally on an agent thereof residing in the town, if any, or if none, by filing the notice in the office of the town clerk, at least five days before the labor shall be required ; and any number of days not exceeding fifty, may be required to be performed by any such corporation in any one day.' [Highway Law (L. 1890, ch. 68), § 60; Heydecker's Gen. L. (2d ed.), p. 1323.] § 2. Overseers to give notice to agents of nonresidents ; when notice to be filed in office of town clerk. Every overseer of highways shall give at least five days' notice to every resident agent of every non-resident landholder, whose lands are assessed, of the number of days such non-resident is aS' sessed, and the time and place at which the labor is to be per- formed.' If the overseer cannot aaeertain that snch non-resident has an agent within the town, he shall file a written notice' in the office of the town clerk, at least tweoity days before the time ap- pointed for performing such labor, containing the names of such non-reaidentS', when known, and a description of the lands assessed, with the number of days' labor assessed on each tract, and the time and place at which the labor is to be performed. [Highway Law (L. 1890, ch. 568), § 61 ; Heydecker's Gen. L. {2d ed.), p. 132-4.J 1. Assessment lists are required to be prepared by the town clerk for the use of the several overseers of highways in the town. Highway Law, sec. 34, ant6, p. 628. 'Warning to work. Commissioners must require overseers to warn persons and corporations assessed for highway labor to come and work on the highways. Highway Law, sec. 4, sub. 6, ante, p. 597. 2. Notice to individual residents need not be in writing. For form of notice to be given to an agent of a corporation or to be filed in the ofBce of the town clerk, see Form No. 113, post. 3. Notice to agent of nonresident. This section makes it the duty to give a special notice to the resident agent of every nonresident land holder within the highwavy district provided such land holder has such an agent within the town. Chamberlain v. Taylor, 36 Hun, 24. 4. For form of notice to agent of nonresident, if residing in the town, see Form No. 114, post; for form of notice to nonresidents to be filed in the office of the town clerk, see Form No. 115, post. Pekfoemance of Highway Labok. 649 Highway Law, § 62. § 3. Commutation at rate of one dollar per day ; corporations to pay commutation money to highway commissioners. Every person and corporation shall work the whole number of days for which he or it shall have been assessed, except such days as shall be commuted for, at the rate of one dollar per day and such commutation money shall be paid to the overseers of high- ways of the district in which the labor shall be assessed, within at least twenty-four hours before the time, when the person or cor- poration is required to appear and work on the highways f but any corporation must pay its commutation money on or before the first day of June in each year to the commisisioner or commissioners of highways of the town in which the labor shall be assessed, and such commutation money shall be expended by the commis^ sioner or commissioners of highways upon the roads and bridges of the town as may be directed by the town board except that in the coimties of Albany, Dutchess, Fulton, Hamilton, Greene, Herki- mer, Lewis, Montgomery, Putnam, Richmond, Rockland, Scho- harie, Suffolk, Tompkins, Ulster, Westchester and Yates, the com- missioner or commissioners shall pay the same to the overseers of the districts, respectively, in which the labor commuted for was assessed.' [Highway Laiu (L. 1890, ch. 568), § 62, as amended ly L. 1895, ch. 579, L. 1896, ch. 973, L. 1897, ch. 334, L. 1899, ch. 345, L. 1900, ch. 153, L. 1902, ch. 105, L. 1903, ch. 27, and L. 1904, ch. 495; Heydecker's Gen. L. {2d ed.), p. 1324.] 5. Highway taxes in towns which have not adopted the money system may be either worked out or paid in money at the commutation rate speci- fied in the above section. See Highway Law, sec. 33, ante, p. 625. 6. Payment of high-way taxes by corporations. The intent of the above section is to require corporations assessed for highway labor to pay commutation to the commissioners of highways, and such commissioners are required to distribute the amount so paid to the several districts in which the assessment for highway labor is made. See Fowler v. Westervelt, 40 Barb. 374. But in the counties mentioned in the above section the commu- tation money of corporations is to be paid to the commissioners, to be ex- pended by them for the construction of highways and bridges in the town generally, without regard to the district in which the corporation is as- Bessed. 650 Highways and Bkidges. Highway Law, §§ 63, 64, 65. § 4. Teams and implements overseer may require; credit therefor. Every overseer of highways may require a team, or a cart, wagon or plow, with a pair of horses or oxen, and a man to manage them, from any person having the same within his district, who shall have been assessed three days or more, and who shall not have commuted for his assessment ; and the person furnishing the same upon such requisition, shall be entitled to a credit of three daya for each day's service therewith. [Highway Law {L. 1890, ch. 568), § 63; Heydecker's Gen. L. {2d ed.), p. 1325.] § 5. Persons assessed may furnish substitute; day's labor. Every person or corporation assessed to work on the highways,, and warned, who does not commute therefor, may appear in per- son or by an able bodied man as a substitute. A day's labor shall be eight hours of work, and every person or corporation assessed more than one day shall be allowed to work ten hours in each day. [Highway Law (L. 1890, ch, 568), § 64; Heydecker's Oen. L. (2d ed.), p. 1325.J § 6. Penalties for neglect or failure to work or commute; for idleness or faithlessness; recovery of penalties; overseer may excuse omission. Every person or corporation assessed highway labor, who shall not commute, and who shall not appear and work when duly noti- fied, shall be liable to a penalty of one dollar and fifty cents for every day he shall so fail tO' appear and work; and for wholly omitting to comply with any requisition to furnish a team, cart, wagon, implements and man, he shall be liable to a penalty of five dollars for each day's omission, and for omitting to furnish either a cart, wagon, plow, team or man to manage the team, he ahall be liable to a penalty of one dollar and fifty cents for each day's omission; and if any person shall after appearing, remain idle, or not work faithfully, or hinder othersi from working, he shall be liable to a penalty at the rate of one dollar and fifty cents a day, for each hour. In those towns in which the money system of taxation has been adopted, any person who is taxed a poll tax for highway purposes as provided in section fifty-three of this chapter, and who does not pay such tax in the manner and at the time, prescribed by law, shall be liable to a penalty of five dollars. The penalties herein imposed, may be recovered by action by the Peeformance of Highway Labob. 651 Highway Law, § 66. overseer of highways as such, or by the highway commissioner in those towns having no such overseers, and, when collected, shall be expended and dispoeed of by the overseer or commissioner in the same manner as commutation moneys.' The penalties, when recovered, shall be applied in satisfaction of the labor assessed, for omission to perform which, the penalties were respectively imposed. The overseer of highways may excuse any omission to perform labor when required, if a satisfactory reason shall be given therefor; but the acceptance of any such excuse shall not exempt the person excused from commuting for, or working the whole number of days for which he shall have been assessed during the year. {^Highway Law (L. 1890, ch. 568), § 65, as amended by L. 1902, ch. 242; Heydecker's Gen. L. (2d ed.), p. 1325. j § 7. Overseer to return list of persons who have not worked or commuted for highway taxes; commissioner to present lists to town board ; town board to certify unperformed labor to board of supervisors. Every overseer of highways shall on or before September first of each year, or at such otlier time as the board of supervisors may by resolution prescribe, make out and deliver to the oommissioner of highways of his town, a list of all persons and corporations who have not worked out, or commuted for their highway assessment, with the number of days not worked or commuted for by each, charging for each day in such a list, at the rate of one dollar and fifty cents per day ; and also a list of all the lands of non-residenta- and persons unknown, which were assessed on his wan-ant by the commissioners of highways, or added by him, on which the labor assessed has not been performed or conamuted for, and the number of days' labor unpaid by each, charging for the same at the rate of 7. Action to recover penalty. The above section prescribes a penalty for a failure upon the part of a. person or corporation to appear and work out his highway tax when duly notified by the overseers so to do. In town& where overseers are appointed, the action for the penalty must be brought by an overseer. If it be shown that the plaintiff in such an action is not an overseer, the defect is jurisdictional and no recovery can be had. Walker v. Uoseley,, 5 Den. 102. If an assessment of highway taxes has been duly made- by a highway commiBsioner an action will not lie against an overseer for money received by him pursuant to such assessment upon the ground that the commissioner exceeded his authority in making the assessment. Potter «. Benniss, 1 Johns. 515; and, see, also. Freeman v. Cornwall, 10 Johns. 470. 652 Highways and Beidges. Highway Law, §§ 67, 68. one dollar and fifty cents per day, which list shall be accompanied by the affidavit of the overseer, that he has given the notice re- quired, to appear and work, and that the labor specified in the list returned has not been perfo'rmed or commuted, and it shall be the duty of the commissioner of highways to collect and present such liste to the town board of his town at the meeting held on the Thurs- day next preceding the annual meeting of the board of supervisors.' The town board shall ceirtify the amount of unpaid taxes so re- turned to them by the commissioner of highways to the board of supervisors. [Highway Law (L. 1890, ch. 568), § 66, as amended bij L. 1898, ch. 350, L. 1901, ch. 437, and L. 1902, ch. 75 ; Hey- decher's Gen. L. (2d ed.), p. 1326.] § 8. Penalty for failure of overseer to present list. If any overseer shall refuse or neglect to deliver such list to the commissioners of highways, or to make the affidavits herein di- rected, he shall for every such offense, forfeit the sum of ten dol- lars and the amount of taxes for labor remaining unpaid, at the rate of one dollar for each day assessed. The commissioner of highways shall, in case of such refusal or neglec-t, recover such penalty and apply the amount recovered in making and improving the highways and bridges of the delinquent overseer's district. [Highway Law (L. 1890, ch. 568), § 67, as amended by L. 1898, ch. 350; Heydecker's Gen. L. (2d ed.), p. 1326. J § g. Board of supervisors to levy .arrearages for highway labor; collection thereof. Each board of supervisors, at its annual meeting in each year, shall cause the amount of such arrearages for highway labor re- turned to them, estimating each day's labor at one dollar and fifty cents a day, to be levied and collected from the real or personal estate of the person, corporation, or from the non-resident real estate, specified in such list, to be collected by the collectors of the several towns, in the same manner that other town taxes are col- lected, and shall order the same, when collected, to be paid over to the commiseioners of highways of the town wherein the same is col- lected, to be by them applied toward the construction, repairs and improvement of the highways and bridges in the district in which 8. For form of overseer's return of highway taxes which have not beett worked out or commuted for, see Form No. 116, post. Peefoemancb of Highway Laboe. 653 Highway Law, § 69. the labor was originally assessed." [Highway Law (L. 1890, ch. 568), § 68; Heydecker's Gen. L. {2d ed.), p. 1326.J § 10. Overseer to render account to commissioners; contents; payment of unexpended moneys ; penalty for failure. Ever)' overseer of highways shall, on the second Tuesday next preceding the time of holding the annual town meeting in his town,'" within the year for which he is elected or appointed, render to one of the commissioners of highways of the town, an account in -writing, verified by his oath, and containing, 1. The names of all persons assessed to work on the highways in the district of which he is overseer. 2. The names of all those who have actually worked on the highways, with the number of days they have so worked. 3. The names of all those from whom penalties have been col- lected, and the amounts thereof. 4. The names of all those who have commuted, and the manner 9. Arrearages for highway taxes. It is the duty of the board of Bupervisors to cause the amount of arrearages of highway labor, estimating a day's labor at $1.50, to be levied and collected from the property of the person or corporation or from the nonresident real estate specified in the lists returned by the several overseers. The amount so levied is to be col- lected in the same manner as other town taxes. See Chamberlain v. Taylor, 36 Hun, 24. The returns of the overseers do not become the rolls upon which the board of supervisors attach their warrants, for in that case it would require as many rolls as there are road districts in each town, but the supervisors are to include in the tax rolls of each town the amount of arrear- ages returned by the overseers. Idem. No provision is contained in the Highway Law regarding the manner in which an unpaid highway tax on nonresident real property shall be included in the assessment-roll; and it is probable that the provisions of section 21 of the Tax Law relating to the manner in which taxable property shall be designated have no application to such a tax. Bennelt v. Robinson, 42 App. Div. 412, 414; 59 N. Y. Supp. 197. 10. Time of rendering account. The above section requires overseers to render an account to the commissioners on the second Tuesday preceding the time of holding the annual town meeting. Town meetings are now held biennially. Overseers are appointed on the fifteenth day of April of each year. See Highway Law, sec. 4, sub. 5. It is somewhat questionable there- fore as to just when overseers are now required to render such accounts. It •would seem the better policy in view of the provision requiring the appoint- ment of overseers at o. certain time in each year (see Highway Law, sec. 4, sub. 5, ante, p. 597), that the account required by the above section should be rendered prior to the expiration of the overseer's term of oflBce. 654 Highways and Bkidges. Highway Law, § 70. in which the moneys arising from penalties and oommutationa have been expended by him. 5. A list of all persons whose names he has returned to the supervisor as having neglected or refused to work out their high- way assessments, with the number of days and the amount of tax so returned for each person, and a lisit of all the lands whidi he has returned to the supervisor for nonpayment of taxes, and the amount of tax on each tract of land so returned ; and he shall then and there pay to the commissdoners' of highwiays, all money remain- ing in his hands unexpended, to be applied by them in making and improving the highways and bridges of the town, in such man- ner as they shall direct ; and if he shall neglect or refuse to render such account, or if, having rendered the same, he shall refuse or neglect to pay any balance which then may be due from him, he Bhall for every such offense, forfeit the sum of ten dollars." IHighimy Law (L. 1890, ch. 568), § 69 ', Heydecker's Gen. L. (2d ed.), p. 1327.] § 11. Noxious weeds, briers and brush in highways; penalties. Every person or oorporation, owning or occupying, under a lease for one or more years, any lands, abutting upon any hi^- way, shall cause all noxious weeds, briers, and brush growing upon such lands within the bounds of the highway, to be cut or def- stroyed between the fifteenth day of June and the first day of July, and between the fifteenth day of August and the first day of September, in each and every year; but boards of supervisors may fix a different period or periods, for such cutting or destruc- tion in their respective counties. No person shall place or cause to be placed, any noxious weeds, or the seeds of such weeds, within the bounds of any public highway. Any willful violation of this section, shall subject the person or corporation so offending to a penalty of ten dollars for each offense." ([Highway Law {L. 11. Fop form of annual account of overseers of highways, see Form No. 117, post. 12. Nozioas creeds. The electors at town meetings may adopt regula- tions providing for the destruction of noxious weeds in highways. See Town Law, sec. 22, sub. 5. And boards of supervisors may direct the destruction of noxious weeds. County Law, sec. 12, sub. 7. By sec. 20, sub. 3, of the Highway Law, it is made the duty of each overseer of highways to cause noxious weeds within the bounds of the highway within his district to be cut down or destroyed twice in each year. See notes under that section, ante p. 618. Pbefobmance of Highway Laboe. 655 Highway Law, §§ 71, 53a. 1890, ch. 568), § 70, as amended by L. 1899, ch. 681 ■*Eeydecker's Gen. L. {U ed.), p. 1327.] § 12. Overseers to notify occupants to remove .weeds, brush and briers; effect of failure; commissioners to certify statement of amount expended to supervisors. The overseers of every highway district, or if there be no such overseers, the commissioner of highways shall give written notice to any owner or occupant of the premises to cut all weeds, briers and brush growing within the bounds of the highway," and to re- move all fences, shrubbery, or other obstruction causing snow to drift in and upon said highways. If the owner of such lands is a non-resident, such notice shall be served personally upon the agent of such non-resident owner residing in the town, or if there be no such agent known to the commissioner or overseer of highways, such notice shall be sent by mail to the last known address of such non-resident owner, and a copy thereof shall be filed in the office of the town clerk of the town where the property is situated. If such owner or occupant shall not cut such weeds, briers and brush and remove such fences, shrubbery or other obstructions as so required within ten days after receiving such notice, or within ten days after such notice shall have been served or filed as herein provided, such overseer or commissioner of highways shall do such work, and make a report under oath to the supervisor of the town of the amount expended by him thereon, and the ownership and occupancy of the several parcels of land against which the labor was performed, on or before the first day of November in each year;^* such supervisors shall certify these statements to the board of supervisors at its next annual meeting, and such board shall in- clude the amounts included in such statements in the taxes assessed upon the lands, upon or against which the labor was performed, the same to be collected with the other taxes, and paid over upon the order of the supervisor to the parties entitled thereto. {^High- way Law (L. 1890, ch. 568), § 71, as amended by L. 1899, cU. 681, and L. 1904, ch. 478; Heydecker's Gen. L. (2d ed.), p. 1328.] : I § 13. Duty of highway commissioners in towns adopting money system relating to noxious weeds. In towns where the money system of taxation has been adopted for work- ing highways, it shall be the duty of each owner of lands and occupant of 13. Fop fonn of notice to owners or occupants of adjoining lands to cut weeds, brush and briers within the highway, see Form No. 118, post. 14. For form of overseer's report to the supervisor of the amount ex- pended in the cutting of weeds, see Form No. 119, r)ost. 656 HiGHWATS AND BeiDGES. L. 1870, oh. 311, § 1. lands owned by non-residents, situated along a highway, to cut and remove the noxious weeds and brush growing within the bounds of the highway fronting such lands, at least twice in each year, once before the first day of July, and again before the first day of September, and also to remove all fences, brush, shrubbery or other obstruction causing the drifting of snow upon said highway before the first day of November in each .year. If the owner or occupant fails to cut and remove such weeds or brush and remove such fences, brush, shrubbery or other obstruction causing the drifting of snow as provided in this section, the commissioner of highways of the town in which such lands are situated shall cause the same to be done, and shall give such owner notice in writing served personally or by mailing to his post office address, if the commissioner can with due diligence ascertain the same, stating that at a specified time and place the commissioner will assess the cost thereof against such owner so neglecting, and return the same to the town board of his town at the meeting held on the Thursday next pre- ceding the annual meeting of the board of supervisors, stating the name of each owner, and the amount assessed against him. The time so fixed shall not be less than eight days after the personal service or the mailing of such notice. The town board shall certify the amount of the assessment made by the highway commissioner to the board of supervisors. The board of super- visors shall cause the amount so returned to them by the town board to be levied against such delinquent owner and added to his highway tax for the ensuing year. In towns in which a public highway is the boundary line between the same and when such highway shall have been divided between such towns, or may hereafter be so divided, so that the commissioner of high- ways of each town shall have exclusive jurisdiction over a section or sections of said highway, the commissioner of highways having such jurisdiction of such section or sections may enforce the provisions of this section with the same force and effect as though all the land were situated in his town and he shall, in the manner provided in this section, assess the cost thereof against such owner so neglecting, and return the same to the town board of the town in which such lands may be situated in the same manner and the same may be enforced as provided in this section as though such lands were wholly situated in the town in which such commissioner of highways resided. [Highway Law (L. 1890, ch. 568), § 53a, as amended by L. 1900, ch. Sl6, L. 1903, ch. 136, L. 1904, ch. 478, and L. 1905, ch. 293.] § 14. Highways on the division lines of a town or village or city ; allotment of portion to be worked by each. Whenever a highway, street or road shall be on the line between a city, town or village, or between either of them, the ofiicers authorized and re- quired to repair and keep in order the highways, streets and roads in such city, town and village, shall meet together at the mayor's oflSce in such city, if said highway, street or road be on the line between a city and town or a city and village, or at the office of the town clerk of such town, if the same be on the line between a town and village, on the first Monday of May in each year, at 12 o'clock M., and divide such highway, street or road, and allot one part thereof to, such city and the other to such town or village, or one part thereof to such town and the other to such village, as the case may be, in such manner that the labor and expense of working and keeping in repair such highway, street or road may be equal as near as may be. [L. 1870, ch. 311, § 1.] Peefobmance of Highway Labob. 657 L. 1870, ch. 311, §§ 2, 3; Highway Law, §§ 72, 73. Upon the neglect or failure to attend on the part of the officers of any city, town or village, at the time or places designated in the first section of this act for the purposes therein mentioned, the officers of the city, town or village present may perform the said duty, and when done, the divisions thus made shall be of the same force and effect as if made by the joint action of such city and town, or such city and village, or such town and village. [Idem, § 2.J The statement of the division made pursuant to the provisions of the first or second section of this act shall be reduced to writing and properly authenticated by the officers maJjing the same, and shall be filed within ten days after such division is made in the offices of the city clerk of the city, of the town clerk of the town, and of the clerk of the village, between whom such division has been made. [Idem, § 3.j § 15. Highway tax may be abated for removal of fence to pre- vent snow drifts. Any inhabitant liable to a highway tax, who shall remove from lands owned or occupied by him, the fence along any public high- way, for the purpose of preventing the drifting of snow into such highway, shall be allowed by the overseer of highways, in abate- ment of his highway tax, the time actually expended in removing such fence, and in replacing the same, pursuant to the directions of the overseer of highways." [Highway Law (L. 1890, ch. 568), § n2; Hey deckers Gen. L. (2d ed.), p. 1328.] § 16. Overseer may allow abatement of highway tax for erec- tion and maintenance of street lamps. Any person or corporation owning or holding real estate, or other property liable to highway tax, except in the county of Kings, other than in cities and incorporated villagesi, who shall, with the consent of the overseer of highway in charge of the district in which such property is assessed, and in such places as he may direct, erect a street lamp, and cause the same to be properly attended to 15. Snow blockades. As to the performance of labor upon highways in the removal of snow blockades, see Highway Law, sec. 21, ante, p. 620. Money may be raised by the vote of the electors of a town for the constrmc- tion of wire fences along highways to prevent snow blockades. See L. 1890, ch. 291, ante, p. 616. -668 Highways and Beidges. Highway Law, § 74. and keep burning during such hours of each night as the overseers ef highways may direct, shall be allowed by the overseer of high- "ways, in abatement of such highway tax, six dollars annually, or such portion of six dollars as the annual highway taxes upon sucih real estate or other property may be. [IlighvMy Law (L. 1890, ah. 568), § 7B;Heydecker's Gen. L. (U ed.), p. 1329.] § 17. Rebate of tax for using wagon tires of the width of four inches; affidavit. Every person who, during the year ending June first, eighteen hundred and ninety-three and each succeeding year thereafter, uses on the public highways of this state only wagons or vehicles with wheels upon which two or more horses are used the tire of which shall be not less: than three inches in width, shall receive a rebate of one-half of his assessed highway tax for each such year, not exceeding, however, in any one year the sum of four dollars or four days' labor ; but no such rebate shall be allowed for the use of such wagons in a county where the board of supervisors, under the powers granted by section seventy-nine of the county law, have enacted a law forbidding the use of wagons on the highways hav- ing tires less than three inches in width. The right to such rebate shall not be affected by the use upon the public highways of buggies, carriages or platform spring wagons carrying a weight not exceeding one thousand pounds. Upon making an affidavit show- ing that he has complied with the provisions of this section during any such year, he shall be credited by the overseer of highways of the road district in which he resides or any road district where he is assessed with such rebate. Such affidavit may be taken before any overseer of highways who is hereby authorized to administer such oath." {^Highway Law (L. 1890, ch. 568), § 74 as added hy L. 1893, ch. 468, and amended hy L. 1904, ch. 324; Heydecker's Gen. L. (2d ed.), p. 1329.J 16. For form of affidavit of use of wide tires by taxpayer, see Form No. 120, post. Boards of supervisors may enact local and private laws regulating the width of tires used on vehicles built to carry a weight of fifteen hundred pounds or upwards, and may provide penalties for the violation thereof. Sec County Law, sec. 79, as added by L. 1899, ch. 155, post, p. 722. Laying Out, Altering oe Discontinuing Highways. 659 CHAPTER XLIX. LAYING OUTj altering OE DISCONTINUING HIGHWAYS; COMMIS- SIONERS ; PROCEDURE ; PRIVATE ROADS. Section 1. Commissioners of highways may order laying out highways; application therefor; release of damages; consent of town board. 2. Commissioners to cause survey to be made; survey to be in- corporated in order. S. Application for alteration, discontinuance or laying out highway. 4. Application to County Court for appointment of commissioners; undertaking. 5. Appointment of commissioners; oath of office; duties. 6. Notice of meeting; posting and service of notice. 7. Decision of commissioners in favor of laying out, altering or diB- continuing highway. 8. Damages in certain cases, how estimated. 9. Decision of commissioners denying application. 10. Motion to confirm, vacate or modify; if decision is vacated, new hearing to be granted. 11. Limitations upon laying out highways; highways through orchards, gardens or grape vineyards; order of County Court laying out such highways; procedure of highway com- missioners. 12. Laying out highways through burying grounds. 13. Costs, by whom paid; compensation of commissioners. 14. Damages and costs to be audited as town charges. 15. Proceedings when officers of diiTerent towns disagree about highway; appointment of commissioners to hear and deter- mine, by County Court. 16. Proceedings when highway officers disagree as to improvements upon highways. 17. When highway is in two or more towns, application to be made to commissioners of each town. 18. Laying out, dividing and maintaining highway upon town line. 19. Final determination of commissioners and all papers in proceed- ings to be filed in office of town clerk ; enforcement of de- termination. 20. When highways deemed abandoned; written description of abandoned highway to be filed and recorded. 21. Lands used as highways for twenty years become highways by use. 22. Application for private road. 23. Jury to determine necessity and assess damages. 24. Copy of application and notice to be delivered to applicant. 25. Service of copy of application and notice of hearing upon owners. 26. List of jurors. 660 Highways and Betoges. Highway Law, § 80. Section 27. Names of jurors struck from list; jury, how made up. 28. Place of meeting. 29. Jury to meet and determine damages. 30. Verdict of jury. 31. Deduction by jury on account of discontinuance or alteration of highway. 32. Verdict and certificate of commissioners to be filed in office of town clerk. 33. Damages to be paid before opening the road. 34. Fees of officers to be paid by applicant. 35. Motion for County Court to confirm, vacate or modify. 36. Costs of new hearing. 37. For what purpose private road to be used. 38. Damages where highways or private roads run along division lines for building additional fences. 39. Adjournments of proceedings to lay out, alter or discontinue highways. 40. Papers relating to laying out, altering or discontinuing high- way to be filed with town clerk. 41. Failure of commissioners to act. 42. Costs on motion to confirm, vacate or modify report of com- missioners. § I. Commissioners of highways may order laying out high- ways ; application therefor ; release of damages ; consent of town board. Whenever land is dedicated to a town for highway purposes therein, the commissioners of highways in such towns may, either with or without a written application therefor, and without ex- penses to the town, make an order laying out such highway, upon filing and recording in the town clerk's office with such order a re- lease of the land from the owner thereof.* A highway so laid out 1. For form of order of highway commissioners laying out highway on release of land by owners, see Form No. 121, post. For form of dedication and release by owner, see Form No. 124, post. Method of , oreating highways. Public highways may be created in four ways: (1) By proceedings under the statute; (2) by prescription or user for twenty years; (3) by dedication through offer and implied accept- ance; (4) by dedication through offer and actual acceptance. Cohoes v. D. & B. C. Co., 134 N. Y. 397; 31 N. E. 887, and authorities cited; Town of Corning v. Bead, 86 Hun, 12; 33 N. Y. Supp. 360. Dedication and acceptance. Though a, highway has never been laid out or recorded as a highway, if it has been dedicated and used as such for more than twenty years and accepted and worked by the authorities it be- comes a legal highway. Town of Corning v. Bead, 86 Hun, 12 ; 33 N. Y. Supp. 360 ; UcVee v. City of Watertotvn, 92 Hun, 306 ; 36 N. Y. Supp. 870. Dedication alone is not sufficient. There must be either an actual or im- Laying Out^ Altering oe Discontinuing Highways. 661 Highway Law, § 80. must not be less than two rods in width. Section ninety of thia chapter does not apply to a highway by dedication. Such com- missioners of highways may also, upon written application and with the written consent of the town board, make an order laying out or altering a highway, or discontinuing a highway, which has become useless since it was laid out, in their town, upon filing and recording in the town clerk's office, with such application, con- sent and order, a release from all damages from the owners of the lands taken or affected thereby, when the consideration for such, release, as agreed upon between such commissioners and owners,, shall not in any one case, from any one claimant exceed one hun- plied acceptance. Streets and highways dedicated by individuals to publiir use, but rot adopted or accepted by the local authorities, or declared to be- highways by statute, are not highways within the meaning of the Highway Law, and there is no law by which a town or its officers can be compelled to keep them in repair. City of Oswego v. Oswego Canal Co., 6 N. Y. 257; Bis- sell V. N. Y. Gent. R. Co.^ 23 N. Y. 61 ; Clements v. Village of West Troy, 16 Barb. 251. There must be an acceptance of the dedication by one authorized to act for the town. Trustaes of Jordan r. Otis, 37 Barb. 50; Morse v. Cityi of Troy, 38 Hun, 301 ; People v. UndcrhiU, 144 N. Y. 316; 39 N. E. 333. An acceptance may be proved by long public use or by the acts of the proper public authorities in recognizing and adopting the highway. People V. Lochfehn, 102 N. Y. 1; Cook v. Harris, 61 N. Y. 448; Holdarn v. Cold Spring, 21 N. Y. 474; Denning v. Boome, 6 Wend. 651; Hunter v. Trustees, 6 Hill, 407; McMannis v. Butler, 51 Barb. 436. See, also, as to evidence of acceptance. Matter of Beach Avenue, 70 Hun, 351; 24 N. Y. Supp. 37; Eckerson v. Haverstraw, 6 App. Div. 102; 39 N. Y. Supp. 635. The use by the public of a private way does not make it a public high- way, without proof of dedication and user. Palmer v. Palmer, 150 N. Y. 139, 44 iv. E. 966. But where a highway has been laid out by an order of high- way commissioners duly entered, made with the full consent of the owners of the land through which it runs, and such highway was included by such commissioners in one of the road districts of the town, it must be deemed a duly dedicated public highway, although its use by the public had been lim- ited, and its boundaries as so used had not been determined by the commis- sioners. Wakeman v. Wilbur, 147 N. Y. 657, 661; 42 N. E. 341. Order closing bighway. Where an order, made by the highway com- missioners of a town, closing a portion of a highway, is filed in the town clerk's ofBce, but Is not recorded by him as required by the above section, the failure to record the order does not invalidate the proceedings of the com- missioners. People ex rel. Dinsmore v. Vandewater, 83 App. Div. 60, 82 N. Y. Supp. 626. Revocation of dedication. A dedication of a highway once made and accepted cannot be revoked. Cook v. Harris, 61 N. Y. 448. But if a dedica- tion is not accepted within a reasonable time, the owner may recall the dedication ; and he may at any time recall the dedication if no adverse rights have attached prior thereto. What is reasonable time must depend upon the particular circumstances of the case. Matter of Opening of Beck Street 19 Misc. 571; 44 N. Y. Supp. 1087; Lee v. Sandy Hill, 40 N. Y. 442; Matter of Fox Street, 54 App. Div. 479; 67 N. Y. Supp. 57; Buffalo v. D. L ti W R. R Co., 68 App. Div. 488; 74 N. Y. Supp. 343. Such dedication' caimot be revoked after a user of twenty years regardless of acceptance. Eckerson v Eaverstraw, 6 App. Div. 102 ; 39 N. Y. Supp. 635. 662 Highways and Bkidges. Highway Law, §§ 81, 82. dred dollars, and from all claimants five hundred dollars.^ An order of tte commissioners as herein provided sihall be final. [Highway Law {L. 1890, ch. 568), § 80, as amended by L. 1897, ch. 204, and L. 1904, ch. 387; Heydecker's Oen. L. (2d ed.), p. 1330.] § 2. Commissioners to cause survey to be made ; survey to be incorporated in order. Whenever the commissioners of highways shall lay out any highway, either upon application to them or otherwise, they shall cause a survey thereof to he made, and shall incorporate the sur- vey in an order to be signed by them, and to be filed and recorded in the office of the town clerk, who' shall note the time of recording thestame.' [Highway Law (L. 1890, ch. 568), § 81; Heydecker's Gen. L. (2ded.),p. 1331.] § 3. Application for alteration, discontinuance or laying out highway. Any person or corporation assessable for highway labor, may make written application to the commissioners of highways of the Where an owner of land dedicated it to the public for a highway, but died before its acceptance by the public, her death was held to be a revocation of the proposed dedication. People v. Kellogg^ 67 Hun, 546; 22 N. Y. Supp. 490. For further discussion of principles respecting highways by dedication, see Greene on Highways, pp. 76-82. The order laying out the high-nray must either be signed by all the commissioners or must show that they were all notified to participate. Fitch V. Commissioners, 22 Wend. 132; People v. Hynds, 30 N. Y. 470; s. c, 27 Barb. 94; People v. Williams, 36 N. Y. 441; Simmons v. Sines, 4 Abb. Dec. 246; Matter of Summit Street, 3 How. Pr. 26; Matter of Church Street, 49 Barb. 455; Christy v. Newton, 60 Barb. 332; Chapman v. Svxm, 65 Barb. 210; Pratt V. People, 13 Hun, 664; Stewart v. Wallis, 30 Barb. 344. 2. For form of order of highway commissioner laying out or altering highway with consent of town board, see Form No. 123, post. For form of release of damages by owners of the land, see Form No. 122, post. For form of consent of town board, see Form No. 124, post. 3. Board of supervisors may require commissioners to make surveys of highways. County Law, sec. 72, post, p. 719. Survey. It is no objection to the order of commissioners laying out a Toad, that it does not incorporate the survey, if the survey be referred to in the order attached thereto and recorded with it. Van Bergen v. Bradley, 36 N. Y. 316. Where the order laying out the highway referred to the survey and the order and survey were recorded in the same book at the same time it was held to be sufficient compliance with the statute. McCarthy v. Whalen, 19 Hun, 503. But the survey must be incorporated in the record in Laying Out^ Altering ok Discontinuing Highways. 663 Highway Law, § 83. town in which he or it shall reside, or is assessable, or alter or dis- continue a highway, or to lay out a new highway.* {^Highway Law {L. 1890, ch 568), § 82; Heydecker's Gen. L. {2d ed.), p. 1331.] §' 4. Application to County Court for appointment of commis- sioners; undertaking. Whenever the land is not dedicated to the town for highway pur- poses and not released as herein provided, the applicant shall, within thirty days after presenting the application to the com- missioners of highway, and after at least five days' notice to said commissioners of the time and place of the application to the county judge or special county judge, in this section provided for, by verified petition showing the applicant's right to so present the same, and that such application has been in good faith presented, and if the judge require, on such notice to such parties interested as he shall direct, apply to the county judcre, or special county judge of the county where such highway shall be, for the appointment of three commissioners to determine upon the some form in connection with the order ao that it may be readily referred to for the purpose of determining the location of the higlaway. See Pratt v. People, 13 Hun, 604. 4. Wbo may make application. To give commissioners of highways jurisdiction of proceedings to lay out a highway, an application must be made in writing by a person liable to be assessed for highway labor. Har- rington V. People. 6 Barb. 607. Commissioners of highways, as such, may not make application to lay out a highway. People v. Supervisors, 82 Hun, 298. Any person assessable for highway labor may make the application. Peo- ple V. Eggleston, 13 How. Pr. 123. A person liable to be assessed for highway labor in one town may initiate proceedings to lay out a, highway located partly in his own town and partly in another town. People) ex rel. Knapp v. Keck, 90 Hun, 499; 36 N. Yi, Supp. 51. Residents of a village within a town are not proper applicants for the lay- ing out of a road in the town outside of the village. Commissioners v. Meserole, 10 Wend. 123. Necessity o£ application. It is not necessary to the valid laying out of a highway that there should have been a written application therefor; the commissioner may act of his own motion. McCarthy v. Whalen, 19 Hun, 503; aff'd, 87 N. Y. 148; Oould u. Class, 19 Barb. 179; People v. Supervisors of Richmond, 20 N. Y. 252. A proceeding under this section to determine whether a highway has be- come useless and should be abandoned, may be maintained although the high- way in question has not yet been opened. Any change of conditions render- ing a highway useless is as effective as if its uselessness had arisen from age and use. Matter of McFadden, 96 App. Div. 58, 89 N. Y. Supp. 104. For forms of applications to lay out, alter or discontinue a highway, «e« Forms Nos. 126, 127 and 128, post. 664 Highways and Bridges. Highway Law, § 83. necessity of such highway proposed to be laid out or altered or to the uselessness of the highway plroposied to be discontinued and to assess the damages by reason of the laying out, opening, altering or discontinuing of such highway.^ Such application shall be accompanied by the written undertaking of the applicant, executed by one or more sureties, approved by the judge, '^ to the effect that if the commissioners appointed determine' [that the proposed highway or alteration is not necessary or that the highway proposed to be discontinued is not useless, the sureties will pay to the commissioners their compensation at the rate of four dollars for each day necessarily spent and all costs and ex- penses necessarily incurred in the performance of their duties, which amount shall not exceed the sum of one hundred dollars/ ^Highway Laiu {L. 1890, ch. 568), § 83, as amended by L. 1897, ch. 34:4:. L. 1904, ch. 353 and L. 1906, ch. 67; Heydecker's Gen. L. (2d ed.), p. 1331.] 5. Proceedings to determine necessity for higbnray, or for its alteration or discontinuance. Sections 83-93 of the Highway Law pro- vide the procedure for the determination of the necessity of a highway pro- posed to be laid out or altered or the usefulness of a highway proposed to be discontinued. The statute contemplates that an application shall first be made to the highway commissioner as provided in section 82 of the Highway Law, ante, p. 662, and within thirty days thereafter an application may be made to the County Court for the appointment of commissioners. See People ex rel. Knapp v. Keck, 90 Hun, 497; 36 N. Y. Supp. 51; People ex rel. Smith V. Allen, 37 App. Div. 248; 55 N. Y. Supp. 1057. Section 83 of the Highway Law and the immediately following sections are designed to point out the initiatory steps in all proceedings to lay out a new highway. Matter of Taylor and Allen, 8 App. Div. 395; 40 N. Y. Supp. 839. There must be a strict compliance with the requirements of the statute in instituting proceedings relating to the laying out, alteration or discontinuance of highways. People ex rel. Scrafford v. Stedman, 57 Hun, 280; 10 N. Y. Supp. 787. For form of application to county court for the appointment of com- missioners under the above section, see Form No. 129, post. Sufficiency of application. The above section does not require that an application to the County Court for the appointment of commissioners in a proceeding to lay out a highway shall contain affirmative allegations that the land proposed to be taken has not been dedicated to the town for high- way purposes, or has not been released by the owner for that purpose, or that it has been made within thirty days after its presentation to the com- missioners of highways, and the failure of the applicant to allege such facts does not deprive the court of jurisdiction to entertain the proceeding. Mat- ter of Buell, 168 N. Y. 423. 6. The undertaking of the applicant is insufficient unless it is approved by the judge as required in the above section. Matter of Fanning, 26 App. Div. 627; 50 N. Y. Supp. 1126. 7. Expense of proceedings. The intent of the statute is, if the pro- posed improvement should be carried into eflfect, the costs and expenses Laying Out^ Altering ob Discontinuing Highways. 665 Highway Law, § 84. § 5. Appointment of commissioners; oath of office; duties. Upon the presentation of such petition, the county judge or special county judge must appoint three disinterested freeholders, who shall not he named hy any person interested in the proceed- ings, who shall be residents of the county, hut not of the towiil wherein the highway is located, and who shall not be related by consanguinity or affinity within the sixth degree, to the applicant or to any person interested in the proceeding, or to the owner of any lands, to be taken or affected by the laying out, alteration or discontinuance of a highway, as commissioners to determine the questions mentioned in the last section.^ They shall take the con- stitutional oath of office, and appoint a time and place at which they shall all meet to hear the commissioners of highways of the town where such highway is situated, and others interested there- in.' They shall personally examine the highway described in the application, hear any reasons that may be offered for or against the laying out, altering or discontinuing of the highway, and assess occasioned by it should be defrayed by the town, but in ca&e of a determina- tion adverse to the proposed improvement the expense should be borne by the applicant. See Highway Law, sec. 92, as to costs in eases of assessment of damages, post, p. 672. In the case of Matter of Miller, 9 App. Div. 260; 41 N. Y. Supp. 581, a proceeding instituted by a private individual for the laying out of a highway failed because the owner of a brick yard, through which the highway was laid out, did not consent, and because the highway commissioners did not certify that the public interests would be promoted by the opening of the highway. It was held that although the commis- sioners appointed by the court reported in favor of the highway that it was improper for the County Court to impose upon the town the payment of the fees of the commissioners; the town cannot be made refeponsible for such fees unless there is a valid assessment of damages, and in no case can the town be chargeable where the proposed improvement fails. The limit of the sum chargeable to the applicant is fixed at $50, and where this amount has already been paid as costs of the adverse parties the applicant cannot be compelled to pay the compensation of the commissioners. Patton v. Miller, 28 App. Div. 517; 51 N. Y. Supp. 202. 8. For form of order of County Court appointing commissioners, see Form No. 130, post. For form of notice to commissioners of their appoint- ment, see Form No. 131, post. 9. Constitutional oath of office is fixed by sec. I of art. 13 of the constitution. Place of meeting. It is usual in these proceedings for the commis- sioners to meet as near to where the highways proposed to be laid out or discontinued are located, as possible, but there is nothing in the statutes nor in the decisions of the courts which compel the commissioners to have the hearings at any particular place in the town where the highways are located. Matter of Coe, 19 Misc. 549, 551 ; 44 N. Y. Supp. 910. 10. Hearing before conunissioners. Owners of land affected by the discontinuance of a highway, although not abutting thereon, are entitled to be heard in opposition to the proceedings to discontinue. Such ownera 666 Highways and Beidges. Highway Law, § 85. all damages by reason thereof." They may adjourn the proceed- ings before them from time to time, issue subpoenas and administer oaths in such proceedings, and they shall keep minutes of their proceedings, and shall reduce to writing all oral evidence given before them upon the subject of the assessment of damages." They shall make duplicate certificates of their decision, and shall file one in the town clerk's office of the town, and the other, with such minutes and evidence, in the county clerk's office of the county in which the highway or proposed highway is located. [HigJiiuay Law (L. 1890, ch. 568), § 84, as amended by L. 1904, ch. 353; Heydeckers Gen. L. (2d ed.), p. 1332.] § 6. Notice of meeting ; posting and service of notice. The applicant shall cause, at least eight days previous, written or printed notice to be posted up in not less than three public places in the town specifying, as near as may be, the highway pro- posed to be laid out, altered or discontinued, the tracts or parcels of land through which it runs, and the time and place of the meet- ing of the commissioners appointed by the Co'im.ty Court to examine the highway as meaitioned in the last section." Such notice shall also, in like time, be personally served on the owner and occupant of the land, if they reside in the town, or by leaving the same at their residence with a person of mature age ; if they do not reside in the same town, or service cannot be made, a copy of cannot be required by the commissioners to deposit a sum of money as a. condition of being heard in opposition to the application. Matter of Coe^ 19 Misc. 549; 44 N. Y. Supp. 910. The statute does not contemplate that commissioners appointed in such proceedings shall be governed by technical rules of evidence applied in courts of record. Matter of Pugh, 22 Misc. 43 ; 49 N. Y. Supp. 398. 11. Issue of snbpoenas and administering oaths. Such commis- sioners being authorized to issue subpoenas and take testimony have power to compel the attendance of witnesses and the giving of testimony by such witnesses. See Code Civ. Proc, sees. 854-862. Adjournment. A majority of the commissioners have power to adjourn. Matter of Newkmd Avenue, 15 N. Y. Supp. 63; 38 N. Y. St. Rep. 796. 12. For form of notice of the meeting of commissioners, see Form No. 132, post; for form of affidavit of posting and serving of such notice, see Form No. 133, post. Necessity of notice. In all proceedings for the summary acquisition of private lands for public use the requirement of the statute as to the giving of notice must be carefully observed. People ex rel. Odle v. Kniskern, 54 N. Y. 52. The failure to serve a notice upon the owners of lands through which a proposed highway is to be laid out is fatal to the proceedings, sa far as the property of such owners and occupants is concerned. People ex rel. Smith V. Allen. 37 App. Div. 248; 55 N. Y. Supp. 1057; see, also, People ex rel. Willis v. Smith, 7 Hun, 17. Laying Out, Alteeing oe Discontinuing Highways. 667 Highway Law, § 86. such notice shall be mailed to such owner and occupant, if their post-office address is known to the applicant or ascertainable by him upon reasonable inquiry. [Highway Law {L. 1890, ch. 568), § 85; Heydecher's Gen. L. {M ed.), p. 1332.] § 7. Decision of commissioners in favor of laying out, altering or discontinuing highway. If a majority of the commissioners appointed by the County Court shall determine that the highway or alteration applied for is necessary, or that the highway proposed to be discontinued is useless, they shall assess all damages which may be required to be assessed by reason thereof and make duplicate certificates to that effect." If the petition is for the laying out of a highway, the commissioners shall also include in their certificates what the probable cost would be of laying out and completing the proposed highway, in their opinion, based upon the evidence given before them on the hearings. [High/way Law (L. 1890, ch. 568), § 86, as amended by L. 1901, ch. 441; Heydecher's Gen. L. (2 ed.), p. 1333.J 13. For form of certificate of commissioners in favor of laying out, altering or discontinuing a highway, see Form No. 134, post. Determination of commissioners. The determination of commis- sioners will not be disturbed where there is evidence to support it. Matter •rf Burdick, 27 Misc. 298; 58 N. Y. Supp. 759. To authorize the discon- tinuance of a highway, the weight of evidence must show and the commis- •ioners must find that it is useless; a finding that it is not necessary, or that a proposed new road would be better is suflBeient. Matter of Coe, 19 Misc. 549; 44 N. Y. Supp. 910. Assessment of damages. The question of damages is for the commis- sioners to determine. The measure of damages is the present market value of the property. Matter of William Street, 19 Wend. 678. Where an owner of land had previou&ly offered to release the same for highway purposes it was nevertheless held that he was entitled to reasona- ble compensation where proceedings were brought for the determination of the necessity of the highway, and that an award giving nominal damages only was erroneous. Matter of the Terrace, 15 N. Y. Supp. 775; 39 N. Y. St. Rep. 270. The names of the property owners and the amount of damages awarded to each should he contained in the certificate; but if the property owners are described without being named it is sufl5cient. Granger v. Syracuse, 38 How. Pr. 308. If the claims of title to lands damaged are conflicting, it is proper to award the damages to " owners unknown." Matter of Eleventh Ave., 49 How. Pr. 208. And where an award of damages was made to the husband of the owner it was held that the proceedings were not thereby invalidated. Mitchell v. White Plains, 16 N. Y. Supp. 828; 41 N. Y. St Eep. 787. 668 Highways aktd Beidges. Highway Law, §§ 87, 88, 89. § 8. Damages in certain cases, how estimated. The owner of land within the bounds of a highway discontinued may incloee the same and have the exclusive use thereof, and the benefits resulting therefrom may be deducted in the assessment of damage caused by the laying out of a highway through his other lands in place of the discontinued highway. [Highway Law (L. 1890, ch. 568), § 87 ; Hey decker's Gen. L. (2d ed.), p. 1333.] § g. Decision of commissioners denying application. If a majority of the commissioners appointed by County Court shall determine that the proposed highway or alteration is not necessary, or that the highway proposed to be discontinued is not useless, they shall make duplicate certificates to that effect." The costs and expenses necess.arily incurred by such commissioners in the proceedings shall be indorsed upon such duplicate certifi- cates, and upon a confirmation of such decision and of the amount of such costs and expenses by the County Court, such costs and ex- penses not exceeding one hundred dollars shall be payable by the applicants.-'^ [Highway Law (L. 1890, ch. 568), § 88, as amended by L. 1894-, ch. 334, and L. 1906, ch. 67; Heydecker's Gen. L. (2ded.), p. 1333.) § 10. Motion to confirm, vacate or modify; if decision is vacated, new hearing to be granted. Within thirty days after the decision of the commissioners shall have been filed in the town clerk's office any person interested in tha Separate sums should be awarded as damages to lessor and lessee; but if the lessor is awarded the entire sum, the lessee may recover from him his proportionate share. Coutant v. Catlin, 2 Sand. Ch. 485. And where separate sums are awarded to each, the decision is conclusive as between them. Idem.; Turner v. Williams, 10 Wend. 139. No arbitrary rule can be prescribed for determining the damages to a leasehold interest occasioned by the laying out or discontinuance of a highway. The value of such interest and the damages thereto must depend upon the location and business facilities of the property and the state of trade in the vicinity where it is located. Matter of Commissioners, 54 Hun, 313. 14. For foTm of certificate of commissioners denying the application. Bee Form No. 135, post. 15. Costs and expenses. The liability of an unsuccessful applicant being limited to $50, it was held that where the applicant had paid an amount equal to such sum as the costs of the contesting parties, under an order of the court, the commissioners appointed to determine the necessity of the proposed highway could not recover their fees from him. Patton v. Miller, 28 App. Div. 517; 51 N. Y. Supp. 202; see notes to sec. 83 of the Highway Law, ante, p. 664. Laying Out, Altering or Discontinuing Highways. 669 Highway Law, § 89. proceeding may apply to the court if in session or to the county judge, or special county judge, appointing the commissioners for an order confirming, vacating or modifying their decision, and such court or judge may confirm, vacate or modify such decision." If the decision be vacated the court or judge may order another hear- ing of the matter before the same or other commissioners. If no such motion is made, the decision of the commissioners shall be deemed final." Such motion shall be brought on, upon the service of papers upon adverse parties in the proceedings, according to the usual practice of the court in actions and special proceedings pending therein; and the decision of the County Court or judge shall be final, excepting that a new hearing may be ordered as here- in provided, and excepting that any such decision may be reviewed on appeal upon questions affecting jurisdiction and rulings and ex- cei^tions made and taken upon the hearing before the commis- sioners. If the final decision be adverse to the applicant, no other 16. Fop form of notice of motion to confirm, vaca+e or modify tlie de- cision of the commiggionera, see Form No. 136, post. For form of order of County Court confirming the decision of the commissioners, see Form No. 137j post. Iiimitation as to time. The purpose of the above section was to allow interested parties who desired to apply to the court for an order vacating or modifying the decision of the commissioners appointed in a proceeding to determine upon the necessity of a proposed highway and to assess damages, the period of thirty days within which to institute the application or motion. It was not the purpose of the section to require the application or motion to be actually made or heard within that time. Matter of Olenside Woolen Mills, 92 Hun, 188; 36 N. Y. Supp. 593. ■Wio may make motion. In the case of Matter of Coe, 19 Misc. 549, 550; 44 N. Y. Supp. 910, it was held that a resident taxpayer liable to assessment in a town for highway labor is a, person interested within the meaning of the above section, and may make the motion to vacate the de- cision of the commissioners. See, also, under the former law, People ex rel. Ridgway v. Cortelyou, 36 Barb. 164; People ex rel. Banner v. Temple, 27 Hun, 128. 17. Right to modify decision. The constitution, sec. 7, art. 1, pro- vides that " when private property shall be taken for public use, the com- pensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law." The power vested in the County Court to modify the decision of the commissioners as prescribed in the above section must be deemed limited by this constitutional provision. The County Court cannot modify the decision of the commis- sioners as to the amount of damages to be awarded. People ex rel. Hanford V. Thayer, 88 Hun, 137, 140; 34 N. Y. Supp. 592. Where a county court modifies the decision of commissioners in a manner not asked for by either party, and aflirms the decision as thus modified, the modification of the court should be stricken out. Matter of Sly, 177 N. Y. 465. Decision final. The decision of the County Court confirming the decison of commissioners that the proposed highway is a public necessity, is final and cannot be refused by the appellate division. Matter of Mitchell, 85 App. Div. 277, 83 N. Y. Supp. 211. 6Y0 Highways and Beidcjes. Highway Law, § 90. application for laying out, altering or discontinuing the same high- way shall be made within two years. [Highway Law {L. 1890, ch. 568), § 89, as amended hy L. 1895, ch. 716, L. 1899, ch. 703, and L. 1904, ch. 353; Heydeckers Gen. L. (2d ed.), p. 1333.] § II. Limitations upon laying out highways; highways through orchards, gardens or grape vineyards; order of County Court laying out such highways; procedure of highway com- missioners. No highway shall be laid out less than three rods in width, nor through an orchard of the growth of four years or more, or any garden cultivated as such for four years or more, or grape vineyard of one or more year's growth, and used in good faith for vineyard purposes, or buildings, or any fixtures or erections for the pur- poses of trade or manufactures, or any yard or inclosure necessary to the use and enjoyment thereof, without the consent of the owner or owners thereof, unless so ordered by the County Court of the county in which the proposed highway is situated ; such order shall A writ of certiorari is not tlie proper remedy for a review of proceed- ings instituted before commissioners for laying out, altering or discon- tinuing a highway. Matter of Lawton, 22 llisc. 426; 50 N. Y. Supp. 408? People ex rel. Banford v. Thayer, 88 Hun, 136; 34 N. Y. Supp. 592. Right to appeal. The effect of the provision of the above section that the decision of the County Court upon an application to confirm, vacate or modify the decision of the commissioners, " shall be final," is to make such a decision of the County Court conclusive upon the questions of the necessity of the proposed highway and the compensation of the land owner, subject however to the limitation that the court had jurisdiction. Such a decision is, therefore, appealable, only as to questions of the power and jurisdiction of the County Court. Matter of De Camp, 151 X. Y. 557 : 45 X. E. 1039. An order of confirmation cannot be reviewed by a writ of certiorari. Peo- ple ex rel. D., L. £ W. R. R. Go. v. County Court, 4 App. Div. 542; 38 X. Y. Supp. 920; aff'd., 152 N. Y. 214; see, also. Matter of Barrett, 7 App. Div. 482; 40 N. Y. Supp. 266; Matter of Taylor and Allen, 8 App. Div. 395; 40 N. Y. Supp. 839. Ezcessiire award of damages. The County Court cannot arbitrarily set aside an award made by commissioners, unless some error of law is plainly manifest. The commissioners in assessing damages are to be guided by their own judgment, as they view the premises and can better estimate the amount of damages sustained than can a court sitting in review of their action. For the court to arbitrarily set aside their award would be to usurp the functions which the statute confers upon them rather than a judicial exercise of its own discretionary power. Matter of Carpenter, 11 Misc. 69; 32 N. Y. Supp. 826; Matter of Feeney\, 20 Misc. 272; 45 X. Y. Supp. 830. Laying Out, Altering or Discontinuing Highways. 671 Highway Law, § 90. be made on the certificate of the commissioners of highways of the town or towns in which the proposed highway is situated, showing that the public interest will be greatly promoted by the laying out and opening of such highway, and that commissioners appointed by the court have certified that it is necessary ; a copy of the certi- ficate, with eight days' notice of the time and place of the hearing before the County Court, shall be served on the owners of the land, or if they are not residents of the county, upon the occupants ; the County Court upon such certificates, and the proofs and other proceedings therein, may order the highway to be laid out and opened, if it deems it necessary and proper." The commissioners of highways shall then present the order of the County Court, with the certificate and proofs upon which it was granted, certified by such court to the general term of the Supreme Court in the judicial department in which the land is situated, upon the usual notice of motion, served upon the owner or occupant, or the attor- 18. For form of certificate of commissionera of highways to the County Court for the purpose of laying out highways through an orchard, garden or vineyard, see Form No. 138, post. Wliat constitutes a garden or orchard. The provision of the above section prohibiting the laying out of u. highway through a garden which has been previously cultivated for four years, does not apply to all land inclosed within a garden. The protection of the statute extends only to land which is part of a cultivated garden and actually used as such. People etc rel. Cook v. Commissioners of Highways, 57 N. Y. 549 ; see, also. People ex rel. Stanton v. Horton, 8 Hun, 357. It does not follow that a' whole field is an orchard because there are fruit trees in some part of it. People v. Judges of Duchess, 23 Wend. 361. Whether land is a garden is a question of fact. People ex rel. Clinch v. Moore, 15 N. Y. Supp. 504 ; 39 N. Y. St. Rep. 881; affd., 129 N. Y. 639. Highways through buildings, yards and inclosnres. The statute expressly deprives commissioners of highways of jurisdiction to lay out a road through any building or any fixtures or erections for the purpose of trade or manufacture, or in yards or inclosures necessary for the use and enjoyment thereof, and provides, in such cases, for a proceeding before the county judge to be confirmed by the Appellate Division of the Supreme Court. Beardslee v. Dolge, 143 N. Y. 160, 164; 38 N. E. 205; see, also. Matter of Oakley Ave., 85 Hun, 446; 32 N. Y. Supp. 1146. But a yard cannot be extended to take in a portion of a highway after it has been laid out by a commissioner. People ex rel. Miller v. Comes, 1 Hun, 530; nor can buildings be erected so as to prevent the opening of a highway after it has been laid out. People ex rel. Hubbard v. Harris, 63 N. Y. 391. Ground adjoining a saw mill and used for piling logs, but whose limits are not fixed by fences or other visible marks nor definite occupation, is not within the statute. People ex rel. Williams v. Kingman, 24 N. Y. 559, 672 Highways and Bbidges. Highway Law, §§ 91, 92. ney who appeared for them in the County Court." If such geoa- eral term of the Supreme Court shall confirm the order of the Coimty Court, the commissioners of highways shall then lay out and open such highway as in other cases. The provisions of this section shall not apply to vineyards planted, or to buildings, fix- tures, erections, yards, or inclosures, made or placed on such land after an application for the laying out and opening the highway shall have been made. In case the highway to be laid out shall constitute an extension or continuation of a public highway already in use, and shall not, as to such new portion, exceed half a mile in length, the commissioners may lay out such etxtension or con- tinuation, of a width of less than three rods, provided, however, that it be not less than the widest part of the highway of which it is an extension or continuation."* In such case the commis- sioners shall specify in their certificate the precise width of the new portion of such highway, and shall certify that such width is as great at least as the widest part of the highway of which it is a continuation or extension. ISTo highway shall be laid out which shall be identical or substantially so with a highway previously discontinued or abandoned for public purposes within seven years of such discontinuance or abandonment, in counties adjoining^ cities with upward of one million inhabitants. [^Highway Law (L. 1890, ch. 568), § 90, as amended hy L. 1895, ch. 508, and L, 1906, ch. 265; Heydeckers Gen. L. (2d ed.), p. 1334.] § 12. Laying out highways through burying grounds. ^o private road or highway shall be laid out or constructed upon or through any burying ground, unless the remains therein contained are first carefully removed, and properly reinterred in some other burying ground, at the expense of the persons desiring such road or highway, and pursuant to an order of the County Court of the county in which the same is situated, obtained upon notice to such persons as the court may direct. [Highway Law (L. 1890, ch. 568), § 91; Heydeckers Gen. L. p. 1335.] § 13. Costs, by whom paid; compensation of commissioners. In all cases of assessments of damages by commissioners ap- pointed by the county judge or special county judge, the costs thereof shall be paid by the town thereof except when reassessment of damages shall be had on the application of the party for whom 19. For form of order of County Court laying out a highway through an orchard, etc., see Form No. 139, post. For form of order of appellate division confirming the order of the County Court, see Form No. 140, post. 19a. Highways less than three rods wide. Under this section as amended, highways less than three rods in width cannot be laid out, without the approval of the county court and the appellate division, except in the case of the extension of a highway already in use, in which ease the highway to be laid out must come within the terms of the provisions of thft amendment. Matter of Adolph, 102 App. Div. 371, 92 N. Y. Supp. 841. ' Laying Out^ Alteeing oe Discontinuing Highways. 673 Highway Law, § 93. the damages were assessed, and such damages shall not be in- creased on such reassessment, the costs shall be paid by the party applying for the reassessment ; and when application shall be made by two or more persons for the reassessment of damages, all per- sons who may be liable for costs under this section shall be liable in proportion to the amount of damages respectively assessed to them by the first assessment, and may be recovered by action in favor of any person entitled to the same.^" Each commissioner appointed by the court, for each day necessarily employed as such, shall be entitled to four dollars and his necessary expenses. [Highway Law (L. 1890, ch. 568), § 92, as amended by L. 1897, ch. 344, and L. 1904, ch. 353; Heydecker's Gen. L. (2d ed), p. 1335.] § 14. Damages and costs to be audited as town charges. All damages to be agreed upon, or which may be finally aseiessed, and costs against the town, as herein provided, shall be laid before the board of town auditors, or in towns not having a board of town auditors, before the town board, to be audited with the charges of the commissioners, justices, surveyors or other persons or ofBcers employed in making the assessment, and for whose services the tovm shall be liable, and the amount shall be placed upon the town abstract and levied and collected in the town in which the highway is situated, and the money so collected shall be paid to the commis- sioners of highways of such town, who shall pay to the owner the sum assessed to him, and appropriate the residue to satisfy the charges aforesaid." [Highway Law (L. 1890, ch. 568), § 93, as amended by L. 1898, ch. 106; Heydecker's Gen. L. (2d ed.), p. 1335.J 20. Costs as used in this section does not in terms apply to a personal debt incurred by a highway commissioner, nor can it be made to so apply by any fair construction of the statute, nor can the word be so construed as to include a bill for legal services rendered by an attorney employed by the highway commissioner. People ex rel. Bevins v. Supervisors, 82 Hun, 298; 31 N. Y. Supp. 248. When the commissioners report in favor of a propo.sed highway and assess the damages, but the proceeding fails because of the absence of neces- Bary consent of the owner, the certificate of the highway commissioners, the costs of the proceeding and the fees of the commissioners should be borne by the applicant. Matter of Miller, 9 App. Div. 260; 41 N. Y. Supp. 581. 21. Audit of town accounts, see ch. 59, post, p. 801. In the case of Eppig v. City of Tieio York. 57 App. Div. 114; 68 N. Y. Supp. 41, the court said that: "The expression 'charges of the commis- sioners, justices, surveyors or other persons or officers employed in making the assessment, and for whose services the town shall be liable,' does not apply to the fees of the attorney or counbel employed by the petitioner." 674 Highways and Bridges. Highway Law, § 94. § 15. Proceedings when officers of different towns disagree about highway; appointment of commissioners to hear and de- termine, by County Court. When the commissioners of highways of any town or officers of ajiy village or city having the powers of oonxmissioners of high- ways, shall differ with the commissioners of highways of any other town, or with the officers of such a village or city having the pow- ers of commissioners of highways in the same county, relating to the laying out of a new highway or altering an old highway, ex- tending into both towns, or a town and a village or city, or upon the boundary line between such towns or such town and a village or city, or when commissioners of highways of a town in one county, shall differ with the commissioners of highways of a town, or the officers of a village or city having the powers of commissioners of highways, in another county, relating to the laying out of a new highway, or the alteration of an old highway, which shall extend into both counties, or be upon the boundary line between such counties the commissioners of highways of both towns or the officers of the village or city having such poiwers, shall meet on five days' written notice, specifying the time and place, within some one of such towns, villages or cities, given by either of such commis- sioners, or officers having powers of commissioners of highways, to make their determination in writing, upon the subject of their differences. If they cannot agree, they or either of them may certify the fact of their disagreement to the County Court of that county, if the proposed highway is all in one county, or if in dif- ferent counties, or if the county judge is disqualified or unable to act, to the Supreme Court; such court shall thereupon appoint three commissioners, freeholders of the county, not residents of the same town, village or city, where the highway is located ; or if between two counties, then freeholders of another county, who shall take the constitutional oath of office, and upon due notice to all persons interested, view the proposed highway, or proposed altera- tion of a highway, administer all necessary oaths, and take such evidence as they shall deem proper, and shall decide all questions that shall arise on the hearing, as to the laying out or altering of such highway, its location, width, grade and character of road bed, or any point that may arise relating thereto; and if they de- cide to open or alter such highway, they shall ascertain and ap- praise the damages, if any, to the individual owners and occupants of the land through which such new or altered highway is pro- Laying Out, Altebing oe Discontinuing Highways. 675 Highway Law, § 95. posed to pas8, and shall report such evidence and decision to siuch court, with their asseesment of damages, if any, with all convenient speed." On the coming in of such report, the court may, by order, confirm, modify, or set aside the report in whole or in part and may order a new appraisal by the same or other commissioners, and shall decide all questions that may arise before it. And all orders and decisions in the matter shall be filed in the county clerk's ofSoe of each county where the highway is located, and shall be duly recorded therein. This section shall not be so construed as to compel any town or towns to construct, repair or maintain a bridge upon a boundary line betwefen towns, where, previous to the pass- age of such amendatory act, an application had been made to any court, to compel the construction, repair and maintenance of a bridge upon such a boundary line, and such application had been denied. [^Highway Law (L. 1890, ch. 568), § 94^ as amended by L. 1901, ch. 162, and L. 1903, ch. 460 ; Heydecher's Gen. L. (2d ed.), p. 1336.J § 1 6. Proceedings when highway officers disagree as to im- provements upon highways. When the commissioners of highways of a town, or the officers of a village or city having the powers of commissioners of high- ways therein, shall deeire to make a new or altered highway extending beyond the bounds of such town, village or city, a better highway than is usually made for a common highway, with a special grade or road-bed, drainage or improved plan, and are willing to bear the whole or a part of the expense thereof beyond sncih bounds, but cannot agree in regard to the same, upon written application of either of the commissioners or officers, and notice to all parties interested, such court shall make an equitable ad- justment of the matters, and may direct, that in consideration of the payment of such portion of the additional expense by the town, village or city that desires the improved and better highway, as shall be equitable, its officers, contractors, servants and agents may go into such town, village or city, and make the grade and 22. Appointment of commissioners. Construing sections 94 and 96 of the Highway Law together, it was the evident intention of the statute to require a meeting of the highway commissioners of the towns in the different counties, and a certificate of their disagreement, as a condition precedent to the exercise of jurisdiction upon the part of the Supreme Court in the Appointment of commissioners. Matter of Barrett, 7 App. Div. 482; 40 N. Y. Supp. 266. 676 Highways and Bridges. Highway Law, § 96. Toad-bed, and do 'whateiver may be iie- office address, and paying the postage thereon, or, in case of infant owners, by like service upon their parent or guardian. [Highway Law (L. 1890, ch. 568), § 109; lieydecker's Oen. L. (2(i ed.), p. 1341.] § 26. List of jurors. At such time and place, on due proof of the service of the notice, one or more of the commissioners shall present a list of the names of thirty-six resident freeholders of the town, in no wise of kin to the applicant, owner or occupant, or either of them, and not inter- ested in such lands. [Highway Law (L. 1890, ch. 568), § 110, as annended by L. 1904, ch. 109; HeydecJcer's Gen,. L. (2d ed.), p. 1341.] § 27. Names of jurors struck from list; jury, how made up. The owners or occupants of the land, may strike from the list not more than twelve names, and the applicant a like number ; and of the number which remain, the twelve names standing first on the list shall be the jury. [Highway Law (L. 1890, ch. 568), § 111, as amended by L. 1904, ch. 109 ; Heydecher's Gen. L. (23 ed.), p. 1341.] § 28. Place of meeting. The commissioner or commissioners present, shall then appoint some convenient time and place for the jury to meet, and shall summon them accordingly.^' [Highway Law (L. 1890, ch. 568), § 112; HeydecJcer's Gen. L. (2d ed.), p. 1342.] § 29. Jury to meet and determine damages. At least one commissioner and all the persons named and sum- moned on such jury, shall meet at the time and place appointed; but if one or more of the twelve jurors shall not appear, the com- missioner or commissioners present shall summon so many qualified 29. Snnunoning juries. The commissioners have no right to delegate the summoning of the jurors, but such summons will not be held invalid if the owner of the land proposed to be taken is present at the meeting of the jurj- and does not object to the proceeding. People v. Commissioners of Greenbush, 24 Wend. 367. 682 Highways and Bridges. Highway Law, §§ 114, 115, 116. to serve as such: jurors as will be sufficient to make the number present twelve, to forthwith appear and act as such; and when twelve shall have so appeared, they shall constitute the jury, and shall be sworn well and truly to determine as to the necessity of the road, and to assess the damages by reason of the opening thereof. IHighway Law (L. 1890, ch. 568), § 113, as amended by L. 1904, ch. 109; Heydecher's Gen. L. (2d ed.), p. 1342.] § 30. Verdict of jury. The jury shall view the premises, hear the allegations of the parties, and such witnesses as they may produce, and if they shall determine that the proposed road is necessary', they shall assess the damages to the person or persons through whose land it is to pass, and deliver their verdict in writing to the commissioners. [Highway Law (L. 1890, ch. 568), § 114; Heydecher's Gen. L^ (2ded.),p. 1342. J § 31. Deduction by jury on account of discontinuance or al- teration of highway. If the necessity of such private road has been occasioned by the alteration or discontinuance of a public highway running through the lands belonging to a person through whose lands the private road is proposed to be opened, the jury shall take into considera- tion the value of the highway so discontinued, and the benefit resulting to the person by reason of such discontinuance, and shall deduct the same from the damages assessed for the opening and laying out of such private road. [Highway Law (L. 1890, ch. 568), § 115; Heydecher's Gen. L. (2d ed.), p. 1342.] § 32. Verdict and certificate of commissioners to be filed in office of town clerk. The commissioners shall annex to such verdict the application, and their certificate that the road is laid out, and the same shall b? filed and recorded in the town clerk's office." [Highway Lam (L. 1890, ch. 568), § 116; Heydecher's Gen. L. (2d ed.), p. iy42.j 30. The order of the commissioners laying out the highway in accord- ance with the decision of the jury, is sufiScient if it refers to the description of the road contained in the application. Satterly v. Winne^ 101 N. Y. 218; 4 N. E. 186. liAYiNG Out, Altering oe Discontinuing Highways. 683 Highway Law, §§ 117, 118, 119, 120. § 33. Damages to be paid before opening the road. The damages assessed by the jury shall be paid by the party for whose benefit the road is laid out, before the road is opened or used ; but if the jury shall certify that the necessity of such private road was occasioned by the alteration or discontinuance of a pub- lic highway, such damages shall be paid by the town, and refunded to the applicant [^Highway Law (L. 1890, ch. 568), § 117; Eeydecker's Gen. L. {2d ed.), p. 1342.] § 34. Fees of officers to be paid by applicant. Every juror, in proceedings for a private road, shall be en- titled to receive for his services one dollar and fifty cents; and oommissioners of highways, their per diean compensation, to be paid by the applicant [HigJiway Law (L. 1890, ch. 568), § 118; Eeydecker's Gen. L. {2d ed.), p. 1342.] § 35. Motion for County Court to confirm, vacate or modify. Within thirty days after the decision of the jury shall have been filed in the town clerk's office, the owner or occupant may apply to the County Court of the oounty wherein such private road is situated, for an order confirming, vacating or modifying their decision ; and such court may confirm, vacate or modify such decision as it shall deem just and legal. If the decision is vacated, the court may order another hearing of the matter before another jury, and remit the proceeding to the commissioners of highways of the same town for that purpose. If no such motion is made, the decision of the jury shall be deemed final. The mo- tion shall be brought on, upon the service of papers on the adverse party in the proceeding, according to the usual practice of the court in actions and special proceedings pending therein, and the decision of the Oounty Court shall be final, except that a new hearing may be had, as herein provided. If the final decision shall be adverse to the applicant, no other application for the same road shall be made within two years. {^Highway Law {L. 1890, ch. 568), § 119; Eeydecker's Gen. L. {2d ed.), p. 1343.] § 36. Costs of new hearing. If, upon a new hearing, the damages assessed are increased, the applicant shall pay the costs and expenses thereof, otherwise the owner shall pay the same. [Eighway Law {L. 1890, ch. 568), § 120; Eeydecker's Gen. L. {2d ed.), p. 1343.] ,684 Highways and Beidges. Highway Law, §§ 121, 122, 123. § 37. For what purpose private road to be used. Every sudi private road when so laid out, shall be for the use of such applicant, his heirs and assigns; but not to be converted to any other use or purpose than that of a road ; nor shall the occu- pant or owner of the land through which said road shall be laid out, be permitted to use the same as a road, unless he shall have signified such intention to the jury who assessed the damages for laying out such road, and before such damages were assayed." [Highway Law (L. 1890, ch. 568), § 121; Heydecher's Gen. L. lu ed.), p. 1343.] § 38. Damages where highways or private roads run along division lines, for building additional fences. Whenever a highway or private road shall be laid along the di- vision line between lands of two or more persons, and wholly upon one side of the line, and the land upon both side® is cultivated or improved, the persons owning or occupying the lands adjoining such highway or road, shall be paid for building and maintaining such additional fence as they may be required to build or main- tain, by reason of the laying out and opening such highway or road ; which damages shall be ascertained and determined in the same manner that other damages are ascertained and determined in the laying out of highways or private roads. [Highway Law (L. 1890, ch. 568), § 122; Heydecher's Gen. L. (2d ed.), p. 1343.J § 39. Adjournments of proceedings to lay out, alter or dis- continue highways. If any accident shall prevent any of the proceedings required by this chapter relating to the laying out, altering or discontinuing 31. Use of private roads. According to the true construction of the statute, the person on whose application a private road is laid out has the sole and exclusive right to use it, unless the occupant of the land at the time when it is laid out signified his intention to make use of it. Lambert V. Hoke, 14 Johns. 384. The penalty provided by statute for obstructing the highway is not applicable to a private road (Fowler v. Lansing, 9 Johns. 349), and where an obstruction is placed in such a road by the owner of the land over which it is laid out, it cannot be lawfully removed by a person having no right to use the road. Drake v. Rodgers, 3 Hill, 604. The original owner of the land should so locate his fences as not to encroach upon the width of the road, but the new owner will be deemed to have assented to such encroachment if he allows such fences to be so located without objection. Eerrick v. Stover, 5 Wend. 580. Laying Out, Altering ob Discontinuing Highways. 685 Highway Law, §§ 150, 151, 152. of a higliway, or the laying out a private road, to be don© on the day a'ssigned, the proceedings may be adjourned to some other day, and the commissioner shall publicly announce such adjournment. [Eighway Law (L. 1890, ch. 568), § 123; Ueydeckers Gen. L. {2ded.),p. 1344.] § 40. Papers relating to laying out, altering or discontinuing highway to be filed with town clerk. All applications, certificates, appointments and other papers re- lating to the laying out, altering or discontinuing of any high- way shall be filed by the commissioners of highways as soon as a decision shall have been made thereon in the town clerk's office of their town. IHighway Law (L. 1890, ch. 568), § 150; Hey- decker's Gen. L. (2d ed.), p. 1349.J § 41. Failure of commissioners to act. When any commissioner or other officer appointed by a. court under this chapter shall neglect or be prevented from serving, the court which appointed him shall appoint another in his place. [Highway Law (L. 1890, ch. 568), § 151; Heydecker's Gen. L. (2d ed.), p. 1349.] § 42. Costs on motion to confirm, vacate or modify report of commissioners. Costs of a motion to confirm, vacate or modify the report o£ commissioners appointed by the court to lay out, alter or discon- tinue a highway may be allowed in the discretion of the court not exceeding fifty dollars. On an uncontested motion to confirm the report of the commissioners, so appointed, if said report is favor- able to the applicant and confirmed by the court, costs may be allowed not exceeding fifty dollars sufficient to compensate the applicant's attorney for his services in the proceedings. Costs of any other motion in a proceeding in a court of record, authorized by this chapter, may be allowed in the discretion of the court not exceeding ten dollars. [Highway Law (L. 1890, ch. 568), § 152, as amended by L. 1904, ch. 192 ; Heydecker's Gen. L. {2d ed.), p. 1349.] .686 Highways and Beidges. Highwaj Law, §§ 153; Penal Code, § 385. CHAPTER L. Section 1. Injuries to highways and bridges; treble damages therefor. 2. Penal Code provisions relating to highways. 3. Town not liable for bridge breaking by wagon and load of over four tons. 4. Steam traction engines on highway. 5. Trees along the highways; to whom they belong. 6. Shade trees along highways, injuries to, by leaving horses or animals near; or by mutilation; penalty, how recovered. 7. Carriages meeting to turn to right. 8. Intemperate drivers not to be employed; penalty. 9. Intoxicated drivers to be discharged upon notice of passengers. 10. Leaving horses untied by drivers of public conveyances. 11. Owners of public conveyances liable for acts of drivers. 12. Term "carriage" defined. 13. Stone and rubbish not to be dumped in highways. 14. When highways are laid out, fences to be removed. 15. Penalty for falling trees into highways. 16. Fallen trees to be removed. 17. Penalty for obstruction or encroachment. 18. Commissioners to notify owner or occupant to remove obstruc- tion or encroachment; penalty for failure to remove. 19. Commissioners of highways to recover penalties\ § I. Injuries to highways and bridges; treble damages therefor. Whoever shall injure any highway or bridge maintained at the public expense, by obstructing or diverting any creek, water- course or sluice, or by dragging logs or timber on its surface, or by any other act, or shall injure, deface or destroy any mile-stone or guide-post erected on any highway, shall for every such offense, forfeit treble damages.' [Highway Law (L. 1890, ch. 568), § 153 ; Heydecker's Gen. L. {M ed.), p. 1349.] § 2. Penal Code provisions relating to highways. " Public nuisance " defined. A public nuisance is a crime against the order and economy of the state, and consists in unlaw- 1. Protection of mile stones and guide posts. Commissioners of highways are authorized to cause mile stones and boards to be erected upon highways. They are also required to erect guide posts with proper inscrip- tions at the intersection of highways. See Highway Law, sec. 5, ante, p. 599. As to the erection of mile stones and guide posts by turnpike and plank road companies, see Transportation Corporations Law, sec. 136, 'post, p. 790. Use of Highways; Enceoachments. 687 Penal Code, §§ 431, 639, 661, 654a. fully doing an act, or omitting to perform a duty, which act or omiseion ; 3. Unlawfully interferes with, obeitruota, or tends to obstruct, or renders dangerous for passage, a late, or a navigable river, bay, stream, oanal or basin, or a stream, creek or other body of ■water which has been dredged or cleared at public expense, or a public park, squarei, street or highway. [Penal Code, § 385, sub. 3, as amended by L. 1901, ch. 367. J Noisome or unwholesome substances, etc., in highway. A per- son, who deposits, leaves or keeps, on or near a highway or route of public travel, eitheT on the land or on the water, any noisome or unwholesome substance, or establishes, maintains or carries on, upon or near a public highway or route of public travel, either on the land or on the water, any business, trade or manufacture which is noisome or detrimental to public health, is guilty of a misde- meanor, punishable by a. fine of not less than one hundred dollars, or by imprisonment not less than three nor more than six months, or both. [Penal Code, § 431.J Injuring highways, mile-boards, etc. A person who wilfully or maliciously displaces, removes, injures, or destroys, 1. A public highway or bridge, or a private way laid out by authority of law, or a bridge upon such public or private way ; or, 6. A mile-board, mile-stone, or guide-post, erected upon a high- way, or any inscription upon the same ; Is punishable by imprisonment for not more than two years. [Penal Code, § 639, subs. 1, 6.J Throwing substance injurious to animals in public place, a mis- demeanor. A person who wilfully throws, drops or places, or causes to be thrown, dropped or placed, upon any road, highway, utreet or public place, any glass, nails, pieces of metal or other sub- stance which might wound, disable or injure any animal, is guilty of a misdemeanor. [Penal Code, § 661.] Deposit of certain substances on public roads. Whoever, with intent to prevent the free use of a cycle thereon, shall throw, drop or place, or shall cause or procure to be thrown, dropped or placed, in or upon any cycle path, avenue, street, sidewalk, alley, road, highway or public way or place, any glass, tacks, nails, pieces of 688 Highways and Beidges. Highway Law, §§ 154, 155. metal, brier, tliom or other substance whieb might injure ur punc- ture any tire used on a cycle, or whioh might wound, disable or injure any person using such cycle, shall be guilty of a misde^ meanor, and on conviction be fined not less than five nor more than fifty dollars. [Penal Code, § 654a. J § 3. Town not liable for bridge breaking by wagon and load of over four tons. JSTo town shall be liable for any damage resulting to person or property by reason of the breaking of any bridge, by transporta- tion on the same, of any vehicle and load, together weighing four tons or over; but any owner of suah vehicle or load, or other per- son engaged in transporting or driving the same over any bridge, shall be liable for all damages resulting therefrom.' [Highway Law (L. 1890, ch. 568), § 154; Heydecker's Gen. L. {2d ed.), p. 1349.] § 4. Steam traction engines on highway. The owner of a carriage, vehicle or engine, propelled by steam, his servant or agent, shall not allow, permit or use the same to pass over, through or upon any public highway or sitreet, except upon railroad tracks, unless such owners, or their agents or servants, shall send before the same, a person of mature age, at least one- eighth of a mile in advance, who shall notify, and warn persona traveling or using such highway or street, with horses, or other do- mestic animals, of the approach of such carriage, vehicle or engine ; and at night such person shall carry a red light, except in incorpo- rated villages and cities. This seotion shall not apply to any car- riage or motoir vehicle, propelled by steam, developing lees than twenty-five horse- power, other than a steam traction engine.' 2. Bridge maintained bjr railroad. The provisions of the above sec- tion exempting a town from damages resulting from the breaking of a bridge by a load weighing more than four tons does not apply to bridges constructed by a. railroad as required by section 11 of the Railroad Law, but only to bridges of a town maintained at public expense. Bush v. D. L. & W. R. R. Co., 166 N. Y. 210. Excessive load. A verdict against a town for the death of a driver caused by the breaking of a bridge, will be reversed when it appears that tho weight of the wagon and load was over four tons. Kelly v. Town of Sanger- ties, 110 App. Div. 561, 97 N. Y. Supp. 177. See, also, Heib v Town of Big Flats, 66 App. Div. 88, 73 N. Y. Supp. 86; Vandewater v. Town of Wappin- ger, 69 App. Div. 325, 74 N. Y. Supp. 699. 3. Penal provision. Section 640 of the Penal Code contains the follow- ing subdivision : " A person who wilfully, ....... " 11. Drives or leads along a public highway a wild and daiigerous animal, or a vehicle or engine propelled by steam, except upon a railroad, along a public highway, or causes or directs such animal, vehicle or engine to be so driven, led, or to be made to pass, unless a person of mature age shall precede such anim'il, vehicle or engine by at least one-eighth of a mile, carrj'ing a. Use of Highways; Encroachments. 689 Highway Law, § 156. [Highway Law (L. 1890, ch. 568), § 155, as amended by L. 1901, ch. 531; Heydecker's Gen. L. (2d ed.), p. 1349.J § 5. Trees along the highways ; to whom they belong. All trees standing or lying on any land over which any highway shall be laid out, shall be for the proper use of the owner or occu- pant of such land, except such of them as may be requisite to make or repair the highway or bridges on the same land.* [Highway Law (L. 1890, ch. 568), § 156; Heydecker's Gen. L. (2d ed.), p. 1350.] red light, if in the night time, and gives warning to all persons whom he meet.] traveling such highway, of the approach of such animal, vehicle or engine; Shall be deemed guilty of a misdemeanor." Necessity of irarning. Where a steam roller was being used on the streets and no notice or warning of its approach was given, and the horses which the plaintiff was driving became frightened, it was held, in an action brought against the village to recover damages for personal injuries result- ing from the negligence of the village, that it was proper to submit to the jury the question whether reasonable care required warning to be given of the approach of the steam roller. It was also held that upon the question whether a warning was necessary, it was proper to consider the fact that the above section of the Highway Law and of the Penal Code recognized the necessity of such a warning and that the failure to give it was made a mis- demeanor, as indicating the view which the people of the state have taken as to the necessity of such warning. Mullen v. Village of Olens Falls, 11 App. Div. 275; 42 N. Y. Supp. 113; see, also. Rice v. Buffalo Steel House Co., 17 App. Div. 462; 45 N. Y. Supp. 277. 4. Abatement of tax for shade trees transplanted by the side of a high- way by the owner of the adjoining premises. See Highway Law, sec. 44, ante, p. 632. The commissioners of highways may authorize the owners of property adjoining highways to locate and plant trees. See Highway Law, sec. 43, ante, p. 631. Ownership of trees. The presumption of law is that the title to lands of abutting owners extends to the center of the street, and such presumption is sufBcient to establish the ownership of the trees along the highway in the owner of the adjoining land. McCruden v. Rochester Ry. Co., 5 Misc. 59; 25 N. Y. Supp. 114; affd., 77 Hun, 609; see Village of Lancaster v. Ri<:hardson, 4 Lans. 136. A right having once been given to the owner of lands adjoining a highway to plant and have shade trees along the highway, he is entitled to a continu- ance of the growth of such trees and is protected against their destruction by any person including a highway officer. See Edsall v. Howell, 86 Hun, 424; 33 N. Y. Supp. 892. Although an owner does not own the fee of the highway in front of his lot, if he sets out shade trees along the highway in front of bis premises, at his own expense and with the sanction of the muni. 090 Highways and Bbidges. L. 1875, ch. 215, §§ 1, 2; Highway Law, § 157. § 6. Shade trees along highways, injuries to, by leaving horses or animals near ; or by mutilation ; penalty, how recovered. It shall be unlawful for any person or persons whatsoever, in this state, to hitch any horse or other animal to, or leave the same standing near enough to, to injure any fruit or forest tree that has been transplanted or used as a shade or ornamental tree around any schoolhouse, church or public building, or along any public highway, or to cut down or mutilate, in any way, any such orna- mental or shade trees; but the right of property owners along highways to cultivate, train and use such shade trees shall not be impaired or abridged hereby. [L. 1875, ch. 215, § 1, o^ amended ly L. 1881, cli. 344.] Any person or persons guilty of violating the provisions of sec- tion 1 of this act shall be liable to prosecution by any person, be- fore any justice of the peace in the town where the offense is com- mitted, and punishable by a fine not exceeding ten dollars, nor less than one dollar, besides the costs of action for each offense or for each tree cut down or mutilated in violation of the provisions of this act ; and every such penalty, when collected, shall be paid by the justice, one-half to the overseen of the poor of the town in which recovery was had, and the remainder to complainant, and the same process and means for the collection of the penalties im- posed by this act may be issued and had as are now allowed by law for the collection of damages in actions of tort, but no provisions of this act shall operate to interfere with any ordinance of the incorporation of villages and cities of this state, intended to secure the protection of shade trees therein. \_Id., § 2, as amended by L. 1881, ch. 344.J § 7. Carriages meeting to turn to right. (A) Whenever any persons, traveling with any carriages, or riding horses or other animals, sihall meet on any turnpike road or highway, the persons so meeting shall seasonably turn their carriages, horses, or other animals to tie right of the center of the road, so as to permit such carriages, horses, or other animals to cipal authorities, he is entitled to have such trees protected against negli- gent or wilfull destruction at the hands of third parties and has a right in the nature of an easement for which he may recover compensation if it is taken away from him. The unlawful cutting down of shade trees in a high- way is deemed in equity irreparable injury. Lane v. Lamke, 53 App. Div. 896; 65 N. Y. Supp. 1090, Use of Highways ; Enceoachments. 691 Highway Law, § 158. pass witkout interference or interruption, (under tJi© penalty of five dollars for every neglect or offence, to be recovered by the party injured. (B) Any carriage, or the rider of a horse or other animal, over- taking another shall pass on the left side of the overtaken carriage, horse or other animal. When requested to do so, the driver or person having charge of any carriage, horse or other animal, travel- ing, shall, as soon as practicable, turn to the right, so as to allow any overtaking carriage, horse or other animal, free passage on his left (C) In turning corners to the right, carriages, horses or other animals, shall keep to the right of the center of the road. In turn- ing comers to tlie left, they shall pass to the right of the center of intersection of the two roads. (D) Any person neglecting to comply with or violating any provision of this section shall be liable to a penalty of five dollars to be recovered by the party injured, in addition to all damages caused by such neglect or violation.' [Highumy Law (L. 1890, ch. 568), § 157, as amended by L. 1902, ch. 96; Heydecher'a Gen. L. {2d ed.), p. 1350.J § 8. Intemperate drivers not to be employed; penalty. No person owning any carriage for the conveyance of passen- gers, running or traveling upon any highway or road, shall em- 5. The amendment of 1902 has materially changed the former law, which merely provided that persons meeting should seasonably turn their carriages to the right of the center of the road so as to permit such car- riages to pass without interference or interruption. Under that law it was held that it was extremely doubtful whether the law in regard to keeping to the right on a public highway applies to any one except the drivers of vehicles of some kind. Mooney v. Trow, etc., Co.. 2 Alisc. 238; 21 N. Y. Supp. 957; Weicman v. Ernst, 10 X. Y. Supp. 310; 31 N. Y. St. Rep. 1; Smith v. Dyfjart, 12 Barb. 613. But the present law applies to any person traveling with a carriage or riding horses or other animals. The center of the road means the center of the worked part of the road; it is immaterial that one side was rouorher than the other. Earing v. Lansinq, 7 Wend. 185; F!immon.ion v. fttfllenmerf. Edm. S. C, 194; Pike v. Bosworth, 7 N. Y. St. Rep. 665. And when one is upon the ground it is sufficient to keep to the beaten track. Smith v. Dyqart, 12 Barb. 613. Rnnanray horses should be guided to the right side of the road to avoid a collision. But if the horses are beyond the control of the driver and he uses due diligence and the best of his ability as a skillful driver to control them the law of the road does not applv. Cadwell u. Armheim, 81 Hun, 39; 30 N. Y. Supp. 573. 692 Highways and Beidges. Highway Law, §§ 159, 160, 161. ploy, or continue in eanployment, any person to drive such cai' riage, who is addicted to drunkenness, or to the exoessive use of sipirituousi liquor; and if any such owner shall violate the pro- visions of this section, he shall forfeit at the rate of five dollars per day, for all the time during which he shall have kept any such driver in his employment. [Highway Law (L. 1890, ch. 568), § 158 ; Heydecker's Gen. L. (2d ed.), p. 1350.] § g. Intoxicated drivers to be discharged upon notice of passengers. If any driver, while actually employed in driving any such carriage, shall he guilty of intoxication, to such a degree as to endanger the safety of the passengers in the carriage, the owner of such carriage shall, on receiving written notice of the fact, signed by any one of said passengers, and certified by him on oath, forthwith discharge such driver from his employment; and every such owner, who' shall retain, or have in his service, within six months after the receipt of such notice, any driver "who shall have been sO' intoxicated, shall forfeit at the rate of five dollars per day, for all the time during which he shall keep any such driver in his employment after receiving such notice. [Highway Law (L. 1890, ch. 568), § 159; Heydecker's Gen. L. (2d ed.), p. 1350.] § 10. Leaving horses untied by drivers of public conveyances. No driver of any carriage used for the purpose of conveying passengers for hire, shall leave the horses attached thereto, while passengers remain in the same, without first making such horses fast with a saiificient halter, rope or chain, or by placing the lines in the hands of some other person, so as to prevent their running ; and if any such driver shall offend against the provisions- of this section, he shall forfeit the sum of twenty dollars. [Highway Law (L. 1890, ch. 568), § 160; Heydecker's Gen. L. (2d ed.), p. 1351.] § II. Owners of public conveyances liable for acts of drivers. The owners: of every carriage running or traveling upon any turnpike road or highway, for the conveyance of passengers, shall be liable jointly and severally, to the party injured, for all in- juries and damage® don© by any person in the employment of such owners, as a driver, while driving such carriage, whether Use of Highways; Encroachments. 693 Highway Law, §§ 162, 165, 101. the accident occasioning such injury or damage be wilful or negli- gent, or otherwise, in the same manner as siuch driver would be liable." [Highimy Law (L. 1890, ch. 568), § 161; Heydecher's Gen. L. {2d ed.), p. 1351.] § 12. Term " carriage " defined. The tei-m " carriage," as used in this article, shall be construed to include stage-coaches, wagons, carts, sleighs, sleds, automobiles or motor vehicles and every othei- carriage or vehicle used for the transportation of persons and goods, or either of them, and bi- cycle®, tricycles and all other vehicles propelled by manumotive or pedomotive power, or by electricity, steam, gasoline or other source of energy. [Highway Law (L. 1890, ch. 568), § 162, as amended hy L. 1901, ch. 531; Heydecker's Gen. L. {2d ed.), p. 1351.] § 13. Stone and rubbish not to be dumped in highways. No stone or other rubbish shall be drawn to and deposited within the limits of any highway, except for the purpose of filling in a depression or otherwise improving the highway, with the consent of the commissioner of highways and under the direction of a commiseionefr or overseer of highways. [Highway Law {L. 1890, ch. 568), § 165, as added hy L. 1898, ch. 352; Heydecker's Gen. L. {2d ed.), p. 1353.] § 14. When highways are laid out, fences to be removed. Whenever a highway shall have been laid out through any in- closed, cultivated or improved lands, in conformity to the provi- sions of this chapter, the commissioners of highways shall give to the owner or occupant of the land through which such highway shall have been laid, sixty days' notice in writing to remove his fences; if such owner shall not remove his fences within the sixty days, the commissioners shall cause them to be removed, and shall direct the highway to be opened and worked.' [Highway Law {L. 1890, ch. 568), § 101; Heydecker's Gen. L. {2d ed.), p. 1339.J 6. Application of section. This section does not apply to the em- ployes of a street railway operating its cars in the public streets and high- ways. Whitaker v. Sth Ave. Ry. Co., 51 N. Y. 295; Isaacs v. 3rd Ave. By. Co., 47 N. Y. 122. 7. For form of notice to owner or occupant to remove fences, see Form Ko. 143, post. 694 Highways aito Beidges. Highway Law, §§ 102, 103, 104. § 15. Penalty for falling trees into highways. If any person shall cut down any tree on land not occupied by him, so that it shall fall into any highway, river or stream, unless by the order and oonseoit of the occupant, the person so offending shall forfeit to sueh occupant, the sum of one dollar for every tree so fallen, and the like sum for every day the same shall remain in the highway, river or stream. [Highway Law (L. 1890, ch. 568), § 102 ; Heydecker's Gen. L. (2d ed.), p. 1340.] § 16. Fallen trees to be removed. If any tree shall fall, or be fallen by any person from any in- closed land into any highway, any person may give notice to the occupant of the land from which the tree shall have fallen, to remove the same within two days; if such tree shall not be re- moved via thin that time, but shall continue in the highway, the occupant of the land shall forfeit the sum of fifty cents for every day theTeafter, until the tree shall be removed. [Highwuy Law {L. 1890, ch. 568), § 103; Heydecker's Gen. L. (2d ed.), p. 1340.] § 17. Penalty for obstruction or encroachment. Whoever shall obstmct or encroach upon any highway, or shall unlawfully fill up or place any obstruction in any ditch for drain- ing the water from any highway, shall forfeit for every sueh offense the sum of five dollars." [Highway Law (L. 1890, ch. 568), § 104; Heydecker's Gen. L. {2d ed.), p. 1340.] 8. Encroachment by abutting o\(rner. The owner of land abutting upon a public street is permitted to encroach on the primary right of the public to a limited extent and for a temporary purpose, owing to the neces- sity of the case. Two facts, however, must exist to render the encroachment lawful ; the obstruction must be reasonably necessary for the transaction of business ; it must not unreasonably interfere with the rights of the public. Welch V. Wilson, 101 N. Y. 25i -.Gallanan v. OUmarn. 107 N. Y. 360; Flynn v. Taylor, 127 N. Y. 596. Recovery of penalty. There is no provision in the statute which au- thorizes the commissioners of highways of two towns to unite as plaintiiTs and bring an action to recover the penalty or forfeiture for an encroachment upon a highway. The authority of such officers to maintain actions is given by statute and is confined to the officers of the town where the oiTence has been committed. Bradley u. Blow, 17 Barb. 480. It is not necessary under this section to give the defendant notice of the obstruction specifying the extent and location thereof and direct him to re- move the B0.me within sixty days, before an action can be brought to recover Use of Highways; Encboachments. 695 Highway Law, § 105. '§ 18. Commissioners to notify owner or occupant to remove obstruction or encroachment; penalty for failure to remove. The commissioner of highways shall serve upon the owner or occupant of lands adjoining that part of a highway within their town, in which any obstruction or encroachment may exist, in- cluding any fences, brush, shrubbery, or other obstruction causing the drifting of snow, and branches of trees overhanging the trav- elled portion of the highway so as to interfere in any manner with persons riding or driving over said highway, a notice specifying the extent and location of such obstruction or encroachment, and directing such owner or occupant to remove the same within a specified time, not more than sixty days after the service of the notice.' If such owner or occupant shall neglect or refuse to re- move such obstruction or encroachment within such time, he shall the penalty prescribed. Town of Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360. It is a good answer to suit brought in justices' court to plead title to the land and deny that the place is a highway. Little v. Uunn, 34 N. Y. 452; Sage v. Barnes, 9 Johns. 365; Fleet v. Youngs. 7 Wend. 291. 9. Removal of obstractlons by commissioners. The highways of the state are made for and devoted to public travel, and the whole public have the right to their use in their entirety, and when obstructions to public travel are found within their bounds, the commissioners of highways are clothed with power to remove them without waiting for the slow process of law, even though travel be not absolutely and entirely prevented. Cook v. Harris, 61 N. Y. 448; Hathaway v. Jenks, 67 Hun, 289; 22 N. Y. Supp. 421 ; Van Wyck v. Lent, 33 Hun, 301. The commissioners should all meet and de- liberate together on the subject of the alleged encroachment; and then, if they, or a majority of them, should deem it necessary they should order the obstruction removed. See Spices v. Slade, 9 Johns. 359; Branson v. Mann, 13 Johns. 460. For form of notice to remove obstruction or encroachment, see Form No. 144, post. Safficiency of notice. The purpose of the notice is to inform the one who is served of the particulars of the encroachment. Town of Sardinia v. Butler, 78 Hun, 527; 29 N. Y. Supp. 481. In this case the notice was, in sub- stance, that the highway commissioner, having ascertained that the highway was encroached upon, on the north side, along the defendant's land, by fences erected by him, had caused a survey to be made and had ascertained the northerly bounds of the highway along the defendant's lands, " and that said fence or fences encroaches upon the said highway along the whole of your said lands to the westerly line thereof at different distances, ranging from seven feet four inches to fifteen feet (as more particularly appears by refer- ence to a map thereof, now in my possession, and which you are at liberty to inspect at any time), and that all the narrow strip or piece of land which lies under said fence or fences, and between said fence or fences and the northerly line of said highway, is a part of the public highway aforesaid." And then followed a direction to remove the fence within twenty days. It was held that this description was sufficiently definite, and complied with the statute. The above section does not require that notice of at least sixty days be given before the commencement of an action to compel the removal of obstructions; it was held that a notice of fifteen days was sufficient. Toton of Smithtown v. Ely, 75 App. Div. 309^ 78 N. Y. Supp. 178. 696 Highways and Bridges. Highway Law, § 164. forfeit to the town the sum of twenty-five dollars; and the com- missioners may remove such obstructions or encroachments at the expense of the town, which may be recovered by action, of such owner or occupant ; or the said commissioners may bring an action in any court of competent jurisdiction, to compel such owner or occupant to remove such obstruction or encroachment." Actions by commissioners of highways, as in this section provided, shall be in the name of the town. [Eighway Law (L. 1890, ch. 568), § 105, as amended by L. 1904, ch. 478 ; Heydeckers Gen. L. {2d ed.), -p. 1340.] § 19. Commissioners of highways to recover penalties. AH penalties or forfeitures given in this chapter, and not other- wise specially provided for, shall be recovered by the commis- sioners of highways, in the name of the town in which the offence shall be committed ; and when recovered, shall be applied by thorn in improving the highways and bridges in such town. ^Highway Latv (L. 1890, ch. 568), § 164; Heydeckers Gen. L. (2d ed.), p. 1352.] 10. Ad action for a penalty under this section may be maintained by the commissioner although the highway was never laid out or entered of record, but was established by user. Toum of West Union v. Richey., 64 App. Div. 156; 71 N. Y. Supp. 871. But, see, Marvin v. Pardee, 64 Barb. 353. And in the case of Talmadge v. Hunting, 29 N. Y. 447, it was held that before it can be determined whether a particular highway has been encroached upon, its limits and boundaries must be ascertained and determined in some mode prescribed by law; where the highway has not been laid out, but has become a highway merely by public use for a term of twenty years, the power of the commissioners of highways is limited to ascertaining the boundaries of the road according to the actual use for the twenty years. They have no right, in the exercise of this power, to alter or change the boundaries with refer- ence to present public convenience. If the action is brought in a justices' court and the defendant does not plead title, the controversy is confined to the question whether the land encroached upon was used as a highway by the public. Such an action may be maintained although the alleged highway was never laid out or entered of record but was established by user. Town of West Union v. Richey, 64 App. Div. 156, 78 N. Y. Supp. 178. Town Beidoes. .697 Highway Law, § 130. CHAPTER LI. TOWN BRIDGES. SxonoN I. Bridges to be maintained at expen&e of towns; joint liability of towns for bridges on boundary line of towns; county to con- tribute when bridge is over county line. 2. County aid to towns for construction and repair of bridges. 3. Commissioners to furnish to supervisor statement of expenses of maintaining free bridge. 4. Statements to be delivered to board of supervisors; board to levy amount thereof. 5. Joint liabilities of towns, and their joint contracts on account of bridges. 6. Refusal of commissioners of one town to rebuild or repair bridge; action to recover amount expended by one town. 7. Application of freeholders to repair or rebuild bridge over boundary line; procedure if commissioners refuse. 8. Commissioners may institute proceedings to compel commis- sioners of adjoining town to repair bridge. 9. Commissioners to be served with copy of order; commissioners to cause bridge to be built or repaired. 10. Commissioners to report to town board; board of supervisors to levy tax for expenses incurred upon appropriate town. 11. Appeals from order of special term. 12. Costs of proceedings; appeal to conform to practice of Supreme Court. 13. Refusal to repair bridge over boundary line after notice; cost of repair a town charge; order of Supreme Court directing amount thereof to be paid. 14. Penalty for driving faster than a walk over bridge; notice. 15. Violation of notice an offense. 16. Certificate of state engineer as to completion of iron bridge according to contract. 17. Construction and maintenance of bridges over waters between towns and cities of over 1,500,000 inhabitants. § I. Bridges to be maintained at expense of towns; joint lia- bility of towns for bridges on boundary line of towns; county to contribute when bridge is over county line. The tiowns of this state, except aa otherwise herein provided, shall be liable to pay the expenses for the oonstruotioTi and repair of its public free bridges constructed over Sitreama or other water within their bounds, and their just and equitable share of s-uch eKpenses when so eonstruoted over streams or other waters^ upon, tiheir boundaries, except between the oounties of Westchester and 698 Highways and Bridges. Highway Law, § 130. TSew York; and when audi bridges are constructed oveir stcreamfl or other waters forming the boundary line of towns, either in the siajne or adjoining counties, such towns shall be jointly liable to pay such expenses.' When such bridges are constructed over streams or other waters forming the boundary line between a city of the third class and a town, such city and town shall be liable each to pay its just and equitable share of the expenses for the oonstruotion, maintenance and repair of such bridges. Except as otheTwise provided by law, a city of the third class shall be 1. Construction of toDra bridges. ITie cost of the construction and maintenance of town bridges over streams within the boundaries of the town is a town charge, and the town is liable therefor. The board of supervisors may authorize a town to construct or repair a bridge and to borrow such sums therefor as may be required. See County Law, see. 69, post, p. 715. County may aid town in construction of bridge destroyed by the elements, where the cost of such bridge would, in the opinion of the board of super- visors, be too burdensome for the town. See County Law, sec. 64, post\, p. 711. and sec. 63, post, p. 699. As to bridges intersected by town or county lines, see County Law, sec. 65, post, p. 712; and as to bridges over county lines, see County Law, sec. 68, post, p. 713. Iiiability of towns. Prior to the enactment of the Highway Law in 1890, the burden of supporting the bridges within the towns was cast upon the towns alone. The counties could not be compelled to contribute toward such support. Town of Wirt v. Supervisors, 90 Hun, 205; 35 N. Y. Supp. 887. Poirers of conunlssioners. Highway commissioners are charged with the duty of erecting and maintaining town bridges. Berlin Iron Bridge Co. V. Wagner, 57 Hun, 346; 10 N. Y. Supp. 840. And the power given to a commissioner to repair highways includes the power to build a bridge to connect two parts of a, highway. Mather v. Crawford, 36 Barb. 564; Hug- gans v. Riley, 125 N. Y. 88; 25 N. E. 993. After a town board has given its consent to the erection or repair of a bridge which has been destroyed or damaged by the elements, its duties in respect thereto are at an end, and it cannot direct the highway commis- sioners as to the manner of construction. People ex ret. Oroton, etc.. Bridge Co. V. Town Board, 92 Hun, 585; 36 N. Y. Supp. 1062. Bridges over to'wn boundaries. The provisions of the above section as to the construction of bridges over town lines only refer to bridges con- necting with the town sought to be charged, or ending therein, and are not intended to apply to a bridge neither end of which is in the town sought to be charged with the cost thereof, and which is not accessible therefrom, although one of its piers, and the middle portion of it, are situated upon and over land belonging to such town. Town of Candor v. To oommissioneirs. of highways of either of such towns', after notice in writing from the commissioners of highways of any other of such towns, shall not within twemty days give their consent in writing to build or repair any such bridge,' and shall not within a reasonable time thereafter do the same, the commissioinerS' of high- ways giving such notice may make or repair snch bridge, and then maintain an action in the name of the town, against the town whose commissioners neglecti or refuse to join in such making or repairing, and in snch action, the plaintiffs shall be entitled to recover so much from the defendant, as the town would be liable to contribute to the siame, together with costs and interest.' [High- way Law (L. 1890, ch. 568), § 135; Heydecker's Gen. L. (2d ed.), p. 1345.] expense of the two towns. Ediwards v. Ford, 22 App. Div. 277 ; 47 N. Y. Supp. 995. In the case of Marshall v. Hayioard,, 74 App. Div. 28, Woodward, J., in writing for the court, said : "The spirit of the act appears to be that the commissioners of highways for the several towns interested shall act for their towns, and that they shall, on behalf of their respective towns, enter into a joint contract for the con- struction of such bridges, each town providing for the payment of its equal portion of the cost of such bridges, without any reference to the question of what portion of any sucli bridge may be within the jurisdiction of any par- ticular town." 6. For form of notice to commissioners of adjoining towns to rebuild or repair bridge, see Form No. 146, post. For form of consent to rebuild or repair bridge, see Form No. 147, post. Necessity of notice. It is apparent from the above section that if a commissioner repair a bridge without giving notice to the commissioners of the towns jointly liable, he cannot recover their proportion of the expense because of his failure to comply with the requirements of the statute. Flynn V. Eurd, 118 N. Y. 19, 29; 22 N. E. 1109. The commissioners of one of the towns liable may waive the notice; and where, upon application of the com- missioners of the other town, he absolutely refuses to help rebuild the bridge when it becomes necessary, they thereby waive notice, and the latter may rebuild and then maintain an action against the former to recover half the expense. Day v. Day, 94 N. Y. 153; Clapp v. Town of Ellington, 87 Hun, 542; 34 N. Y. Supp. 283. 7. Action to recover share. An action will lie under the above sec- tion where the commissioners of one of the towns, though having met with the commissioners of the other towns and agreed to join in the repair, yet have neglected to pay their share of the expense. Surdam v. Fuller, 31 Hun, 500. It need not be alleged in the complaint that the defendant towns had money with which to pay their share of the joint expense. Oakley v. Town of Mamaroneck, 39 Hun, 448. ^02 Highways and Bkidqes. Highway Law, § 136. § 7. Application of freeholders to repair or rebuild bridge over boundary line ; procedure if commissioners refuse. "Whenever any adjoining towns shall he liable to make or main- tain any bridge over any streams dividing such towns, whether in the same or different counties, three freeholders in either of »uoh towns may, by petition signed by them, apply to the com- missioners of highways in each of sueh towns, to build, rebuild or repair such bridge, and if such co'mmissioners refuse to build, rebuild or repair such bridge, within a reasonable time, either for want of fundsi or any other cause, such freeholders., upon affi- davit and notice of motion, a copy of which shall be served on each of the commissioners, at least eight days before the hearing, may apply to the Supreme Ctiurt at a special term thereof, to be held in the judicial district in which such bridge, or any part thereof, shall be located, for an order requiring such commission- ers to build, rebuild or repair such bridge, and the court upon such motion may, in doubtful casesi, refer the caee to sO'ioe disinterested person to ascertain the requisiite facts in relation thereto, and to report the evidence thereof, to the court" Upon the coming in If the commissioners of two of three towns have paid the entire expense of the construction or repair of a bridge for which all three towns are jointly liable, the commissioner of each of the two towns should sue separately to recover the portion paid by each. Corey v. Rice, 4 Lans. 141. 8. For form of petition of freeholders to commissioners of adjoining towns to rebuild or repair a bridge, see Form No. 148, post. For form of notice of motion for an order of the Supreme Court compelling commissioners to rebuild or repair bridge, see Form No. 149, post. For form of affidavit to be used on sueh motion, see Form No. 150, post. Jurisdiction of court. The above section confers authority upon the court only in reference to bridges over "streams'' dividing towns. It confers no authority as to bridges over bays or lakes or other bodies of water, nor does it give authority as to causeways or bridges over marshes between two- towns. Ma^tter of Freeholders of Irondequoit, 68 N. Y. 376, 379. Nor is there any remedy under this section unless the bridge connects lawful high- ways. Matter of Montezuma, 14 N. Y, Supp. 845; 38 N. Y. St. Rep. 970. These proceedings are limited in their operation and effect to bridges over boundary lines between towns; although by other statutes bridges not so situated are maintainable at the joint expense of two or more towns, the proceedings above authorized do not apply thereto. Matter of Petition of Freeholders of Cattaraugus Co., 59 N. Y. 316. The inability of commissioners of the adjoining towns to agree on the kind of material to be used in the construction of the bridge is equivalent to a refusal and justifies the application by freeholders. Matter of Towns of Mt, Morris and Castile, 41 Hun, 29. Town Beidges. 703 Highway Law, §§ 137, 138. of the report, in case of such reference, or upon or after the hear- ing of the motion, in case no such reference shall be ordered, the court shall make an order thereon as the justice of the case shall i-equire.' If the motion be granted in whole or in part, whereby funds shall be needed by the commissioners to carry the order into effect, such court shall specify the amount of money required for that purpose, and how much thereof sliall be raised in each town. [Highway Law (L. 1890, ch. 568), § 136; Heydecker's Oen. L. {Med.), p. 1345.] § 8. Commissioners may institute proceedings to compel com- missioners of adjoining town to repair bridge. The commissioners of highways of any such town, may insti- tute and prosecute proceedings under this ohapter, in the name of the town, to compel the commissioners of such adjoining towns, to join in the building, rebuilding or repair of any such bridge, in like manner as freeholders are hereby authorized. [Highway Law {L. 1890, ch. 568), § 137; Heydecker's Gen. L. {2d ed.), p. 1346.] § g. Commissioners to be served with copy of order; commis- sioners to cause bridge to be built or repaired. The order for building, rebuilding or repairing a bridge being made, and a copy thereof being served on the commissioners of highways of such adjoining towns respectively, the commission- ers of highways of such tO'Wns shall forthwith meet and fix on the plan of such bridge, or the manner of repairing the same, and shall cause such bridge to be built, rebuilt or repaired out of any funds in their hands applicable thereto; and if an adequate amount of funds are on hand, they shall cause the same to be built, rebuilt or repaired upon credit, or in part for cash and in part, upon credit, according to the exigency of the case ; and the commissioners may enter into a contract for building, rebuilding or repairing such bridge, pledging the credit of each to^vn for the payment of its appropriate share, so far as the same shall be upon credit.. [High- way Law {L. 1890, ch. 568), § 138; Heydecker's Gen. L. {2d ed.), p. 1346.] 9. For form of order of court to rebuild bridge, see Form No. 151, post. 704 Highways and Bkidqes. Highway Law, §§ 139, 140, 141, 142. § 10. Commissioners to report to town board ; board of super- visors to levy tax for expenses incurred upon appropriate town. The oommissioners of highways of each town, shall make a full report of their proceedings in the premises, to the town board, at the time of making their annual report. They shall attach to the copy of the order granted by the Supreime Court, an accurate account under oath, of what has been done in the premises, and deliver the same to the suppTvisor of their town. The board of supervisors at their annual meeting, shall levy a tax upon each of such towns, when in the same county, and upon the appropriate town when in different counties, for its share of the costs of build- ing, rebuilding or repairing such bridge, after deducting all pay- ments actually made by the commissioners thereon ; which tax, including pirior payments, shall in no case exceed the amount specified in the order. [Highway Law (L. 1890, ch. 568), § 139; Heydecher's Gen. L. (2d ed.), p. 1347.] § II. Appeals from order of special term. Either party aggrieved by the granting or refusing to grant such order by the court, at special term, may appeal from such decision to the general term of the Supreme Court for the review of the decision. The general term may alter, modify or reverse the order, with or without costs. [Highway Law (L. 1890, ch. 568), § 140; Heydecher's Gen. L. (2d ed.), p. 1347.] § 12. Costs of proceedings; appeal to conform to practice of Supreme Court. The special term may grant or refuse coste as upon a motion, including also witnesses' fees, referees' fees and disbursements. The appeal provided for in the last preceding section, shall con- form to the practice of the Supreme Court, in case of appeal from an order of a special term, to the general term. [Highway Law (L. 1890, ch. 568), § 141; Heydecher's Gen. L. (2d ed.), p. 1347.] § 13. Refusal to repair bridge over boundary line after notice ; cost of repair a town charge ; order of Supreme Court directing amount thereof to be paid. Whenever any such bridge shall have been or shall be so out of repair as to render it unsafe for travelers to pass over the same, or whenever any such bridge shall have fallen dovra, or been swept awa.y by a freshet or O'therwise, if the commissioners' of Town Beidges. 'i'05- Highway Law, §§ 143, 144. highways of the adjoining towns, after reasonable notice of such condition of the bridge, have neglected or refused, or shall neglect or refuse to repair or rebuild it, then whatever funds have been or shall be necessarily or reasonably laid out or expended in re- pairing such bridge, or in rebuilding the same, by any person or corporation, shall be a charge on such, adjoining towns, each being liable for its just proportion ; and the person or co'rporation who has made such expenditure, or shall make such expenditures, may apply to the Supreme Court, at a special term, for an order requiring such, towns severally to reimburse such expenditures, which application shall be made by serving papers upon th.e com- missioners of highways of each of suoh towns at least eight days; and the csourt may grant an order requiring each of the adjoining towns to pay its just proportion of the expenditure, specifying the same; and the commissioners of highways in each of such towns shall forthwith serve a copy of such order upon th,e supeirvisor of each of their towns, who shall present the same to the board of supervisors, at their next annual meeting. The board of super- visorsi shall raise the amount charged upon each, town by the order, and cause the same to be oollecbed and paid to such persons or corporation as incurred the expenditure. The order shall be ap- pealable, [^Highway Law {L. 1890, ch. 568), § 142; Heydeck- er's Gen. L. (2d ed.), p. 1347.] § 14. Penalty for driving faster than a walk over bridge; notice. The commissioners of highways may fix and prescribe a pen- alty, not less than one, nor more than five dollars, for riding or driving faster than a walk on any bridge in their tovm, whose chord is not less than twenty-five feet in length and put up and maintain in a conspicuous place at each end of the bridge, a no- tice in largei characters, stating each penalty incurred. [High- way Law (L. 1890, ch. 568), § 143; HeydecJcer's Gen. L. (2d ed.), p. 1348.J § 15. Violation of notice an offense. Whoever shall ride or drive faster than a walk over any bridge, upon which notice' shall have been placed, and shall then be, shall forfeit for every offense, the amount fixed by such commissioners, and specified in the notice. [Highway Law (L. 1890, ch. 568), § 144; Heydeclcer's Gen. L. (2d ed.), p. 1348.] T06 Highways and Bridges. Highway Law, § 145; L. 1897, ch. 269, §§ 1, 2, S. § 1 6. Certificate of state engineer as to completion of iron bridge according to contract. No town or its ofEoers shall be compelled to acceipt or pay for an iron or steel bridge exceeding two hundred feet in length, or hav- ing a span or spansi exceeding one hundred feet in length, con- structed therein or upon its borders, until thei state engineer and surveyor shall certify to the completion of the bridge:, pursuant to tihe contract under which it shall have been constructed, with his approval of the manner of its construction and the material thereof; and all contracts made for the construction of any such bridge, shall be subject to the provisions of this section.'" [High- way Law (L. 1890, ch. 568), § 145; Heydecker's Gen. L. (2d ed.), p. 1348.] § 17. Construction and maintenance of bridges over waters between towns and cities of over 1,500,000 inhabitants. Construction of bridges. — Whenever the highway commission- ers having power in the premises under this act shall decide that the public convenience requires a bridge tO' be constructed over the stream or waters dividing a city fro'm a town or any incorpio- rated village in said town, the same shall be consitructed under and according to the provisions of the Highway Law for the con- struction of bridges between towns, being article five of chapter nineteen of the general laws, the common oo'uncil of the city being the highway commissioners of said city, and the board of village trustees of any incorporated village in the town being the high- way commissioners of said village. [L. 1897, ch. 269, § 1 ; Hey- decker's Gen. L. (2d ed.), p. 45 15. J Purchase of lands for approaches. — Any land required for the approaches to said bridges for a distance nob exceeding three hun- dred feet from the bridge, may be bought by the commissioners of highway constructing the bridge, the appi-oaches constructed and the cost thereof included in the cost of the bridge. [Idem § 2.J _ Condemnation of land. — When an agreement cannot be made as to the price to be paid for the land for such approaches, the 10. Necessity of certificate. A town cannot be charged with a lia- bility to contribute to the eonstruction of an iron bridge over a stream divid- ing such town from another town until the certificate and approval of the state engineer is produced. Town of Candor v. Town of Tioga^ 11 App. Div. 602; 42 N. Y. Supp. 911. Town Beidges. 70T L. 1897, eh. 269, §§ 4, 5. said land shall be condemned in the manner as provided by chap- ter ninety-five, laves of eighteen hundred and ninety, with the acts amendatory thereof. The expenses of said condemnation proceed- ings shall be included in and be a part of the cost of the bridge. lldem, § 3.] Issiie amd sale of bridge bonds. — In order to pay for the said bridges, the oity and town shall each have the power to issue bonds, to be known as bridge bonds of the said city and town, re- spectively, by the officers thereof, and in the manner provided by law for the issue of other bonds of said city and of said town, to an amount necessary to pay their respective proportions of the said bridges, which shall be borne by said city and town in the proportion of their equalized assessed valuation of taxable prop- erty, at the time of the final resolution of said city and town, authorizing the construction of the said bridges. The total amount of such bonds to be issued by the city shall not exceed seventy-five thousand dollars, or by a tovm, twenty thousand dollars. Said bonds shall not be sold for less than the par value thereof, and ac- crued interest, if any; shall mature and be payable at a time not over thirty years from date; be of such denomination and bear such interest, not to exceed five per centum per annum, as the com- mon council of the city, in case of a city ; or the town board, in case of a town, shall determine. The proceeds of the said bonds shall be paid to the proper officer for receiving funds of each munici- pality, and credited to a fund which shall be known as the bridge fimd, and shall only be paid out by warrants, as other funds of said city or town are paid out. \_Idem, § 4, as amended by L. 1898, ch. 591 ; L. 1899, ch. 232, and L. 1902, ch. 301.] Application of act. — This act shall apply only to towns from which at least one-quarter of the territory thereof has heretofore been taken for park purposes, and which also adjoin a city con- taining at the time of the taking of the last federal census a popu- lation of one and one-half million. [Idem, § 5.] 708 Highways and Beidges. County Law, § 61. CHAPTER LII. DTJTIES OF BOARDS OF SUPEEVISOES AS TO HIGHWAYS AND BEIDGES. Section 1. When board of supervisors may lay out, open, alter or discon- tinue county highways or construct bridges. 2. Boards of supervisors may authorize the change of location or construction of bridges. 3. Board of supervisors may provide for construction of bridges destroyed by the elements, in certain cases. 4. Apportionment of expenses when a bridge is intersected by town or county lines. 5. County's share of expenses to be raised and paid to the commis- sioners of highways of the towns. 6. Board of supervisors may authorize a town to construct a bridge outside of a boundary line. 7. Maintenance of bridges over county lines. 8. Board of supervisors may authorize towns to construct or re- pair bridges and highways and to borrow money therefor. 9. Bonds issued by towns for construction and repair of highways and bridges; sale of bonds by town supervisor; disposition of proceeds ; bonds, how paid. 10. Boards of supervisors may map out streets and avenues in towns outside of city limits. 11. Board of supervisors may authorize commissioners of highway* to cause survey of highways to be made. 12. Board of supervisors may regulate toll rates. 13. Powers of boards of supervisors as to highways in counties of more than 300,000 acres of unimproved land. 14. Appropriation of certain nonresident highway taxes. 15. Balance of state appropriations. 16. Alteration of state roads. 17. Further powers of board of supervisors as to highways. 18. Board of superivsors may pass laws as to use of wide tire on highways. 19. Use of abandoned turnpike, plank or macadamized roads. 20. Definition of "upon its borders." § I. When board of supervisors may lay out, open, alter or discontinue county highways or construct bridges. A board of supervisors shall, on the applioation of twenty-five resident taxpayerai, when satisfied that it is for the interest of the county, lay out, open, alter, or discontinue a county highway theredn, or oause the same to be done, and constflniot, repair, or abandon a county bridge therein, or cause the same to be done. Duties of Supervisors as to Highways and Bkidges. 709 County Law, § 61. ■when, til© board shall deem the authority conferreid on oommiseion- eirs of highways insuffioiemt for that purpose, or that the interests of the county will be promoted thereby/ All expenses so incurred shall be a county charge. Such powers shall not be exercised unless the applicants therefor shall prove to the board the service of a written notice, personally or by mail, on a commissioner of highways of each town in the county, at least twelve days prior to the presentation of such application, specifying therein the object thereof; and when the application is to lay out a highway, or construct a bridge, the route or location thereof; and in all other cases, a designation of the highway or bridge to be affected tihereby.' [County Law (L. 1892, ch. 686), § 61; Heydecker's Gen. L. (2d ed.), p. 1220.] 1. County road system. Boards of supervisors are authorized to adopt by 11 resolution the county road system, and may thereupon designate certain leading market roads in the county to be constructed and maintained at a county expense. Highway Law, see. 54, ante, p. 639. The roads so designated are to be under the jurisdiction of the board, and exempt from the jurisdic- tion of the town highway officers. Idem, sec. 58, ante, p. 641. County bonds may be issued for the construction of such roads. Idem, sec. 57, ante, p. 641. As to roads to be built at the expense of towns, counties and the state, see L. 1898, ch. 115, po$t, p. 723. Where a road in a county has been designated and constructed by the county, it may be altered, or discontinued in the manner provided in the above section. Such section would also seem to au- thorize a board of supervisors to lay out and open a new highway. Potper of county as to highipays and bridges. At common law the duty of repairing and constructing bridges rested upon the county, because of the fact that bridges were regarded as for the common good of the whole county. But the rule of the common law has never been in force in this state. As early as 1784 the care and reparation of highways, including bridges, were committed to town officers. Hill v. Board of Supervisors, 12 N. Y. 52. In this case Johnson, J., said: "It must, I think, be considered as settled, that the common law responsibilities of counties for the repair of bridges never prevailed in this state. Our statutory system introduced the primary responsibility of the towns in respect to the maintenance of highways and bridges; and in many cases where the burden was greater than could con- veniently be borne by the towns, particular acts of the legislature have pro- vided for the means and method of erecting and keeping in repair the public bridges." 2. For form of application of taxpayers to board of supervisors, see Form No. 152, post; for form of notice to highway commissioners, see Form No. 153, post; for form of proof of service of notice, see Form No. 154, post; and for form of order and resolution adopted by board of supervisors, see Form No. 155, post. TIO Highways and Beidges. County Law, § 62. § 2. Boards of supervisors may authorize the change of loca- tion or construction of bridges. The board may authorize the location, change of location and construction of any bridge, applied for by any town, or towns, jointly, or by other than a municipal corporation, created imder a general law, or by any corporation or individual for private purposes ;' and if a public bridge, erected other than by a munici- pal corporation, establish the rates of toll for crossing such bridge ;' but if such bridge is to cross a navigable stream, pro- vision shall be' made in the resolution or permission authorizing 3. Iiocation of bridge; poirers of board. The power to locate a bridge over a stream, where a highway on both sides thereof has been laid out and the town has voted to construct such bridge, is not exclusively vested in the board of supervisors. Huggans v. Riley, 125 N. Y. 88; 25 N. E. 993. In this case it was held in effect that the provisions of the act of 1875, ch. 482, sec. 1, sub. 3, from which the above section was derived, did not take away the power vested in the commissioners of highways as to the care and superintendence of the highways; and that under the power given to those officers to repair highways, the highway commissioner of a town may build a new bridge when necessary to connect the two portions of a high- way interrupted by an intersecting stream. Boards of supervisors have been granted power to authorize the construction or location of a bridge, or to permit a change of location thereof by any town or towns in the county, or by an individual or corporation residing therein. But, as was said by Gray, J., in the case last cited: "The town has voted for a bridge in a certain locality and has assumed and provided for the expense of its location. For the court to hold that because the precise location had not been made and would not be made by the county supervisors, no bridge can be constructed at all, would, in my opinion, be a view of the statutory regulations on that subject, which is quite unwarrantable. I do not think the legislature meant any such thing, and its acts are not susceptible of a construction which lodges such exclusive power in the county board of supervisors." Construction by private individual. Any person owning land on both sides of a stream may, without legislative authority and even in de- fiance of legislative prohibition, maintain a ferry or bridge for his own use, providing he does not interfere with the public easement. Such owner can- not, however, without legislative authority maintain a bridge or ferry for public use. Chenango Bridge Co. v. Paige, 83 N. Y. 178. And in the case of People ex rel. Howell v. Jessup, 160 N. Y. 249; 54 N. E. C82, it was held that the town of Southampton had, in the month of June, 1888, sovereign power as to lands under water in Great South Bay, and could give authority to an owner on the main land to construct a bridge to the sand bar on the opposite side of the bay, also owned by him, where such bridge was not an unreasonable obstruction to navigation. 4. Bates of toll. Boards of supervisors may regulate rates of toll. See County Law, sec. 73, post, p. 719; Transportation Corporations Law, sec. 136, post, p. 790. Duties of Supeevisoes as to Highways and Bkidges. 711 County Law, § 64. tihe same, for the erection and maintenanc© of a suitable draw, to prevent any obstruction of the navigation of such stream ; and if a private bridge, provision shall be made that the draw shall be kept open as may be required to pennit all vessels to passi with- out loss of headway. When such bridge shall be intersected by the line of counties, the action of thei board of supervisors of each county shall be necessary to give the jurisdiction herein per- mitted. But this section shall not apply to a pier bridge erected or to be erected over the Mohawk river above the state dam by a corporation organized under the Transportation Corporations Law, provided such corporation shall comply with all the pro- visions of said Transportation Corporations Law applicable thereto; such a corporation, without further proceeding, shall have the right to ereeti and maintain pders in said river for the purposes of such a bridge. [County Law (L. 1892, ch. 66), § 62, as amended by L. 1895, ch. 225; Heydecker's Gen. L, (2d ed.), p. 1220.J § 3. Board of supervisors may provide for construction of bridges destroyed by the elements, in certain cases. If any bridge within a county, or intersected by any boundary line of a county, shall be destroyed by the elements, and the board of supervisors of the county shall deem that the expensesi of the construction of a new bridge at or near the site of the bridge so destroyed would be too burdensome upon the town or towns within such county, which would otherwise be liable therefor, the board of soipervisors of any such county may provide for the construc- tion and completion of a bridge and all necessary approaches thereto, at or near the site of the bridge so destroyed." If the bridge so destroyed shall have been constructed by a corporation created under a general law, and the site thereof, and of the approaches thereto', or cither, shall be the property of such corporation, such 5. Connty aid to towna for the construction and repair of bridges. See County Law, sec. 63, ante, p. 699. As to the construction and repair of bridges at the joint expense of town and county, see Highway Law, sees. 130-133, ante, p. 698. The legislature recognized at an early date the hardship which would fre- quently arise in imposing the whole burden of constructing and maintaining bridges upon a particular town and authorized boards of supervisors to grant relief in their discretion to an over-burdened town. See People ex rel. Boot V. Board of Supervisors, 146 N. Y. 107; 40 N. E. 738; affg. 81 Hun 216- 30 N. Y. Supp. 729; Eill v. Supervisors, 12 N. Y. 52. 712 Highways and Beidges. County Law, §§ 65, 66. board of supendsorsi may purchase the interest of sucih corporation, or any other person, in such, sdtei or approaohesi, if such purchase can be accornplished upon reasonable terms; but if such site or approaches, cannot bo lawfully acquired by such purchase, or otherwise, upon reasoniable terms, such board may acquire title to premisesi on either side of such site, and provide for the construc- tion of a bridge and approaches thereto, at such place, at the ex- pense of the county, or of the two counties jointly, as the case may be., provided such bridge shall be so located as not tO' increase the distance tO' be traveled upon the highway to reach each end of such bridge more than five rods. Any board of supeiTisors providing for the construction of any smeh bridge may determine by resolution whether the expenses of the maintenance and repair thereof shall thereafter be a county charge, or a charge upon such town or towns. [County Law (L. 1892, ch. 686), § 64; Hey- decker's Gen. L. {2d ed.), p. 1221.] § 4. Apportionment of expenses when a bridge is intersected by town or county lines. If any public free bridge, intersected by the boundary line of a county, shall also' be intersected by the boundary line of two or more towns in such county, the board of supervisors of such oonnty shall apportion as it shall deem equitable, between such towns, their respective shares of the expenS'es of the construction, main- tenance! and repair of such bridge, and the amount to be received by each town, of the money raised by the county to be paid toward defraying the expenses of oonstruoting and repairing such bridge.' [Comiiy Law (L. 1892, ch. 68), § 65; Heydecker's Gen. L. (2d ed.), p. 1222. J § 5. County's share of expenses to be raised and paid to the commissioners of highways of the towns. The board of supervisors shall cause to be raised and collected the amount to be paid by the county to any town toward the ex- penses of a bridge and when collected the same shall be paid to the commissioners of highways of the town, to be applied by them toward the payment of such expenses'. [County Law (JC. 1892, ch. 686), § 66; Heydecker's Gen. L. (2d ed.), p. 1222.] 6. Bridges over county boundaries are to be erected, maintained, and repaired by the towns, and the county is liable to pay not leas than one- sixth of the expense of such erection, maintenance and repair. See High- way Law, sec. 130, amte, p. 698. Duties of Supekvisoes as to Highways and Bridges. 713 County Law, §§ 67, 68. § 6. Board of supervisors may authorize a town to construct a bridge outside of a boundary line. The board of supervisors of any county may authorize any town, on a vote of a majority of the electors thereof voting at a regular town, meeting, to appropriate a sum, or pledge its credit, to aid in, or wholly construct and maintain a bridge outside the boundaries of the town or county, or from or within the boundary line of any town into another town or county, but forming a con- tinuation of highways leading from such town or county, and deemed necessary for the public convenience. {^County Law (L. 1892, ch. 686), § 67; Heydecker's Gen. L. (2d ed.), p. 1222.] § 7. Maintenance of bridges over county lines. The board shall provide for the care, maintenance, preservation and repair of any draw or other l>ridge intersecting the boundary line of counties or towns, and which bridge is by law a joint charge on such counties or towns, or on the to\\Tis in which it is situated ; and to severally apportion, as it may deem equitable, the expenses thereof on the towns respectively liable therefor, or on the respec- tive counties when liable; but when such bridge shall span any portion of the navigable tide-waters of this state, forming, at the point of crossing, the boundary line between two counties, such expense shall be a joint and equal charge upon the two counties in which the bridge is situated, and the board of supervisors in each of such counties shall apportion such expe^nse among the several towns and cities in their respective counties, or upon any or either of such towns and cities, as in their judgment may seem proper; and if there be in either of said counties, a city, the boundaries of which are the same as the boundaries of the county, then it shall be the duty of the common council of such city, to perform the duty hereby imposed upon the boards of supervisors; but no tovm or city not immediately adjacent to such waters, at the points spanned by said bridge shall be liable for a larger proportion of such expense than the taxable property of such town or city beara to the whole amount of taxable property of such county.' The 7. Liability of counties; defective bridge. Whether the maintenance of highways and bridges ig devolved as a duty upon the towns or upon the counties of the state, it must be regarded as u, duty, in its nature, public and governmental ; and this is especially so in respect to the duty imposed by the above section upon counties of maintaining a bridge which spans navigable waters of the state, forming a boundary line between two counties. liarkey v. County of Queens, 154 N. Y. 675; 49 N. E. 71. In this case Gray, 714 Highways and Beidges. County Law, § 68. board of siupiervisor& of such, counties or in ajiy city embracing the entire county, and having no board of supervisors, the common council shall have full control of such bridges. ISTo such bridge shall be constructed unless the board of supervisors in each of such counties, and the common council of the city whose boundaries are the same as thei boundary of the other county adjacent to such wateir®, shall first by resolution determine that such bridge is necessary for public convenience, in which case such common coun- cil, with the consent of the mayor, may authorize the issue of bonds for the purpose of constructing such bridge, to be issaied as other bonds are issued in said city. Whenever any bridge now spanning any such navigable tide-waters or hereafter erected across any such navigable tide-waters, shall be condemned by the United States authorities as an obstruction to navigation, and sihall be ordered removed, the county and city authorities having charge of such bridge, if they shall determine that such bridge shall bei rebuilt, shall, as soon as practicable after such detea-mina- tion, cause plans to be prepared for the erection of the new bridge and the removal of any bridge so condenaned. as aforesaid, and within a reasonable time after the approval of any such plans by the United Statesi authorities, the proper officers shall proceed with the construction of said new bridge. In case of any unrea- sonable delay on the part of the officer or officers charged with the duty of construction of such new bridge, such duty may be enforced by mandamus upon the application of any citizen interested in ita performance. [County Law (L. 1892, ch. 686), § 68, as amended hy L. 1896, ch. 995; Heydecker's Gen. L. (2d ed.), p. 1222.] J., said : " The conclusion I have reached, after a careful consideration of the subject, is that, in the work of constructing the bridge in question, the board of supervisors were executing a, certain public duty, imposed upon them as the proper public agents in that particular civil division of the state, and that the county could not be subjected to a private action for in- juries occurring in, or by reason of, the performance of the work." The liability only exists where there is a lawful highway which would be connected by a bridge over navigable waters dividing the counties. Beckwith V. Whalen, 70 N. Y. 430; People ex rel. Keene v. Supervisors, 151 N. Y. 190; 45 N. E. 453. In this case it appeared that a turnpike had been abandoned, and that ita road had been carried over a navigable tidal stream forming the boundary between two counties' by a bridge which had existed from 1836 to 1878; it was held that the turnpike upon its abandonment became a public highway, and that the statutory duty of rebuilding the bridge rests upon the boards of aupeTTisors of the two counties. Duties of Supeevisoes as to Highways and Bbidges. 715- County Law, § 69. § 8. Board of supervisors may authorize towns to construct or repair bridges and highways and to borrow money therefor. The board may upon the apiplication' of any town, liable or to be made liable to taxation, in whole or in part., for constructing, building, repairing or discontinuing any highway or bridge therein, or upon its borders, pursuant to a vote of a majority of the electors of such to'wn at an annual town meeting or special town meeting, called for that purpose, taken pursuant to sections thirty, thirty- one and thirty-two of the Town Law; or upon the written request of the commissioners of highways and town board of such town or towns,' and said vote of a majority of said electors, in a case aris- ing under section ten of the Highway Law, where the highway or bridge has not bean already repaired or rebuilt, authorize such town or towns to construct, build, repair or discontinue such high- way or bridge and to authorize said town or towns to borrow such sums of money therefor, for and on the credit of such town or towns as may be necessary according to a written estimate in items of the fair cost and expense thereof. Said board may also on tlie- application of any town or towns, authorize them to borrow such sums of money, for or on the credit of such town or townS', as may be necessary tO' pay any debt lawfully incurred by or on behalf of such town or towns.'" In a case arising under section ten of 8. For form of application to board of supervisors for authority to construct bridge or highway and to issue town bonds therefor, see Forms Nos. 156, 158, post. 9. For form of request of highway commissioners and town board, see- Form No. 157, post. 10. For form of regolntlon of board of supervisors granting authority to build bridge, etc., and to borrow money, see Form No. 159, post. Power to borro-iv money. Towns have no general power to borrow money for municipal purposes or to pay town charges; it is the policy of the law that such charges shall he met by taxation, and a town may not be made liable for money borrowed on its credit simply because it has been applied for town purposes. Wells v. Town of Salina, 119 N. Y. 280; 23 N. E. 870. If more than $500 is required for the construction, erection and repair of highways and bridges, the electors of a town at a town meeting may au- thorize the raising of an additional sum by tax. See Highway Law, sec. 9, ante, p. 605. And if extraordinary repairs are necessary because of the dam- aged and unsafe condition of highways and bridges, the town board may au- thorize the highway commissioners to make such repairs. See Highway Law, aec. 10, ontei, p. 606. But if the conditions are such that it becomes necessary to borrow money for the construction or repair of a highway or bridge, application must be imade to the board of supervisors of the county as provided in the aboT» 716 Highways and Beidges. County Law, § 69. tihe Highway Law, where the highway or bridge hasi beeai actually built or repaired, the applicsatiooi shall be accoinpaiiied by the cer- tificate and audit provided by sections eleven and twelve of the Highway Law. In all other cases the application shall be ac- comi3anied by the certificate of the town board of the soibject, occasion and amount of the indebtedness, and, as far as practicable, with the items, vouchers and auditsi thereof. If such highway or bridge shall be situate in two or more towns in the same county, the board shall apportion the expense' among such towns in such proportion as shall be just If said town or to^vns contain any portion of the lands of the forest preserve, said board shall not authorize said town or towns, to borrow any such moneys without the written approval of the forest, fish and game commission, excep't to pay a debt of the town incurred in good faith pursuant to section ten of the Highway Law. [County Law (L. 1892, ch. section. If the application is made pursuant to a, vote at a town meeting it should be shown in the application that the proposition for the borrowing of money was duly submitted at an annual or special town meeting, and that a majority of the electors voted in favor thereof. As to submission of town propositions, see Town Law, see. 32, ante, p. 208, and as to calling special town meetings, see Town Law, see. 23, ante, p. 200. Tte Tesolntion of the board of supervisors authorizing a town to borrow money must provide for raising annually by tax a sum sufficient to pay the interest and the principal as the same shall become due ; such reso- lution should be passed by a two-thirds vote of the members of the board. See General Municipal Law, sec. 5. The resolution should also require adequate security from the officers charged with the duty of executing the bonds. Barker v. Toion of Oswe- gatchie, 10 N. Y. Supp. 834. Iiimitation of indebtedness. Section 13 of the County Law, post^ p. 929, limits the indebtedness of a town to ten per cent, of the assessed val- uation of the real estate in such town. See Ohiglione v. Marsh, 23 App. Div. 61 ; 48 N. Y. Supp. 604. The term of the bonds is not prescribed by the statute. The language of the statute imports that the obligations which may be issued shall pro- vide for a more or less extended credit, and evidently contemplates a long term credit. The bonds Issued under the above section may run for thirty years and be payable in gold, and the supervisors may direct that the interest on the bonds (sold at a premium), be paid out of the proceeds of the sale until the tax provided to pay the same can be collected. Ghiglione v. Marsh, 23 App. Div. 61 ; 48 N. Y. Supp. 604. Effect of section. The above section does not affect the power of a town to raise money by immediate taxation, by a vote at an open town meeting, for the improvement of its roads and bridges. Birge v. Berlin Iron Bridge do., 133 N. Y. 477; 31 N. E. 609. The amendment of 1903 is not retrospective. Webster v. Toion of White Plains, 93 App. Div. 398, 87 N. Y. Supp. 783. Duties of Supekvisoks as to Highways and Bridges. Y17 County Law, §§ 70, 71. 686), § 69, as amended by L. 1894, ch. 163, L. 1896, ch. lYS, L. 1900, ch. 12, and L. 1903, ch. 469; Heydecker's Gen. L. (2d ed.), p. 1224. J § g. Bonds issued by towns for construction and repair of highways and bridges; sale of bonds by town supervisor; dis- position of proceeds; bonds, how paid. The board shall, from time to time, imposei upon tlie taxable property of such towns sufficient tax to pay such obligations as they shall become due." The supervisor and town clerk shall each keep a record, showing the date and amount of the obliga- tions issued, the time and place of their payment, and the rate of interest thereon. The obligations shall be delivered to the super- visor of the town, who shall disposei of the same for not less, than par, and pay the proceeds thereof to the commissioners of high- ways of the town, or to such, other officer as shall be designated by the board of supervisors, to be used by them for the purposes for which the same were appropriated ; but not more than five hun- dred dollars of such proceeds shall be expended upon any highway or bridge, except in pursuance of a contract made by a contractor with the commissioners of highways of the town, or other officer designated by the board of supervisors, and approved by the town board, no member of which shall be interested therein. If such, highway or bridge shall be wholly or partly within the limits of an incorporated village, the consent of a majority of the trustees of such village shall be necessary for the action of the board of supervisors as herein provided. [County Law (L. 1892, ch. 686, § 70; Heydecker's Gen. L. (2d ed.), p. 1224.J § 10. Boards of supervisors may map out streets and avenues in towns outside of city limits. When any territory in a county containing an incorporated city of one hundred thousand inhabitants, exce'pting the towns of Flatbush and 'New Lots in the county of Kings, has been mapped 11. Issue of bonds. The board of supervisors has power to impose con- ditions as to details, for the interest of the taxpayers, not specified in the statute, such as safeguards to the letting of contracts, and provisions that the work shall be prosecuted under competent supervision, and the money deposited with the county treasurer to be paid out only upon the certificate of the engineer; and such conditions, so imposed, are binding upon the town commissioners of highways. People ex rel. Wakeley v. Molntyre, 154 N. Y. 628; 49 N. E. 70. 718 HiGHWAYB AND BeIDGES. County Law, § 71. into streets and avenues, pursuant to law, the board of supeirvisiora may autihorize the eistablisihniient of a plan for the grade of such streets and avenues, laying out, opening, grading, constructing, closing and change of line of any one or more of them, and pro- vide for the assessment on property intended to be benefited thereby, and fixing assessment distrietsi therefor, and for the levy, collection and payment of the amount of damages sustained and the charges and expenses incurred, or which may be' necessary to incur in carrying out such provisions, but such last named power in regard to laying out, opening, grading, co^nstrueting and change of line, of such streets or avenues or defraying the expenses thereof, shall only be exercised on the petition of the property ownersi, who own more than one-half of the frontage on any suoh street or avenue, or on a certificate of the town board and com- missiioners of highways of the town, that the same is, in their judgment, propeir and necessary for the public interest. If the streetsi and avenues, in respect to which such action is pro'posed to be taken, shall lie in two or more towns, a like certificate shall be required of the town board and commissioners of highways of each town. Before making such certificate, such town board, or boards and oo'mmiseioners of highways, shall give ten daysi* notice by publication in one of the daily papers of the county, and by oon- spiciuously posting in six public places in each of suoh towns^, of the time and place at which they will meet to consider the same, at which meeting the public, and all persons interested, may ap^ pear and be heard in relation thereto. No such street or avenue shall be laid out, opened or constructed, upon or across any lands 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 a corporation formed for the purpose of im- proving the breed of horsesi, without the consent of such oo'rpora- tions. No town ofiicer shall charge anything for his services under this section, nor shall any charge be made against any such town or the property therein, for the expense of the publication of the notice herein required." \_County Law (L. 1892, ch. 686), § 71 ; Hey decker's Gen. L. {2d ed.), p. 1225.] 12. li. 1892, ci. 289, amended sub. 9 of sec. 1 of L. 1875, ch. 482, from which the above section was derived, and being passed at the same ses- sion as the County Law, which repealed the act of 1875, it is probably still in force notwithstanding such repeal. See Statutory Construction Law, eec. 31. Duties of Supbevisoes as to Highways and Beidges. 719 County Law, §§ 72, 73. § II. Board of supervisors may authorize commissioners of highways to cause survey of highways to be made. The board may authorize and direct tike oommisaioners of high- ways of any town, to causa a survey to be made, at thei expense of the town, of any or all of the highwaya therein, and to make or complete a systematic record thereof, or to revise, collate and rearrange existing records of highways, and to correct and verify the same by new surveys and to establish the location of highways by suitable monuments. Such records so made, or revised, cor- rected and verified, shall be deposited with the town clerk of the town, and shall thereafter be the lawful records' of the highways which they describe; but shall not affect rights pending in any judicial proceeding commenced before the deposit of such revised records with the town clerk. [County Law (L. 1892, ch. 686), § 12;Heydeckers Gen. L. (2d ed.), p. 1226.] § 12. Board of supervisors may regulate toll rates. Such boards shall have power, by a vote of two^thirds of all the members elected to authorize an alteration, reduction or change of the rates of toll charged or received by any turnpike, plank or Subdivision 1 of see. 9 of L. 1875, ch. 482, as amended by L. 1892, eh. 289, is as follows: "Boards of supervisors shall have power: "9. To authorize in any county containing an incorporated city of one hundred thousand 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 alteration of such plan of grades, or of any plan thereof which shall have been established by law; the laying out, open- ing, grading, construction, closing and change of line, or of the width of any or more of such streets and avenues, or any part or parts thereof, and of the court-yards, sidewalks and roadways ; to provide for the estimation and award of the damages to be sustained, and for the assessment 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 provisions of this subdivision; the laying down of new or additional streets and avenues upon the established map or plan thereof, the acceptance by town officers of conveyances of land for public highways, the naming and changing of names of the streets and avenues laid down on said map or plan, and the numbering and renumbering of houses and building lots fronting on eaid streets and avenues; but such last named powers in regard to the alteration of said map or plan, the laying down, laying out, opening, grading, construction, closing and change of line of such streets or avenues, or the naming or numbering as aforesaid, or such provisions for defraying V20 Highways and Beidges. County Law, § 74. gravel road, or other toll road within such county, or by any bridge company or ferry within such county, or, if within more than ono oounty, then by joint action with the supervisors of such counties, provided such alteration shall be asked for by the directors, trus- tees, or owners of such road, bridge or ferry ;" but that no increase of toll shall be so authorized unless notice of intention to apply for such increase shall have been published in each of the news- papers published in such county, onoe in each week for six sucoes- sive weeks next before the annual election of supervisors in such oounty ; and any alteration in rates of toll authorized by any board of supervisors may be changed or modified by any subsequent board, on their own motion, by a like vote of two-thirds of all of the members elected to such board ; but nothing herein contained shall affect or abridge the powers, of any city. [County Law (L. 1892, ch. 686), § 73; Heydecker's Gen. L. (2d ed.), p. 1226.] § 13. Powers of boards of supervisors as to highways in counties of more than 300,000 acres of unimproved land. The board may establish separate highway districts in counties containing more than three hundred thousand acresi of unim- the expense thereof, shall only be exercised on the petition of the property owners 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 com- missioners of highways of the town, or two-thirds of such officers, that the same is in their judgment proper and necessary for the public interest; or in ease 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 officers of each of said towns, or two-thirds of all of them; provided, how- ever, that before proceeding to make any such certificate, the said officers, or such number of them as aforesaid, shall give ten days' notice by publica- tion 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 corpora- tion, or upon or across any lands now held by any existing corporation formed for the purpose of improving the breed of horses, without the consent of such corporation. The provisions of this section shall not apply to the town of Flatbush in the county of Kings." 13. Tolls of plank road, turnpike and bridge corporations are also to be regulated and controlled under Transportation Corporations Law, sec. 136, post, p. 790. Rates of ferriage to be posted. Highway Law, sec. 174, post, p. 799. Duties of Supervisoes as to Highways and Beidges. 721 County Law, §§ 75, 76, 77. proved unoccupied foreeti lands, for the purpose of eonsitructing highways through such lands ; such highway districts to be estab- lished upon the application of the owners, of more than one^half of the non-resident landsi therein. Any such high'way districtl shall eonsdst of contiguous tracts or parcels of land, and may in- clude parts of one or more towns ; and they may be changed, altered or abolished at any time by the board. Such board nia.y appoint one or more commissioners to lay out and construct such highways in any such district, and prescribe the po'Werrs and duties, and direct the manner in which highway taxes shall be assessed, levied and collected upon the lands within the district, and the manner of expenditure thereof. They may also authorize such oommissioneirs. to borrow money on such terms as they may deem just, but not exceeding the amount of ten years' highway taxes upon such lands; and may, for the purpose of repaying such loan, set. apart and aprropriate the high- way taxes upon such lands, for a period not exceeding ten years from the time of making such loan. [County Law (L. 1892, ch. 686), § 74; Heydecker's Gen. L. {2d ed.), p. 1227.] § 14. Appropriation of certain nonresident highway taxes. The board may, upon the application of the owners represent- ing a majority in value, as shall be ascertained from the last an- nual assessment-roll of the real estate lying along the line of any highway, laid out through unimproved lands, in cases not provided for in the last preceding section authorize the appropriation of the non-resident highway tax on tlie lands lying along such line, for the improvement of such highways. [County Law {L. 1892, ch. 686), § 75; Heydecker's Gen. L. (2d ed.), p. 1227.] § 15. Balance of state appropriations. The board may direct the expenditure of any non-resident high- way or bridge tax, set apart by an act of the legislature, in counties wherein such non-resident lands ai-e* situated, when the official life of commissioners appointed to receive and expend such taxes has expired. [County Law (L. 1892, ch. 686), § 76; Heydecker's Gen. L. (2d ed.), p. 1227.] § 16. Alteration of state roads. The board may authorize the commissioners of highways of any town in their county to alter or discontinue any road or highway :722 Highways and Bridges. County Law, §§ 78, 79, 80, 81. therein, which shall have been laid out by the state under the same oomditionsi that would govern their aotions in relation to highways that have been laid out by local authorities. ICounty Lam {L. 1892, ch. 686), § 77; Heydecker's Gen. L. {U ed.), p. 1227.] § 17. Further powers of board of supervisors as to highways. The board may make suoh other local and private laws and regulations oonoeming highways, alleys, bridges and ferries within the county, and the assesBment and apportionmeint of high- way labor or taxes therefor, not inconsistent with law, as it may deem neoesHary and proper, when the purposes of such laws and regulations cannot, be accomplished under the foregoing pro- visions, or the general laws of the sitate. [^County Law {L. 1892, ch. 686), § 78; Heydecker's Gen. L. (2d ed.), p. 1227.] § 18. Board of supervisors may pass laws as to use of wide tire on highways. The board of supervisors may ©nacit local and private laws regulating the width of tires used on vehicles built to carry a weight of fifteen hundred pounds or upwards, and may provide penalties' for the violation thereof. [Couniy Law (L. 1892, ch. 686), § 79, as added by L. 1894, ch. 644, and amended by L. 1899, ch. 155; Heydecker's Gen. L. {2d ed.), p. 1228.J § ig. Use of abandoned turnpike, plank or macadamized roads. Boards! of supervisors shall have power to provide for the use of abandoned turnpike, plajxk or macademized roads vnthin any town as public highways ; but jurisdiction in such a case shall not be exercised without the assent of two-thirds of all the members elected to such board, to be determined by yeas and nays, which ehall be entered on its minutes. \_County Law (L. 1892, ch. 686), § 80, as added by L. 1895, ch. 756; Heydecker's Gen. L. (2d ed.), p. 1228.] § 20. Definition of " upon its borders." Whenever the words "upon its bordersi" are used in this article in reference to the boundary line between two towns, the siame is and was intended and shall be oonstirued to mean "upon," "along," and "acrosei its borders." ^County Law, § 81, as added by L. 1900, ch. 163; Heydecker's Gen. L. (2d ed.), p. 1228.] State Aid in the Construction of Highways. 723 L. 1898, ch. 115, § 1. CHAPTER LIII. STATE AID IN THE CONSTRUCTION OF HIGHWAYS. SEcnow 1. Board of supervisors to pass resolution for improvement of highways ; petition therefor ; resolution to be transmitted to state engineer. 2. State engineer to make investigation; disapproval of resolution; upon approval to make maps, plans and specifications. 3. Estimate of cost; estimate, plans and specifications to be trans- mitted to board of supervi.sors. 4. Board of supervisors may resolve to construct a highway; right of way. 6. State engineer to accept bids and award contracts; county en- gineers to have charge of construction. 6. Payment of expense of construction. 7. Town assessors to assess portion of cost chargeable to abutting owners ; assessment, how made. 8. Order of construction. 9. Duties of state engineer upon completion of highway; notice to board of supervisors. 10. Money tax for highway purposes upon abutting owners. 11. Construction of connecting sections of highways; state en- gineer to notify board of supervisors. 12. State engineer to prepare statistics; consultations with state engineer; co-operation with highway officers; annual report. 13. Town commissioners of highways and town boards of towns and boards of supervisors to furnish information to state en- gineer; operation of act. 14. Street surface railroad prohibited. 15. Acquisition of right of way by boards of supervisors for con- struction of highways to be built by aid of state. 16. Proceedings for acquisition of right of way. 17. Payment of award; damages a county charge. 18. Disposition of lands acquired. § I. Board of supervisors to pass resolution for improvement of highways; petition therefor; resolution to be transmitted to state engineer. Resolution. — The board of supervisors in any county of the state may, and upon presentation of a petition as provided in sec- tion two hereof, must pass a resolution that public interest de- mands the improvement of any public highway or section thereof situated within such county, and described in such resolution, hut such description shall not include any portion of a highway within the boundai-ics of any city or incorporated village, except that por- tion of the cities of Kome and Oneida, lying outside of the respect- ive corporation tax districts of said cities and except as provided in si^ptiriTi fmirteen of this act. and within ten days after the pass- 724 Highways axd Beidges. L. 1898, ch. 115, §§ 2, 3, 4. age of such resolution shall transmit a certiiied copy thereof to the state engineer and surveyor.^ [L. 1898, ch. 115, § 1, as amended by L. 1906, ch. 468; Heydeclcer's Gen. L. (2d. ed.), p. 4497.]' Petition. — The owners of a majority of the lineal feet fronting on any such public highway or section thereof in any county of the state may present to the board of supervisors of such county a petition ssetting forth that the petitioners are such owners and that they desire that such highway or section thereof be improved under the provisions of this act.^ [Idem, § 2.] § 2. State engineer to make investigation; disapproval of resolution ; upon approval to make maps, plans and specifications. Such state engineer after receipt of such resolution shall ex- amine the highway or section thereof sought to be improved and determine whether it is of sufficient public importance to come within the purposes of this act, whether it will become part of a properly developed system of improved market roads within the : county and state, and whether the improvement thereof will pro- vide for an equitable apportionment of improved highways among the counties, taking into account the use, location and value of such highway or section thereof for the purposes of common traffic and travel, and after such investigation shall certify his approval or disapproval of such resolution. If he shall disapprove such resolu- tion, he shall certify his reason thereof to such board of super- visors. [L. 1898, ch. 115, %Z, as amended ly L. 1906, ch. 468 ; HeydecTcer's Gen. L. (2d. ed.), p. 4497.] If he shall approve such resolution, such state engineer shall cause the highway or section thereof therein described to be mapped botih in outline and profile. He shall indicate how much of such highway or section thereof may be improved by deviation 1. For form of resolution to be adopted by the board of supervisors in eases where petition is made by property owners for the improvement of highways, see Form No. 161, post. 2. For form of petition for the improvement of highways to be pre- sented to the board of supervisors by a majority of the property owners, see Form No. 160, post. The state engineer in speaking of the forms of petitions and resolu- tions (Bulletin No. 3, Oct., 1901), says: "I desire to call attention to the advisability of following quite closely the forms herewith appended (see Forms Nos. 160-165, post), in preparing petitions and resolutions to be pre- sented and adopted in relation to highway improvements; and especially to the necessity of making the description of the highway for which improve- ment is asked very explicit, giving the local name of the road, the town or towns within which it is located, the terminal points and its length as nearly as can be ascertained. It is also suggested that separate pieces of roads be covered by separate petitions, rather than to have in one petition a num- ber of disconnected roads." State Aid in the Construction of Highways. 725, L. 1898, ch. 115, §§ 4, 5. from the existing lines whenever it shall be deemed of advantage ■to obtain a shorter or more direct road without lessening its useful- ness of wherever such deviation is of advantage by reason of less- ened gradients. And if the boundaries of the proposed improved highway sihall deviate from the existing hig|hway the board of supervisors must make provision for securing the requisite right of way as provided by law and the cost and expenses of procuring such right of way shall be taken into consideration and paid for by the comptroller as a part of the cost of such improvement. When- ever practicable the state engineer shall provide for the abolition of railroad grade crossings of an improved highway under and pur- suant to the provisions of section sixty to sixty-nine of the railroad law; he may provide for the widening of an existing highways and he may include as a part of the work necessary culverts, drains,, ditches, waterways, embankments and retaining walls, and when- ever in the construction of any such improved highway it may be necessary as an incident to the proper construction and mainte- nance thereof to open or maintain ditches or drains upon adjacent lands for the purpose of properly draining such highway the owner of adjacent lands shall be compensated for the amount of damages, if any, sustained by said owner in consequence of the entry upon his lands and construction of the drains hereby authorized as pro- vided in the highway law and the amount of such damages shall be talcen into consideration and paid by the comptroller as part of the cost of such improvement; and said state engineer shall have the power within the boundary of the highways to remove or to plant trees for the preservation of said highways and to erect suitable signboards. He shall also cause plans and specifications of such highway or section thereof to be thus improved to be made for tel- ford, macadam or gravel roadway or other suitable construction, taking into consideration climate, soil and materials to be had in the vicinity thereof and the extent and nature of the traffic likely to be upon such highway, specifying in his judgment the kind of road a wise economy demands. The improved or permanent road- way of all highways so improved shall not be less than eight feet nor more than sixteen feet in width unless for special reasons to be slated by such state engineer it is required that it shall be of greater width. [^Idem, § 4.] § 3. Estimate of cost; estimate, plans and specifications to be transmitted to boar'd of supervisors. Upon the completion of such maps, plans and specifications such state engineer shall cause an estimate to be made of the cost of con- struction of the same and transmit the same to the board of super- visors from which such resolution proceeded, together with a certi- 126 Highways and Beidges. L. 1898, § 6. fied copy of such maps, plans and specifications, and of his certifi- cate of approval of the highway or section thereof so designated as aforesaid. \_L. 1898, ch. 115, § 5; Ileydecker's Gen. L. (2d ed.), p. 4498.] § 4. Board of supervisors may resolve to construct a high- way; right of way. After the receipt thereof and after such modifications thereof as may be made by or with the consent of the state engineer, upon a majority vote of such board of supervisors, it may adopt a resolu- tion that such highway or section thereof so approved shall be con- structed under the provisions of this act, or of any existing act, and thereupon shall transmit a certified copy of such resolution to such state engineer, who is hereby authorized, empowered and directed to proceed with the construction of said highway in the order provided by section eleven, subject to the limitations and con- ditions contained in section fifteen. When a board of supervisors has once adopted the resolution approving the plans and specifica- tions of the state engineer and directed how the county's share of the expense shall be paid as provided in section eleven, no resolu- tion thereafter adopted by such board shall have the effect of re- scinding or annulling such prior resolution. In case of any high- way which divides two or more counties, such resolution must be separately adopted by each county within which a portion of such highway lies ; and the date of the receipt by the state engineer of a certified copy of the resolution passed by the board of supervisors last approving such plans, shall determine its place upon the list of roads to be taken up for construction as provided by section eleven of this act. Whenever any board of supervisors shall have heretofore adopted the resolution approving the plans and specifi- cations and directing the raising of the money for the county's one-half of the cost, the state's share of the expense shall subject to the limitations of section fifteen, be payable from any moneys appropriated for highway construction; provided further that if the county desires to avail itself of the issue of bonds as authorized by law for the payment of the cost of the improvement it may by appropriate resolution of the board of supervisors so determine and transmit a copy of such resolution to the state engineer,' but the adoption of a resolution modifying the method of payment of the county's share shall not be deemed to interfere with or modify 3. For form of resolution to be adopted by board of supervisors where no petition is presented by property owners, see Form >Jo. 162, post. For form of final resolution to be adopted by the board of sujiervisors approving and adopting the plans, specifications and estimate of cost of the proposed impioveruent nfLer the same have been presented by the state engineer, see Form Ko. lOr! jiosi. State Aid in the Construction of Highways. 727 L. 1898, §§ 7, 8. the original date of the filing in the state engineer's office of the original resolution approving the plans and specifications. It shall be the duty of the state engineer from time to time to certify to the comptroller the apportionment of the cost between the state, the county and the town. [L. 1898, ch. 115, § 6, as amended by L. 1906, ck. 468; Heydecker's Gen. L. {2d ed.), p. 4498.] In case the boundaries of such proposed highway shall deviate from the existing highway, the board of supervisors must make provision, pursuant to section four, for securing the requisite right of way prior to the actual commencement of the work of improve- ment.* [Idem, § 7, OS amended by L. 1906, ch. 468.] § 5. State engineer to accept bids and awcird contracts; county engineers to have charge of construction. Upon receipt of the certified copy of the resolution provided in section six, such state engineer shall advertise for bids for two successive weeks in a newspaper published at the county seat of such county, and in such other newspaper as shall be deemed of advantage for the construction of such highway or section thereof, according to such plans and specifications, and award such contract to the lowest responsible bidder, except that no contract shall be awarded at a greater sum than the estimate provided in section five and six. A board of supervisors of a county, or a town board of a town in which any portion of such highway lies may offer bid9 and be awarded such contracts for and on behalf of their respective counties and towns. But if no bid otherwise acceptable is made within such estimate, such state engineer may amend his estimate, certifying the same to the board of supervisors, and uj)on the adop- tion of it by a resolution as provided in section six based on such amended estimate, proceed anew to obtain bids and award the con- tract as herein provided. Such engineer may reject any or all bids, and before entering into any contract for such construction, he shall require a bond with sufficient sureties, conditioned that if the proposal shall be accepted the party thereto will perform the the work upon the terms proposied and within the time prescribed and in accordance with the plans and specifications ; and as a bond of indemnity against any direct or indirect damages that shall be suffered or claimed during the construction of such road and until the same is accepted. The people of the state of New York shall in no case be liable for any damages suffered during the construc- tion or maintenance thereof. Partial payments may be provided 4. Acquisition of right of way by boards of supervisors for construction of highways to be built by aid of state. See L. 1901, oh. 240, post, p. 732. For form "of resolution providing for acquisition of the right of way, see Ponn No. 166, pest. 728 Highways and Beidqes, L. 1898, I 9. for in the contract, and paid in the manner herein provided when certified to by such state engineer to an amount not to exceed ninety per centum of the value of the work done ; ten per centum of the contract price shall be retained until the entire work has been accepted. All contingencies arising during the prosecution of the work shall be provided for to the satisfaction of the state engineer and surveyor and as may be agreed upon in the original or any supplemental contract, provided however that it shall not exceed the original maximum estimate.^ \_L. 1898, ch. 115, § 8; as amended by L. 1903, ch. 4; L. 1904, chs. 57 and 608, and L. 1906, ch. 4:68;Heydec]ccr's Gen. L. {2d ed.), -p. 4498.] §1 6. Payment of expense of construction. Except as otherwise provided one-half of the expense of the con- struction thereof shall be paid by the state treasurer upon the warrant of the comptroller, issued upon the requisition of such engineer, out of any specific appropriations made to carry out the provisions of this act. And one-half of the expense thereof shall be a county charge in the first instance, and the same shall be paid except as hereinafter provided, by the county treasurer of the county in which such highway or section thereof is, upon the requisition of such engineer, but the amount so paid shall be ap- portioned by the board of supervisors, so that thirty-five per centum of the cost of construction shall be a general county charge; and fifteen per centum shall be a charge upon the town in which the improved highway or section thereof is located.'' [L. 1898, ch. 115, i§ 9, as amended hy L. 1906, ch. 468; Heydecker's Gen. L. {^d ed.), p. 4499.] 6. Effect of amendment of 1903. Section 2 of L. 1903, ch. 4, is as follows : " § 2. This act shall not apply to any contracts now in force for the construction of roads under the provisions of this act, entitled 'An act to provide for the improvement of public highways,' unless the contractor or contractors with the people of the state of New York for such construction work, shall file with the state engineer a request for the application of said section eight as here amended to such contract or contracts, and a written acreptance of the surety or sureties upon the bond of such contractor or contractors, of such amendment to said section eight." 7. For form of resolution of board providing for raising money by levy upon county or towns of their portion of the expense where the road is to be built upon resolution of board alone, see Form No. 164, post. For form where the road is built upon petition of property owners, providing for assessment upon such owners, see Form No. 165, post. Issue of county bonds. This section, when construed with subdivision 6 of § 12 of the county law, authorizes a board of supervisors to issue bonds of the county for the pay- ment of its sliiire of the cost of the construction of a state road, including the fifteen per centum of sucli cost which is primarily charged upon the county but is ultimately to be paid bv the town. County of Ontario v. Shepard, 100 App. Div. 200, 91 N. Y. Supp. 611. j State Aid in the Construction of Highways. 729 L. 1898, §§ 10, 11, 11a. § 7. Town assessors to assess portion of cost chargeable to abutting owners; assessment, how made. [L. 1898, ch. 115, § 10, as amended by L. 1899, ch. 92, repealed by L. 1906, ch. 468.] § 8. Order of construction. The construction and improvement of highways and sections thereof, imder the provisions of this act, shall be taken up and carried forward within a county in the order in which they are to have heretofore been finally designated, as determined by the date of the receipt in each case of tho certified copy of the resolution provided in section six by such engineer as hcTednbefore provided. But no highway shall be placed upon the list of highways to be constructed nor receive a consecutive number on such list unless the resolution provided by section six shall also appropriate and make immediately available for the state engineer for the con- struction of such highway, as provided by section nine, the county's half of the cost of the improvement of such highway, or shall request that the whole cost of construction of such highway shall be paid in the first instance by the state and that the county shall be charged annually by the comptroller with the proper amount to be paid into the redemption fund to meet the one-half of the total cost payable by the county and to%vn. Thereafter it shall be the duty of the board of supervisors to apportion the said amount as provided in section nine, to provide for the assessment, levy and collection of said apportioned amounts respectively as a county and town charge, and to direct the payment of the aggregate amount by the county treasurer to the comptroller. [L. 1898, ch. 115, i§ 11, as amended by L. 1906, ch. 468; HeydecTcer^s Gen. L. (2d ed.), p. 4500.] § 8a. Closing highway. Whenever a contract has been let for the construction of any such highway in accordance with the provisions of this act, the con- tractors may and are hereby authorized to, whenever the engineer in charge of the work on behalf of the state engineer and surveyor shall certify of the necessity thereof in writing, close any such highway or section thereof to the public by putting up a suJBScient obstruction and notice to the effect that such highway is so closed. When such highway shall have been so closed to the public any per- son disregarding such obstruction and driving, riding or walking over any portion of such highway so inclosed shall be deemed guilty of a misdemeanor and shall be subject to the pun- ishment imposed by law for the punishment of misde- 730 Highways and Beidges. L. 1898, S 12. meanors. Nothing herein contained, however, shall re- lieive the contractors of the burden of keeping highways tmder construction ait all times open to the public until the engineer in charge of the work under the state engineer and surveyor shall have certified to the necessity for closing such high- way and shall have filed such certificate in the ofiice of the town clerk of the town or towns within which such highway or section, thereof is situated. [L. 1898, ch. 115, § 11a, added by L. 1904, ch. 298.] §' g. Duties of state engineer upon completion of highway; notice to board of supervisors. Upon the completion of such highways, or sections, thereof, so constructed by such engineer, such engineer shall inform the board of supervisors of such county in writing that he will accept the work on behalf of the state and county within twenty days from that date unless protest shall be filed with him in vmting by the board of supervisors, in which event he shall hear siaid protest and if said protest is sustained he shall delay the acceptance of said highway until its proper completion. Upon its proper completion, after filing the notice above given, such highway or section thereof shall be deemed accepted by said board of supervisors of such county and thereafter the same shall be maintained by the state engineer. The state engineer and surveyor shall maintain such highways or sections thereof after their completion and keep the same in repair; he may contract with the county or tovsm in which such improved highway or section thereof is situated, for the maintenance and repair of such high- way or part of highway, under his direction ; and if such county or town decline to contract or fail to comply with the terms of its contract, or in the opinion of the state engineer and surveyor is not able to make an economical or satisfactory contract, then the state engineer and surveyor shall contract with some person, firm or corporation or shall himself provide for such maintenance and repair. After acceptance the total cost to a town for the main- tenance and repair of such highways in any one year, except as hereinafter provided, shall be fifty dollars in each town for each mile or fraction of a mile of such highway. Such money shall be payable by the state comptroller in instalments during the year upon the certificate of the state engineer and surveyor, who shall expend it for such maintenance and repair. On or after October first in each year, it shall be the duty of the comptroller to transmit in connection with his other notices of taxes to the chairman and clerk of the board, of supervisors and to the county clerk a notice setting forth the amount which each of the towns in each county ia State Aid in the Constkuction of Highways. 731 L. 1898, § 12a. required to raise and pay into the state treasury on account of the maintenance of improved highways ; and it shall be the duty of the board of supervisors to provide for the levy of the respective amounts in the several towns and to require the payment of such amounts by the several town collectors to the county treasurer of the coimtj ; and the said aggregate amount shall be paid over by the county treasurer to the comptroller in accordance with the provisions of the statute requiring him to remit other state taxes to the comptroller, and shall be deposited to the credit of said maintenance fund. The state engineer and surveyor in his annual report to the legislature shall report the estimated cost for repair during the ensuing year of all highways maintained under this act, and shall expend in his discretion such appropriation as shall ba made for the purpose by the legislature, which appropriation shall also' include an amount equal to the sum paid by the respective towns to the general fund as provided above. The fifty dollars per mile paid by the towns shall be used to pay for the main- tenance and repair of the highway excluding however the cost of maintaining and repairing bridges having a span of five feet or over ; which cost shall continue to be a town charge under this act, and any sum necessary in excess of this amount for the repairs and maintenance shall be paid by the state in the manner provided above.* [L. 1898, ch. 115, § 12, as amended by L. 1900, ch. 293, L. 1901, cK 109, L. 1901, c/i. 464, L. 1902, ch. 53, L. 1904, ch. 426, and L. 1906, ch. 468 ; Heydecher's Gen. L. {2d ed.), p. 4500.J § ga. Constructing and maintaining ditches. Whenever during the construction of any such highway, or after its completion, it may become necessary for the proper construc- tion or maintenance thereof to open or maintain ditches or drains for the purpose of properly draining such highway, the highway commissioner of the town within which such highway or section thereof is situated shall have the right to enter upon any lands adjacent thereto and open any existing ditch or drain or dig a new ditch or drain for the free passage of water for the purpose of 8. Maintenance of roads constmcted by state aid. The following is an extract from Bulletin No. 3 of the state engineer, relating to the maintenance of roads constructed under L. 1898, ch. 115: "I have found that in some of the counties where roads have been completed an uncertainty exists as to what officials are authorized to take charge of its maintenance. A careful reading of chapter 11.5 of the Laws of 1898, as amended, together with the provisions of the general Highway Law, would seem to remove any doubt upon the subject and definitely fix the following points: 1. Upon the completion of a road improved under the state aid act, and after filing the notice prescribed by law, it becomes a county road. 2. It shall be maintained as a county road. 731a Highways a^vd Beidges. L. 1898, §§ 13, 14. draining such highway. Said highway commissioner shall also be empowered to agree with the owner of any such lands upon the amount of damages, if any, sustained by him in consequence of such entry upon his lands and performance of the work hereby authorized, and the amount of damages so agreed upon shall be a town charge and shall be audited and paid the same as other town charges. If the commissioner or commissioners of highways are unable to agree with such owner upon the amount of damages thus sustained, the amount thereof shall be ascertained and determined and paid in the same manner as damages are so ascertained, deter- mined and paid where new highways are laid out and opened and the commissioners and land owners are unable to agree upon the amount thereof. If, however, the highway commissioner fails to properly drain or ditch any such highway or to exercise any of the powers herein conferred upon him then the state engineer and surveyor may, upon giving to said highway commissioner or com- missioners at least ten days notice of his intention so to do, begin any proceeding hereby authorized to be begun by such highway commissioner, and is hereby vested with full powers to do all that the commissioner of highways might have done under this section, after the time named in the notice above prescribed shall have elapsed. [L. 1898, ch. 115, § 12a, added by L. 1904, ch. 297.] § 10. Money tax for highway purposes upon abutting owners. In towns maintaining their highways under the labor system all persons owning property abutting on such road so improved, or residing thereon, shall thereafter pay all highway taxes assessed against them in money, to the tax collector who shall pay the same to the supervisor for the maintenance of highways under the direc- tion of the town board. [L. 1898, ch. 115, § 13, as amended by L. 1906, ch. 468; Heydecker's Gen. L. {2d ed.), p. 4500.] § II. Construction of connecting sections of highways; state engineer to notify board of supervisors. Whenever any county has had aid in building any such high- way, and it seems advantageous to such state engineer that a section or "sections of highway, not exceeding one mile in length, shovild be constructed under this act, to connect these roads together, and would be of great public utility and general convenience, he may serve notice on the board of supervisors of such county, and shall tile one in the county clerk's office, designating the highways al- ready constructed and the existing termini, and the section or sec- tions, in his opinion, necessary to be constructed and his reasons therefor. And it shall be the duty of the board of supervisors to iprovide for the construction of such coimecting highway or sec- State Aid in the CoNSTEtrcTioN of Highways. 7311) L. 1898, § 15. tion thereof, within one year after the service and filing of such notice under this act. Whenever any such connecting highway through an incorporated village shall likewise be deemed advan- tageous by the state engineer, he may construct the same and the lexpense therefor shall be paid for as provided in section nine. The same shall thereafter be maintained and kept in repair by the vil- lage trustees under the direction of the state engineer, and the nec- essary expesnse of maintenance shall be paid by the village. [L. 1898, ch. 115, § 14, as amended by L. 1906, ch. 468 ; Heydecher'a ■Gen. L. {2d ed.), p. 4500.] § 12. Designation of roads by state engineer; map of high- ways; statistics. Prior to December first, nineteen hundred and six, the boards of supervisors after consultation with the town boards of towns in their respective counties shall designate and certify to the state engineer and surveyor the highways in each town in such county which are deemed by such boards of supervisors of sufficient public importance to be improved under this act and which will in their opinion when so improved provide an appropriate system of im- proved main or market roads within such county. Wherever any board of supervisors has heretofore designated highways to be im- proved under chapter one hundred and fifteen of the' laws of eighteen hundred and ninety-eight and acts amendatory thereof or wherever a map showing such roads shall have heretofore been filed by the state engineer such designation shall be deemed to be a compliance with this section unless different or other designa- tions shall be made or another map filed by such board under this section prior to December first, nineteen hundred and six. If any board of supervisors shall neglect to make such designation on or before said date the state engineer and surveyor shall procure such information as will enable him to make such designation of highi- ways within such county. To secure an equitable apportionment of improved highways among the counties the state engineer and surveyor immediately after December first, nineteen hundred and six shall prepare a map of all the highways of the state as near as may be showing thereon such highways as have been so designated and certified to him or such as he himself shall designate in any county where a board of supervisors shall have neglected to make such designation and certificate. He shall also indicate on such map which of such highways and what other highways within the state are deemed by him of sufficient public importance to be improved under this act and which will in his opinion when so improved provide an appropriate county and state system o£ V31c Highways ajtb Beidges. L. 1898, § 15. impiroved main or market roads and an equitable apportionment of such improved highways among the counties. Such map shall be filed on or before the first day of January, nineteen hundred and seven in the office of the state engineer and surveyor, together with the information, designations and certificates upon which it is founded, and shall be open to public inspection and shall be included in his annual report and shall be submitted by him to the legislature of nineteen hundred and seven for its approval, amendment and modification and thereafter the improvement of such highways under this act shall be made in the respective counties upon the highways so designated upon said map except as the same may be thereafter altered and modified by the state engineer and surveyor with the approval of the legislature or by legislative enactment and pending such report by the state engineer and approval by the legislature it is further provided that the state engineer and surveyor shall not cause the improvement of high- ways nor approve of resolutions under chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight and the acts amendatory thereof in any one county in excess of one-fiftieth of the entire mileage of highways within such county to be de- termined by the state engineer and surveyor from the data and in- formation on file in his office. And whenever resolutions, approv- ing plans and specifications are certified by boards of supervisors to the state engineer it shall be the duty of said state engineer to apportion the highways described therein equitable* among the several counties and he shall proceed with the work of improving highways in all counties from which resolutions of approval have been or shall hereafter be approved without discrimination as be- tween the counties. In addition to his other powers and duties, the state engineer and surveyor shall compile statistics relative to the public highways throughout the state, and shall collect all in- formation in regard thereto deemed expedient. He shall investi- gate and determine upon various methods of road construction adapted to different sections of the state, and as to the best methods of construction and maintenance of roads and bridges, and such otlier information relating thereto as he shall deem appropriate. He may be consulted at all reasonable times by county, city, town or village officers having care and authority over highways and bridges, and shall advise such officers relative to the construction, repair, alteration or maintenance of the same; and shall furnish such other information and advice as may be requested by persons in forested in the construction and maintenance of public high- ways, and shall, at all times, lend his aid in promoting highway improvement throughout the state. He shall hold or cause to be State Aid in the Constbuction of Highways. 731d L. 1898, §§ 16, 17, 18. 19. held in each year at least one public meeting in each county, and shall cause due notice of such meeting to be given. He shall co- operate with all highway officers and shall assist county and town authorities, and when requested by them, furnish them with plans and directions for the improvement of the public highways and bridges. [L. 1898, ch. 115, § 15, as amended by L. 1906, ch. 468 ; Heydecher's Gen. L. (2d ed.), p. 4500.] He shall report annually to the legislature concerning all the work performed by him, together with such recommendations upon the subject of highway construction and maintenance as to him shall seem appropriate. [Idem, § 16.] § 13. Town commissioners of highways and town boards of towns and boards of supervisors to furnish information to state engineer; operation of act. The commissioners of highways and town board of any town, and the board of supervisors of any county, and all other officers who now have or may hereafter have by law the care and super- vision of the public high^vays and bridges shall, from time to time, upon his written request, fumis'h him with all available in- formation in connection with the building and maintenance of the public highways and bridges in their respective localities. [L. 1898, ch. 115, § 17; Heydecher's Gen. L. {2d cd.), p. 4501.] The operation of this act shall not be affected by any special act, but the highways may be improved under this act or such special act wherever the same may now exist. The provisions of section three of chapter thirty-two of the general laws, known as the labor law, or any acts amendatory thereto, shall not apply to any contract for the construction, maintenance or repair of any highway outside the limits of a city or incorporated village. [Idem, § 18, as amended by L. 1906, ch. 468.] § 14. Street surface railroad prohibited. No street surface railroad shall be constructed upon a portion of a highway, which portion has been or may be hereafter improved under the provisions of this act and the acts amendatory thereof and supplemental thereto, except upon the consent of, and imder such conditions and regulations as may be prescribed by the state engineer and surveyor. [L. 1898, ch. 115, § 19 ; as added by L. 1902, ch. 379.] T32 Highways and Beidges L. 1901, eh. 240, §§ 1, 2, 3. § 15. Acquisition of right of way by boards of supervisors for construction of highways to be built by aid of state. In any oounty of the state in whioh a public highway is im- proved pursuant to the provisions of chapter on© hundred and fifteen of the laws of eighteen hundred and ninety-eight, entitled "An act to provide for the improvement of public highways" and the acts amendatory thereof, the boards of supervisors of said oountie® may make provisions for obtaining the right of way required as hereinafter provided. [L. 1901, ch. 240, § 1 ; Hey- decker's Gen. L. (2d ed.), p. 4501.] The board of supervisors of any county in whioh land is rer- quired to be taken for the improvement of highways under chapter on© hundred and fifteen of the laws of eighteen hundred and ninety- eight, and the acts amendatory thereof, or supplemental thereto, where the boundaries of any proposed highway shall deviate froon any existing highway, or where land is required for the purpose of obtaining gravel, stone, or other materials, for the construction or maintenance of such highways or required for spoil banks, may acquire such land together with the right of way to any bed, pit, quarry, spoil bank or other place in which the same is located, by purchase, provided that the price paid for such land or right of way required shall not in any one case to any on© claimant exceed two hundred dollars, except with the written approval of the county judge and county treasurer in which case it shall not ©x- oeed one thousand dollars; and th© said board of supervisors may, by resolution, passed for that purpose, authorize its chairman, or a member, or a committee therefrom to make purchases as pro- vided in this section ; and said board may pass resolutions provid- ing for the payment of land purchased as provided for in this see^ tion, the same to be a oounty charge in th© first instance and to be paid in the manner h©r©inafter specified for the payment of awards in cases where condemnation p^oo6eding^ are required. \_Idem, § 2, as amended by L. 1902, ch. 510.] § 16. Proceedings for acquisition of right of way. In case the board of supervisors may not be able to acquire the land by purchase as provided for in th© last section the board of supervisors may present to the County Court of the county or to the Supreme Court, at a special term thereof, to bo held in the judicial department in which said oounty is located, a petition for State Aid in the Construction of Highways. 733 L. 1901, ch. 240, §§ 4, 5. 'ihe appointment of ttree oommissioners of appraisal to ascertain and determine the compensation to be made to tlie owners and all other persons in any manner interested in any and all real estate over which such right of way is required. Such petition stall describe the land to be acquired, a reference to the map upon which the same is shown and shall have annexed thereto said map or diagram showing the land to be acquired. Such petition shall be signed in the name of the board of supervisors by the chairman thereof o-v by any member thereof designated for that pui-pose by resolution, and shall be verified by the said chairman or by any member thereof designated by resolution as aforesaid. JSTotiee of presentation of such petition to such court shall be given by the petitioner by publishing such notice in two newspapers published in such county, once in each week for two weeks successively preced- ing the day oi such presentation, and also by posting a copy of said notice in not leas than three public places in each town in which property to be acquired is located, at least eight days preceding the day of such presentation. [L. 1901, ch. 2-iO, § 3 ; Heydecker's Gen. L. (2d ed.), p. 4502. J Upon such presentation, such court shall, after hearing any person interested or claiming to be interested in any land to be acquired in such proceeding who may appear, appoint three dis- interested persons as commissioners. And in case any of such commissioners shall at any time decline to serve, or die, or for any cause become disqualified or disabled from serving as such, the said court, at a similar special term, may upon similar notice, application and hearing, and upon such notice to the land owners as the court may prescribe, appoint another or other person, simi- larly qualified to fill the vacancy or vacancies and to act in their place and stead. [Idem, § 4.] The said oommissioners shall take the oath of office prescribed by the constitution of tliis state, which oath shall be filed in the ofiice of the county clerk of such county. The oommissioners shall witli all reasonable diligence proceed to examine such highways and lands to be acquired and may enter upon such lands for such purpose. Said commissioners shall cause a notice to be published in two such newspapers as aforesaid, once each wee!?; for two weeks suooessively next preceding the day of meeting mentioned in such notice, that at a stated time and place within said county they will meet for the purpose of hearing any and all parties interested or 734 Highways and Beidges. L. 1901, ch. 240, § 5. claiming to be interested in the damages to be awarded for the lands to be taken for such highways. Said notice shall also state the fact that a map or maps showing the land to be acquired has been filed in. the county clerk's office. At the time and place of said meeting and at any adjournment thereof which said oom- missioners may publicly make, they shall hear the proofs and allegations of any and all parties interested or claiming to be interested in the amount of said damages. Said commissioners shall adjourn tlie proceedings before them from time to time, issue subpoenas or administer oaths in such proceedings ; and they shall keep minutes of their proceedings, and shall reduce to> writing all oral evidence given before them. The said commissioners shall thereafter make and sign a report in writing, in which they shall assess, allow and state the amount of damages to be sustained by the owners of the several lots, pieces or parcels of land to be taken for the purposes aforesaid. Such report shall contain the name or names of such owners, or owner of any parcel of land to be acquired as aforesaid except in case the commissioners are unable to ascertain the name or names of the owner or owners of any par- eel of land to be acquired as aforesaid, they may in place of the names of such undiscovered parties insert the words, "unknown owners" in their report. The said commissioners shall file their said report, together vsdth the minutes of their proceedings in the ofiice of the county clerk of sucih county. After said report shall have been completed and filed as aforesaid, the commissioner shall after publishing a notice in like manner as that provided in the first section hereof for the publication of the notice therein pro- vided for, apply to the County Court of the county or to the Supreme Court, at a special term thereof to be held in the judicial department in which said county is located, to have the said report confirmed. If no sufficient reason to the contrary shall appear, the court sLall confirm said report Otherwise it may refer the same back to the said commissioners for revision or correction ; and after such revision or oorreotion the same proceedings shall be taken as are hereinbefore provided for, and the commissioners shall in the same manner make renewed application for the con- firmation of sudi report, and the court shall thereupon confirm or refer back the said report and such proceedings shall be repeated until a report shall be presented which shall be confirmed by the said court [/dem, § 5.] State Aid in the Construction of Highways. Y35 L. 1901, oh. 240, §§ 6, 7. § 17. Payment of award; damages a county charge. Within six months after the report of said commissioners shall be oonfirmed as aforesaid, the county treasurer of suoh, county shall pay to the several respective persons named in such, report respectively the amounts awarded to them therein for damages as aforesaid with, six per centum interesit thereon from the day of the confirmation of said report which, amounts with. such, interest and the amounts paid in pursuance of section two of this act are hereby made and declared to be a county charge in the first in- stance, and the same shall be paid by the county treasurer; in. oases under section two of this act, upon requisition of the cKair- man of the board of supervisors of said county or by any member thereof or by a committee therefrom designated for that purpose by said board and in cases under section five of this act upon service of a certified copy of the order confirming the said awards. The amounts! so paid and the cost of the proceedings to acquire the land shall be a general county charge. In case there are unknown owners, to whom the award is made in said report, the said county treasurer shall derposit the amounts awarded to them with like interest in some trust company or bank in such manner as the said court shall in the order of confirmation direct, such amounts to be paid out upon the application of said unknown owners when discovered. From the date of the confirmation of such report by the order of the said court the title to all the lands therein desig- nated shall vest in said county for the purposes of a highway for- ever. [L. 1901, ch. 240, § 6; Heydecker's Gen. L. (2d ed.), p. 4503. J In all cases of assessment of damages by commissioners ap- pointed by the court, the costs thereof shall be a county charge in the first instance and be paid by the county treasurer as herein- before provided, except when reassessanent on damagesi shall be had on the application of the party for whom damages were as- sessed, and such damges shall not be increased on such reassess^ ment, the costs shall be paid by the party applying for the reas- sessment and when application shall be made by two or more persons for reassessment of damages all persons who may be liable for costs under this section shall be liable in proportion to the amount of damage respectively assessed to them by the first assees- ment, and may be recovered by action. Each commissioner ap- pointed by the court as provided in this chapter for each full day necessarily employed as such, shall be entitled to the sum of six 'J3G Highways and Beidges. L. 1901, ch. 240, § 8. dollars and his necessary expenses. Tho amount of oompensiation to which, sueh commissioners are entitled shall be determined by the court, in whioh the proceeding is pending, upon verified ao- oounts presented by such commissioners, stating in detail the number of hours, neoessiarily employed in the discharge of their duties, and the nature of the services rendered. The audit and determination of the court as to the amount justly due shall be final, [i. 1901, ch. 240, § 7, as amended by L. 1902, ch. 510.] § 1 8. Disposition of lands acquired. Any lands acquired by purchase or condemnation, pursuant to the provisions of the act hereby amended, for the purpose of obtain- ing gravel, stone, or other materials, for the construction or main- tenance of highways improved or constructed as provided in said chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, or required for spoil banks', may be sold or leased by the board of supervisors of any county, when no longer needed for any of such purposes. The proceeds thereof shall be paid into the county treasury and shall be retained therein as a sepa- rate fund available for the construction or maintenance of high- ways improved or constructed under such chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight. [L. 1901, ah. 240, § 8, as added by L. 1902, ch. 510.] [Bicycles and Automobiles on Highways. 737 L. 1899, oh. 152, § 1. CHAPTER LIV. BICYCLE SIDEPATHS ; USB OF BICYCLES AND AUTOMOBILES ON, HIGHWAYS. Section 1. Bicycle sidepath commissioners; appointment, terms of office, removal, and vacancies. 2. Construction of sidepaths; use of sidewalks. 3. License fees; collection and expenditures. 4. Regulations as to use of sidepath; violations. 5. Ordinances regulating use of bicycles and other vehicles on highways and in public places. 6. Arrests for violations of ordinances; bicycle may be left as security. 7. Bicycles entitled to free and unrestricted use of highways; com- missioners not to pass certain ordinances; regulation of speed. MOTOR VtEHICLB LAW. 8. Title of act; definitions. 9. Statement to be filed; registration; number to be displayed. 10. Eegulation of speed; meeting horses. 11. Rules of road; brakes, lamps, etc., local ordinances. 12. Chauff'eur's registration; badges, etc. 13. Penalties; release from custody. 14. Acts repealed. 15. When this act takes eflFect. § I. Bicycle sidepath commissioners; appointment, terms of ofifice, removal, and vacancies. The county judge of any county except Albany,^ may? upon the) petition of fifty resident wheelmen of such couuty appoint from the resident citizens thereof, five or seven persons, the number to be determined by such judge, giving to each city and to one or more towns in such county, a representation on the board as near as possible in proportion to the probable number of cyclists resid- ing in such localities, each of whom shall be a cyclist, who shall constitute a board of sidepath commissioners for such county. The terras of such commissionerg if the number be five, shall be one, 1. Albany county sidepaths are constructed and maintained pursuant to L. 1898, ch. 224. See Greene on Highways, 1902, p. 241. The act of 1899, ch. 152, as amended by L. 1900, ch. 640, now applies to all counties except Albany, superseding the Cattaraugus Co. Act (L. 1898, ch. 45) ; the Monroe Co. Act (L. 1898, ch. 71), and the Columbia Co. Act (L. 1898, ch. 277). '738 Highways and Beidges. L. 1899, ch-. 152, § 1. two, three, four and five years respectively, and if the number appointed be seven, the terms of such commissioners shall be, two to serve one year, two to serve two years, and one each to serve three, four and five years, from and including the first day of January of the year in whicih the appointment is made, to be determined by such commissioners by lot, within one month after their appointment A commissioner thereafter appointed for a full term, shall hold office for five years from and including the first day of January of the year in which the appointment is made. A commissioner appointed to fill a vacancy occurring othe^w^'se than by expiration of term, shall be appointed for the unexpired term of his predecessor in office. Whenever a vacancy shall occur in the office of such a commissioner, by expiration of term or other- wise, the chairman or secretary of the board shall immediately file a notice with the county judge, specifying the name of such com- missioner, the city or town in which he resided, and the term for which his successor shall be appointed. Upon the receipt of such notice the county judge sihall thereupon appoint a person to fill such vacancy and file such appointment in the office of the county clerk. The county clerk shall forthwith notify such person of his appointment, and he shall take office immediately upon filing his written acceptance thereof with the county clerk, and taking the constitutional oath of office. If any person so appointed- fails to file such acceptance with the county clerk or to take the con- stitutional oath of office within ten days after reoedving notice of his appointment, or if any member of the board fails to attend three consecutive regular meetings without being excused by a vote of the board, the board of sidepath commissioners may declare the place vacant by a majority vote of the board. In case charges against any such commissioner are made in writing and filed with the county judge, said county judge may notify such commissioner to appear and maie answer to such charges, and may remove such commissioner from office if sufficient cause be shown. Such com- missioners shall serve without compensation, but shall be repaid their actual and necessary disbursements out of the sidepath fund. The present boards of sidepath commissioners appointed pursuant to chapter one hundred and fifty-two of the laws of eighteen hun- dred and ninety-nine and chapter one hundred and ninety-four of the laws of eighteen hundred and ninety-nine are hereby cintinued to the ends of the terms of the respective members thereof. [L. Bicycles and Automobiles on Highways. 739 L. 1899, ch. 152, § 2. 1899, ch. 152, § 1, (wr mended by L. 1900, ch. 640; Heydecker'& Oen. L. {2d ed.), p. 4517.J § 2. Construction of sidepaths; use of sidewalks. Such board of sidepath oommissioners is hereby authorized and empowered to oonstruot. and maintain sidepaths along any public road, or street, or section thereof of the oonnty provided, the said board of sidepath oommissioners shall be required to obtain the written approval of the oommissioner of highways, or other officer pea-i'orming similar duties, or the written approval of the siuper- visor of each town in which said sidepath shall be baiilt, and file the same in the town clerk's office, before constructing paths along any road outside the limits' of incorporated cities) or villages ; and pro- vided, that they s^hall be required to secure the approval of the trustees of an incorporated village by a resolution at a meeting thereof, before constructing paths along any street of such vil- lage; and provided, that they shall be required to siecure the ap- proval of the common council of a city by resolution at a meeting thereof, before constructing paths along any street, or section thereof, in such city." No sidepath shall be constructed upon or along any regularly constructed or maintained sidewalk, except with the consent of the persons owning the abutting lands.' Such paths shall not be less than three or more than six feet wide, with- out the consent of the owners of abutting lands, and shall be con- structed within the outside lines and along and upon either side of such public roads or streets. The term " sidewalk " as used in this act, means any sidewalk constructed or maintained as such by the public authorities or the owner of the abutting lands, which is reserved by custom for the use of pedestrians; but not including 2. Constitutionality. The act does not impose an additional burden upon the use of the highway, and is not unconstitutional as against an owner of land abutting on the highway, as being an appropriation of the land without due process of law and for a public use without just compensa- tion. The fact that the use of the sidepath will interfere to some extent with the practice of hitching horses in the highway in front of the abutting owner's premises, does not render the act unconstitutional. Ryan v. Preston, 59 App. Div. 97; 69 N. Y. Supp. 100. 3. Constmction on side-tralh. The consent of the abutting owner to the construction of a bicycle sidepath is only necessary when the sidepath is constructed within the lines of the sidewalk. O'Donnell v. Preston, 74 App. Div. 86; 77 N. Y. Supp. 305. In this case Jenks, J., said: "It is not to be asBumed that the legislature would intend to make this regulation of the i740 Highways and Beidges. L. 1899, ch. 152, § 3. foot paths or portioias of the piublic road which are wora only by travel. The term " sidepath " shall be construed to include any path built or acquired by a sidepath oommission. No member or any number of members of a. sidepath commission shall begin or in any way authorize the constinaotion of a sidepath, to be built from the sidepath fund, until the record of the proceedings of the board shows that it has voted to construct such path. Boards of sidepath commissioners are authorized upon unanimous, vote of the board, to acquire, by gift, purchase or lease, any lands outside of the regular highways necessary for the purpose of building side- paths, and to expend any of the funds in their possession for this purpose. [L. 1899, ch. 152, § 2, as amended by L. 1900, ch. 640 ; Hey decker's Gen. L. {2d ed.), p. 4518.] § 3. License fees; collection and expenditures. Such board of sidepath commissioners shall at their first meet^ ing, or within a reasonable time thereafter, and in eaoh succeeding calendar year, adopt a form of license, badge, emblem or device siuitable to be affixed to a bicycle and to be known as a bicycle side^ path licensa Any person upon the payment of a fee, to be deter- mined by such commissioners, of not. less than fifty cents nor more than one dollar, except, in the county of Monroe, where the fee shall continue to be twenty-five cents, shall be entitled to receive such license, which shall be good during the calendar year for which it is is'sued, and no longer. Every such license to be valid must be issued by the commissioners of the county wherein the bicyclist resides, except that any bicyclist who resides in another state or in some county of this state where there is no sidepath commission, may secure a license in any county where a sidepath commission use of the highway in the interest of the public lawfully traveling thereon depend upon the consent of the adjacent property owner. There is no good reason for it, for it does not appear that any right of the abutting owner could be affected by requiring bicycles in the highway to be kept apart from other vehicles, instead of traveling on all parts of the highway. On the other hand to permit any abbutter, as such, to veto this regulation of public traffic within the lines of a public way would put it within the power of an individual, whose rights were not involved, to defeat a measure adopted for the safety and convenience of the public. But there are obvious reasons for prohibiting the permanent invasion of the sidewalk by constructing thereon a way for vehicles, which are classed with carts, wagons or carriages, and the subsequent destruction of the distinctive character of the sidewalk •without the abutter's consent." Bicycles and Automobiles on Highways. 741 L. 1899, eh. 152, §§ 4, 5. has been lawfully appointed and auoK license stall be valid for the use of the person so purchasing till a sidepatli oommisaion is organ- ized in the county where such person resides, or for the calendar year for which it is issued and no longer. No person sliall ride a bicycJe on any sidepatli in any oounty of this state where a side- path commiseion has been, or at any time hereafter may be ap- pointed, unless a valid bicycle license is attaobed or affixed to the left side of the front fork thereof sO' that the lioense shall show on the left side of such bicycle. Xo person shall counterfeit any such lioense or make, sell, give away or have on his or her bicycle, a license purporting to be issued by any county in this state, unless regularly issued by the respective boards of sidepath commission- ers appointed pursuant to law. Ko license shall be valid unless attached to a bicycle as aforesaid. Such license shall be plainly numbered and shall not. be valid if the number has been mutilated or changed, so as to deceive or be calculated to deceive. ISTo person shall have a lioense issued for a prior year or anything in the similitude of such a license attached to his or her bicycle in the place aforesaid except a valid license for the calendar year in which it is so used. [L. 1899, ch. 152, § 3, as amended hy L. 1900, ch. 64:0; Hey decker's Gen. L. (2d cd.), p. 4518.J The license fees collected by the said boards of sidepath com- missioners shall be deposited on or before the first day of each month with the county treasurer of their respective counties, by whom they shall be credited to a special fund, to be called " the sidepath fund," upon which the boards of sidepath commissioners are authorized to draw warrants signed by a majority of the board, but no warrants shall be so dravsru in excess: of the amount actually on deposit; nor shall any oontracti or purchase be made exceeding the amount of such funds at the time of making such contract or purchase. All bills shall be sworn to. Each board of sidepath commissioners shall report annually to the county judge of their respective counties, giving a detailed financial statement and filing with said report the vouchers of each expenditure, which report and vouchers shall be deposited in the county clerk's office, [/d., § 4, OS amended hy L. 1900, ch. 640. j The said boards of sidepath commissioners shall devote the moneys so collected to the repairing of existing paths in their respective counties ; to the constructiion of new paths; to the plant- ing of shade trees along such paths, where the consent of the owners of abutting lands to the planting of said trees has been ob- 742 Highways and Bridges. L. 1899, eh. 152, §§ 6, 7, 8, 9, 10, 11. tained; to the maintaining of order on the paths; and the necessary and authorized expenses incurred in enforcing this act. [Id., § 5, as a/mended hy L. 1900, ch. 640.] §' 4. Regulations as to use of sidepath; violations. No person shall wilfully lead, stand, hitch, ride or drive any horse, cattle, sheep, swine or other animals upon any sidepath now constructed or hereafter to be constructed in this state, except for the purposes of access to, and egress from, lands, abutting on the highway. [L. 1899, ch. 152, § 6, as amended by L. 1900, ch. 640; Heydecker's Gen. L. (2d ed.) , p. 4519.] No person shall wilfully obstruct, injure or destroy any sidepath or any portion thereof, now constructed or hereafter to be constructed in this state. [Id., § 7, as amended by L. 1900, ch. 640.] No person shall ride a bicycle at a greater rate of speed than ten miles an hour when passing another cyclist or pedestrian on any sidepath in this state. [Id., § 8, as amended by L. 1900, ch. 640.] The sidepaths heretofore constructed and hereafter to be constructed in this state are hereby placed under the control and direction of the boards of side- path commissioners of the various counties in which they are located. In every county in which a county engineer is now, or shall hereafter be ap- pointed, pursuant to the provisions of the highway law, all the rights, duties, powers and authority conferred or imposed by this act or any other statute upon the board of sidepath commissioners shall be vested in and performed by the said county engineer, and no sidepath commissioners shall be appointed in any county having such county engineer. In any county in which a county engineer has heretofore been appointed the board of sidepath commissioners shall turn over to said county engineer all the records, books and property of the said board on the first day of June, nineteen hundred and four, whereupon the powers and duties of said board of sidepath commissioners shall cease; and in any county not now having a county engineer, in which a county engi- neer shall hereafter be appointed, the said commissioners for said county within ten days after such appointment shall turn over to said county engi- neer all the records, books and property of said board, and thereupon the powers iind duties of such commissioners shall cease; but said commissioners shall forthwith file a final report of their transactions down to the transfer to the county engineer, accompanied with vouchers as required for their annual reports. AH the provisions of law relating to the acts or determina- tions of boards of sidepath commissioners are hereby made applicable to the acts and determinations in the premises of said county engineer. The said county engineer shall keep a record of his acts, transactions and determina- tions in relation to the sidepaths, and of all expenditures by him, stating the locality and character of repairs, additions or alterations to sidepaths in said county, with the amounts expended therefor, and said county engineer is authorized to employ such servants, employes and clerks as may be necessary to carrv out the provisions of this act, but within the limitations of section four of" this act. [Id., § 9, as amended by L. 1900, ch. 640, and by L. 1904, ch. 342, in e-ffeot June 1, 1904.] Any board of sidepath commissioners, with the consent of the commissioner of highways or other officer performing similar duties, having jurisdiction thereof, may remove limbs of trees overhanging any sidepath in the county wherein said board has jurisdiction, when in the judgment of said board, the same shall interfere with the free passage of bicycles along said path. [Id., § 10, as amended by L. 1900, ch. 640.] . . . , Any person who rides a bicycle on any sidepath in this state in violation of any of the sections of this act, or does any of the acts by the provisions of this law forbidden, is guilty of a misdemeanor, and shall be punishable by a fine of not less than five nor more than twenty-five dollars, and in case of a failure to pay any fine that may be imposed, such person may be committed to jail not Bicycles and Automobiles on Highways, 743 L. 1899, eh. 152, § 12; L. 1899, eh. 634, § 1. exceeding one day for each dollar of such fine. The sheriff of any county, and all deputy sherills appointed by him, are authorized to do all the acts and per- forin all the duties with respect to violations of this act, that constables may do or perform; and shall be entitled to receive the same fees that constables receive for such services, to be audited and paid in the same manner that constables' fees for such services are audited and paid.* [Id., § 11, as amended hy L. 1900, ch. 640, and L. 1902, ch. 305.] Courts of Special Sessions having jurisdiction to try misdemeanors as pro- vided by section fifty-six of the Code of Criminal Procedure, shall have exclu- sive jurisdiction to try offenders in all cases occurring under this act, in the same manner as in other cases where they now have jurisdiction, and subject to the same power of removal and to render and enforce judgment to the extent herein provided. [Id., § 12. as amended by L. 1900, ch. 640, in effect July 1, 1900.] The said board of sidepath commissioners shall have the power to appoint one or more persons as sidepath police, whose appointment shall expire at the end of the calendar year in which made, who shall be paid such salary or fees as shall be fixed by the board making the appointment, which with their actual disbursements, which also may be allowed them in the discretion of such board, if allowed, shall be audited and paid as provided in section four of this act, and who shall have power to make arrests tor the violation of this act. Such appointment shall be filed by the secretary of the sidepath board in the office of the clerk of the county. [Id., § 13, added by L. 1905, ch. 605.] § 5. Ordinances regulating use of bicycles and other vehicles on highways and in public places. ■The municipal officers and boards in the several cities, towns and villages of this state now having the authority to enact such 4. Penal provisions. The following sections of the Penal Code are applicable to bicycles and sidepaths: " § 652. Driving vehicles, et cetera, on sidewalks. A person who wilfully and without authority or necessity drives any team, vehicle, cattle, sheep, horse, swine or other animal along upon a sidewalk is punishable by a fine of fifty dollars, or imprisonment in the county jail not exceeding thirty days, or both. " Sub. 1. A person who wilfully and without authority or necessity drives any team or vehicle, except a bicycle, upon a side path, or wheelway, con- structed by or exclusively for the use of bicyclists, and not constructed in a street of a city, is punishable by a fine of not more than fifty dollars, or imprisonment not exceeding thirty days, or both." " § 652a. Riding bicycle on sidewalk or foot-path. A person who wilfully and without authority rides a bicycle upon a sidewalk or foot-path con- structed, maintained, or allowed to remain for the exclusive use of pedes- trians, in any street where a sidepath for bicycles is maintained outside of an incorporated city or village, is guilty of a misdemeanor, punishable by a fine of not more than twenty-five dollars, or by imprisonment for not more than twenty days, or both." " § 6o4a. Placing injurious substances on roads, etc. Whoever, with in- tent to prevent the free use of a cycle thereon, shall throw, drop or place, or shall cause or procure to be thrown, dropped or placed, in or upon any cycle path, avenue, street, sidewalk, alley, road, highway or public way or place, any glass, tacks, nails, pieces of metal, brier, thorn or other substance which might injure or puncture any tire used on a cycle, or which might wound, disable or injure any person using such cycle, shall be guilty of a misdemeanor, and on conviction be fined not less than five nor more than fifty dollars." V44: Highways and Beidges. L. 1899, eh. 634, § 1. oirdinanoes, may pass ordinances regulating, the use of bicycles, tricycles and similar vehiclesi on tke public highAVaysi, Sitrects, ave- nues:, walks, parks and public places within tbedr limits in ac- oordanoe witb the following pTOviaions, and not otherwise : 1. To require all bicycles, tricycles and similar vehicles when ridden on saieh public highways, streets, avenues, walks or public places to have attached thereto, or carried therewith a light of STich illuminating power as to be plainly seen two hundred feet ahead, and kept lighted between one hour after sunset and one hour before sunrise; but this section shall not apply tO' any rider whose light has become extinguished, or who is necessarily absent from his or her home without a, light, when going at a pace njt exceeding six miles an hour, when an audible signal is given as provided in subdivision two of this section as often as thirty feet are passed over. 2. To require riders' of all such bicycles, tricycles or similar vehicles' to' give an alarm by bell, whistle or otherwise, which may be heard one hundred feet distant, when about to> meet or pass pedestrians and when about to meet or pass other vehicles. 3. To regulate the rate of speed at which it may be lawful to ride siuch bicycles, tricycles or similar vehicles ; provided, how- ever, that cyclists S'hall not be restricted to a rat© of speed slower than is allowed any other kind or class of vehicle. 4. To regulate or prohibit coiasting or proceeding by inertia or momentum with the feet off the pedals; the carrying of chil- dren under five years of age upon bicycles; the observance by cyclists, of such rules of the road as are established by the High- way Law; to permit the authorities of such municipality having charge of the public highwa.ys', streets, squares or parks, in their discretio'n, upon any special occasion, to' grant permits to any per- son or persons to ride such machines during a specified time, upon Sipecified portions of the public streets or highways of such city, to'vra or village, at any rate of speed, and annex such other reason- able conditions tO' such permits as they S'hall deem proper; and the said authorities of such municipality may, also, under such conditions as they may deem proper, permit the use of velo'cipedes and other similar machines by children on any sidewalk in any public way, square, or park in such municipality. 5. To vegulate or prohibit the riding of any bicyoles, tricycles or similar vehicles upon the sidewalks within thei limitsi of any city, town or village; except that no city, town or village shall Bicycles and Automobiles on Highways. 745 L. 1890, ch. 634, §§ 2, 3. have any power to prohibit the riding of any bicycles upon any sidewalk within the limits of such city, town or village when said sidewalk shall have been or shall be hereafter constructed solely at the expense of wheelmon or cyclists, by and with the consent of the ofHcers having jurisdiction therein, unless the road or street in front of said sidewalk is paved with some smooth and per- manent pavement like asplialt or brick, and maintained in a condition suitable for the use of c^-cles. The term " sidewalk," as used in this act, means any sidewalk laid out as such by any city, town or village, or by the owners of the abutting lands which is reserved, by custom for +he use of pedestrians, and which has been especially prepared for their use, but not including footpaths or portions of public roads lying outside of the thickly settled parts of cities and towns, which are worn only by travel, and are not improved by the public authoritiesi, or by the abutting owners ; 6. To provide that every person violating any such ordinances shall be punished by a fine not exceeding the sum of five dollars for each offense, and in case of the nonpayment of such fine, by imprisonment in the county jail not exceeding one day for each dollar of such fine, in the discretion of the court or magistrate, [L. 1899, ch. 634, § l.J No city, town or village shall have any power to make any ordinance, by-law or regulation respecting the use of bicycles or tricycles except as provided in this act; and except as provided in this act, no ordinance, by-law or regulation heretofore or here- after made by a city, town or village, in respect to bicycles or tricycles, shall have any force or effect. Nothing in this act shall affect the jurisdiotion of sidepath commissioners nor the use of sidepaths. [Idem, § 2.] § 6. Arrests for violations of ordinances; bicycle may be left as security. Any person arrested for the violation of any of the provisions of this act, or of any ordinance or by-law adopted as provided in this act, may tender at the time of his or her arrest, or at any time before the hearing thereon either five dollarsi in current money, or his or her bicycle or similar vehicle, as security for his or her appearance in court to make answer to the charge of violating the p(Povisions of this act or any ordinance or by-law adopted as pro- vided in this act; and the officer making the arrest, shall accept the security, which the rider may offer, as aforesaid, for his ap- 746 Highways and Bridges. Highway Law, § 163. pearance, before the mosit convenient court or magistrate, to be specified by said officer at a time to be fixed by him not lessi than one day, in said city, village or town having jurisdiction of the offense, and such security shall be forthwith delivered, by such officer, to such court or magistrata In case the person arrested shall fail to appear and answer to such charge at the time so speci- fied or at such other time to which the matter shall have been adjourned, such security s^hall be forfeited, and if money, shall be disposed of in the same manner as other fines are disposed of by such court or magistrate, and, if a bicycle or similar vehicle, it may be sold under the direction of such court or noagistrate at public sale, a notice of which sale shall be posted in three public places in such city, town or village, and a copy thereof served personally or by mail upon the person who tendered the same at least six days before such sale, and five dollars of the money re- ceived upon such sale shall be disposed of in the same manner aa other finesi collected by such court or magistrate, and the remainder of the money received upon such sale shall be paid to the owner of such bicyde or other similar vehicle on demand, [i. 1899, ch. 634, § 3.] § 7. Bicycles, tricycles and automobiles entitled to free and unrestricted use of highw^ays; commissioners not to pass certain ordinances; regulation of speed. The commissioners, trustees, or other authorities having charge or control of any highway, public street, park, parkway, driveway or place, shall have no power or authority to pass, enforce or maintain any ordinance, rule or regulation, by which any person using a bicycle or tricycle, shall be excluded or prohibited from the free use of any highway, public street, avenue, roadway, driveway, park, parkway or place, at any time when the same is open to the free use of persons having and using other pleasure carriages, except upon suc'h driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages. But nothing herein shall prevent the passage, enforcement or maintenance of any reerulation, or- dinance or rule, regulating the us© of bicycles or tricycles in high- ways, public streets, driveways, parks, parkways and places, or the regulation of the speed of carriages, vehicles, or engines, in public parks and upon parkways and driveways in the city of JSTew York, under 111© CKclusive jurisdiction and control of the Bicycles and Automobiles on Highways. 747 Highway Law, § 163; L. 1904, ch. 540, § 1, aubd. 1, 2. department of parks of said city nor prevent any such commis- sioners, trustees, or other authorities in any other city from regulating the speed of any vehicles herein described in such manner as to limit and determine the proper rate of speed with which snch vehicles may be propelled, nor in such manner as to require, direct or proliibit the use of bells, lamps and other ap- purtenances nor to prohibit the use of any vehicle upon that part of the highway, street, park, or parkway, commonly known as the footpath or sidewalk. \_Highway Law {L. 1890, ch. 568) § 163, as amended hy L. 1901, ch. 531, L. 1903, ch. 625, and L. 1904, ch. 540; Heydecker's Gen. L. (2(f ed.), p. 1351.] MOTOR VEHICLE LAW. § 8. Title of act ; definitions. Short title. — The short title of this act shall be the "motor vehicle law." Except as otherwise herein provided, it sikall be controlling, (1) upon the registration and numbering of motor vehicles and chauffeurs, (2) on their use of the public highways, and (3) on the penalties for the violation of any of the provisions of this act. [L. 1904, ch. 54:0, § 1, subd. 1.] ' Svhd. 2. Defvmticms. — The words and phrases used in this act, shall, for the purposes of this act, unless the same be con- trary to OT inconsistent with the context, be construed as follows: (1) " motor vehicle " shall include all vehicles propelled by any power other than muscular power, excepting such motor vehicles as run only upon rails or tracks, provided that niothing herein <30ntained shall, evcept as provided by subdivision four of sec- tion three of this act, apply to motor cycles, motor bicycles, trac- tion engines or road rollers; (2) "public highways" shall in- clude any highway, county road, state road, public street, ave- nue, alley, park, parkway, driveway or public place in any city, village or town; (3) "closely built up" shall mean, (a) the territory of a city, village or town contiguous to a public high- way which is at that point built up with structures devoted to business, (b) the territory of a city, village or town contiguous to a public highway not devoted to business, where for not less than one^quarter of a mile the dwelling houses on such highway average less than one hundred feet apart, and also (c) the tefrri- tory outside of a city or village contiguous to a public highway within a distance of one-half mile from any postoffice, provided that for a distance of at least one-quarter of a mile within such limits the dwelling houses on such highway average less than' one hundred feet apart, and provided, further, that the local ^48' Highways and Beidges. L. 1904, ch. 540, § 2, subd. 1, 2, 3, 4. authorities having charge of such highway shall have placed conspiouously thereon signs of sufficient size to b© easily read- able by a person using the highway, bearing the words " Slow down to ten miles," and also an arrow pointing in the direction where the speed is to be reduced; (4) "local authorities" shall include all officers of counties, boroughs., cities, villages or towns, as well as all boards, committees and other public officials of such counties., boroughs, cities, villages or towns; (5) "chauffeur" shall mean any person operating a motor vehicle as mechanic, employe or for hire. [L. 1904, ch. 540, § 1, suhd. 2.] § g. Statement to be filed; registration; number to be dis- played. BvJbd. 1. Filing statemeni — ^Every person hereafter acquiring a motor vehicle s'hall, for every vehicle owned by him, file in the office of the secretary of state a statement of his name and ad- dress with a brief description of the vehicle to be reg;istered, in- cluding the name of the maker, factory number, style of vehicle and motor power, on a blank to be prepared and furnished by isuch secretary for that purpose; the filing fee shall be two dol- lars. [L. 1904, ch. 540, § 2, subd. 1.] Subd. 2. Beg-idration and record. — iThe secretary of state shall iLereupon file such statement in his office, register such motor vehicle in a book or index to be kept for that purpose, and assign it a distinctive number. [L. 1904, ch. 540, § 2, subd. 2.] Svhd. 3. Registration seal. — The secretary of state shall forth- with on such registration, and vfithout other fee, issue and de- liver to the owner of such motor vehicle a seal of aluminum or other suitable metal, which shall be circular in form, approxi- mately two inches in diameter, and have stamped thereon the words " Eegistered motor vehicle, No. — ' — ; ISTew York motor vehicle law," with the registration number inserted therein ; which seal shall thereafter at all times be conspicuously displayed on thp, motor vehicle, to which such number has been assigned, [i. 1904, ch. 504, § 2, suhd. 3.] Subd. 4. Owners previously registered. — If the vehicle has been previously registered, the certificate issued thereon shall be returned to the secretary of the state and in lieu thereof such secretary shall issue to said owner a registration seal containing the number of such previous registration, upon payment of a fee of one dollar. Upon the sale of a motor vehicle, the vendor, except a manufacturer or dealer, shall, within ten days, return to the secretary of state the registration seal affixed to such vehicle, [i. 1904, ch. 540, § 2, suhd. 4.] ' Highways axd Bridges. 749 L. 1904, ch. 540, § 2, subd. 5, 6, 7, 8, 9. Subd. 5. Display of registration number. — Every motor vehi- cle shall also at all times have the number assigned to it by the secretary of state displayed on the back of such vehicle in such manner as to be plainly visible, the numbers to be in Arabia numerals, black on whit© ground, each not less than three inches in height, an each stroke to be of a width not less than half an inch, and also as a part of such number the initial letters of the state in black on white ground, such letters to be not less than one inch in height. [L. 1904, ch. 540, § 2, subd. 5.] Subd. 6. Registration by manufacturers or dealers. — ^A manu- facturer of or dealer in motor vehicles shall register one vehicle of each style or type manufactured or dealt in by him, and be en- titled to as many duplicate registration seals for such type or style so manufactured or dealt in as he may desire on payment of an additional fee of fifty cents for each duplicate seal. If a registration seal and the corresponding number shall thereafter be affixed to and displayed on every vehicle of such type or style as in this section provided, while such vehicle is being operated on the public highways, it shall be deemed a sufficient compliance with subdivisions one, three, five and eight of this section, until such vehicle shall be sold or let for hire. Nothing in this sub- division shall be construed to apply to a motor vehicle employed by a manufacturer or dealer for private use or for hire. {L. 1904, ch. 540, § 2, subd. 6.] Suhd. 7. Fictitious seal or number. — No motor vehicle shall be used or operated upon the public highways after thirty days after this act takes effect which shall display thereon a registra- tion seal or number belonging to any other vehicle, or a fictitious registration seal or number. [L. 1904, ch. 540, § 2, subd. 7.] Subd. 8. Unregistered vehicle not to be operated. — No motor vehicle shall be used or operated upon the public highways after thirty days after this act takes effect, unless the owner shall have complied in all respects with this section, except that any person purchasing a motor vehicle from a manufacturer, dealer or other person after this act goes into effect shall be allowed to operate such motor vehicle upon the public highways for a period of five days after the purchase and delivery thereof, provided that dur- ing such period such motor vehicle shall bear the registration number and seal of the previous owner under which it was oper- ated or might have been operated by him. \_L. 1904, ch. 540, § 2, suid. 8.] Subd. 9. Exemption of non-resident owners. — The provisions of this section shall not apply to motor vehicles owned by non-resi- dents of this state, provided the owners thereof have complied' 750 Bicycles and Automobiles in Highways. L. 1904, ch. 540, § 3, subd. 1, 2, 3, 4. ■with any law requiring the registration of owners of motor vehi- cles in force in the state, territory or federal district of their residence, and the registration number showing the initial of such state, territory or federal district shall be dsplayed on such vehi- cle substantially as in this section provided. [L. 1904, ch^ 540, § 2, svhd. 9.] §1 10. Regulation, of speed; meeting horses. 8uhd. 1. Speed permitted. — ~So person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person, or the safety of any property; or in any event on any public highway where the territory contiguous thereto is closely built up, at a greater rate than one mile in six minutes, or elsewhere in a city or village at a greater rate than one mile in four minutes, or elsewhere outside of a city or village at a greater rate than one mile in three minutes; subject, however, to the other provisions of this act. [L. 1904, ch. 540, § 3, mid. 1.] Subd. 2. Speed at crossings, et cetera. — Upon approaching a bridge, dam, sharp curve, or steep descent, and also in traversing such bridge, dam, curve or descent, a person operating a motor vehicle shall have it under control and operate it at a rate of speed not exceeding one mile in fifteen minutes, and upon approaching a crossing or intersecting highways at a speed not greater than is reasonable and proper, having regard to the traffic then on such highway and the safety of the public. ,[L. 1904, ch. 540, § S. suhd. 2.] Subd. 3. Meeting horses, et cetera. — ^Upon approaching a per- son walking in the roadway of a public highway, or a horse or horses, or other draft animals, being ridden, led or driven thereon, a person operating a motor vehicle shall give reasonable warning of its approach, and use every reasonable precaution to ensure the safety of such person or animal, and, in the case of horses or other draft animals, to prevent frightening the same. [L. 1904, ch. 540, § 3, svJbd. 3.] Subd. 4. Stopping on signal. — A person operating a motor ve- hicle or motor cycle or motor bicycle shall, at request or on signal by putting up the hand, from a person riding, leading or driving a restive horse or horses or other draft animals, bring such motor vehicle, cycle or bicycle immediately to a stop, and, if traveling in the opposite direction, remain 'Stationary so lf>ng as may be reason- able to alloAV such horse or animal to pass, and, if traveling in the saoie direction, use reasonable caution in thereafter passing such Highways and Beidges. T51 L. ]904, ch. 540, § 3, subd. 5, 6; § 4, subd. 1, 2. liorse or animal ; provided tlia.t, in case suck liorge or animal ap- pears badly frightened or the person operating such motor vehicle is requested so to do, 9uch person shall cause the motor of such, vehicle, cycle or bicycle to cease running so long as shall be rea- sonably necessary to prevent accident and insure the safety of otters. [L. 1904, ch. 540, § 3, subd. 4.] Subd, 5. Giving name and address. — In case of accident to a person or property on the public highvfays, due to the operation liiereon of a motor vehicle, the person operating such vehicle shall stop, and, upon requesit of a person injured, or any person present, give such person liis name and address, and, if not the owner, the name and address of such owner. [L. 1904, ch. 540, § 3, subd. 5.] Subd. 6. Speed tests and races. — Local authoritieg may, not- withstanding the other provisions of this section, set aside for a given time a specified public highway for speed tests or races, to be conducted under proper restrictions for the safety of the public. [L. 1904, ch. 540, § 3, subd. 6.] § II. Rules of road; brakes, lamps, etc.; local ordinances. Subd. 1. Rules of the road. — Whenever a person operating a motor vehicle shall meet on a public highway any other person riding or driving a horse or horses or other draft animals, or any other vehicle, the person so operating such motor vehicle shall seasonably turn the same to the right of the center of such high- way so as to pass without interference. Any such person so x>perating a motor vehicle shall, on overtaking any such horse, draft animal or other vehicle, pass on the left side thereof, and the rider or driver of such horse, draft animal or other vehicle shall, as soon as practicable, turn to the right so as to allow free pass- age on the left. Any such person so operating a motor vehicle shall at the intersection of public highways, keep to the right of the intersection of the centers of such highways when turning to the right and pass to the right of such intersection when turning to the left. Nothing in this subdivision shall, however, be con- strued as limiting the meaning or effect of the provisions of sec- tion three of this act. [L. 1904, ch. 540, § 4, subd. 1.] Subd. 2. Brakes, lamps, horn, et cetera. — Every motor vehicle while in use on a public highway shall be provided with good and efficient brakes, and also with a suitable bell, horn or other signal a^d be so constructed as to exhibit, during the period from one hour after sunset to one hour before sunrise, two lamps showing white lights visible within a reasonable distance in the direction toward which such vehicle is proceeding, showing the registered 751a Bicycles and Automobiles in Highways. L. 1904, ch. 540, § 4, subd. 3. number of the vehicle in separate Arabic numerals, not lees than one inch in height and each stroke to be not less than, one-quarter of an inch in width, and also a red light visible in the reverse direction. [L. 1904, ch. 540, § 4, subd. 2.] Subd. 3. Local ordinances prohibited. — Subject to the provi- sions of this act, local authorities shall have no power to pass, enforce or maintaiin any ordinance, rule or regulation requiring of any owner or operator of a motor vebicle any license or per- mit to use the public highways, or excluding or prohibiting any motor vehicle whose owner has co^mplied with section two of this act from the free use of such highways, except such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages, or except as herein provided, in any way affecting tbe registration or num- bering of motor vehicles or prescribing a slower rate of speed than herein specified at which such vehicles may be operated, or the use of the public highways', contrary to or inconsistent with the provisions of this act; and all such ordinances, rules or regulations now in force are hereby declared to be of no valid- ity or effect ; provided, however, that the local authorities of cities and incorporated villages may limit by ordinance, rule or regu- lation hereafter adopted the speed of motor vehicles on the public highways, on condition that such ordinance, rule or regulation shall also fix the same speed limitation for all other vehicles, such speed limitation not to be in any case less than one mile in six minutes in incorporated villages, and on further condition that such city or village shall also have placed conspicuously on each main public highway where the city or village line crosses the same and on every main highway where the rate of speed changes, signs of sufficient size to be easily readable by a person using the highway, bearing the words " Slow down to — ■ — ' miles " (the rate being inserted) and also an arrow pointing in the direction where the speed is to be reduced or cbanged, and also on furth<* condition that such ordinance, rule or regulation shall fix the penalties for violation thereof similar to and no greater than those fixed by such local autborities for violations of speed limitation by any other vehicles than motor vehicles, which penalties sball during the existence of the ordinance, rule or regu- lation supersede those specified in section six of this act, and provided further, that nothing in this act contained shall be con- strued as limiting the power of local authorities to make, en- force and maintain, further ordinances, rules or regulations, .ifTe cling mofor vehicles which nre offered to the public for hire. [L. 1904, ch. 540, § 4, svbd. H.] Highways and Bridges. 751b L. 1904, ch. 540, § 4, subd. 4, 5; § 5, subd. 1, 2, 3. Subd. 4. PaJrhs, parkways and cemeteries excepted. — Local authorities may, notwithstanding the provisions of this act, make enforce and maintain such, reasonable ordinances, rules or regu- lations concerning the speed at which motor vehicles may be oper- ated in any parks or parkways vnthin a city, but in that event, must, by signs at each entrance of such park and along such parkway, consipicuously indicate tJie rate of speed permitted or required, and may exclude motor ve-hicles from any cemetery or grounds used for the burial of the dead. \_L. 1904, ch. 540, § 4, suld. 4. J Subd. 5. No effect on right to damages. — -ISrothing in this act sihall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injuries to person or property resulting from the negligent use of the high- ways by a motor vehicle or its owner or his employee or agent. [L. 1904, ch. 540, § 4, subd. 5.[ § 12. Chauffeur's registration, badges, etc. §5. Svhd.l. Filing chauffeur's statement. — Every person here- after desiring to operate a motor vehicle as a chauffeur shall file in the office of the secretary of state, on a blank to be supplied by sucli secretary, a statement which shall include his name and address and lie trade name and motive power of the motor vehi- cle or vehicles he is able to operate ; and shall pay a registration fee of two dollars. [L. 1904, ch. 540, § 5, suhd. 1.] Subd. 2. Chauffeur's registration and record. — 'The secretary of state shall thereupon file such statement in his office, register such diauffeur in a book or index to be kept for that purpose, and assign him a number. [L. 1904, ch. 540, § 5, suhd. 2.] Subd. 3. Chauffeur's badge. — The secretary of state shall forthwith, upon such registration and without other fee, issue and deliver to such chauffeur a badge of aluminum or other suitable metal, which shall be oval in form, and the greater diameter of which shall not be more thau two inches, and such badge shall have stamped thereon the words : " Eegiatered chauffeur, No. — ' — , New York motor vehicle law," with the registration num- ber inserted therein; which badge shall thereafter be worn by such chauffeur pinner upon his clothing in a conspicuous place at all times while he is operating a motor vehicle upon, the pub- lic highways. If the operator or chauffeur has previously been registered in the office of the secretary of state, the certificate heretofore issued to him, shall be returned to such secretary, who shall issue to said operator or chauffeur, in lieu thereof, a chauf- 751c Bicycles and Automobiles in Highways. L. 1904, ch. 540, § 5, subd. 4, 5; § 6, subd. 1, 2, 3. four's badge upon the payment of a fee of one dollar.- [L. T9"04-, ch. 540, § 5, subd. 3.] /Su6d 4. Fictitious badge. — No chauffeur, having registered as hereinbefore provided, shall voluntarily permit any other person, to vpear his badge, nor shall any person while operating a motor vehicle wear any badge belonging to another person, or a fictitious badge. [L. 1904, ch. 540, § 5, subd. 4.] Subd. 5. Unregistered chauffeur camnot operate. — No person, shall operate a motor vehicle as a chauffeur upon the public high- ways after thirty days after this act takes effect, unless such per- son shall have complied in all respects with the requirements of this section. [L. 1904, ch. 540, § 5, subd. 5.] § 13. Penalties; release from custody. Subd. 1. Penalties for excessive speed, et cetera. — The viola- tion of any of the provisions of subdivision five of section two, Or of subdivision seven of section two, or of section three, or of section five of this act, or of any ordinance, rule or regulation adopted by local authorities in pursuance of subdivision four of section four of this act, shall be deemed a misdemeanor, punish- able by a fine not exceeding one hundred dollars for the first offense, and punishable by a fine of not less than fifty dollars nor more than one hundred dollars, or imprisonment not exceed- ing thirty days, or both, for a second offense, and punishable by a fine of not less than one hundred dollars nor more than two hundred and fifty dollars and imprisonment not exceeding thirty days for a third or subsequent offense. — [L. 1904, ch. 540, § 6, suhd. 1.] Subd. 2. Penalties for other violations. — ^The violation of any other provision of this act shall be punished by a fine not exceed- ing twenty-five dollars for the first offense, a fine not less than twenty-five dollars nor more than fifty dollars for a second offense, and a fine not less than fifty dollars nor more than one hundred dollars, or imprisonment not exceeding ten days, or both, for a third or subsequent offense. — '\_L. 1904, ch. 540, § 6, subd. 2.] Subd. 3. Release from custody, bail, et cetera. — In case the owner of a motor vehicle shall be taken into custody because of a violation of any provision of this act, he shall be forthwith taken before an accessible captain or a sergeant or acting sergeant of police in any city or village, or any justice of the peace or mag- istrate, and be entitled to an immediate hearing; and if such hearing cannot then be had be released from custody on giving a bond or undertaking executed by a fidelity or surety company organized under the laws of this state and having a deposit of at Highways and Bridges. 75 Id L. 1904, ch. 540, §§ 7, 8. least two hundred thousand dollars with the superintendent of insurance of this state, said bond or undertaking to be in an amount not exceeding the maximum fine for the offense with which the owner is charged and to be conditioned for the owner's appearance in answer for such violation at such time and plaee as shall then be indicated ; or on giving his personal undertaking to appear in answer for such violation, at such time and place as shall then be indicated, secured by the deposit of a sum equal to the maximum fine for the offense with which he is charged, or in lieu thereof, by leaving the motor vehicle, being operated by such person with such officer; or in case such officer is not accessible, be forthwith released from custody on giving his name and ad- dress to the officer making such arrest, and depositing with such officer a sum equal to the maximum fine for the offense for which such arrest is made, or in lieu thereof, by leaving the motor vehi- cle, being operated by such person, with such officer, provided, that in such case the officer making such arrest shall give a re- ceipt in writing for such sum or vehicle and notify such person to appear before the most accessible magistrate, naming him, on that or the following day, specifying the place and hour. In case security shall be deposited, as in this subdivision provided, it shall be returned to the person depositing, forthwith on such person giving a bond or undertaking of a fidelity or surety com- pany, as in this section provided, or on such person being ad- mitted to bail as provided in section five hundred and fifty-four of the code of criminal procedure, and the return of any receipt or other voucher given at the time of such deposit. In case such undertaking of a fidelity or surety company be not given, or such personal undertaking with security or such deposit shall not be made by an owner so taken into custody, the provisions of section five hundred and fifty-four of the code of criminal procedure shall apply. [L. 190-4, ch. 540, § 6, suhd. 3, amended by L. 1906, ch. 128, in effect April 3, 1906.] § 14. Acts repealed. All acts and parts of acts inconsistent herewith or contrary hereto are, so far as they are inconsistent or contrary, hereby repealed. [L. 1904, ch. 540, § 7.] § 15. When this act takes effect. This act shall take effect immediately, except that no penalty shall be asserted or imposed for the violation of any of the provi- sions of section two or section five hereof committed prior to thirty days after this act takes effect. [L. 1904, ch. 540, § 8.] 752 Highways and Beidges. Bailroad Law, § 60. CHAPTER LV. EAILEOADS OHOSBIKG HIGHWAYS ; STREET EAILEOADS IN HIGHWAYS. Section 1. Steam surface railroads not to cross highways at grade; rail- road commissioners to determine manner of crossing. 2. Laying out new streets or highways over railroads; notice to railroad company; railroad commissioners to determine man- ner of crossing. 3. Changes in existing crossings; application to railroad commis- sioners; notice; decision; appeal. 4. Acquisition of lands by town, etc. 5. Cost of repair and maintenance of bridges and subway, how borne. 6. Payment of cost of construction. 7. Powers of railroad commissioners as to change of existing crossings. 8. Proceedings to compel compliance with recommendations of board of railroad commissioners. 9. Town, village or city may borrow money and issue bonds. 10. Consent of property owners and local authorities for use of highways by street surface railroads. § I. Steam surface railroads not to cross highways at grade; railroad commissioners to determine manner of crossing. All steam surface railroads, hereafter built except additional switches and aidings, must be so constructed as to avoid all public crossings at grade, whenever practicable so to do. Whenever ap- plication is made to the board of railroad commissiioners, under seetion fifty-nine of the Railroad Law, there shall be filed with said board a map showing the streets, avenuea and highways pro- posed to be crossed by the new construotion, and the said board shall detennine whether such crossings shall be under or over the proposed railroad, except where said board shall determine such method of crossing to be impracticable. Whenever an application is made under this section to determine the manner of crossing, the said board shall des^ignate a time and place when and where a hearing will be given tO' such railroad company, and shall notify the municipal corporation having jurisdiction over such streets, avenues or highways proposed to be crossed by the new railroad. The said board shall also give public notice of smch hearing in at least two newspapers, published in the locality affected by the application, and all persons' owning land in the vicinity of the proposed crossings, shall have the right to be' heard. The decision Eaileoads Crossing Highways. 753 Railroad Law, § 61. of the said board rendered in any proceedings under tliis section shall be oommunioated, within twenty days after final hearing, to all parties to whom notice of the hearing in said prooeedings was given, or who appeared at said hearing by counsel or in person. [Railroad Law {L. 1890, ch. 56.5), § 60, as added by L. 1897, ch. 754; Eeydecher's Gen. L. {2d ed.), p. 3289.] § 2. Laying out new streets or highways over railroads; notice to railroad company ; railroad commissioners to determine manner of crossing. When a new street^ avenue or highway, or new portion of a street, avenue or highway shall hereafter be constructed across a steam surface railroad, other than pursuant to the provisions of sec- tion sixty-two of this act, such street, avenue or highway or portion of such street, avenue or highway, shall pass over or under such railroad or at grade as the board of railroad commis- sioneirs shall directs Notice of intention to lay out such street, avenue or highway, or new portion of a street, avenue or high- way, across a steam surface railroad, shall be given to such rail- road company by the municipal corporation at least fifteen days prior to the making of the order laying out such street, avenue or highway by service personally on the president or vice-president of the railroad corporation, or any general officer thereof.' Such notice shall designate the time and place and when and where a hearing will be given to such railroad company, and such railroad company shall have the right to be heard before the authorities of such municipal corporation upon the question of the necessity of such street, avenue or highway. If the municipal corporation determines such street, avenue or highway to be necessary, it shall then apply to the board of railroad commissioners before any fur- ther proceedings are taken, to determine whether such street, ave- nue or highway shall pass over or under such railroad, or at grade, whereupon the said board of railroad commissioners shall appoint a time and place for hearing such application, and shall give such 1. Neceislty of notice. Notice must be given to the railroad company over whose tracks it is proposed to lay out a highway, although proceedings to lay out such highway were instituted prior to the Grade Crossing Act of 1897, which added the above section to the Railroad Law. Matter of Ludlow Street, 69 App. Div. 180; 68 N. Y. Supp. 1046; see, also, Matter of Tillage of Waverly, 35 App. Div. 38; 54 N. Y. Supp. 368. ^54 Highways and Beidges. Kailroad Law, § 62. Dotioe thereof, as tihey judge reasonable, not, hoiWever, less than ten days, to the railroad company whose railroad is to be crossed by such new sitreefc, avenue or highway, or new portion of a street, avenue or highway, to the municipal corporation and to the owners of land adjoining tlie railroad and that part of the street, avenue or highway to be opened or extended. The said board of railroad commissioners shall determine whether such street, avenue or highway, or new portion of a street, avenue or highway, shall be constructed over or under such railroad or at grade; and if said board determine that such street, avenue or highway shall be car- ried across such railroad above grade, then said board shall deter- mine the height, the length and the material of the bridge or stmcture by means of which such street, avenue or highway shall be carried across such railroad, and the length, character and grades of the approaches thereto; and if said board shall deter- mine that such street, avenue or highway shall be constructed or extended below the grade, said board shall determine the man- ner and method in which the same shall be so carried under, and the grade or grades thereof, and if said board shall determine that said street, avenue or highway shall be oonstanicted or extended at grade, said board shall determine the manner and method in which the same shall be carried over said railroad at grade and what safeguards shall be maintained. The decision of the said board as to the manner and method of carrying such new street, avenue or highway, or new portion of a street, avenue or highway, across such railroad, shall be final, subject, however, to the right of appeal hereinafter given. The decision of said board rendered in any proceeding under this section shall be communicated within twenty days after final hearing to all parties to whom notice of the hearing in such proceeding was given or who appeared at such hearing by counsel or in person. [Railroad Law (L. 1890, ch. 565), § 61, as added by L. 1897, ch. 754, and amended by L. 1898, ch. 520; Heydecher's Gen. L. (2d ed.), p. 3289.] § 3. Changes in existing crossings; application to railroad commissioners; notice; decision; appeal. The mayor and common council of any city, the president and trustees of any village, the tO'wn board of any town within which a street, avenue or highway crosses or is crossed by a steam surface railroad at grade, or any steam surface railroad company, whose Railboads OBOssiiiro Highways. 755 Railroad Law, § 62. road crosses or is crossed by a st^reet, avenue or higbway at grade, may bring their petition, in writing, to tbe board of railroad oom- missiioners, therein alleging that public siafety require® an altera- tion in the manner of such crossing, its approaches, the method of crossing, the location of the highway or crossing, the closing and discontinuance of a highway crossing and the diversioix of the travel thereon to another highway or crossing, ot if not practicable to change such crossing from grade or to close and discontinue the same, the opening of an additional crossing for the partial diversion of travel from the grade crossing, and praying that the same may be ordered ; whereupon the said board of railroad com- missioners shall appoint a time and place for hearing the petition, and shall give such personal notice thereof as they shall judge reasonable, of not lessi than ten days, however, to said petitioner, the railroad company, the municipality in which such crossing is situated, and to the owners of the lands adjoining such crossing and adjoining that part of the highway to' be changed in grade or location, or the land to be opened for a new crossing, and shall cause notice of said hearing to be advertised in at least two news- papers published in the locality affeoted by the application; and after such notice of hearing the said board of railroad commis- sioners shall determine what alterations or changes, if any, shall be mada' The decision of said board of railroad oommissionera rendered in any proceeding under this section, shall be communi- cated within twenty days after final hearing to all parties to whom notice of the hearing in said proceeding was given, or who' ap- peared at said hearing by counsel or in person. Any person aggrieved by such decision, or by a decision made pursuant to sec- tions sixty and sixty-one hereof, and who was a party to said proceeding, may within sixty days appeal therefrom to the Ap- pellate Division of the Supreme Court in the department in whidi such grade crossing is situated and to the Court of Appeals, in the Z. Objections first raised on appeal. The objection that a petition filed by the town board of the town of Schaghtieoke, for the abolition of a railroad crossing at Melrose, N. Y., is insufficient in that it does not allege that Melrose is in the town of Schaghtieoke, and the further objection, inter- posed by a party represented at the hearing, that proper notice was not given of the hearing before the railroad commissioners, cannot be raised for the first time on an appeal from the order granting the prayer of the petition. Matter of Town Board v. Fitchburg B. R. Co., 53 App. Div. 16; 65 N. Y. Supp. 498. 756 Highways and Bridges, Railroad Law, §§ 63, 64. same manner and with, like effeot as is provided in the case of appeals from an order of the Supreme Court. \_Bailroad Law {L. 1890,ch. 565), § 62, as added hy L. 1897, ch. 754, and amended hy L. 1898, ch. 520, and L. 1899, ch. 359 ; Heydecker's Gen. L. {2ded.),p.Z2'dl.] § 4. Acquisition of lands by town, etc. The municipal corporation in which tlie highway crossing is located, may, with the approval of the railroad company, acquire by purchase any lands, rights or easements necessary or required for the purpose of carrying out the provisions of section sixty, sixty-one and sixty-two of this act, hut i£ unable to do so shall acquire such lands, rights or easements by condemnation either under tlie Condemnation Law, or under the provisions of the charter of such municipal corporation. The railroad company shall have notice of any such proceedings and the right to be heard therein. \_Bailroad Law (L. 1890, ch. 565), § 63, as added hy L. 1897, ch. 754, and amended hy L. 1899, ch. 226; Heydeck- er's Gen. L. {2d ed.), p. 3292.] § 5. Cost of repair and maintenance of bridges and subway, how borne. When a highway crosses a railroad by an ovei'head bridge, the frameworV of the bridge and its abutments, shall be maintained and kept in repair by the railroad company, and the roadway there- over and the approiaches thereto shall be maintained and kept in repair by the municipality in which the same are situated ; except that in the case of any overhead bridge constructed prior to the enactment of section sixty-one and sixty-two of this act, the road- way over and tlie approaches to which the railroad company was under obligation to maintain and repair, such obligations shall continue, provided tlie railroad company shall have at least ten days' notice of any defect in the roadway thereover and the ap- proaches thereto, which notice must be given in writing by Uie commissioner of highways or otlier duly constituted authorities, and the railroad company shall noti be liable by reason of any such defect unless it shall have failed to make repairs witliin ten days after the service of such noticei upon it. When a highway passes under a railroad, the bridge and its abutments shall be maintained and kept in repair by the railroad company, and the subway and Raileoads Ceossing Highways. 757 Railroad Law, § 65. ite approaches shall be maintained and kept in repair by tlie municipality in -whidi the same are situated.' [Railroad Law (L. 1890, ch. 565), § 64, as added hy L. 1897, ch, 754, amd amended hy L. 1902, ch. 140. j § 6. Payment of cost of construction. Whenever, under the provisions of section sixty of this act, new railroads are constructed across existing liigliways, the expense of crossing above or below the grade of Uie highway shall be paid entirely by tlie railroad corporations. Whenever under the pro- visions of section sixty-one of this act a new street, avenue or high- way is constructed across a:i existing railroad, the railroad corpo- ration shall pay one-half and the municipal corporation wherein such street, avenue or highway is located, shall pay the remaining one-half of the expense of making such ci'ossing above or below grade; and whenever a change is made as to an existing crossing in acoordanc-e with the provisions of section- sixty-two of this act, fifty per centum of the expense thereof shall be borne by the rail- road corporation, twenty-five per centum by the municipal cor- poration, and twenty-five per centum by the state. Whenever, in carrying aut the provisions of sections sixty-one or sixty-two of this act, two or more lines of steam surface railroad, owned and operated by different corporations, cross a highway at a point ■where a change in grade is made, eacli corporation shall pay such proportion of fifty per centum of the expense thereof as shall be determined by the board of railroad commissioners. In carrying out the provisions of sections sixty, sixty-one and sixty-two of this act the work shall be done by the railroad corporation or cor- porations affected thereby, subject, to tlie supervision of and ap- proval of the board of railroad commissioners, and in all cases, except, where the entire expense is paid by the railroad corporation,' the expense of construction shall be paid primarily by the railroad company, and the expense of acquiring additional lands, rights or easements, shall be paid primarily by the municipal corporation wherein saich highway crossings are located. Plans and specifi- 3. Application. This section is not limited in its application to rail- roads constructed subsequent to its enactment or to bridges over crossings thereafter constructed, but applies to all bridges constituting the highway at railroad crossings, whether constructed before or after the law went into effect. City of Yonkera v. N. Y. 0. d U. R. R. R. Co., 165 N. Y. 142. 758 Highways and Beidges. Railroad Law, § 65. oations of all changes proposed under sections sixty-one and sixty- two of this act, and an estimate of tlie expense thereof shall be submitted to the board of railroad commissioners for their ap- proval before the letting of any contract. In ease the work is done by contract the proposals of contractors shall be submitted to the board of railroad commissioners, and if tlie board shall determine that the bids are excessive it shall have the power to require the submission of new proposals. The board of railroad oommissioners may employ temporarily such experts and engineers as may be necessary to properly supervise any work that may be undertaken under sections sixty, sixty-one or sixty-two of this act, the expense thereof to be paid by tlie comptroller upon tlie requi- sition and certificatei of the said board, said expense to be included in the cost of the particular change in grade on account of which it is incurred and finally apportioned in the manner provided in this section. Upon tlie completion of the work and its approval by the board of railroad commissioners an accounting shall bo had between the railroad corporation and the municipal corpora- tion, of the amounts expended by each with interest, and if it shall appear that the railroad corporation or the municipal corpo- ration have expended more than tlieir proportion of the expense of the crossing as herein provided, a settlement shall be forthwith made in accordance witli the provisions of this section. All items of expenditure shall he verified under oatli, and, in case of a dis- pute between the railroad corporation and the municipal corpora- tion as to the amount expended, any judge of the Supreme Court in the judicial district in which the municipality is situated, may appoint a referee to take testimony as to the amount expended, and the confirmation of the report of the referee shall be final. In the event of the failure or refusal of the railroad corporation to pay its proportion of the expense, the same, with interest from the date of such accounting, may be levied and assessed upon the railroad corporation and collected in the same manner that taxes and assessments are now collected by the municipal corporation within which the work is done ; and in the event of the failure or refusal of the municipal corporation to pay its proportion of the expense, suit may be instituted by the railroad corporation for the collection of the same with interest from the date of such accounting, or the railroad corporation may offset such amount -with interest against any taxes levied or assessed against it or its Railkoads Crossing Highways. .759 Railroad Law, § 65. property by such municipal corporation. The l^slature shall annually appropriate out of any moneys not otherwise appropri- ated the sum of one hundred thousand dollars for the purpose of paying the state's proportion of the expense of a change in an existing grade crossing. If, in any year, any less sum than one hundred thousand dollars is expended by the state for the purpose aforesaid the balance remaining unexpended shall be applied to reduce the amount appropriated by the state in the next succeeding year, except that no such deduction shall be made in case there are outstanding and unadjusted obligations on ac- count of a change in an existing grade crossing for a proportion of which the sitate is liable under the provisions of tliis section. In the event of the appropriation made by the state in any one year being insufficient to pay the state's proportion of the expense of any change that may be ordered the first payment from the appropriation of the succeeding year shall be on account of said change, and no payment shall be made on account of any subse- quent change that may be ordered, nor shall any subsequent change be ordered until the obligation of the state on account of the first named change in grade has been fully discharged, unless the same ahall be provided for by an additional appropriation to be made by the legislature. The state's projx>rtion of the expense of chang- ing any existing grade crossing shall be paid by the state treasurer on the warrant of the comptroller, to which shall be appended the certificate of the board of railroad commissioners to the effect that the work has been properly performed and a statement show- ing the situation of the (Jrossing that has been changed, the total cost and the proportionate expense thereof, and the money shall be paid in whole or in part to the railroad corporation or to the municipal corporation as the board of railroad commissioners' may direct, subjecti, however, to the rights of the respective parties as they appear from the accounting to be had as hereinbefore provided for. No claim for damages to property on account of the change or abolishment of any crossing under the provisions of this act shall be allowed unless notice of such claim is filed witb the board of railroad commissioners within six months after completion of the work necessary for such change or abolishment. {^Railroad Law (L. 1890, ch. .565), § 65, as added hy L. 189Y, ck. 754, and amended hy L. 1898, ch. 520, and L. 1900, ch. 517; Heydecker's. Oen.L. {Med.), p. 3292. J 760 Highways and Bridges. Railroad Law, §§ 66, 67. § 7. Powers of railroad commissioners as to change of exist- ing crossings. The railroad commissioners may, in the absence of any applica- tion therefor, when, in their opinion, public safety requires an alteration in an existing grade crossing, institute proceedings on their own motion for an alteration in such grade crossing, upon such notice as they shall deem reasonable, of not less than ten days, however, to the railroad company, the municipal corpora- tion and the person or persons interested, and proceedings shall be conducted as provided in section sixty-two of this act. The changesi in existing grade crossings authorized or required by the board of railroad commissioners in any one year shall be so dis- tributed and apportioned over and among the railroads and the municipalities of the state as to produce such equality of burden upon them for their proportionate part of the expenses as herein provided for as the nature and circumstances of the cases before them will permit [Railroad Law {L. 1890, ch. 565), § 66, as added hy L. 1897, ch. 754; Reydecker's Gen. L. {2d ed.), p. 3295.J § 8. Proceedings to compel compliance with recommendations of board of railroad commissioners. It shall be the duty of lie corporation, municipality or person or persons to whom the decisions or recommedations of the board of railroad commissioners are directed, as provided in sections sixty, sixty-one, sixty-two and sixty-six of this act to comply with such decisions and recommendations, and in case of their failure so to do, the board shall present the facts in the case to the attor- ney-general, who shall thereupon take proceedings to compel obedi- ence to the decisions and recommedations of the board of railroad commissioners. The Supreme Court at a special term shall have the power in all cases of such decisiona and recommendations by the board of railroad commissioners to compel compliance there- with by mandamus, subject to appeal to the appellate division of the Supreme Court and the Court of Appeals, in the same man- ner, and with like effect, as is provided in case of appeals from, any order of the Supreme Court. {^Railroad Law (L. 1890, ch. rjCr,), § 67, as added hy L. 1897, ch. 754; Eeydecker's Gen. L. (2ded.),p. 3295.J Raileoads Ceossing Highways. 761 Railroad Law, §§ 67a, 91. § g. Town, village or city may borrow money and issue bonds. Whenever in carrying out any of the provisions of sections sixty, sixty-one, aixty-two, sixty-three, sixty-four, sixty-five, sixty-six, or sixty-seven of this act, any municipality shall incur any expense or become liable for the pay- ment of any moneys, it shall be lawful for such municipality to temporarily borrow such moneys on the notes or certificates of such municipality, and to include the amount of outstanding notes or certificates, or any part thereof, in its next annual tax levy for municipal purposes, or in the discretion of the common council in case of a city, the board of trustees in case of a village or the town board in case of a town, to borrow the same, or any part thereof, on the credit of the municipality, and to issue bonds therefor, which bonds shall be signed by the mayor and clerk in case of a city, the president and clerk in case of a village and the town board in case of a town, and shall be in such form and for such sums and be payable at such times and places with interest not exceeding four per centum per annum, as the common council in case of a city, the board of trustees in case of a village, and the town board in case of a town, shall direct. [Railroad Law (L. 1890, eft. 565), § 67a, as amended by L. 1899, oh. 541, and amended by L. 1902, oh. 198.] § 10. Consent of property owners and local authorities for use of highways by street surface railroads. A street surface railroad, or extensions or branches thereof, shall not be built, extended or operated unless the consent in writing acknowledged or proved as are deeds entitled to be recorded, of the owners in cities and vil- lages, of one-half in value, and in towns, not within the corporate limits of a city or village, of the owners of two-thirds in value, of the property bounded on and also the consent of the local authorities having control of that portion of a street or highway upon which it is proposed to build or operate such railroad, extension or branch shall have been first obtained. Such consents of property owners in the county of Kings which shall be here- after executed, may be forfeited unless within sixty days after the execution thereof, the same shall be recorded in the office of the register of such county. Such register is hereby directed upon the payment of the proper fees to record all consents left with him for that purpose in books to be provided by him and paid for out of the funds provided to meet the expenses of said office. Such books shall be indexed according to the names of the consenting property owners and also according to the names of the streets, roads or other high- ways upon which the property to which the consent relates shall be bounded on. In case the recording of such consents shall be hindered, delayed or pre- vented by legal proceedings in any court or from any other or different cause not within the control of the corporation upon which such requirement is imposed, the time for the performance of such act is hereby and shall be deemed to be extended for the period covered by such hindrance, delay or prevention. The consents- of property owners in one city, village or town, or in any other civil division of the state, shall not be of any effect in any other city, village or town, or other civil divisions of the state. Consents of property owners heretofore obtained to the building, extending, operating or change of motive power shall be effectual for the purposes therein mentioned and may be deemed to be sufficiently proved and shall be entitled to be re- corded, wherever such consents shall have been signed, executed or acknowl- 762 Highways and Beidges. Kailroad Law, § 91. edged before an officer authorized by law to take acknowledg- ments of deeds, or before or in the preeenoe of a subscribing wit- ness, and without regard to whether or not the subscribing witness shall have affixed his signature in the presence of the subscriber, provided that the proof of such signing, execution or acknowledg- ment shall have been made by such subscribing witness in the manner prescribed by chapter three, part two of the Revised Stat- utes. In cities the common council, acting subject to the power now possessed by the mayor to veto ordinances; in villages the board of trustees, and in towns the commissioner or commission- ers of highways shall be the looal authorities referred to; except that in villages where the control of the streets is vested in any other board or authorities, sudi otber board or authorities shall be the local authorities referred to, and the consent of such other board or authorities hereafter or heretofore obtained shall be suffi- cient ; if in any city or county the exclusive control of any street, avenue or other property, which is to be used or occupied by any such railroad, extension or branch, is vested in any other authority, the consent of such authority shall also be first obtained. The value of the property above specified shall be ascertained and de- termined by the assessment-roll of the city, village or town in which it is situated, completed last before the local authorities shall have given their consent, except property owned by such city, village or town, or by the state of New York, or the United States of America, the value of which shall be ascertained and deter- mined by making the value thereof to be the same as is shown by such assessment-roll to be the value of the equivalent in size and frontage of the adjacei^t property on the same street or high- way ; and the consent of the local authorities' shall operate as the consent of such city, village or town as the owners of such prop- erty. Whenever heretofore or hereafter a railroad has been or shall be constructed and put in operation for one year or the motive power thereon has been or shall be changed and put in operation for a similar length of time, such facts shall be pre- sumptive evidence that the requisite consents of local authorities, property owners and other authority to the construction, main- tenance and operation of such railroad or change of motive power have been duly obtained. No consent of local authorities here- tofore given shall be deemed invalid because of any portion of the road or route consented to not being connected with an exist- Railroads Crossing Highways. T63 Railroad Law, § 91. ing road or route of the corporation obtaining or acquiring such <3onse!nt and all statements of extensiion filed under section ninety of this article in reference to the route or part thereof described in any consent of local authorities are hereby ratified and confirmed, whether the same were filed before or after the obtaining or ac- quiring of such consents, provided however that nothing herein contained shall be construed to affect any portion of a street surface railroad which is now in or upon any portion of a street which is under the jurisdiction of a park department in any city con- taining a population of over twelve hundred thousand inhabitants. [Railroad Law {L. 1890, ch. 565), § 91, as amended by L. 1903, eh. 537, and L. 1905, ch. 650,] 764: Highways and Beidges. L. 1895, ch. 611, § 1. CHAPTER LVI. SPECIAL PROVISIONS RELATING TO HIGHWAYS. Sectiow 1. Discontinuance of liigliways in certain towns; description to be filed. 2. Damages for abandonment of such a highway; payment by town. 8. New York and Albany Post Road; preservation. 4. Purchase of crushed stone in towns of 1,000 or less inhibitants adjoining city having not leas than 35,000 inhabitants; issue of bonds; contracts. 6. Widening highways narrowed by stream or river; proceedings therefor. 6. County roads in counties of less than 200 square miles; maps to be prepared; consent of village authorities; maintenance. 7. Amount to be expended; county bonds therefor. 8. Improvement and repair of county roads; contracts; county engineer, his duties and compensation; division of roads int(» sections. 9. Regulations for improvements and repairs. 10. Railways and gas and water pipes in county roads. 11. Expenditure in excess of $10,000 per mile, how borne. 12. Jurisdiction of supervisors and local authorities over roads. 13. Penalties; application of act. § I. Discontinuance of highways in certain towns; descrip- tion to be filed. Whenever the commiasionera of highways of any to'wn, in which during the past ten years there has been, expended the sum of three hundred thousand dollars, or morei, for the purpose of maoadamizing the highways of such town, shall by a majority vote of sucsh commissioners, determine that any portion of any highway or street, not within the limits of an incorporated village, which is the terminus of such street or highway, is unnecessary for highway purposes', the said commissioners may, by an order to he duly entered upon their minutes, order such highway to be discontinued and abandoned for public purposes. Provided, how- ever, that no portion of such highway leading to tidewater, to bo discontinued shall be greater than ten hundred feet of the ter- minus thereof, and that the owners of the land on both sides of such highway or street, for the distance it is pro'posed to discon- tinue the same shall, by written petition to such highway com- missioners, have requested the discontinuance thereof, [i. 1895,. Special Peo visions Relating to Highways. 765 L. 1895, ch. 611, § 2; L. 1896, ch. 464, §§ 1, 2; L. 1896, ch. 423, i 1. ch. 611, § 1, as amended by L. 1903, ch. 643 ; Heydecker's Oen. L. (2d ed.), p. 4514.J Immediately upon making and entering the order mentioned in the first section of this act, the said oommissioner shall cause a written description of that portion of the street or highway ov- dered to be discontinued, to be filed and recorded in the ofiice of the town clerk of the town in which the same said street or high- way is located, and when the same is duly recorded, the said por- tion of the said street or highway shall thereupon be and become duly abandoned and discontinued for highway purposes. \_Idem, § 2.] § 2. Damages for abandonment of such a highway; payment by town. Any person or corpwration interested as owner or otherwise in any lands and claiming any lose or damage;, legal or equitable by reason of the discontinuance, abandonment or closing of any street or highway, not within the limits of an incorporated vil- lage, under or pursuant to the provisions of chapter six hundred and eleven of the laws of eighteen hundred and ninety-five or of any act amendatory thereof or supplemental thereto, may, upon ten days' written notice to the highway commissioners of the town in which such lands are situated apply to the Supreme Court or to the County Court of the county within which such lands are situated for the appointment of commissioners to estimatei and determine such loss and damage, whereupon the court shall ap- point three disinterested commissioners of appraisal to estimate and determine such damage, and the amount of compensation to be paid by said town therefor, who shall make their report there^ upon to such court, and which report when finally confirmed shall be final and conclusive in respect thereto and the legality and equity of any and all such claims shall be determined by such commissioners and by the court upon the hearing of their report, [i. 1896, ch. 464, § 1; Heydecker's Gen. L. {2d ed.), p. 4515. J Any loss or damage so estimated and determined shall be paid by said town as in case of judgment. [^Idem, § 2.] § 3. New York and Albany Post Road; preservation. The old established road along the valley of the Hudson river from the city of New York to the city of Albany, known as the 766 Highways and Beidges. L. 1896, ch. 423, §§ 2, 3, 4; L. 1895, ch. 499, §§ 1, 2. Albany post road, stall be a public highway for the use of the traveling public forever. [L. 1896, ch. 423, § 1; Heydecker's Oen. L. (2d ed.), p. 4516.] The said highway shall be kept open and free to all travelers, and shall not be obstructed in any way by any obstacle to free travel. [Idem, § 2.] No trusteesi of any village or corporation of any city upon ita route, or board of commissionetra of highways of towns, or any other person or board whatever, shall have any power or authority to authorize or license the laying of any railroad track upon said highway, except to crossi the same, and any such action shall be void and of no effect. [Idem, § 3.] This act shall not apply to any portion of said road within the city of New York, nor shall it apply to the road of the president, directors and company of the Kensselaer and Columbia turnpike, nor to the town of Oortlandt or the village or Sing Sing, in West- chester county. [Idem, § 4, as amended hy L. 1900, ch. 576.] § 4. Purchase of crushed stone in towns of 1,000 or less in- habitants adjoining city having not less than 35,000 inhabitants ; issue of bonds; contracts. Purchase of stone for highways. — The commissioners of high- ways, and the town board of any town of one thousand or less inhabitants adjoining a city having not less than thirty-five thou- sand inhabitants, which shall have been authorized by a majority vote of electors in said town by ballot at the last annual election in said town to expend a sum not eixcaeding twenty thousand dol- lars, in addition to the sum authorized to be expended by section seven, article one, chapter nineteen of tlie general laws, known as the Highway Law, for the purpose of purchasing stone, and quarrying, breaking, crushing and spreading the same upon the highways in said town, and defraying the expenses incidental thereto, are hereby authorized, jointly, to proceed with the said woi'k SO' authorized by said vote. [L. 1895, ch. 499, § 1 ; Hey- decker's Gen. L. (2d ed.), p. 4495.] Issue of bonds therefor. — And the town board of any such town is hereby authorized to pledge the faith and credit of said town to the extent and amount of such bond or bonds, and the sum to bear interest at a rate not to exceed five per cent per annum, to be for such amounts and upon such terms and conditions as may Special Peovisions Relating to Hioi-iways. 767 L. 1895, ch. 499, § 2. he determined by the aaid board. Said bonds, when issued, shall be binding on the town, and shall contain a recital that they are issued under the provisions of this acti, and said recital shall be conclusive evidence in any court of the validity thereof, and of the regularity of their issue. But the said bonds shall be pay- able within twenty years from the date of their issuance. Each bond shall be signed by the supervisor of the said town and coun- tersigned by the tovm clerk, and delivered to the supervisor of the said town, who shall advertise the same for sale at public auction to the highest bidder, after one publication at least in one of the newspapers published in the county seat of the county in which such town is situated, at least two weeks before the date of the sale. ISTo such bond shall be sold for less than the par value thereof. All such bonds shall be numbered consecutively, and a record thereof kept of each by the town clerk and supervisor, showing the date, amount and date of maturity of each. All moneys to be derived from the sale of bonds shall be kept in a separate fund by tihe supervisor, and all orders for the payment of such moneys shall be drawn only by tlie authority of the town board, signed by the supervisor of the town, and oounteirsigned by the tovsTi clerk. Before the supervisor shall advertise any such bond, he shall execute to such town, and file with the town clerk a special bond, with sufficient sureties, to be approved as to its form and sufiiciency, by a majority of the town board, exclusive of the said supervisor, conditioned for the faithful execution of his duties in reference to the sale of said bonds, and applications of the proceeds under the direction of the said tO'wn board. At any time, when in the opinion of a majority of the mpiiibers of such town board the moneys entrusted to such person as super- visor shall be deemed unsafe, or the surety insufficient, they niaj require a new and further bond, with like conditions as the fi/st, and in such penalty and with such sureties as they may deCm requisite and proper. Should default be made in the giving anc) filing of the bond as herein provided for, within the time limited herein, or if the supervisor neglect to renew his bond as last hereinbefore provided for, the town clerk, at the request of the said board, shall cause a written notice to be served upon the person so in default, requiring him to furnish such bond, or soich renewal, as the case may be, within ten days from the day of service of such notice. [Idem, § 2. J 768 Highways and Beidges. L. 1895, ch. 499, § 3; L. 1893, ch. 607, § 1. Work to he done hy contract. — The work done on the roads and highways under and by virtue of the provisions of this act shall be awarded to the lowest responsible bidder, who shall furnish security satisfactory to the majority of the town board and high- way commiseioners of the town. The said highway commission- ers and town board of such town are authorized and directed to advertise for any and all work done under the provisions of this act at least once a week for two weeks in a paper published in the county seat of the county in which such town is situated. Such advertisement for such work to be done shall contain a sufficient specification of the character and extent of the work to be done, and the places designated by a special town meeting in said town where the work is to be done. \_Idem, § 3. J § 5. Widening highways narrowed by stream or river; pro- ceedings therefor. Petition; commissioners to be appointed. — When any part of a highway in any town of this state, not in an incorporated village or city, running between two or more villages or cities, has, be- cause of the wearing away by a river or stream or any other Jia.t- Tiral cause, become narrower than the width required by statute, and is dangerous to the users of such highway, twelve or more resident taxpayers of such town may present a petition to the County Court of the county within which such town is situated. The petition shall describe the part of the highway proposed to be widened and state that such highway has become lessened in widtli by the action of a river or stream or other cause, that it is danger- ous to the traveling public, that the. vsddening and improvement of such highway is necessary for the public convenience and wel- fare, that the highway is an important leading road between two or more cities or villages, that the cost of such widening and im- proveraent would exceed the sum of two tliousand five hundred dollars and would be too burdensome on t'le town or towns other- wise liable therefor. Such petition shall be verified by at least three of the petitioners. On receipt of the petition the County Court shall forthmth appoint three commissioners who shall not be named by any person interesited in the proceedings and who shall be taxpayers of such county, but who shall not reside in the tovTO or towns in which the highway, proposed to be widened and improved, is situated. [L. 1893, ch. 607, § 1 ; Heydecher's Gen. L. {Med.), p. 4512.] Special Peovisions Relating to Highways. 769 L. 1893, ch. 007, §§ 2, 3. Commissioners J powers and duties of. — The cMmmissioneTS ahall take the constitutianal oath of office and appoint a time and place for a meeting to hear all persons interested in the proposed widen- ing of tlie highway. They shall personally examine the part of the highway proposed to be widened, hear any reasons for or against such widening and ascertain the probable cost of the work. They shall have power to issue subpcenas, administer oaths and examine witnessesi; they shall keep the minutes of their proceed- ings and reduce to writing all oral evidence given before them. They shall make duplicate certificates of their decision, filing one in the town clerk's office of the town in which the said highway is located, and the other, with such minutes and evidence, in the county clerk's office of the county where the highway is located. Such commissioners shall have the same power as to the assess- ment of damage® caused by the widening of such highway as commissioners appointed under article four of the Highway Law for the discontinuance, alteration or laying out of a highway, and as to such assessment the same proceedings may be had for the confirmation, vacating or modifying of such decision, as pro- vided in and by said article four of said Highway Law. The commissioners shall receive a compensation of five dollars for each day necessarily spent in the performance of their duties under this act^ and the amount so paid to the said commissioners shall be a charge upon th.e town or towns in which the highway, proposed to be widened as aforesaid is located. [Idem, § 2.] Notice of decision; cost to be apportioned. — If a majority of the commissioners shall determine that the proposed widening of the highway is necessary and that the cost thereof would be too burdensome for the town, exceeding in probable cost two thou- sand five hundred dollars, they shall notify the board of super- visors of the county of such decision. The board of supervisors shall thereupon cause one^half of the amount of the estimated cost to be raised by the county and paid to the commissioners of highways of the town or towns in which that part of the highway proposed to be widened as aforesaid is located, and said commis^- sioners of highways shall apply the sum so received by them towards the payment of the cost of such widening. The balance of the expense shall be raised in the manner provided by law, by the town or towns in which that part of the highway proposed to be widened as aforesaid is located. {^Idem, § 3.] 110 ' Highways and Beidges, L. 1893, ch. 607, §§ 4, 5; L. 1890, oh. 555, | 1, Construction J payment. — The said oommisisdoners of highways shall construct such widening of the highway according to plans and sipecifieations adopted by them and approved by the town board of their town. The bills and eixpenses incurred in such work shall be audited by the town board and paid by the oommis^ sioners of highways out of moneys raised for such purpose as provided in the preceding section. \^Idem, § 4.] Actions to compel widening. — In case an action might lie in any court of this state against the commissioners of highways of any town to compel such commissioners to- widen a part of a high- way, the width of which has become less than that required by statute, or in case an action has been brought against such com- missioners to compel them to widen a part of a highway, the width of which has become less than that required by sitatute, the presentation of a verified petition to the County Court, as provided for in section one of this act shall prevent the commencing of any siuch action as aforesaid and cause such an action already com- menced to cease, and shall be a bar to a recovery on the part of the plaintiff of a judgment against such commissioners of high- ways in any such action instituted or prosecuted tO' judgment after the passage of this act. [Idem, § 5.] § 6. County roads in counties of less than 200 square miles; maps to be prepared ; consent of village authorities ; maintenance. In every county not exceeding two hundred square miles' in area, it shall be lawful for the board of supervisors thereof to acquire and assume, for the purpose of improving and maintaining the same, the full and exclusive control of any public road or roads, or part thereof, in such county, so far as may be necessary only for the said purpose of improving and maintaining the road- bed thereof as a road or roads for carriages or other vehicles, but for no other purpose. In order to acquire and assume such con- trol in any county, with power to improve and maintain the same, the said board shall cause a map to be made, or adopt a map already made, on which the principal public roads or highways of the county shall be, or are, laid down, and shall cause the roads or parts' of roads of which the said board intends to acquire and assume such control to be plainly indicated thereon and shall file the said map, when so marked and certified by it, in the office of the clerk of the coimty; whereupon the roads or parts of roads so marked or indicated on said map shall become and be known as Special Peovisions Relating to Highways. 711 L. 1800, ch. 555, §§ 2, 3. "county roads," and shall thereafter be impo-O'ved, maintained and kept in repair by the board of supervisors of such county in the manner hereafter provided, and it shall be lawful for such board of supervisors, from time to time, to assume control of and estab^ lish other roads or parts of roads as county roads, and improve and keep the same in repair, as aforesaid, or to relinquish control of any road or part of any road so acquired, in eitJier of which cases the said map shall be changed accordingly, and the assuming or relinquishing the control of any public road shall be by resolu- tion, in writing, entered upon the minutes of the Iward, and a copy thereof, certified by the clerk of the board, shall be filed forthwith in the office of the county clerk. If any road, or part thereof, so to be improved or repaired, shall pass through any village, it shall be necessary to obtain the consent of the board of trustees of such village before the board of supervisors shall assume the control, improvement or repair of that portion thereof lying witliin such village, and such boards of trustees are hereby authorized and em- powered to grant or give such consent. The term "road," as used in this act, shall be construed to include street, avenue or other public highways. [L. 1890, ch. 555, § 1 ; HeydecJcer's Gen. L. (2d ed.), p. 4504. J Upon the establishment, in the manner above provided, of any county road or roads, the board of supervisors of such county shall forthwith cause the said county roads to be improved and put in repair, and shall thereafter maintain and keep the same in repair and in good condition, in the manner hereinafter provided. \_Idem, §2.J § 7. Amount to be expended ; county bonds therefor. The said board of supervisors shall by resolutions duly entered upon their minutes from time to time, estimate and determine what sums of money will be required to improva said county roadst They are hereby authorized and directed to borrow such sums of money thus determined upon as needed for such improvement, on the credit of the county, which sums so borrowed, however, shall not exceed, in any year, an amount, which, with then outstanding bonded indebtedness of said county, shall be in excess of ten per centum, of the assessed valuation of such county as shown in the assessment-rolls of the preoeding year, and the bonrd of super- visors shall prescribe by resolution, the form of obligation to be 772 Highways and Beidqbs. L. 1890, ch. 555, § 3. issued on audi loan or loans and the times and {k& plaoe of pay- ment, the time not to eixeeed twenty-five years from the date of the obligations, so to be issued and the rate of interest not to ex- ceed the legal rate. The chairman and clerk of the board of super- visors shall indorse on each of such bonds or obligations that it is issued by and in accordance with the directions of the board of siupervisors and shall sign such certificate in their official capacity. The said board of supervisors shall raise, in their annual tax levy, a sum deemed sufficient to keep and maintain the said county roads in good order and repair, or in default thereof, it shall, in like manner, raise', by the issue and sale of bonds as aforesaid, from time to time such moneys as they shall by resolution determine, and as shall be required for the neoeseary repairs of such road and to keep them constantly in good order and condition, not however, eixoeeding in amount the limit above provided. The board of supervisors shall keep a record showing the dates and amounts of suoh bonds, the times and place when and where the same are made payable and the rate of interest thereon ; and such board shall have power and it shall be its duty from time to time, as Ae said obliga- tions are about to become due and payable, to impose upon the taxable property of the county sufficient tax to enable payment to be made, upon the due date thereof, of such obligations, according to the terms and conditions thereof. Said board shall promptly dispose of the bonds issued as aforesaid in public competition, upon due notice to be published in two newspapers published in such county, and in two daily newspapers published in the city of New York, for at least three weeks prior to the sale thereof, for not less than the par value thereof, and shall pay the proceeds thereof to the county treasurer of such county, and the said treas- urer shall immediately deiposit the same in some trust company in the state of New York, designated by the Supreme Court as a legal depository, which deposit shall be entered and designated "the county road fund" of such county, and the same shall not be drawn out or used for any other purpose than the improvement and repair of such county roads so designated by the said board of supervisors, and only on the presemtation of an account duly verified, audited by the board of supervisors and accompanied by the certificate of the supervising engineer that the work, materials or services have been done, delivered and rendered in accordance with the contract therefor. [Idem, § 3 ; HeydecTcer's Gen. L. (2d erf.), p. 4505.J Special Pbovisions Eei,ating to Highways. 773 L. 1890, ch. 555, §§ 4, 5. § 8. Improvement and repair of county roads ; contracts ; cowaty engineer, his duties and compensation; division of roads into sections. The said board of supervisors shall, immediately upon receipt of said county road funds, proceed to improve and repair the said county roads designated as aforesaid in the manner and with the material required by the provisions and regulations of this act, and shall, thereafter, in like manner, keep the said roads constantly in good repair and condition. All such improvements and re- pairs, except in so far as relates to the services of an engineer, shall be made under and in pursuance of written contracts with the lowest bidder, upon bids called for by notice and advertise- ment similar to that to be given in the case of the sale of the county bonds hereinbefore referred to and upon terms and specifi- cations, which, with the provisions of the contracts and the security offered by the contractors, shall be approved by the board of super- visors before such contracts shall be finally awarded or executed. [L. 1890, ch. 555, § 4; Heydecker's Gen. L. (2d ed.), p. 4506.] All the improvements and repairs made under and in pursuance of this act shall be done under the supervision of a competent civil engineer, holding a diploma as such, to be appointed by the board of supervisors and to be removed by vote of four-fifths of all the members of the board of supervisors. Such engineer shall be consulted in the preparation of the specifications and contraote for such work, shall require such improvements and repairs to be made in conformity with the previsions of this act and of the contracts therefor, shall certify from time to time, to the board of supei^ visors as to the character and progress of the work being actually done, and do such other professional work as shall be imposed upon him by such board of supervisors, or by the contracts for siuch improvements or repairs, and shall be paid for his services such reasonable compensation as shall have been previously agreed upon between him and them. The board of supervisors shall cause all county roads to be divided into sections of not more than one mile each to be designated by suitable monuments which shall be numbered, and it shall be the duty of the supervising engineer to make regular quarterly reports to the board of supervisors in writing (and oftener if required by such board), which shall statia the then condition of each section of the road, the amount ex- pended thereon for the last quarter, and the repairs neoeesary for the ensuing quarter, and the estimated cost thereof, and he shall 774 Highways and BjUdgbs. L. 1890, ch. 555, § 6. file a duplicate of such quarterly report in the county clerk's office. \_Idevi, § 5.j § g. Regulations for improvements and repairs. The following regulations shall govern all improvements and repairs of such county roads, when the same are made under or in pursuance of the provisions of this act: 1. All such improvements and repairs shall embrace or cover the road-bed or wagon-way to the width of at least one rod and to the depth of at least eight inches, unless the board of supervisors, by a four-iifths vote of the entire board, shall decide to reduce its width to fourteen feet or its depth to six inchee in specific cases, though material similar to that about to be employed, if already upon such road-bed, may be utilized as a part of the material to be employed in forming such improved or repaired road-bed. 2. No material other than stone, wood, shells or asphalt com- pound shall be used in making such improvement or repairs, for at least one rod or fourteen feet in width as the case may be and the above required depth of such improved or repaired surface. 3. In case any road to be improved or repaired shall already have a sufficient compact and substantial foundation of stone already laid, such foundation may, in the discretion of such engi- neer and with the approval of said board of supervisors, be allowed to remain and be utilized as of its actual depth, but no new or fresh material shall be placed thereon until all material previously and in any way superimposed upon such foundation, but of a dif- ferent character from that about to be newly employed in such improvement or repairs, shall have been thoroughly removed. 4. Whenever any roadbed or wagonway shall be thus improved or repaired with broken stone, there shall be placed in such said roadbed or wagonway, if a sufficient substantial and compact foundation of stone does not already exist, a foundation course or layer of trap rock, granite or other equally hard stone, not lees than four inches thick, of stone not less than two and one-half inches in diameter, or of the size commonly known as two and one^half inch stonei, and in all cases of improvement with stone othpr than block pavement, the uppermost layer or covering shall not be less than two inches thick, and shall consist of granite or trap rock dust known as screenings, and, in case of re-pair, not less than one inch in thickness, and the same shall be applied imder the pressure of a roller of not less than two tons weight. Special Provisions Kelating to Highways. 776 L. 1890, ch. 555, §§ 7, 8. 5. All roadbeds or wagonways thus repaired shall be shaped or crowned with a sufficient and continuous rise of at least one^half inch to the foot from the sides to the center thereof, and shall be so constantly kept and maintained. [L. 1890, ch. 555, § 6 ; Hey-- decher's Gen. L. {2d ed.), p. 4507.] § 10. Railways and gas and water pipes in county roads. No horse railway or electric or other railway shall be laid, con- structed or operated on said county roads, unless, in addition to the requirements of existing laws, the same shall be authorized by a two-thirds vote of the board of supervisors and unless the same shall be constructed with a flat or grooved rail, and in case of horse railways, paved between the tracks in the manner prescribed by the board of supervisors in the resolution authorizing the same and the same constantly maintained in good order and condition by said railroad company, and the railroad or corporation con- etruoting the same shall agree thereto, and it shall be the duty of the said board of supervisors to require from said railroad or corporation, or other person, a bond with sufficient sureties as a guarantee, and conditioned for the performance of their agrees ment, and the board of supervisors may, from time to time, re- quire such bond to be renewed in case the sureties, or any of them, in its judgment, shall become insufficient. [L.. 1890, ch. 555, § 7; Heydecker's Gen. L. (2d ed.), p. 4507.] Whenever it shall be necessary to lay water or gas mains, or construct sewers or other public improvements, or to make con- nections therewith through or upon said county roads, or any part thereof, which shall require the digging up or interference with the same or the roadbeds th©ra>f, in addition to the consent and authority required under existing laws for the same, it shall be necessary to obtain the consent of said supervising engineer thereto. The said road and roadbed shall, in each case, be promptly restored to its former condition, and the same shall be done subject^ to the approval of the supervising engineer, at the expense of the person, corporation or municipal authority, at whose request such work shall be done, and the amount thereof may be recovered, in defaiilt of payment, by the board of supervisors ; and, before granting his f-onsent, the said supervising engineer shall require a sufficient deposit to be made by the person or corporation applying for such consent, conditioned that the said road or roadbed shall be so restored. [Idem, § 8. J T76 Highways and Ertdges, L. 1890, ch. 555, §§ 9, 10, 11. § II. Expenditure in excess of $io,ooo per mile, how borne. Wherever an expenditure exceeding the rate of ten thousand dollars per mile shall be deemed necessary on such county roads, or any part thereof, all such expenditure in excess of ten thousand dollars per mile shall be borne by the town or towns, village or villages, or separate road districts within whose jurisdiction sucii roads or parts of roads so improved or repaired shall be, and in case of such excess, the board of supervisors shall cause such excess to be levied and collected in the next ensTiing tax levy authorized by such supervisors upon such towns, or upon the portions thereof embraced in such villages or separate road districts liable therefor. [L. 1890, ch. 555, § 9; Heydecher's Gen. L. (2d ed.), p. 4508.J § 12. Jurisdiction of supervisors and local authorities over roads. Said board of supervisors shall have the control and jurisdic- tion over said county roads only for the purpose cf improving and keeping the same in repair, except as hereinbefore mentioned, and for all other purposes the said roads shall remain And be subject to the authority, control and jurisdiction of the tcv\^'n, village, separate road district, or local authorities to which they shall respectively belong; provided, however, that all roads or pai'ts of roads designated as county roads shall remain under the control of the local authorities liable for the repair thereof until such improvement shall have been actually begun thereon und(?r this act, and if the said board of supervisors shall at any time relin- quish the control of any county road or part thereof the local au- thorities within whose jurisdiction the same shall be, shall forth' with resume the control and charge thereof in like manner a^ i< the same had not been designated as a county road. [L. 1890, iS\. 555, § 10; Heydecher's Gen. L. (2d ed.), p. 4508.] § 13. Penalties; application of act. All action taken in violation or disregard of the provision^ hereof, or any failure to obsei've the provisions hereof, shall be deemed unlawful, and any officer or person who shall participate in such action shall be guilty of a misdemeanor, and shall upon conviction, in addition to the punishment provided by law for a misdemeanor, be adjudged to pay to the treasurer of such county a fine of five hundred dollars. \_L. 1890, ch. 555, § 11 ; Heydecher's Gen. L. (M ed.), p. 4509.] Special Pbovisions Relating to Highways. 777 L. 1890, ch. 555, §§ 12, 13. The provisions of this act shall not become compulsory in any county containing a city of over one hundred thousand inhabitants, unless the board of supervisors thereof shall, by a vote of four- fiftha of all the members of such board, determine that it will be beneficial to such county that this act shall be compulsory therein. lldem, § 12.] "Nothing in any general act, or general or special act for the organization of any village or separate road district in any county, or relating thereto, shall be construed to prevent the carrying out of the proviaiona of this act lldem, § 13.] TYS Highways and Beidqbs. Transportation Corporations Law, S 120. CHAPTER LVII. TJTRNPTKEj PLANK EOAD AND BEIDQE COEPOEATIONS. Section 1. Incorporation of turnpike, planlc road and bridge corporations, 2. Restrictions upon location of road. 3. Supervisor and commissioners to consent to the use of highway by turnpike corporation; consent of owners. 4. Application to board of supervisors by turnpike or bridge com- pany ; notice of application ; hearing before board. 5. Board of supervisors to appoint commissioners to lay out road. 6. Route laid out to be route of road, and to be held by corporation. 7. Use of turnpike road by plank road. 8. Width and construction of road. 9. Construction of bridges; obstruction of rafts prohibited. 10. Commissioners of highways to certify as to completion of road; compensation of commissioners. 11. Gates, rates of toll, and exemption. 12. Toll gatherers; penalty for running gate. 13. Location of gates; change of location of gates; proceedings in court therefor. 14. Commissioners of highways as inspectors of plank roads and turnpikes; their powers and duties. 15. Change of route of turnpike or plank road; consent of owners and commissioners of highways. 16. Mile-stones; guide-posts and hoist-gates. 17. Surrender of franchise; road to revert to town. 18. Hauling logs and timber and other acts injuring road. 19. Encroachment of fences; duties of highway commissioners when reported to them. 20. Penalty for fast driving over bridges. 21. Dissolution of corporation; effect of failure to exercise corpo- rate functions; highways abandoned to become public highways. 22. Upon dissolution of corporation towns must pay for lands not originally a highway. 23. Highway labor upon line of plank road or turnpike. 24. Boards of supervisors may acquire property of corporations and individuals owning toll roads and bridges. 25. Board of supervisors may authorize towns to purchase toll roads or toll bridges. § I. Incorporation of turnpike, plank road and bridge corporations. Five or more persons may become a corporation for the purpose of constructing, maintaining, and owning a turnpike, plank road TuENPiicE AND Bkidqe Coepoeations. T79 Transportation Corporations Law, § 121. or a bridge, or causeway across any stream or channel of water, or adjoining bay, awamp, marsh, or water to form in connection with such bridge or causeway a continuous roadway across the fiame, by signing, acknowledging and filing a certificate containing the name of the corporation, its duration, not exceeding fifty years, the amount and number of shares of its capital stock, the number of its directors, and their names and post-ofiice address for the first year, the termini of the proposed road, its length, and each town, city or village into or through which it is to pass, or of a bridge, the location and plan thereof, and the post-office address of each subscriber, and the number of shares of stock which he agrees to take, the aggregate of which subscription shall not be less than five hundred dollars for every mile of road, or if a bridge corporation not less than one-fourth of the amount of the capital stock, and five per cent, of which must be actually paid in cash. There shall be indorsed on and annexed to the certificate and made a part thereof the affidavit of at least three of the directors named therein, that the required amount of capital stock has been sub- scribed and the prescribed percentage paid in cash.' [Transporta- tion Corporations Law (L. 1890, ch. 566), § 120; Heydecker's Gen. L. {2d ed.), p. 3427.] § 2. Restrictions upon location of road. No such road shall be laid out through any orchard of the growth of four years or more to the injury or destruction of fruit trees, or through any garden cultivated for four years or more before the laying out of the road, or through any dwelling-house or building connected therewith, or any yards or inclosures neces- sary for its use or enjoyment without the consent of the owner thereof, nor shall any such corporation brids'e any stream in any manner that will prevent or endanger the passage of any raft of twenty-five feet in width, or where the same is navigable by vessels or steamboats. [Transportation Corporations Law (L. 1890, ch. 566), § 121 ; Heydecker's Gen. L. (^d ed.), p. 3427.1 1. Application of act. Article 9 of the Transportation Corporations Law, relating to the incorporation of turnpike and plank road and bridge corporations does not apply to corporations incorporated by n, special act of the legislature. Aurora d Buffalo Plank Road Co. v. Schrot, 90 Hun, 56; 35 N. Y. Supp. 602. 780 Highways and Beidges. Transportation Corporations Law, § 122. § 3. Supervisor and commissioners to consent to the use of highway by turnpike corporation; consent of owners. The supervisor and coanmissioner of highways, or a majority if there be more than one of any town, may agree in writing with any such (turnpike) corporation for the use of any part of a pub- lic highway therein required for the construction of any such road, and the compensation to be paid by the corporation for tak- ing and using s^uch highway for such purpose on first obtaining consent of at least two-thirds of all the owners of land bounded on or along such highway, which agreement shall be filed and recorded in the town clerk's office of the town. If such agreement cannot he made the corporation may acquire the right to take such highway for such purpose by condemnation.' The compensation therefor shall be paid to the commissioners, of highways, to be expended by them in improving the highways of the town.' [Transportation Corporations Law (L. 1890, ch. 566), § 122; Eeydecher's Gen. L. (2d ed.), p. 3428.] 2. Condemnation proceedings. For proceedings relating to the taking of land by condemnation, see Condemnation Law (Code of Civ. Proc, sees, 3357-3384). 3. Foixrers of supervisor and commissoner. The only power con- ferred upon the supervisor and commissioner of highways is to grant the right to the use of the highway by a turnpike or plank road corporation, and agree upon the compensation to be paid therefor. Such officers cannot grant, the right on condition as to location of toll gates and without compensation. Palmer v. Ft. Plain d Gooperstown Plank Road Co., 11 N. Y. 376. Right to take lands. A corporation organized under the laws of thi» fctate for the construction of turnpikes and plank roads may take, by pur- chase, the entire fee of lands needed for its road, and no condition or qualifi- cation of the land will be implied in an absolute conveyance to it in fee. Eeath v. Barmore, 50 N. Y. 302. Rights of pnblic in highway. Where a plank road company has taken a public highway for its purposes, the road thus appropriated does not cease to be a public highway. The general right of the public to use it for the purpose of travel remains unimpaired. The only change effected by the acquisition of such highway by the corporation is that the general public, in consideration of the payment of tolls, is relieved from the burden of keep- ing the highway in repair, and the duties which in this respect formerly belonged to the commissioners of highways and their local ofiBcers, is trans- ferred to the plank road corporation. Walker v. Cay wood, 31 N. Y. 51; see, also, Benedict v. Ooit, 3 Barb. 459; Matter of Application of Rooheater Elec- tric By. Co., 123 N. Y. 351; 25 N. E. 381. TUENPIKE AND BeIDGE CoEPOEATIONS. Y81 Transportation Corporations Law, § 123. § 4. Application to board of supervisors by turnpike or bridge company ; notice of application ; hearing before board. If the lands necessary for the construction of the road or bridge of any such corporation in any county have not been procured by gift or purchase, and the right to take and use any part of any highway therein required by such corporation shall not have been, procured by agreement with the supervisor and commissioners of highways of the town in which such highway is situated, the cor- poration may make application to the board of supervisors of each county in which such bridge or road, or any part thereof, is to be located, for authority to build, lay out and construct the same, and take the necessary real estate for such purpose. Notice of the application shall be published in at least one public newspaper in each county for six successive weeks, specifying the time and place where it will be made, the location, length and breadth of any such bridge, and the length and route of any such proposed road, its character, and each town, city and village in or through which it is to be constructed. The application may be made at any annual or special meeting of the board, and if the corporation desires a special meeting therefor any three members of the board may fix a time when the same shall be held, and notice thereof shall be served upon each of the other supervisors by delivering the same to him personally or leaving it at his place of residence at least twenty days before the meeting, and the expenses of the special meeting and of notifying the members of the board thereof shall be paid by the corporation. All persons interested therein or owning real estate in any of the towns through which it is pro- posed to construct the road may appear and be heard upon the hearing of the application. The board may take testimony in respect thereto, or authorize it to be taken by a committee of the board and may adjourn the hearing from time to time. After hearing the application the board may, by an order entered in its minutes, authorize the corporation to construct such bridge or road and to take the real estate necessary for that purpose, and a copy of the order certified by the clerk of the board shall be re- corded by the corporation in the ofiice of the clerk of the county in which such bridge or road or any part thereof is to be located before any act shall be done under it. [Transportation Corpora" tions Law (L. 1890, ch. 566), § 123; Heydecker's Gen. L. (2d ed.), p. 3428.J 782 Highways and Beidges. Transportation Corporations Law, §§ 124, 125, 126. § 5. Board of supervisors to appoint commissioners to lay out road. If the application for the construction of any such road is granted, the board shall appoint three disinterested persons, not owners of real estate in any town, through which the road is to be constructed or in any adjoining town, commissioners to lay out the road. They shall take the constitutional oath of office, and without unnecessary delay lay out the route' of such road in such manner as in their opinion will best promote the public interests ; they shall hear all persons interested who shall apply to be heard and may take testimony in relation thereto, and shall cause an accurate survey and description of the road and the necessary- buildings and gates, signed and acknowledged by them to be re- corded in the clerk's office of the county. If the road is situated in more than one county, such survey and description shall be separate as to that portion in each county and filed in the office of the clerk of the county to which it relates. The corporation shall pay each commissioner three dollars for every day spent by him in the performance of his duties and his necessary expenses. [Transportation Corporations Law (L. 1890, ch. 566), § 124; Heydecker's Gen. L. (2d ed.), p. 3429.J § 6. Route laid out to be route of road, and to be held by corporation. The route so laid out and surveyed by the commissioners shall be the route of the road, and the corporation may enter upon, take and hold for the purposes of its incorporation, the lands described in such yurvey as necessary for the oonsitnietion of its road, and requisite buildings and gates. If for any cause the owner of any such lands shall be incapable of selling the same or his name or residence cannot, with reasonable diligence, be ascertained, or the corporation is unable to agree with the owner for the purchase thereof, it may acquire title thereto by condemnation. [Trans- portation Corporations Law (L. 1890, ch. 566), § 125; Hey- decker's Gen. L. (2d ed.), p. 3429.J § 7. Use of turnpike road by plank road. No plank road shall be made on the roadway of any turnpike corporation without its consent, except for the purpose of crossing the same. Any plank road corporation may contract with any Turnpike and Beidge Coepobations. 783 Transportation Corporations Law, § 127. 'connecting turnpike corporation for the purchase of its roadway or a part thereof, or of its stock, on such terms as may he mutually agreed upon, and such stock, if purchased, shall be held by the plank road corporation for the benefit of its stockholders in pro- portion to the amount of stock held by each, and a transfer of stock in the plank road corporation, shall cany with it its proportional amount of the turnpike stock, and entitle the holder thereof to his share of the dividends derived therefrom. After the purchase of the whole of the stock of any such turnpike corporation by such plank road corporation the directors of the plank road corporation shall be the directors of the turnpike corporation, and shall manage its affairs and render an account of the same annually to the stockholders of the plank road corporation. If the plank road corporation is dissolved, its stockholders at the time of dissolu- tion shall be the stockholders of the turnpike corporation' in pro- portion to the amount of stock held by each, and the stock of the turnpike corporation shall thereafter be deemed to be divided into shares equal in number to the shares of stock of the late plank road corporation, and scrip therefor shall be issued accordingly to each of the last stockholders of the plank road corporation, and the officers of the turnpike corporation shall be the same in num- ber as provided for in its charter or certificate of incorporation, and shall be choseo by such former stockholders of the plank road corporation or their assigns. A corporation owning a turnpike road on or adjoining which a plank road shall have been con- structed may abandon that portion of its road on or adjoining the route of which a plank road is actually constructed and used. [Transportation Corporations Law (L. 1890, ch. 566), § 126; Hey decker's Gen. L. (2d ed.), p. 3430. J § 8. Width and construction of road. Every such plank road shall be so constructed as to make, secure and maintain a smooth and permanent road, the track of which shall be made of timber, plank or other hard material foiTning a hard and even surface, and every such turnpike road shall be bedded with stone, gravel or such other material as may be found on the line thereof, and faced with broken stone or gravel, form- ing a hard and even surface with good and sufficient ditches on each side wherever practicable, and all such roads shall be laid out at least four rods wide and the arch or bed at least eighteen 784 Highways and Beidges, Transportation Corporations Law, §§ 128, 129. feet Avide, and shall be so constructed as to permit carriages and other vehicles conveniently to pass each other and to pass on and off such road where intersected with other roads. Any corpora- tion which shall have once laid its road with plank may relay the same, or any part thereof, with broken stone, gravel, sheila or other hard materials, forming a good and substantial roai Any plank road or turnpike corporation may lay iron rails on its road suitable for the use of wagons and vehicles drawn by horses or animals over its road, but no other motive power shall be used thereon. [Transportation Corporations Law (L. 1890, ch. 566), § 127; HeydecTcer's Gen. L. (2d ed.), p. 3430.] § g. Construction of bridges; obstruction of rafts prohibited. Every bridge constructed by any such corporation shall be built with a good and substantial railing or siding at least four and one-half feet high, and over any stream navigable by rafts the corporation shall keep the channel of the stream above and below the bridge free and clear from all deposits, formed or occasioned by the erection of the bridge, which shall in any wise obstruct the navigation thereof, and shall be liable to all persons unrea- sonably or unnecessarily delayed or hindered in passing the same for all damages sustained thereby. Nothing in this act shall be construed to authorize the bridging of any river or water course where the tide ebbs and flows, or any waters over which the federal authorities have any control, unless the consent of such federal authorities be first obtained ; nor the construction of any bridge within the limits prescribed by any existing law for the erection or maintenance of any other bridge. [Transportation Corpora- tions Law (L. 1890, ch. 566), § 128, as amended by L. 1S95, ch. 722; L. 1896, ch. 778; Heydecker's Gen. L. (2d ed.), p. 3431. J § 10. Commissioners of highways to certify as to completion of road; compensation of commissioners. When any such corporation shall have completed its bridge or road or any five consecutive miles thereof, it may apply to the commissioners of highways of each town in which the completed road or bridge is situated to inspect tbe same, and if a majority of the commissioners are satisfied that the road or bridge is made and completed as required by law and in a manner safe and con- venient for the public use, they shall make a certificate to that TuENPiKE AND Beidge Cokpoeations. 785 Transportation Corporations Law, § 130. effect, whicli shall be filed in the office of the county clerk.' Each commissioner shall be paid by the corporation two dollars per day for his services and necessary expenses. [Transportation Corporations Law {L. 1890, ch. 566), § 129; Heydecker's Gen. L. {'id ed.), p. 3431.J § II. Gates, rates of toll, and exemption. Upon filing such certificate such corporation may erect a toll- gate at such bridge or one or more toll-gates upon the road so inspected, and may demand and receive the following rates of toll, a printed list of which shall be conspicuously posted at or over each gate: If a bridge corporation, such sum as shall be fromi time to time prescribed by the board of supervisors of the county or counties in which the bridge is located." If a turnpike or plank road, for every vehicle drawn by one animal, one cent per mile, and one cent per mile for each additional animal ; for every vehicle used chiefly for carrying passengers, three cents per mile, and one cent per mile for each additional animal; for every horse rode, led or driven, three-quarters of a cent per mile ; for every score of sheep or swine, one and one-half cents per mile, and for every score of neat cattle, two cents per mile. When diverging roads strike any plank road or turnpike at or near any toll-gate, the board of supervisors of the county may direct that the toll charge shall commence from the point of such divergence, and only for the distance traveled on such turnpike or plank road, but fractions of cents may be made units of cents in favor of the plank road or turnpike corporation. The corporation may from time to time commute, but not for a longer period than one year at any one time, with any person whose place of abode shall ad- join or be near to the road for the toll payable at the nearest gate 4. Certificate of completion of road. The commissioner's certificate must show what part of the road has been constructed and that the miles constructed are consecutive miles. Hamnwndsport and Bath Plank Road Co. V. Brundage, 13 How. Pr. 448. The certificate is not conclusive against the people in a direct proceeding to test the manner in which the road has been constructed. People v. Fishkill d-Beekman Plank Road Co., 27 Barb. 445. 5. Regulation of tolls upon bridges by boards of supervisors. See County Law, see. 62, ant&, p. 710. Abatement of toll for the erection of watering troughs. See L. 1869, ch. 131. As to tolls chargeable in Onondaga county lor the use of turnpikes and bridges by automobiles, see L. 1891, ch. 596. 786 Highways and Beidges. Transportation Corporations Law, § 131. on eatk side thereof, and the commutation may be renewed from year to year. No tolls shall be charged or collected at any gate, from any person going to or from public worship, a funeral, school, town meitting or election at which he is a voter to cast hia vote, a military parade which he is required by law to attend, any court which he shall be required to attend as a juror or witness, nor when going to or from his required work upon any public highway, nor when transporting troops in the actual service of the United States; and no toll from persons living within one-half mile of the gate by the most usual traveled road when; not engaged in the transportation of other persons or property except that persons living within one mile of the gate, by the most usually traveled road, in an incorporated village of over six thousand inhabitants, when not engaged in the transportation of the per- sons or property shall be exempt from the payment of toll." [Transportation Corporations Law (L. 1890, ch. 566), § 130, as amended hy L. 1893, ch. 538; Heydecker's Gen. L. {2d ed.), p. 3432.] § 12. Toll gatherers; penalty for running gate. Every auch corporation may appoint toll gatherers to ooUeofc toU at each gate, who may detain and prevent from passing through the gate, any person riding, leading or driving animals or vehicles, subject to the payment of toll, until the toll is paid, but 6. Exemptions. A person claiming an exemption because of the fact that he lives within one-half mile of the gate by the most traveled road must establish that fact and also the fact that at tht time when the toll was exacted of him, he was not engaged in the transportation of other persons or property. Conly v. Clay, 90 Hun, 20; 35 N. Y. Supp. 521. Persons going to or from public worship are exempt whether they are going for the purpose of conducting or uniting in the exercises of religious devotion. Skinner v. Anderson, 12 Barb. 648. The above section relating to exemptions does not apply to a corporation incorporated by a special act. Great Western Turnpike Co. v. Schafer, 57 App. Div. 331; 68 N. Y. Supp. 5. Agreement for exemption. Where a person assuming to act on behalf of the turnpike company, makes an oral agreement with a life tenant of a farm within half a, mile of the toll gate, that if such life tenant will close up a private road which diminishes the travel over the turnpike, the occu- pants of the farm shall be forever relieved of liability to pay tolls, the turn- pike company cannot, after recognizing the agreement for forty years ques- tion the authority of the person who made the agreement on its behalf. Great Western Turnpike Company v. Shafer, 57 App. Div. 331; 68 N. Y. Supp. 5. Turnpike and Bkidqe Coeporations. 787 Transportation Corporations Law, S§ 132, 133. if he shall unreasonably hinder or delay any traveler or passenger liable to the payment of toll, or shall demand or receive from any person more toll than he is authorized by law to collect, he shall forfeit to such person the sum of five dollars for every offense, and the corporation employing him shall be liable for the payment thereof, and for any damages sustained by any person for acts done or omitted to be done by him in his capacity of toll gatherer, if, on recovery of judgment against the toll gatherer therefor, exe- cution thereon shall be returned nulla bona. [Transportation Corporations Law (L. 1890, ch. 566), § 131; Heydecker's Gen. L. (2d ed.), p. 3433.J Any person -who, with intent to avoid the payment of toll, shall pass any gate, without paying the toll required by law, or shall, with his team, carriage or horse turn out of a turnpike or plank road and pass any gate thereon on ground adjacent thereto, shall forfeit for each offense the sum of ten dollars to the coii^ration injured. [Idem, § 132.] § 13. Location of gates ; change of location of gates ; proceed- ings in court therefor. No such corporation shall erect any toll-gate, house, or other 'building within ten rods of the front of any dwelling house, bam or other out house, without the written consent of the owner, and the county judge of the county in which the same is located shall, on application, order any building so erected to be removed, and if a majority of the commissioners of highways of any town, in which a toll-gate shall be located, or in an adjoining town, shall deem the location of any gate unjust to the public interests by reason of the proximity of diverging roads or otherwise, they may, on fifteen days' written notice to the president or secretary of the corporation, apply to the County Court, of the county in which the gate is located, for an order to alter or change its location. On hearing such application, and viewing the premises, if deemed necessary, the court may make such order in the matter as may be just and proper. Either party may, within fifteen days there^ after, appeal to the general term of the Supreme Court from such order, on giving such security as the county judge, making the order, may prescribe. Upon such appeal the Supreme Court, on motion of either party and on due notice, shall appoint three dis- interested persons who are not residents of any town through or Y88 Highways and Bbidges. Transportation Corporations Law, § 134. into which such road shall run, or to or from which it is the prin- cipal thoroughfare, or any adjoining town, as referees to hear, try and determine the appeal. Such referees shall view the premises and the location of the gate, and hear the parties in the same manner as on the trial of an issue of fact by a referee in a civil action in the Supreme Court, and report their decision thereon and the reasons therefor, and the evidence taken thereon to the Supreme Court, and such court shall review the report and render judgment thereon as justice and equity shall require, which shall be final and conclusive. The referees shall be entitled to the same fees as referees in civil actions in the Supreme Court, to be paid in the first instance by the party in whose favor their report or decision shall be, and the Supreme Court shall award judgment therefor, with such costs and expenses as it may deem reasonable, to the successful party on the appeal, which judgment shall be entered with the order affirming or reversing the order appealed from, and may be enforced by execution as a judgment of a court of record. If the order of the Ctounty Court is not appealed from, it may be enforced, as the court may direct, and the court may allow such costs as may be deemed just and equitable. [Transportation Corporations Law (L. 1890, ch. 566), § 133; Hey deckers Gen. L. (2d ed.), p. 3433.] § 14. Commissioners of highways as inspectors of plank roads and turnpikes; their powers and duties. The commissioners of highways of the several towns and the trustees or other oQicers in the incorporated cities and villages of the state, who perform the duties/ of commissioners of highways in such cities and villages, shall be inspectors of plank roads and turnpikes, in their respective towns, cities and villages. They shall inspect or cause to be inspected by one or more of them the whole of such turnpike or plank roads as lies in their respective towns, villages or cities, at least once in each month, and when- ever written complaint shall be made to any inspector, that any part of such road lying in the town, city or village of such in- spector is out of repair he shall, without delay, vie^v and examine the part, complained of. If such turnpike or plank-road shall be found to be out of repair or in condition not to be conveniently used by the public, such inspectors or either of them, or the one to whom such complaint shall have been made, shall give written; TUE^TPTICI; AND BuiDGE CoEPOKATIONS. 789 Transportation Corporations Law, § 134. notice to the toll-gatherer, or person attending the gate nearest, the place out of repair or in bad condition to cause^ the same to be put in good condition before a time therein designated, not less than forty-eight hours after the service of such noticci, or tO' appear be- fore the County Court of the county in which that part of the road is situated, at a time in said notice designated, and show cause ■why such turnpike or plank-road should not be repaired or put in good condition as in said notice directed. If such road shall not have been theretofore repaired or put in good condition as in said notice directed, then the County Court shall, upon the return of such notice hear the allegations and proofs of the parties, and it shall always be open for that purpose ; and if the court shall find such road to be out of repair or in bad condition it may give ad- ditional time for the repair thereof, or it may order the gate near- est the place out of repair or in bad condition to be immediately upon the service of the order, or at a time therein specified, thrown open and to remain open until the road shall be fully repaired at the place directed to be repaired as aforesaid. Such order shall be served in the manner therein specified upon the keeper of the gate so ordered to be thrown open. Any inspector within the town, city or village where such road has been repaired pursuant to notice or order as aforesaid, may certify that such road has been duly repaired. The fees of the inspector for the services above mentioned shall be two dollars for each day actually employed, together with necessary witnesses' fees, to be paid by the corpora- tion or person whose road is so inspected, if the gates are ordered to be thrown open, but otherwise to be charged, audited and paid in the same manner as other fees of commissioners of highways. Any inspector who neglects to perform his duties shall forfeit to the party aggrieved the sum of twenty-five dollars for each offense. Every keeper of a gatei ordered to be thrown open, not immediately obeying such order or not keeping such gate open until such road shall be fully repaired or until a certificate that such road has been duly repaired is granted, or hindering or delaying any per- son in passing, or taking any tolls from any person passing such gate during the time it ought to be open, shall forfeit to the party aggrieved the sum of ten dollars for each offense, and the corpora- tion or person owning the road, who shall refuse or neglect to obey the requirements of any such order shall forfeit to the people o£ the state the sum of two hundred dollars for each offense. [Trans- T90 Highways and Bbidges. Transportation Corporations Law, §§ 135, 136. portation Corporations Law {L. 1890, ch. 566), § 134, as amended hy L. 1896, ch. 343; Heydecker's Gen. L. (2d ed.), p. 3434.J § 15. Change of route of turnpike or plank road; consent of owners and commissioners of highways. Any such corporation may, with the written consent of the owners of two-thirds of its capital stock and of a majority of th& commissioners of highways of the town or towns, in which any change or extension is proposed to be made, construct branches to its main line or extend the same, or change the route of its road or any part thereof, and acquire the right of way for the same in the same manner as for the original or main line, and may, by any of its officers, agents or servants, enter upon lands for the purpose of making any examination, survey or map, doing no un- necessary damage; but before entering upon, taking or using such lands, the corporation shall make a survey and map thereof, desig- nating thereon the lands of each owner or occupant intended to be taken or used, which shall be signed and acknowledged by the en- gineer making the same and the president of the corporation and filed in the office of the clerk of the county in which the land is situated. {Transportation Corporations Law (L. 1890, ch. 566)^ § 135; Heydecker's Gen. L. (2d ed.), p. 3436.] § 16. Mile-stones; guide-posts and hoist-gates. A mile-stone or post shall be erected and maintained by every such corporation on each mile of its road, on which shall be fairly and legibly marked or inscribed the distance of such stone or post from the place of commencement of the road, and when the road shall commence at the end of any other road having mile-stones or posts on which the distance from any city or town is marked, a continuation of that distance shall in like manner be inscribed. A guide-post shall also be erected at the intersection of every publio road leading into or from every turnpike or plank-road, on which shall be inscribed the name of the place tO' which such intersecting road leads in the direction to- which the name on the guide post shall point. No plank-road or turnpike corporation shall erect or put upi any hoist-gat© on its road. Any person who shall wilfully break, cut down, deface or injure any mile-stone, post or gate on such road, or dig up, or injure any part of the road, or anything belonging thereto, shall forfeit to the corporation twenty-five dol- lars for every offense, in addition to the damages resulting from TUENPIKE AND BeIDGE CoEPOEATIONS. 791 Transportation Corporations Law, § 139. the act.' [Trcmsportaticn Corporations Law (L. 1890, ch. 566), § 13Q; Hey deckers Gen. L. {2d ed.), p. 3436.] § 17. Surrender of franchise; road to revert to town. The directors of any plank-road or turnpike corporation may abandon the whole or any part of its road at either or both ends thereof, upon obtaining the written consent of the stockholders, owning two-thirds of the stock of the corporation, which surrender shall be by a declaration in writing to that effect, attested by the seal of the corporation and acknowledged by the president and sec- retary. Such declaration and consent shall be filed and recorded in the clerk's office of the county in which any part of the road abandoned shall be situated, and the road so abandoned shall cease to be the road or the property of the corporation, and shall revert and belong to the several towns, cities and villages through which it was constructed, and the corporation shall no longer be liable to maintain it or to be assessed thereon, or permitted to collect tolls for traveling over the same, but without impairing its right to take toll on the remaining part of its road at the rate prescribed by law. And whenever any turnpike or plank-road company, now existing or hereafter created, shall abandon all or any part of its road within this state, in the manner above provided, or whenever its charter or franchise of such company shall be annulled or re- voked, the roiad of such turnpike or plank-road company shall re- vert to and belong to the several towns, cities and villages through which such road shall pass.' And it shall be the duty of the several towns, cities and villages acquiring any road under this 7. Penal Code, sec. 639, subs. 1 and 6 makes it a misdemeanor for a person to wilfully or maliciously injure or destroy a public highway or bridge, or a mile stone or guide post, erected upon a highway, or any in- scription upon the same. As to injuries to highways generally, see Highway Law, sec. 153, ante, p. 686, and notes thereunder. 8. Surrender of franchises. The provisions of the above section which authorize a turnpike or plank road company to surrender all or any portion of its road and provide that in such case the portion surrendered shall cease to belong to the company and shall revert and belong to the several towns, etc., make such surrender equivalent to an alienation by the company and embraces as well lands which never before belonged to the towns as those which were public highways when acquired by the company, and the section cannot be assailed upon the ground that it takes the property of the grantor to the company for public use without just compensation. Beath v. Barmore, 60 N. Y. 302. The buildings belonging to the company do not, however, revert to the towns, nor do they become the property of the owner of the fee. See Johnson v. Beiaer, 22 Alb. L. J. 97. ,792 Highways and Beidges. Transportation Corporations Law, §§ 141, 142. act to immediately lay out and declare the same a free public highway. And it shall be the duty of the several towns, cities and villages, to maintain and work every road acquired under the pro- visions of this act in the same manner as the other roads of such towns, cities and villages are maintained and worked. And any town, city or village may borrow money in the manner provided by law for the purpose of improving or repairing the same. [Transportation Corporations Law (L. 1890, ch. 656), § 139, as amended by L. 1896, ch. 964; Heydecher's Gen. L. (2d ed.), p. 3437.] § 1 8. Hauling logs and timber and other acts injuring road. Any person who shall draw or haul or cause to be drawn or hauled, any logs, timber or other material upon the bed of any plank or turnpike road, unless the same shall be entirely elevated above the surface of the road on wheels or runners, and the road- bed shall be injured thereby, or who' shall do' or cause to be done any act by which the road-bed, or any ditch, sluice, culvert or drain appertaining to any turnpike or plank-road shall be injured or obstructed, or shall divert or cause tO' be diverted, any stream of water so as toi injure or endanger any part of such road, shall forfeit to the corporation the sum of five dollars for every offense in addition to the damages resulting from the wrongful act. [Transportation Corporations Lam {L. 1890, ch. 566), § 141; Heydecher's Gen. L. (2d ed.), p. 3438.] § ig. Encroachment of fences; duties of highway commis- sioners when reported to them. Whenever the president or secretary of any turnpike or plank- road corporation shall notify any inspector (commissioner of high- ways) of such roads in the county where situated that any person is erecting or has erected any fence or other structure upon any part of the premises lawfully set apart for any such turnpike or plank-road, the inspector (commissioner) shall examine into the facts and order the fence or other structure to be removed if it shall appear to be upon any part of any such road, and any person neglecting or refusing to remove the same within twenty days or such further time, not exceeding three months, as may be fixed by the inspector (commissioner), shall forfeit to the corporation, the sum of five dollars for every day, during which the fence or other structure shall remain upon such road, but no such order shall re- quire the removal of any fence, previously erected, between the TUENPIKE AND BeIDGE CoePORATIONS. 793 Transportation Corporations Law, §§ 143, 148. first day of December and the first day of April. [Transportation Corporations Law (L. 1890, ch. 566), § 142 ; Heydecker's Gen. L. {Med.), p. 3439.] § 20. Penalty for fast driving over bridges. Any plank-road, turnpike or bridge corporation may put up and maintain at conspicuous places at each end of any bridge, owned or maintained by it, the length of whose span is not less than twenty-five feet, a notice with the following words in large char- acters: "One dollar fine for riding or driving over this bridge faster than a walk." Whoever shall ride or drive faster than a walk, over any bridge, upon which such notice shall have been placed, and shall then be, shall forfeit to the corporation the sum of one dollar for every such offense. [Transportation Corpora^ tions Law (L. 1890, ch. 566), § 143; Heydecker's Gen. L. (2d ed.), p. 3439. J § 21. Dissolution of corporation; effect of failure to exercise corporate functions; highways abandoned to become public highways. Eveiy turnpike, plank-road or bridge corporation may be dis- solved by the legislature when, by the income arising from tolls, it shall have been compensated for all moneys expended in pur- chasing, making, repairing and taking care of its road, and have received in addition thereto an average annual interest at the rate of ten per cent, and on such dissolution all the rights and prop- erty of the corporation shall vest in the people of the state. Any such corporation, which shall not within two years from the filing of its certificate of incorporation, have commenced the construction of its road or bridge and actually expended thereon ten per cent, of its capital, or which shall not within five years from such filing have completed its road or bridge, or, in case such bridge is de- stroyed, shall not rebuild the same within five years, or which, for a period of five consecutive years, shall have neglected or omitted to exercise its corporate functions shall be deemed dis- solved. Where the corporation has neglected or omitted for five years to exercise its corporate functions, and its road-bed or right of way shall have been used as a public highway for that period, or where any such corporation, shall have become dissolved, or where the road or any part of a turnpike or plank-road corpora- tion, or the bridge of any bridge- corporation, shall have been dis- 794 Highways and Beidges. rransportation. Corporations Law, §§ 149, 150. continued, such road-bed or right of way, and such discontinued road or bridge, and the road or bridge of any such dissolved cor- poration, shall thereafter be a public highway, with the same effect as if laid out by the commissioners of highways of the town, and be subject to the laws, relating to highways and the erection, re- pairing and preservation of bridges thereon. [Transportation Corporations Law (L. 1890, ch. 566), § 148 ; Hey decker's Gen. L. (2ded.),p. 3440.] § 22. Upon dissolution of corporation towns must pay for lands not originally a highway. When the corporate existence of any plank-road or turnpike corporation shall have ceased by limitation of time, or where any judgment of ouster or dissolution, or restraining the exercise of its franchise has been rendered in an action against it, such por- tion of the line of its road as was built over lands which were originally purchased by it and not previously a, public highway shall not be used as a public highway, nor be taken possession or control of by the town in which the same may be, or by any of the authorities thereof or be claimed or worked or used as a public highway until the town shall pay over to the treasurer, receiver or other legal representatives of the corporation, or its assigns, the principal sum of the amounts paid by it for such lands, as shown by the deeds of conveyance thereof tO' it, and every such judgment shall provide accordingly. Such payments shall be made within three months after the expiration of the corporate existence of the corporation, or if any such judgment has been or shall be rendered within three months after service of a written notice of the entry thereof on the supervisor of the town, and the person receiving such payment shall execute a proper discharge therefor and a conveyance to the town of all the title and interest which the corporation had in such lands at the expiration, of its corporate existence. [Transportation Corporations Law (L. 1890, ch. 566), § 149; Heydeckers Gen. L. {2d ed.), p. 3441.] § 23. Highway labor upon line of plank road or turnpike. Every person liable for highway labor living or owning prop- erty on the line of any plank-road or turnpike may, on written ap- plication to the commissioners of highways of the town, on any day previous to making out the highway warrant by the commissioners be assessed for the highway labor upon his property upon the line TuBNPiKE AND Beidge Coepobations. 795 L. 1899, ch. 594, § 1. of such road, in tlie discretion of the commiseioners to be worked out upon the line of such road as a separate road district, and the commissioners shall make a separate list of the persons and prop- erty so assessed, as for a separate road district, and deliver the same to one of the directors of the corporation owning such road, who shall cause such highway labor to be' worked out on such road, in the same manner that overseers of highways are required to do, and such directors shall possess the powers and have the au- thority to compel the performance of such highway labor for the payment of the tax therefor as such overseers now have by law, and shall make like returns to the commissioners of highways, and any person so assessed may commute for the highway labor assessed upon him or his property by paying the sum now fixed by law as the commutation for such highway labor. [Transporta- tion Corporations Laau (L. 1890, ch. 566), § 150; Heydecker's GenL. (2ded.),p. 3441.] § 24. Boards of supervisors may acquire property of corpora- tions and individuals owning toll roads and bridges. Board to acquire property. — The board of supervisors of any county, except a county wholly within the city of New York, and eKcept the counties of Erie and Essex, may by a volte of a ma- jority of tbe members thereof, by resolution, determine to acquire the rights and franchises of any individual or corporation, lawr- fully entitled to exact a toll or charge for walking, riding or driv- ing over any plank-road or turnpike, or a bridge within such county, erected over an unnavigable stream. Upon the adoption of such resolution the board of supervisors shall acquire such rights, franchises and property by purchase, if able to agree with the ovyners thereof, and otherwise by condeonuation in the name of the county. Any turnpike, plank-road or bridge corporation may by the affirmative vote of the stockholders owning a majority of the stock thereof expressed in writing or at a special meeting of the stockholders of such corporation held upon vn-itten notice of at least ten days to all the stockholders thereof, authorize its board of directors or trustees, to dispose of the rights, fran- chises and property of such corporation within a county, pur- suant to this act for a specified sum.; and thereupon the board of directors or trustees of such corporation may convey and sell guch rights, franchises and property to the county accordingly. [L. 1899, ch. 594, % 1, as amended by L. 1905, ch. 120 ; Heydecher's Gen. L. (2d ed.), p. 4489.] 796 Highways and Beidges. L. 1899, ch. 594, §§ 2, 3. Issue of hands therefor. — The board of supervisors of sudi county may borrow money for the acquisition of such rights, fran- chises and property, and may issue the bonds or other evidences of indebtedness of the county therefor, but such bonds or other evi- dences of indebtedness shall not bear a rate of interest exceeding five per centum per annum and shall not run for a longer period than twenty years and shall not be sold for less than par. [Id^ § 2.] Bonds to he apportioned. — Except in the counties of Rensselaer and Albany, the amount of such bonds together with the interest thereon shall be apportioned by the board of supervisors upon the towns, cities and villages constituting separate highway districts, in which such plank-road, turnpike or bridge is located, in such proportions as the board may deem just; and the amount so appor- tioned to each municipality for the payment of the principal and interest of such bonds shall be annually levied and collected at the same time and in the same manner as money for other county charges. In the county of Rensselaer the board of supervisors, in making up the annual tax budget of the county, shall each year levy and assess upon and against the taxable property in said county, in addition to the amoun.ts levied and assessed for other coTinty charges, an amount sufficient to pay the interest falling due and payable on the said bonds during such year, and also an amount sufficient to pay the proportion of the principal of said bonds which one year bears to the number of years fixed as the time during which said bonds shall run from their issue to ma- turity. The amount raised by tax in each year for the payment of the principal of said bonds shall be preserved intact by the county treasurer of said county until said bonds mature and are payable, and, upon the maturity of said bonds, said county treas- urer shall pay the same in full out of the moneys so raised by an- nual tax therefor and shall thereupon take back said bonds with receipt for the payment thereof and deliver them to the board of supervisors of said county for cancellation. Said county treasurer shall deposit at interest the said moneys yearly raised by tax for payment of the principal of said bonds in such bank or depository as shall be designated by the board of supervisors of said county, and the amount realized from the interest thereon shall be used for the purposes of the said county under the direction of the said board of supervisors. [Id. % Z, as cmtended by L. 1901, ch, 168^ in effect March 22, 1901.] Turnpike and Bridge Corporations. 797 L. 1899, ch. 594, §§ 4, 5; County Law, | 69a. Highways and bridges acqiuired, how mcdntcdned. — A plant- road, turnpike or bridge acquired pursuant to this act shall become part of the highway system of such county, and of the tovms, cities and villages in which the same is located, and shall thereafter be repaired and maintained in the same manner as the other high- ways and bridges therein. [Id. § 4.] When road or bridge is in two counties. — When a plank-road, turnpike, toUroad, or bridge is partly in one county and partly in another, the board of supervisors of the said counties sha:ll act together, in the manner prescribed above, and determine the amount to be paid to said plank-road, turnpike, tollroad or bridge- company, by each county, and such amount against each county, after such, determination, shall be paid by each, county. [Id. §5.J § 25. Board of supervisors may authorize towns to purchase toll roads or toll bridges. The board may authorize a town or towns to purchase for public use, any plank-road, turnpike, tollroad or toll bridge in such, town, and may authorize the company owning the same, to sell the same, or any part thereof, or the franchise thereof, and to authorize such town or towns to borrow such sums of money as may be necessary therefor for or on the credit of such towns, after the same shall Lave been directed by a vote of a majority of the electors at a town meeting, or special town meeting as provided in section sixty- nine. [County Lam {L. 1892, ch. 686), § 69a, as inserted by L. 1903, ch. 469.] 798 Highways and Bkidqes. Highway Law, §§ 170, 171. CHAPTER LVIII. FEEBIES. Section 1. County Court to license ferrieB; notice to owner of adjoining lands; entry of license. 2. Licensee to give undertaking. 3. Appendages for rope ferries. 4. Superintendent of public works may lease right of passage. 5. Rates of ferriage to be posted; penalty for failure. § I. County Court to license ferries; notice to owner of ad- joining lands; entry of license. The County Court in each of the counties of this state, or the City Court of a city, may grant licenses for keeping ferries in their respective counties and cities, to such persons as the court may deem proper, for a term not exceeding five years. No license shall be granted to^ a' person, other than the owner of the land through which that part of the highway adjoining to the ferry shall run, unless the owner is not a suitable person or shall neglect to apply after being served with eigKt days' written notice from such other person of the time and place at which he will apply for such license, or having obtained such license, shall neglect to comply with the conditions of the license, or maintain the ferry. Every license shall be entered in the book of minutes of the court by the clerk ; and a certified copy thereof shall be delivered to- the person licensed. Wheal the waters over which any ferry may be used, shall divide two counties or cities, or a county and city, a license obtained in either of the counties or cities shall be sufficient to authorize transportation of persons, goods, wares and merchan- dise, to and from either side of such waters. {^Highway Law {L. 1890, ch. 568), § 170 ; Heydecker's Gen. L. (2d ed.), p. 1354.] § 2. Licensee to give undertaking. Every person applying for such license shall, before the same is granted, execute and file with the clerk of the court his under- taking, with, one or more sureties, approved by the court, to the effect that he will attend such ferry with sufficient and safe boats and other implements, and so many men to work the same as shall be necessary during the several hours in each day, and at such rates as the court shall direct. [Highway Law (L. 1890, ch. 568), § 171; Heydecker's Gen. L. (2d ed.), p. 1355.] Feeribs. Y99 Highway Law, §§ 172, 173, 174. § 3. Appendages for rope ferries. Any person licensed to keep a ferry may, with the written con- sent of the commissioners of highways of the town where such ferry may be, erect and maintain within the limits of the highway, at such point as shall be designated in such consent, a post or posts, with all necessary braces and appendages, for a rope ferry. [Ilighr way Law (L. 1890, ch. 568), § 172; Heydecker's Gen. L. {2d ed.), p. 1355.] § 4. Superintendent of public works may lease right of passage. The superintendent of public works may, where ferries are now maintained at tide-water, lease the right of a passage for foot pas- sengers across state lands adjoining tide-water for a period not exceeding ten years, on such conditions as he may deem advanta- geous to the state. [Highway Law (L. 1890, ch. 568), § 173; Heydecker's Gen. L. (2d ed.), p. 1355. J § 5. Rates of ferriage to be posted; penalty for failure. Every person licensed tO' operate or control any ferry in this state, OT between this state and any other state, operating from or to a city of fifty thousand inhabitants or over, shall post in a conspicuous and accessible position outside and adjacent to each entrance to such ferry, and in, at least four accessible places, in plain view of the passengers upon each of the boats used on such ferry, a schedule plainly printed in the English language, of the rates of ferriage charged thereon, and authorized by law to be charged for ferriage over such ferry. If any such person shall fail to comply with the provision of this section, or shall post a false schedule, he shall be guilty of a misdemeanor.' [Highway Law (L. 1890, ch. 568), § 174, as atnended by L. 1900, ch. 313; Heydecker's Gen^ L. (2d ed.), p. 1355. J 1. Penalty for neglect to post schedule of ferry rates. A person, corporation or association operating any ferry in this state, or between this state and any other state, operating from or to a city of five hundred thousand inhabitants or over, posting a false schedule of ferry rates, or neglecting to post in a conspicuous and accessible place in each of its ferry-houses, in plain view of the passengers, a schedule, plainly printed in the English language, of the rates of ferriage charged thereon and authorized by law to be charged for ferriage over such ferry, is guilty of a misdemeanor. Penal Code, sec. 415a. Town Boabd. CHAPTER LIX. AUDITING OF TOWN ACCOUNTS ; TOWN CHAEGES ; TOWN FINANCES. SeohoK 1. Constitution and regular meetings of the town board; when town meetings are held at times of general elections. 2. Meetings of town board for receiving accounts of town officers. 3. Meeting of town board for auditing accounts; certificates of rejection and allowance; certificates of allowance to be filed; one to be delivered to supervisor. 4. Appeals from town board to board of supervisors from audit of accounts of justices of the peace and constables in criminal proceedings. 5. Accounts of justices in criminal matters, what to contain. 6. Fees of officers in criminal proceedings, when town or county charge. 7. Form of accounts ; verification by affidavit of claimant ; saving clause. 8. Town charges, what are. 9. Compensation of town officers. 10. Pound-masters' fees. 11. Traveling fees for subpoenaing witnesses, when to be allowed. 12. Boards of audit to make abstract of names of persons whose accounts have been audited. 13. When town auditors are to be elected; application therefor. 14. Number of town auditors; term of office. 15. Town auditors to audit accounts; town auditor to hold no other town office. 16. If electors of town vote to elect a board of auditors, town board to make temporary appointment. 17. Compensation of town auditors; supervisor to fill vacancies in office of town auditors. 18. Town meeting may vote to discontinue board of town auditors. 19. Actions on behalf of and against towns to be brought in name of town ; contracts in name of town. 20. Actions for trespass on town lands. 21. Town board may borrow money for highway purposes when town meeting has voted to raise more than $500; statement of indebtedness created to be rendered to board of supervisors. (801) 802 Town Boaed. Town Law, § 160. Bbotion 22. Expenditure of surplus moneys. 23. Town boards may vote money for memorial day; expenditure. 24. Town board may purchase soldiers' burial plot; care of plot a town charge; proceedings to obtain removal of soldiers re- mains to soldiers' plot; expense to be audited by town board. § I. Constitution and regular meetings of the town board; ■when town meetings are held at times of general elections. The supervisor, town clerk and the justices of the peace, or any two of such justices shall constitute the town board in each town,i and shall hold at least two meetings annually at the ofSce of the town clerk, as follows : One on the Tuesday preceding the biennial town meeting and on the corresponding date in each alternate year, except that in towns where biennial town meetings are held at the time of the general election, said meeting shall be held on the twenty-eighth day of December in each year, unless such day is Sunday, in ■which case such meeting shall be held on the preceding day; and one on the 1. To-wn board, hour constituted. The town board consists of the supervisor, town clerk and justices of the peace, or any two of such justices. People ex rel. Hovey v. Leavenvxirth, 90 Hun, 48, 54; 35 N. Y. Supp. 445. In the case of People ex rel. Earioicker v. Dillon, 38 App. Div. 539; 56 N. Y. Supp. 416, a question arose whether a person could hold the ofBce of town clerk and justice of the peace at the same time. The court held that the duties of the two officers are incompatible, since if a person be permitted to hold both of these offices, he would be a member of the town board in each capacity and would either have two votes in deciding upon his own claims before the board, or the town board must be deprived of a full number of members provided for by law. Assuming that this case was correctly de- cided, the same reasoning would prevent a person from holding the office of supervisor and justice of the peace at one and the same time. Governing board. The town board is the governing board of a town. General Municipal Law, sec. 1. In the ease of Adee v. Arnoio, 91 Hun, 329; 36 N. Y. Supp. 1020, the court said : " The functions of the governing board of a town must be the government of the town. All of the internal affairs of a town must be under the control of the board of town officers, so far as official action can go. Of course, the inherent power of the people is left undisturbed and unlimited, and there is no restriction upon its action in a public town meeting. Each town is constituted a municipal corporation, and the business of the town must be transacted by the corporate officers, or as they are now called the governing board." And the court further says : " As a member of the town board, the supervisor has no more or greater authority than any of the other officers who are members thereof, and no one of them can legally act independently of the others, or outside of the board. It is highly essential to the interests of the town that all ques- tons respecting litigation should be determined by the governing board. It iraay or may not be for the interests of the town to prosecute or defend suits, and the determination of such questions requires the exercise of judgment and discretion. The governing board is constituted for all such purposes, and its power should not be limited or restricted by construction." Auditing of Town Accodnts. SOS Town Law, § 161. Thursday next preceding the annual meeting of the board of supervisoraa [Town Law (L. 1890, ch. 569), § 160, as amended by L. 1898, oh. 363, and h. 1904, ch. 57 J Heydeoker's Qen. L. (2d ed.), p. 1441.] § 2. Meetings of town board for receiving accounts of town officers. At the meeting of the town board held on the Tuesday preced- ing the biennial town meeting and on the ooiTesponding date in 2. Special powers and dnties of totrn. boards. { 1 ) As to elections. The town board is authorized to divide a town con- taining more than four hundred electors into election districts. See Elec- tion Law, sec. 8. Where a town meeting has voted that town meetings in the town shall be held in election districts the town board may divide such town into two or more joint election districts. See Town Law, sec. 38, ante, p. 214. The town board of each town is required to designate the place of registration and election in each election district. Election Law, sec. 10. Inspectors of election in towns are to be appointed by the town board in each year in which a town meeting is held for the election of town officers, and within thirty days thereafter. See Election Law, sec. 13. For full provisions of the law relating to the powers and duties of town boards as to elections, see Jewett's Election Manual, 1903. (2) As to taxation. A vacancy in the office of a. town collector of taxes is to be filled by the town board. See Tax Law, sec. 86, ante, p. 435. As to duties of town boards as to appeals from the action of boards of super- visors in respect to equalization of assessments, see Tax Law, sec. 174, ante, p. 409. (3) Sheep injured by dogs. The town board is required to audit the certificates of fence viewers as to damages occasioned by sheep being killed or injured by dogs. See County Law, sec. 120, ante, p. 466. (4) As to relief of poor. The town board may make rules and regulations respecting the temporary relief of town poor, in case of the failure of the board of supervisors so to do. See Poor Law, sec. 13, amte, p. 488. Over- seers of the poor may be appointed by the town board when authority has been conferred by a proposition adopted at a town meeting. See Town Law, sec. 16, ante, p. 236. The accounts of overseers of the poor are to be sub- mitted to and examined by the town board. See Poor Law, sec. 21, ante. p. 522. The estimates and accounts of overseers of the poor must be ap- proved by the town board. See Poor Law, sec. 27, ante, p. 528. The town board must make a statement as to poor persons relieved and submit the same to the county superintendents of the poor. See Poor Law, sec. 27. cmte, p. 528. (5) As to highways and bridges. The town board is required to audit the amount certified to be due for the purchase of a road machine, and certify the amount audited to the board of supervisors of the county. See Highway Law, sec. 6, ante, p. 601. A stone crusher may be purchased by the town board and commissioner of highways when authorized by a vote of the electors 804 Town Boaed. Town Law, § 161. each alternate year, or on the twenty-eighth day of December in each year, or on the day preceding when such day falls on Sunday, all town officers who receive or disburse any moneys of the town, shall account with the board for all such moneys received and disbursed by them by virtue of their office, and produce all receipts, orders and vouchers which they may have respecting the same, but no member of the board shall sit as a member of the board when any account in which he is interested is being audited by the board.3 The board shall make a statement of such accounts, and append thereto a certifi- cate signed by at least a majority of them, showing the state of the accounts of each officer at the date of the certificate, which statement, certificate, receipts, orders and vouchers shall each be filed with the town clerk of the town, within three days thereafter, and be open to public inspection during the office hours of such town clerk. [Town Lcno (L. 1890, ch. 569), § 161, at a town meeting, and the expense thereof must be audited by the town board. See Highway Law, sec. 7, ante, p. 603. The town board must audit the amount expended for the purchase of crushed stone to be used on the highways. See Highway Law, sec. 7, ante, p. 603. An overseer of highways may purchase gravel for use on the roads when approved by the town board. See L. 1891, ch. 309, ante, p. 604. If any additional amount is required for the construction and repair of highways and bridges, the consent of the town board must be obtained. See Highway Law, sec. 10, ante, p. 606. The town board may hold special sessions for the audit of claims incurred in the extra- ordinary repairs of highways and bridges. See Highway Law, sec. 11 ante, p. 607. The town board may audit claims for damages for injuries caused by defective highways or bridges. See Highway Law, see. 18, ante, p. 614. Com- missioners of highways are required to report to the town board at its first meeting in each year stating the amount received and expended for highway purposes, and the amount estimated to be necessary for improve- ments on the highways and bridges during the ensuing year. See Highway Law, sec. 19, ante, p. 615. The town board may divide the town into high- way commissioner districts and assign one of such districts to each com- missioner. See Highway Law, sec. 25, ante, p. 593. The town board must certify the amount of unpaid highway taxes to the board of supervisors. See Highway Law, sec. 66, ante, p. 651. The town board must consent to the laying out or alteration of a highway by commissioners of highways. See Highway Law, sec. 80, ante, p. 660. Highway commissioners are re- quired to report to the town board their action in relation to the building or repairing of a joint bridge. See Highway Law, sec. 139, ante, p. 704. The town board and commissioner of highways of a town may apply to the board of supervisors for consent to build or repair highways and bridges, and to borrow money therefor. See County Law, sec. 69, ante, p. 715. 3. Acconnts of town officers. All accounts of town officers should be submitted to the town board at the meeting specified in the above section. In the case of Christman v. Phillips, 58 Hun, 282. 286; 12 N. Y. Supp. 338. the court said : " Xo statute has been referred to, nor are we able to find any, that confers on the town auditors authority to examine or adjudicate the accounts of overseers of the poor at any other time or at any other meeting." If a board of town auditors exists in a town under the provisions of sections 172-176 of the Town Law, such accounts are to be presented to such board. People ex rel. Bechtel v. Welbrook, 27 Hun, 598. Auditing of Town Accounts. 805 Town Law, § 162. ervisora may establish in their county a higher rate, not exceeding six dollars per day.*** 19. Per diem allonrance to tovra officers. A supervisor of a town is not entitled to a percentage upon town moneys received and paid out by him, nor to any compensation beyond the per diem allowance fixed by statute for advising and directing overseers of the poor, for consulting with highway commissioricrs and town assessors, and for services in employing counsel in proceedings taken to compel the board of supervisors to correct the town assessment-roll. People ex rcl. Keeffe v. Town Auditors, 24 App. Div. 570; 49 N. Y. Supp. 525. A board of supervisors in u, resolution authorizing a town to borrow money and issue bonds therefor cannot give to the super- visor for his services a commission of the proceeds of the bonds sold under such resolution. Ghiglione v. Marsh, 23 App. Div. 61; 48 N. Y. Supp. 604. In this case it was held that the services performed by the supervisor in respect to bonds so sold should be paid for on the per diem basis under the provisions of the above section and the court remarked : " Such services are performed for the town, and no compensation is provided therefor by any provision of law. It would seem, therefore, that the provision of the statute for per diem compensation for services rendered the town by a super- visor has direct application and embraces the case." Section 3280 of the Code of Civil Procedure provides that " each puMie officer upon whom a duty is expressly imposed by law must execute the same without fee or reward, except where <^ fee or other compensation therefor is expressly allowed by law." In the case of People ex ret. Keeffe V. Town Auditors, supra, the court held that such section of the code applied to services performed by supervisors in receiving and paying out town moneys, and concluded that a supervisor was not entitled to any compensation for such services other than a per diem allowance as given by the above section, and, unless that section can be made applicable, it was held that he could make no charge whatever against the town for such services. See, also. Matter of Tovm of Hempstead, 36 App Div. 321 ; 55 N. Y. Supp. 345. Compensation of town clerk as custodian of records. A town clerk is entitled to certain fees for filing papers required to be filed with him, for registering the same, for searching for papers; and for certified copies of instruments or records required to be kept by him, he is entitled to the same fees as are allowed by law to county clerks. In addition to these fees he is, by the above section entitled to $2 for each day actually and necessarily devoted to the service of the town in the duties of his office when no fee is allowed by law for such service. It is quite evident that the above section does not contemplate an allowance of $2 per day as custodian of papers required to be filed with him. Matter of Tovm of Hempstead, 36 App. Div. 319; 55 N. Y. Supp. 345. 816 Town Boaed. Town Law, §§ 166, 179, 169, 170. 3. The supervisor of each town, shall be allowed and paid, in the same manner as other town charges are allowed and paid, a fee of one per centum on all moneys paid out by him as such supervisor, including school moneys disbursed by him as provided in the consolidated school law, moneys paid out by him for damages arising from dogs killing or injuring sheep as provided in article six of the county law, moneys in his hands paid out by him for the relief of tlie poor, and all other town moneys paid out by him for defraying town charges, except moneys expended under chapter one hun- dred and fifteen of the laws of eighteen hundred and ninety-eight, entitled " An act to provide for the improvement of the public highways," and the acts amendatory thereof, and any acts amendatory thereof or supplemental thereto. But no such fees shall be allowed or paid upon moneys paid over by him to his successor in office. Such fees shall be in full compensation for all services rendered by him in respect to moneys received and paid out by him as such supervisor as provided by law. [Toicn Law (L. 1890, ch. 569), § 178, as amended by L. 1897, ch. 252, L. 1900, ch. 292, L. 1902, ch. 320, L. 1903, ch. 324, L. 1903, ch. 492, L 1904, chs. 124, 312, 546, and L. 1905, ch. 642.] No town officer shall be allowed any per diem compensation for his services unless expressly provided by law. [Idem, § 166; Heydecker's Gen. L. (id ed.), p. 1443.] § 10. Pound-masters' fees. The pound-masters shall be allowed the following fees for their services, to wit: For taking into the pound and discharging therefrom every horse, mule and head of cattle, fifteen cents; for every other beast ten eents.2i [Toion Law (L. 1890, ch. 569), § 179; Eeydecker's Gen. L. (2d ed.) , p. 1447.] § II. Traveling fees for subpoenaing witnesses, when to be allowed. No traveling fees shall be allowed for traveling to subpoena a witness, beyond the limits of the county in which the subpoena was issued, or of an adjoining eoimty, unless the board auditing the account, shall be satisfied, by proof, that such witness could not be subpoenaed without additional travel; nor shall any traveling fees for subpoenaing witnesses be allowed, except such as the board auditing the account, shall be satisfied were indispensably neces- sary. [Town Law (L. 1890, ch. 569), § 169; Heydecker's Gen. L. {2d ed.) , p. 1444.] § 12. Boards of audit to make abstract of names of persons whose accounts have been audited. Boards of town auditors, shall annually make brief abstracts of the names of all persons who have presented to them, accounts to be audited, the amounts claimed by each of such persons, and the amounts finally audited by them respectively, and shall deliver such abstracts to the clerk of the board of supervisors, and the 20. Pay of election ofScers. Although town election officers have worked from about half-past five in the morning until nearly midnight on the day of a general election, they are only entitled to one day's pay, as the statute, fixing the number of hours which shall constitute a day's work, has no application to such officers. People ex ret Eleet v. Town Board, 27 Misc. 470 ; 59 N. Y. Supp. 234. 21. Found-masters. As to election of pound-master, see Town Law, sec. 35, ante. p. 246. As to impounding animals, see Town Law, sec. 122, ante, p. 455. Auditing of Town Accounts. 817 Town Law, §§ 172, 173, 174. clerk shall cans© the same to be printed, with the statements' re- quired to be printed by him.^''^ [Town Law (L. 1890, ch. 569), § 170 ; Hey decker's Gen. L. {2d ed.), p. 1444. J § 13. When town auditors are to be elected; application therefor. The electors in each of the towns may, on the application of twenty freeholders residing therein, at any biennial town meeting, determine by ballot whether there shall be elected, at the next succeeding biennial town meeting, held in the town, a board of town auditors, in and for the town, independent of the to^vn board in the manner, and under the restrictions hereinafter prescribed. [Town Law (L. 1890, ch. 569), § 172, as amended by L. 1897, ch. 481; Heydecker's Gen. L. {2d ed.), p. 1445. J § 14. Number of town auditors; term of office. If a majority of the ballots so cast, shall be in favor of electing a board of town auditors there shall be elected at the next suc- ceeding biennial town meeting, and at every biennial town meeting held thereafter, until otherwise determined, three town auditors, who shall form the board of town auditors of the town whose term of office shall be two years. [Town Law {L. 1890, ch. 569), § 173, as amended by L. 1897, ch. 481 ; Heydecker's Gen. L. {2d ed.), p. 1446. J § 15. Town auditors to audit accounts; town auditor to hold no other town office. Upon the election or appointment and qualification of any such board of town auditors in any town, the powers of the town board of that tovra, witli respect to auditing, allowing or rejecting all accounts, charges, claims or demands against the town, and with resppct to the ecxamination, auditing and certification of accounts of town officers, shall devolve upon and thereafter be exercised by such board of town auditors, during the continuance of such board ; and with respect^ to the powers so confarred, and the duties so imposed, they shall be the town board of the town during their con- tinuance. 'So person so elected or appointed shall hold any O'ther office in the town during the term for which he is elected or ap- pointed ; and if he shall accept an election or appointment to any 21a. Fop form of abstract of names of persons who have presented ac- counts for audit, see Form No. 172, post. 818 Town Boaed. Town Law, §§ 175, 176. otter office in tihe town, he shall immediately cease to be a town auditor, and the vacancy in, his ofSoe shall be supplied in the man- ner hereinafter provided. [Town Law (L. 1890, ch. 569), § 174, as amended hy L. 1896, ch. 85; Heydecker's Gen. L. (2d ed.), p. 1446. J § 1 6. If electors of town vote to elect a board of auditors, town board to make temporary appointment. The town board of the to'wn in which the electors shall deter- mine tO' elect a board of town auditors, or a majority of them, shall, within sixty daysi after the town meeting where it was so deter- mined, convene at some suitable place in the town, at the hour of ten o'clock in the forenoon, and appoint, in writing, under their hands and seals, tlireei persons having the qualifications herein pre- scribed, to be town auditors of the town, and shall immediately cause such appointment to be filed with the town clerk.''' The person so appointed shall, within ten days after receiving notice of their appointment, take, subscribe and file in the office of the town clerk the oath of office ; and thereupon they shall be the board of town auditors of the town, and shall possess and exercise all the powers and duties of town auditors, and shall hold and discharge the duties of the office until the next annual town meeting to be held in the town after their appointment. [Town Law {L. 1890, ch. 569), § 175; Heydecker's Gen. L. {2d ed.), p. 1446.] § 17. Compensation of town auditors; supervisor to fill vacan- cies in office of town auditors. Each of such town auditors shall be entitled to receive for his services three dollarsi for each day, not exceeding ten days in any one year, except in towns having a population of twelve thousand and upwards, in which towns each of such town auditors shall be entitled to receive for his services three dollars for each day, but not to exceed thirty days in any one year, actually and necessarily devoted by him to the servioesi of the town, in the duties of said office. The supervisor of the town shall appoint some suitable and competent person to fill any vacancy occurring in the board of town auditors until the next annual town meeting. \^Town Law (L. 1890, ch. 569), § 176, as amended by L. 1895, ch. 200; Hey- decker's Gen. L. (2d ed.), p. 1447. J 22. For form of appointment of board of town auditors by town board, me Form No. 173, post. Attditing of Town Accounts. 819 Town Law, §§ 177, 182. § 1 8. Town meeting may vote to discontinue board of town auditors. At any subsequent town meeting, after the expiration of five years from the determination to elect a board of town auditors, the electors of the town may determine by ballot to abolish such board in the same manner as they determine to establish such board ; and thereupon such board shall be abolished. {Town Law {L. 1890, ch. 569), ^ 177 ; Heydecker's Gen. L. {2ded.),p. 1447.] § ig. Actions on behalf of and against towns to be brought in name of town; contracts in name of town. Any aotion or special proceeding for the benefit of a town, upon a contract lawfully made with any of its town officers, to enforce any liability created or duty enjoined upon those officers, or the town represented by tbem, or to recover any penalty or forfeiture given to such officers, or the town represented by them, or to re- cover damages for injury to the property or rights of such officers, or the town represented by them, shall be in the name of the town. Any action or special proceeding to enforce the liability of the town upon any such contract, or for any liability of the town for any act or omission of its town officers, shall be in the name of the town ; and all contracts made by such officers for and in behalf of their towns shall be in the name of the town. When such con- tracts are O'therwise lawfully made, they shall be deemed the con- tracts of the town, notwithstanding it is omitted to be stated therein that they are in the name of the town." [Town Law {L. 1890, ch. 569), § 182; Heydecher's Gen. L. (2d ed.), p. 1448.J 23. Other provisions relating to actions by and against toims and to-wu officers. Actions may be brought against town officers to prevent any illegal official act on their part, or to prevent waste or injury to, or to restore and make good any property, funds or estate of the town, by any person or corporation or by any number of such persons oi corporations whose assessment shall jointly equal the sum of $1,000. See L. 1881, eh. 531, post, p. 911. As to actions generally by or against town officers, see Code Civ. Proc, sees. 1925-1928. Actions against towns for injuries caused by defective highways and bridges, see Highway Law, sec. 16, ante, p. 612. Actions by towns against persons or corporations injuring highways or bridges, see Highway Law, sec. 15, ante, p. 611. Effect of section. The above section modified the existing rule as to actions by and against town officers. Under the law as it existed prior to the enactment of this section towns had a very limited corporate power and could only sue and be sued in respect to the exercise of such power. The purpose of the above provision was to place the town as a party plaintiff or defendant in the same relation to actions as town officers had before such 620 Town Boaed. Town Law, §§ 183, 184. § 20. Actions for trespass on town lands. Whenever an action is brought by a town to reoover a penalty for a trespass oommitted upon its land, and it sihall appear upon tlie trial that the damages from the trespass exceed ten dollars, the town shall recover the damages and costs in lieu of the penalty, and such recovery shall be a bar to any subsequent civil action for the same trespass. [Tovni Law (L. 1890^ ch. 569), § 183; Hey- decker's Gen. L. {2d ed.), p. 1449.] § 21. Town board may borrow money for highway purposes when town meeting has voted to raise more than $500; state- ment of indebtedness created to be rendered to board of supervisors. Whenever a to^wn meeting shall vote a special appropriation of money in the sum of five hundred dollars or more, or an appro- priation for highway purposes or for the support of the poor during the current year, to be levied upon the taxable property of the town, tlie town board shall have power to borrow the sum so appro- priated upon the faith and credit of the town, and to issue therefor a certificate or certificates of indebtedness;, bearing interest and payable at such date or dates as may be fixed by said board, and the proceeds of such loan shall be placed to the credit of the public officers charged by law with the expenditure of said moneys. A stpatement of the amount maturing on such certificate of indebted- ness shall be certified by the town board at its second meeting and delivered to the supervisor of the town, to be by him presented to the board of supervisors of his county at its annual meeting, and the said board of supervisors shall cause the amount sipecified in such certified statement to be levied and raised upon the taxable property of the town in the same manner as they are directed to levy and raise other town charges. [Town Law (L. 1890, ch. act in respect to like actions for causes legitimately arising out of and re- lating to the performance of their official powers or duties. Miller v. Bush, 87 Hun, 507; 34 N. Y. Supp. 286. The section cannot be construed to enlarge or increase the labilities of towns except to the extent specifically prescribed therein. Robinson v. Town of Fowler, 80 Hun, 101 ; 30 N. Y. Supp. 25. This section has not changed the old rule that a commissioner of high- ways cannot create any liability upon the part of his town to pay for ma- terials ordered by him for the ordinary repair of town highways. Highway commissioners are charged with the duty of keeping town highways in re- pair as independent oflScers, and not as agents of the town, and when they Auditing of Town Accoxtnts. 821 L. 1891, ch. 164, § 1; L. 1890, ch. 223, § 1. 569), § 184, as added by L. 1897, ch. 84; Heydecker's Gen. L. (2d ed.), p. 1449.] § 22. Expenditure of surplus moneys. The supervisor, town olerk and justices of tli© peace or a ma- jority thereof in any town in this state, may expend any surplus moneys for which no provision for expenditure is made, belong- ing to said town, for the purposes of redemption of outstanding bonds or for improvements in said town. \_L. 1891, ch. 164, § 1 ; Heydecker's Gen. L. {M ed.), p. 4542. J § 23. Town boards may vote money for memorial day; expenditure. It shall be lawful for the town boards of any town in this state at any regular or special meeting to vote any sum of money not eixceeding fifty dollars in any year, or in towns of over five thou- sand inhabitants according to the last preceding state enumeration, in which are maintained two or more posts of the Grand Army of the Republic, a sum not exceeding one hundred dollars in any year for the purpose of defraying the expenses of the proper observance of Memorial or Decoration day, which amount shall be assessed, levied and collected in the same manner as other expenses of said town are assessed, levied and collected and shall be paid to the supervisor of such town and be disbursed by him in sudi manner as the town board of such town may direct upon vouchers i>roperly receipted and audited by the town board of such town ; except that in any tovra. in which there may be a post of the Grand Army of the Republic, such post may direct tlie manner and extent of such obscTvance and tlie supervisor shall pay the expense tliereof upon the order or orders of the commander or quartermaster of such post, which orders shall be his vouchers for such payment, contract for such ordinary repairs no liability is created against the town, and the commissioners themselves as such officers and not the town, sliould be sued for the debt. Lyth d Sons v. Toim of Evans, 33 Misc. 221 ; 68 X. Y. Supp. 356. A town has sufficient property in the highways and bridges to maintain an action for injury thereto, and such an action is, under the above section, properly brought in the name of the town. The fact that a supervisor veri- fies the complaint in such an action affords no presumption that the action was not brought by and is not in the charge of a highway commissioner as any officer who knows the facts is competent to verify the complaint. Toion of Ft. Covington v. U. 8. d Canada R. R. Co., 8 App. Div. 223; 40 N. Y. Supp. 313; affd., 156 N. Y. 702. 822 Town Boaed. L. 1890, ch. 223, § 2; L. 1902, ch. 206, §§ 1, 2. and in case there may be two or more posts of tlie Grand Army of the liepublic in any such town the commanders and quartermasters of such posit®, by concurrent action, shall direct the supervisor of such town what proportion of such money so raised shall be ex- pended by eadi of such posts, which proportion shall be paid by such supervisor upon the order or orders of the commander and quarteirmaster of each of such posts. \_L. 1890, ch. 223, § 1, as amended hy L. 1898, ch. 36; L. 1899, ch. 679, and L. 1901, ch. 87; Heydecker's Gen. L. {2d ed.), p. 4542.] In case there is a post in a town adjoining a town in which no post is located, whose membership includes at least three residents of such town having no post, the post shall appoint a committee of not less than three of its members who are residents of the said adjoining town in which the post is not located, and the super- visor of said town shall pay the expenses of observance of Memorial or Decoration day upon the order or orders of said committee or a majority thereof, which orders shall be his vouchers for such pay- ment. [Idem, § 2, as added hy L. 1895, ch. 485. J § 24. Town board may purchase soldiers' burial plot; care of plot a town charge ; proceedings to obtain removal of soldiers' remains to soldiers' plot; expense to be audited by town board. The town board in each of the tovsms of this state may upon the application in writing of any veteran soldiers' association in the town, or upon a petition in writing of five or more veteran soldiers in towns where no veteran soldiers' organization exists, purchase or provide a soldiers' plot in one or more cemeteries where no burial plots are now owned by soldiers' organizations, in which burial plots deceased soldiers may be interred, and may also pro- vide for the annual care of soldiers' burial plots in cemeteries, at the rate of not to exceed fifty cents for each soldier's grave in such burial plot or plots and the expense shall be included in the to'wn expenses, assessed, levied and collected in the same manner as other tovm expenses are levied and collected. [L. 1902, ch. 206, Upon a verified petition presented to a judge of a court of record by any soldiers' organization in any town or city in the state by a majority of its officers, or a majority of any memorial committee in any town or city where there are two or more veteran soldiers' organizations, or in towns or cities where there are no veteran soldiers' organization, may upon the petition of five or more veteran Auditing of Town Accounts. 823 L. 1902, ch. 206, § 2. soldiers, the judge to whoin said verified petition, is presented shall make an order to show cause, returnable before him at a time and place within, the county in not less than fourteen nor more than twenty days from the date of the presentation of said petition, why the remains of any deceased soldiers buried in potter's field, or in any neglected or abandoned cemeteries should not be removed to and reinterred in a properly kept incorporated cemetery in the same town or city or in a town adjoining the town or city in which the remains of a deceased soldier is buried, and to fix the amount of the expenses for such removal and reinterment, and the order to show cause shall provide for its publication in a newspaper, to be designated in the order, which is published nearest to the cemetery from which the removal is sought to be made, once in each week for two successive weeks. The verified petition presented to the judge shall show that the petitioners are a majority of the officers of a veteran soldier organization, or a majority of a memorial com- mittee in towns or cities where two or more veteran soldier organi- zations exist, or that the petitioners are honorably discharged veteran soldiers in towns or cities where no veteran soldier organi- zation exists, and (1) the name of the deceased soldier or soldiers whose remains are sought to be removed, and if known the com- pany and regiment in which he or they served; (2) the name and location of the cemetery in which he is interred and from which removal is asked to be made; (3) the name and location of the incorporated cemetery to which the remains are desired to be re- moved and reinterred ; (4) the facts showing the reasons for such removal. Upon the return day of the order to show cause and at the time and place fixed in said order, upon filing proof of publi- cation of the order to show cause with the judge, if no reason or objection is made thereto, he shall make an order directing the removal of the remains of said deceased soldier or soldiers to the cemeterj' designated in the petition within the town or city or within a tovm adjoining the town or city in which the remains are then buried and shall specify in the order the amount of the ex- penses of such removal, which expenses of removal and reinter- ment, including the expense of the proceeding under this act, shall be a charge upon the county in which the town or city is sit- uated from which the removal is made and such expenses shall be a county charge and audited by the board of supervisors of the county and paid in the same manner as other county charges. On and after the removal and reinterment of the remains of the deceased soldier or soldiers in a soldiers' plot, the expenses for annual care of the grave in the soldiers' burial plot to which the 824 Town Boaed. L. 1902, ch. 206, § 2. xemoval Is made shall be annually provided by the town or city in which the remains were originally buried, at the rate of not) to exceed fifty cents per grave and shall be paid annually to the incorporated cemetery association to which the remains of each deceased soldier may be removed and reinterred. The petition and order shall be filed in the county clerk's office of the county in which the remains of the deceas€>d soldier were originally in- terred, and the service of a certified copy of the final order upon the cemetery association shall be made prior to any removal. Any relative of the deceased soldier or soldiers, or the officer of any cemetery association in which the remains of the deceased soldier or soldiers were originally interred, or the authorities of the county in which the soldier or soldiers was originally buried may oppose the granting of said order and the judge shall summarily hear the statement of the parties and make such order as the justice and equity of the application shall require. Any headstone or monu- ment which marks the grave of the deceased soldier shall be re- moved and reset at the grave in the cemetery in which the removal is permitted to be made and in each case the final order shall pro- vide the amount of the expenses of such removals and reinterment and resetting of the headstone or monument, including the ex- penses of the proceedings under this act, except that where pro- vision is otherwise made for the purchase or erection of a new heiadsitone, monument, or marker at the grave in the cemetery to which such removal is permitted such old headstone or monument need not be so removed and reset, in which case such final order shall not provide for the expense of resetting. The order shall designate the person or persons having charge of the removals and reinterments. Upon completion of the removal, reinterment and resetting of the headstones or monuments, the person or per- sons having charge of thef same shall make a verified report of the removal, reinterment and resetting of the headstone or monument and file the report in the clerk's office of the proper county. The word " soldier " shall be construed to mean an honorably dis- charged soldier, sailor or marine who served in the army or navy of the United Sitates, and the wordsi " soldiers' plot " shall be con- strued to mean a plot of land in any incorporated cemetery set apart to be exclusively used as a place for interring the remains of deceased veteran soldiers of the United States. [Idem, § 2, as amended by L. 1905, ch. 391.] Licenses by Town Boabds. 825 Town Law, S 184. CHAPTER LX. LICENSES BY TOWN BOABDS. SlOTIOH 1. Town board may prohibit hawking and peddling without » license; not to apply in certain cases. ?. Licenses to be issued by town clerk and endorsed by super- visor; effect of license. 3. Hawking and peddling by soldiers, sailors and marines; license therefor. 4. Peddling and hawking farm produce. 5. Penalty for peddling or hawking without a license; refusal to show license, effect of. 0. Unlawful hawking or peddling, or refusal to produce a license a misdemeanor. 7. Transacting retail business for sale of bankrupt or damaged goods without a license; town board to fix license fee; super- visor to issue license. S. Town board may license hacks, venders, shows, concerts and pub- lic amusements; rules and regulations therefor; penalty for violation. 8. Regulation of junk business; junk dealers to be licensed by town supervisor. 10. Restrictions or regulations not to discriminate against non- residents. 11. Exhibitions and entertainments on fair grounds to be exempt from license. § I. Town board may prohibit hawking and peddling without a license; not to apply in certain cases. The town board of any town may by resolution, prohibit the hawking and peddling of goods or produce in public streets or places, or the vending of the same by calls from house to house, without a license ; but such prohibition shall not apply to the ped- dling of meats, fish, fruit or farm produce,' to the sale by sample or prospectus of goods, books or other merchandise where the same are not delivered at the time the order therefor is taken, or to peddling by any person or corporation in this state, provided no sale is made by such person, or corporation of dry goods, clothing, drugs or articles of food, and all sales are wholly or partly by bar- ter for merchandise, or so as to require a license from an honorably discharged soldier, sailor or marine of the military or naval service 1. Peddling of farm produce. General Municipal Law, sec. 28, as added by L. 1901, ch. 389, post, p. 827, prohibits a town board from regu- lating by ordinance the hawking and peddling of farm produce. 826 Town Boaed. Town Law, §§ 185; L. 1896, ch.i371, § 1. of the United States, who has obtaiaed a license from the county clerk to hawk, peddle, vend or solicit trade, in pursuance of law.' [Town Law, § 184, as added by L. 1898, ch. 538, and amended by L. 1899, ch. 314; HeydecTcer's Gen. L. (2d ed.), p. 1450.] § 2. Licenses to be issued by town clerk and endorsed by supervisor ; effect of license. If any such occupation in any town shall be so prohibited, the town board thereof shall establish uniform annual fees for such licenses, and the town clerk shall issue a license, specifying the fee to be paid therefor, to any citizen of the United States, applying therefor, that he deems a suitable person to pursue such calling. Upon the presentation of such license to the supervisor of the town, and the payment to him of the fee specified therein, the supervisor shall endorse upon the license a receipt of such pay- ment and the date thereof. Such license shall take effect from the date of such payment, and shall continue in force for the term specified therein. Such license shall not be issued for a longer term than one year nor for a shorter term than three months. Any applicant that has been refused such license by the town clerk may apply to the town board therefor, and the same may be granted or refused by the board. [Town Law, § 185, as added by L. 1898, ch. 538; Heydecker's Gen. L. {2d ed.), p. 1450.J § 3. Hawking and peddling by soldiers, sailors and marines; license therefor. Every honorably discharged soldier, sailor or marine of the mili- tary or naval service of the United States who is a resident of this 2. Hawking and peddling generally. As to hawking and peddling by soldiers, sailors and marines, see L. 1898, ch. 371, see. 1, post, p. 826. By article 4 of the Domestic Commerce Law, a person traveling from place to place within this state for the purpose of selling or exposing for sale of any goods, wares or merchandise of the growth, product or manufacture of any foreign country, other than family groceries and provisions, must secure a license as a peddler from the secretary of state. The provisions of such article do not affect the application of any ordinance, by-law or regula- tion adopted by a. town board relating to the hawkers and peddlers within the limits of such town. But the provisions of such article are to be com- plied with in addition to the requirements of any such ordinance, by-law or regulation. See Domestic Commerce Law, sec. 64. It follows, therefore, that no person can peddle from house to house in a town goods, wares, or merchandise of the growth or manufacture of a foreign country without securing a license from the secretary of state, and also complying with the rules and regulations of the town board as to peddling in the town. Licenses by Town Boards. 827 L. 1896, ch. 371, § 2; General Municipal Law, § 28. state and a veteran of the late rebellion, shall have the right to hawk, peddle, vend and sell by auction his own goods, wares or merchandise or solicit trade within this state by procuring a license for that purpose to be issued as herein provided. [L. 1896, ch. 371, § 1, as amended by L. 1899, ch. 659 ; Heydecker's Gen. L. (2d ed.),p. 4781. J On the presentation to the clerk of any county in which any soldier, sailor or marine may reside, of a certificate of discharge from the army or navy of the United States, and a veteran of the late rebellion, such county clerk shall issue without cost tO' such soldier, sailor or marine a license certifying him to be entitled to the benefits of this act. [Id. § 2, as amended by L. 1899, ch. €59.] § 4. Peddling and hawking farm produce. The governing board of a municipal corporation shall not by ordinance or otherwise regulate or prohibit the pursuit or exercise of hawking and peddling farm produce except hay and straw within the limits of any such municipal corporation, if such farm produce is hawked or peddled by the producer thereof, or his ser- vants or employes; nor shall the governing board of any such municipal corporation pass an ordinance requiring such producer of farm produce to secure a license for peddling and hawking such farm produce within the limits of such municipal corpora- tion. All existing ordinance® and regulations prohibiting such peddling and hawking except of hay and straw or requiring a license therefor shall on and after the passage of this act be of no force and effect. Nothing contained herein shall affect any pend- ing action or proceeding to recover penalties imposed for violations of existing ordinances and regulations. Nothing in this section shall be construed to permit wagons from which farm produce is sold to stand in front of stores or private residences for a longer time than may be necessary for the sale and delivery of produce purchased by the occupants of such stores or residences ; nor to per- mit the congregating of such wagons upon any street or thorough- fare not set apart by the municipality as a public market for the sale of farm produce. This section shall not apply to cities of the first class nor to the city of Eochester. [ General Municipal Law, § 28, as added by L. 1901, ch. 389 ; Heydecker's Gen. L. (2d ed.), p. 1161.J 828 Town Board. Town Law, §§ 186, 187, 188; L. 1898, ch. 141, §§ 1, 2. § 5. Penalty for peddling or hawking without a license; re- fusal to show license, effect of. Every person hawking or peddling goods or produce in the pub- lic streets or places, or vending the same by calla from house to house, in any town, the town board of which requires a license for the pursuit of such calling, without having obtained such license, or who' refuses to produce such a license to any peace officer who demands inspection of the same, shall be liable to a penalty of twenty-five dollars, recoverable by the supervisor of the town in any court having jurisdiction thereof, and applicable to the sup- port of the poor of the town. The refusal to produce such a license when demanded by a peace officer shall be presumptive evidence that such person is hawking, peddling or vending without a license. An action for a penalty imposed by this section shall not be main- tained unless it is brought within sixty days after the commission of the offense charged.' [Town Law, § 186, as added by L. 1898, ch. 538; HeydecJcer's Oen. L. (2d ed.), p. 1450.] § 6. Unlawful hawking or peddling, or refusal to produce a license a misdemeanor. Any person who hawks, peddles or vends without a license in any town, as required by this article, or contrary to the terms of his license, or who refuses to produce his license on the demand of a peace officer is guilty of a misdemeanor. [Town Law, § 187, as added by L. 1898, ch. 538; Heydecher's Gen. L. (2d ed.), p. 1451.J Niagara and Orleans counties exempted. — Niagara and Orleans counties are hereby excepted from the provisions of sections one hundred and eighty-four, one hundred and eighty-five, one hun- dred and eighty-six and one hundred and eighty-seven of this chap- ter. [Town Law, § 188, as added by L. 1899, ch. 230; Eeydeck- c/s Gen. L. (2d ed.), p. 1451.] § 7. Transacting retail business for sale of bankrupt or dam- aged goods without a license; town board to fix license fee; supervisor to issue license. No person whether acting as principal or as agent for another, shall conduct a. transient retail business in any store in any city 3. Penal provision. By section 384e of the Penal Code it is provided that: "A person who is found trading as a peddler without a license or contrary to the terms of his license, or who refuses to produce his license on demand of any ofScer or citizen is guilty of a misdemeanor." Licenses by Town Boaeds. 829 L. 1890, ch. 332, § 1. of the tliird class, village or town of this state for the sale of goods which shall be represented or advertised as a bankrupt stock, or as assigned stock, or as goods damaged by fire, water or otherwise, or by any such like representation or device without first taking 0ut a license therefor from the mayor of such city, president of such village, or the supervisor of such town. The amount of the fee for such license in any city shall be fixed by resolution duly passed by the board of aldermen or common council, and in a vil- lage by resolution duly passed by the board of trustees of such vil- lage; and in a town by resolution of the town board of such town. Such fee shall not be less than twenty-five dollars nor more than one hundred dollars per month in a city or an incorporated village,, and not less than ten dollars nor more than fifty dollars per month in a town. jSTo such license shall be issued for a less period than one month and shall be renewed monthly during the continu- ance of such business. The sum paid as license fees shall, in a city or village, be paid to the treasurer of such city or village, and in a town to the supervisor thereof, to be used for city, village or town purposes. Any person as principal or agent, conducting a transient retail business, as described in this act, without obtaining a license therefor, shall be' guilty of a misdemeanor and upon conviction thereof shall be fined a sum not less than one hundred dollars nor more than two hundred dollars, and in default of the payment thereof shall be imprisoned for a period of not more than sixty days. [L. 1898, ch. 141, §§ 1, 2 ; Heydecker's Gen. L. (2d ed.), p. 4479.] § 8. Town board may license hacks, venders, shows, concerts and public amusements; rules and regulations therefor; penalty for violation. License fees, how fixed, collected and applied. — The super- visor, justice of the peace and town clerk of any town having a population as shown by the last federal or state enumeration, of more than three thousand inhabitants residing outside of an incor- porated city or village, are hereby authorized and empowered to license and regulate all public hacks, vehicles, vendors, shows, con- certs, public amusements, merry-go-rounds, carousals, toboggan slides, ferris wheels, rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts there- of, or any equestrian, circus or dramatic performance, or any performance of jugglers or acrobats, in such town, outside of an incorporated city or village, and to fix the fee to be paid for the 830 Town Boaed. L. 1890, ch. 332, §§ 2, 3, 4, 5. persons so licensed to said offic&rs, whiek moneys so col- lected stall be paid over to the supervisor of such, town within tihirty days after tlie receipt of the same', and the said supervisor shall pay the same over to the commissioners of highways of such town, to be applied to the necessary repairs of the roads and highways of such town, after deducting the neces- sary expenses for carrying out the provisions of this act. [L. 1890, cJi. 332, § 1, as amended by L. 1905, ch. 249 ; HeydecJcer's Gen. L. {2d ed.), p. 4539.] Rules and regulations. — The said officers shall have power to make and establish such rules, regulations and ordinances not in- consistent with the laws of this state, as they may deem necessary for the proper regulation of such hacks, vehicles, venders, shows, concerts, public amusements, merry-go-rounds, carousals, toboggan slides, ferris wheels, rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet,, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts there- of, or any equestrian, circus or dramatic performance, or any per- formance of jugglers or acrobats. Such rules, regulations and ordinances shall be posted in at least ten public places in such town. [Id., § 2, as amended by L. 1905, ch. 249.] Licenses required, and violation of act a misdemeanor. — It stall not be lawful, in any town where the officers mentioned in this act shall have made and established rules, regulations and ordi- nances as in this act provided for, to conduct, or operate, any pub- lic hacks, vehicles, or peddling, or to maintain, operate, carry on or exhibit any shows, concerts, public amusements, merry-go- rounds, carousals, toboggan slides, ferris wheels, rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts thereof, or any equestrian, circus or dramatic performance, or any performance of jugglers or acrobats, until a license for conducting, maintaining, carrying on, and ex- hibiting, the same shall have been first had and obtained, signed by the supervisor and town clerk of any such town, and each and every violation of the provisions of this act as amended shall be a misdemeanor. [Idem, § 3, as amended by L. 1905, ch. '249.] Offenders; where tried. — Subject to the power of removal pro- vided for in chapter one, title six of the code of criminal proced- ure, courts of special sessions in any such town have, in the first instances, exclusive jurisdiction to hear and determine charges of violating the provisions of this act as amended, and all violations of any rule, regulation or ordinance established by the officers of any such town as provided for in this act as amended; and any person violating the provisions of this act, as amended, or any rule, Licenses by Town Boards. 831 L. 1890, ch. 332, §§ 1, 2, 3. Tegulation or ordinance established by said oiBcers as in this act amended and provided for, shall bei guilty of a misdemeanor. [Idem, § 4, as amended by L. 1905, ch. 249.] Injunction by town authorities. — In case any person shall oper- ate, or conduct, any public hack, vehicle, or peddling, or shall open, advertise to open, operate, maintain or conduct, any show, concert, public entertainment, merry-go-round, carousal, toboggan slide, ferris wheel, rope dancing, loop-thc-loop, public garden, tragedy, comedy, opera, ballet, play, farce', minstrelsy or dancing, or any other entertainment of the stage, or any part or parts thereof, or any equestrian, circus, or dramatic performance or any perform- mce of jugglers or acrobats, in any such town, without first ob- taining a license therefor as provided for by this act as amended, or as provided for by the rules, regulations and ordinances adopted by any town as herein provided for, it shall, and may be lawful for the town, in its corporate name, to apply to the supreme court, or any justice thereof, for an injunction to restrain the opening, car- rying on, or maintaining thereof, until he shall have complied with the requisites of this act and of the rules, regulations and ordi- nances adopted by any said tovra in obtaining such license, which injunction may be allowed upon a complaint to be in the name of the town in the same manner as injunctions are now usually al- lowed by the practice of said court; and the said town is not re- quired to give any undertaking on any such application granted or applied for under the provisions of this act. [Idem, § 5, as amended by L. 1905, c/i. 249.] § 9. Regulation of junk business; junk dealers to be licensed by town supervisor. On and after July first, nineteen hundred and three, it shall be unlawful for any person, association, copartnership or corporation to engage or continue in the business of buying or selling old metal, which business is herein designated junk business, and which person, association, copartnership or corporation is herein designated junk dealer, unless such junk dealer shall have complied with the provisions of this act and obtained a license so to do from the mayor of the city, if the principal place of business of such junk dealer is in a city, or the president of the village if such place of business is in an incorporated village, otherwise from the supervisor of the town in which such place of business is located; for which license shall be paid such mayor, president or supervisor for the use of such city, village or town, the sum of five dollars, which license shall expire on June thirtieth of each year. [L. 1903, eft. 308 § 1.] No person, association, copartnership or corporation shall be entitled to nor receive such license who or which, and in case of a copartnership or associa- tion any member of which, has been since January first, nineteen hundred and three, or who or which shall hereafter be convicted of larceny or knowingly receiving stolen property, or of a violation of this act. [Idem, § 2.] On purchasing any pig or pigs of metal, copper wire or brass car journals, such junk dealer shall cause to be subscribed by the person from whom pur- chased a statement as to when, where and from whom he obtained such prop- erty, also his age, residence by city, village or town, and the street and num- ber thereof, if any, and otherwise such description as will reasonably locate 832 Town Boaed. General Municipal Law, § 27; Membership Corporations Law, § 146a. the same, his occupation and name of his employer and place of employment or business, which statement the junk dealer shall forthwitli file in the office of the chief of police of the city or village in which the purchase was made, if made in a city or incorporated village, and otherwise in the office of the sheriflF of the county in which made. [Idem, § 3.] Every junk dealer shall on purchasing any of the property described in the last section place and keep each separate purchase in a separate and distinct pile, bundle or package, in the usual place of business of such junk dealer, without removing, melting, cutting or destroying any article thereof, for a period of five days immediately succeeding such purchase, on which package, bundle or pile shall be placed and kept by such dealer a tag bearing the name and residence of the seller, with the date, hour and place of purchase, and the weight thereof. [Idem, § 4.] Each violation of this act, either by the junk dealer, the agent or servant thereof, and each false statement made in or on any statement or tag above mentioned shall be a misdemeanor, and the person convicted shall, in addi' tion to other penalties imposed, forfeit his license to do business. But noth- ing herein contained shall apply to cities of the first class. [Iden, § 5, 04 amended hy L. 1906, ch. 528.] § 10. Restrictions or regulations not to discriminate against nonresidents. Any restriction or regulation impoeed by the governing board of a municipal corporation upon the inluabitantB of any other municipal corporation within this state, carrying on or desiring to carry on any lawful business or calling within the limits thereof, which shall not be necessary for the proper regulation of such trade, business or calling, and shall not apply to citizens of all parts of the state alike, except ordinances or regulations in refer- ence to traveling circuses', shows and exhibitions, shall be void.* [General Municipal Law (L. 1892, ch. 685), § 27; Heydecher's Oen. L. {2d ed.), p. 1160.] § II. Exhibitions and entertainments on fair grounds to be exempt from license. The provisions of any special or local law or municipal ordi- nance, requiring the payment of a license fee for exhibitions or entertainments, shall not apply to any exhibition or entertain- ment held on the grounds of a town or county fair association, if the association derives a pecuniary profit from such exhibition or entertainment by the lease of its grounds for such purpose, or otherwise. [^Membership Corporations Law (L. 1895, ch. 559), § 146a, as inserted by L. 1903, ch. 275. J 4. This aection is operative except as inconsistent with the preceding sections of this chapter. Sectons 184-187 of the Town Law, and L. 1898, ch. 141, supersede in a measure the provisions of this section. Watee^ Light and Sewer System. 833 Town Law, § 171. CHAPTER LXI. WATEE, IJGHT AND SEWEE SYSTEMS IN TOWNS. Sectiow 1. Town board may appoint members of fire companies outside of incorporated villages; electors of highway district may vote to purchase fire apparatus. 2. Town board may establish water supply districts. 3. Water works corporations must furnish water to town; town board may establish water supply district; expense chargeable upon district. 4. Purchase of water works by town. 5. Establishment of water districts in towns. 6. Town boards may establish street lighting districts and con- tract for the lighting of streets therein; petition therefor; notice to be published; amount of contract, how raised. 7. Town board may establish sewer system. § 1. Town board may appoint members of fire companies out- side of incorporated villages; electors of highway district may vote to purchase fire apparatus. The town board of any town may appoint in writing, any num- ber of inhabitants of their town, which they may deem necessary, to be a fire company for the extinguishment of fires in their town ; but no such company, as herein provided, shall be formed in any incorporated city or village. Each fire company, thus fonmed, shall choose a captain and clerk thereof, and may establish such by-laws and regulations as may be necessary to enforce the per- formance, by such firemen, of their duty, and may impose such penalties', not exceexling five dollars for each offense, as may be necessary for that purpose. Such penalties may be collected by and in the name of the captains, in any court having cognizance thereof, and, when collected, shall be expended by the companies for the repair and preservation of their engines and apparatus for the extinguishment of fires. All vacancies which may, at any time happen in such companies by death, resignation or otherwise, shall, from time to time, be filled by the town board. The electors of any highway district, or water supply district, in which any town fire company shall have their headquarters at a special meeting law- fully called by the town clerk, who is hereby authorized to call such special meeting may vote, by ballot, a sum of money, not ex- ceeding four thousand dollars, for the purchase of a fire engine and apparatus for the extinguishment of fires, and for the purchase or lease of suitable buildings and grounds for keeping and storing 834 Town Boaed. Town Law, § 188. such fire engine and apparatus for the extinguishment of fires, and other property of said highway district or water supply dis- trict. And whenever said electors shall so vote said money for the purchase of a fire engine and apparatus for the extinguishment of fires, and for the purchase or lease of suitable buildings and grounds for keeping and storing such fire engine and apparatus for the extinguishment of fires, and other property of said highway district or water supply district The commissioners of highways may, with the written consent and approval of the town board, contract for and purchase for such district a good and sufficient fire engine and apparatus for the extinguishment of fires and may contract for and purchase or lease for such district, suitable build- ings and grounds for keeping and storing such fire engine and apparatus for the extinguishment of fires, and other property of said district, at a price not to exceed the sum so voted, which engine and apparatus for the extinguishment of fires, and buildings and grounds shall be the property of said highway district or water supply district, but may be used and cared for by such fire com- pany. The purchase price of said fire engine and apparatus or other apparatus for the extinguishment of fires., and buildings and grounds shall be assessed and levied upon the property of said district and collected in the same manner as other tovm charges are assessed, levied and collected, except that the amount thereof shall be put in a separate column upon the tax-roll, and the board of supervisors of the county shall cause the sum, as certified by the town board, to be levied upon the taxable property of such high- way district or water supply district.-' [Town Law (L. 1890, cJi. 569), § 171, as amended by L. 1894, ch. 201, and L. 1906, ch. 373; He'ydecher's Gen. L. {U ed.), p. 1444.] § 2. Town board may establish water supply districts. The town board of any town may establish one or more water supply districts in such town outs.ide of an incorporated village therein, by filing a certificate, describing the bounds of any such district, in the office of the town clerk; and may oontraot in the 1. Fire districts. Fire districts outside of incorporated villages are established by boards of supervisors upon the petition of the taxable inhabi- tants of a proposed fire district. In districts so established fire commissioners are elected by the electors residing therein who have control of all matters pertaining to fire protection including the organization of fire, hook and ladder, and hose companies. See County Law, see. 37, ante, p. 62. The above section contemplates the organization of town fire companies. And it is also provided that the electors of any highway district may ap- propriate money for the purchase of a, fire engine and apparatus. The above section is independent of section 37 of the County Law, and provides for fire protection without the establishment by the board of supervisors of a fire district. Watee, Light and Sewer System. 836 Transportation Corporations Law, § 81. name of the town for the delivery, by the water commissioners of a village owning a system of waterworks, of a supply of water through hydrants or otherwise, for fire, sanitary or other public purposes, to such districts', and the whole town shall be bound by such contract, but the rental or expense thereof shall annually, in the same manner as other expenses of the town are raised, be assessed, levied upon and collected only from the taxable prop- erty within such water supply district. Such money when col- lected, shall be kept as a separate fund and be paid over to such board of water commissioners by the supervisor of the town, ac- cording to the terms and conditions of any such contract' [^Town Law, § 188, as added hy L. 1899, ch. 68 ; Heydecker's Gen, L. {2ded.),p. 1451. J § 3. Water works corporations must furnish water to town; town board may establish water supply district ; expense charge- able upon district. Every such corporation shall supply the authorities or any of the inhabitants of any city, town or village through which the conduits or mains of such corporation may pass', or wherein such corporations may have organized, with pure and wholesome water at reasonable rates and cost. The town board of any town may establish a water supply dis- trict in such town outside of a city or incorporated village therein, by filing a certificate describing the bounds thereof, in the office of the town clerk ; and may contract in the name of the tovsm for the delivery, by a corporation, subject to the provisions of this article, of a supply of water for fire, sanitary or other public Z. Water districts are also to be established when the town board con- tracts with a water works corporation for furnishing water for fire, sani- tary or other public purposes to any portion of the town. See Transportation Corporations Law, sec. 81, post, p. 835. And a water district may also be established by the town board upon the petition of a majority of the owners of taxable real property in a proposed district for the purpose of making contracts for the construction and maintenance of a water system by such district. See L. 1900, ch. 451, sec. 1. The law then provides for the establishment of water districts in three cases: (1) Where it is desired to contract with the water commissioners of a village for the furnishing of water as in the above section; (2) where it is desired to contract with a water works company, and ( 3 ) , where it is desired to construct and operate water works for the furnishing of water to the dis- trict and inhabitants thereof by the district itself. 836 Town Board. L. 1898, ch. 554, §§ 1, 2, 3, 4. purposes, to such districts', and the whole town shall be bound by such oontract, but the rental or expense thereof shall annually, in the siame manner as other expenses of the town are raised, be assessed, levied upon and collected only from the taxable property within such water supply disitrict. Such money, when collected, shall be kept as a separate fund and be paid over to such cor- poration by the supervisor of the town, according to the terms and conditions of any such contract. No such contract shall be made for a longer period than five years, nor for an annual ex- pense exceeding three mills upon each dollar of the taxble prop- erty within such water supply district. [Transportation Corpo- rations Law {L. 1890, ch. 566), § 81, in part, as amended hy L. 1896, ch. 678; Heydecher's Gen. L. {2d ed.), p. 3421.J § 4. Purchase of water works by town. Town may acquire waterworks. Any town in this state which has a contract with a waterworks company for supplying such town, or any portion thereof, with water, may acquire the works, franchises and property of such waterworks company, in the fol- lowing manner: [L. 1898, ch. 554, § 1.] Petition for submission of question to voters at town meeting. Upon the written petition of not less than one-tenth in number of the taxpayers of such town, who shall be assessed for at least one-tenth of the total amount of the property assessed in said town, the supervisor of the town shall ascertain the price which the waterworks company will accept for its work, franchises and prop- erty, and shall submit to the lawful voters of such town at the next town meeting the question whether such works, franchises and property shall be purchased at the price specified as aforesaid. [Idem, § 2.] Notice of submission of question. Notice that such question will be so submitted to the voters of the town shall be given by publishing the same once a week, for at least four weeks, imme- diately preceding the election, in every newspaper published in said town, and by posting a copy of such notice conspicuously in the office of the clerk of such town at least thirty days prior to the day for voting; and the clerk of such town shall see that such notice is so published and posted. [Idem, § 3.] If vote is favorable supervisor to contract for purchase of works. At such election each qualified voter shall be given an oppor- tunity to vote either for or against such proposed purchase. If WateKj Light and Sewee System. 837 L. 1898, ch. 554, §§ 5, 6, 7. a majority of the votes oast on the question shall be for making the proposed purchase, the supervisor of the town shall forthwith make and enter into a contract with suoh water company for the transfer of such company's works, franchises and property to such town; and the said town officers are hereby authorized and em- powered to enter into such contracts and to bind their respective towns thereby. And such companies are authorized and empow- ered to make such contracts and to do whatever is necessary to fulfill them. [Idem, § 4.] Company to furnish statement of debts, etc. At the time of making such a contract the waterworks company shall make and deliver to said officers of the town a full, true and accurate state^ ment in detail of all its debts, contracts, obligations and respon- sibilities of every sort, and such statement shall be verified by the president or treasurer of said company. The amount of such lia- bilities shall be carefully estimated by the officers acting on behalf of the town and the gross amount tliereof shall be deducted from the purchase price named. Should there be any difference be- tween said town officers and such company as to the amount of such liabilities the same shall be' referred by them to the county judge of the county and decided by him. [Idem, § 5. j Town hoard to raise money for purchase of works. As soon as the amount of the company's liabilities has been thus ascertained and deducted and the net amount remaining to be paid for said company's works, property and franchises has been thus deter- mined, the town board of the town shall proceed to raise the money and carry out in behalf of the town the contract so made. [Idem, § 6.] Issuance of hands for purchase money. Such town board shall make and issue bonds of the town for the entire amount of the purchase price of the property, works and franchises to be pur- chased as agreed on and voted for as aforesaid. Such bonds shall run for not more than thirty years and shall bear interest at a rate not exceeding five per centum per annum, and shall be a valid and binding obligation upon the town, in behalf of which they shall be issued. They may contain such provisions as to pay- ment of a part of those issued at suoh times, short of the full term for which they might run, as in the judgment of the town board isfliuing them would be advantageous to the town bound thereby. [Idem, § 7.] 838 Town Boaed. L. 1898, ch. 554, §§ 8, 9, 10, 11; L. 1900, ch. 451, § 1. Sale of hands; proceeds of sale. Said town board shall pro- ceed to sell such bonds, at either public or private sale, for the best price obtainable, not less than par. Out of the proceeds of such sale said board shall pay to the waterworks company that portion of the purchase price agreed on and voted for as aforesaid, which remains due the company, after making the deductions mentioned in the fifth section of this act, upon receiving an assign- ment or transfer of all the works, property and franchises of said company, duly executed by said company or by the proper officers thereof, in its name and behalf. The balance of the proceeds of such bonds shall be used as far as, and when, necessary to dis- charge the debts, liabilities and obligations of said waterworks company. [Idem, § 8. J Stockholders' consent to sale of works. Before naming the price for the property, franchises and works of any company under this act, as contemplated in the second section of this act, the officers thereof must obtain authority so to do from a majority in number and amount of the stocldiolders ; such consent shall be given in writing and duly signed and acknowledged by the stockholders. lldem, § 9.j Upon sale, debts, etc., are a charge upon town. Upon making such transfer and conveyance to the town, the debts, liabilities and obligations of said company, which has been included in the statement referred to in tlie fifth section of this act, shall become a charge upon the tovsTi and may be enforced against it. And i£ the company should be called upon to pay any claim or to do any act on or on account of such debts, liabilities or obligations, it may enforce the same against the town. [Idem, § 10.] Works to he managed hy town hoard. The works, franchises and pro'pei'ty thus purchased, shall be managed and controlled for and in behalf of such town by the town board which purchased the same and their respective successors in office. [Idem, § ll.J § 5. Establishment of water districts in towns. Town hoard may estahlish water district; petition. — The town board on the petition of a majority of the owners of taxable real property in a proposed district, representing a majority of the taxable real property therein, as appears by the last preceding completed asseesmentrroll, may establish a water district outside any incorporated village or city, and wholly within such town. Watbe^ Light and Seweb System. 839 L. 1900, ch. 451, §§ 2, 3, 4. The petition must describe the proposed district, and state the maximum amount proposed to be expended in the construction of such water system. Each petitioner sihall state opposite his name the assessed valuation of the real property owned by him in such district according to the last preceding completed assess- mentrroll of the town. The petition must be signed by the peti- tioners and acknowledged in the same manner as a deed to be recorded. \_L. 1900, ch. 451, § 1, as amended by L. 1901, ch. 471 ; Heydecker's Oen. L. {2d ed.), p. 4543.] Map and plans. — There shall be annexed to the petition above provided a map and plan showing the sources of water supply and a description of the lands, streams, water or water rights to be acquired therefor, and the mode of constructing the proposed waterworks and the location thereof, including reservoirs, mains, distributing pipesi and hydrants. The map and plans shall be filed with tlie town clerk, and a certified copy of such map shall also be filed in the county clerk's office. Cuch map and plan shall be prepared by a competent engineer. [Id., § 2.] Expenses, how paid. — The reasonable expenses of the necessary proceedings on the organization of a water district, as herein pre- scribed are a charge against the district so organized. If a water district is not organized, the persons who signed the petition for the establishment of a water district are jointly and severally liable for such expenses. [Id., § 3.] Action by town board. — If the town board is satisfied that the petitioners are a majority of the owners of real property in IJie proposed district, and own a majority in value of the taxable real property therein, tliey shall, make an order establishing such district and appointing tliree taxpayers therein as water commis- sioners. The order shall be filed with the town clerk. Such com- missioners first apiX)inted, under this act, shall hold office for terms of one, two and three years to be determined by the town board in making the appointments. The commissioners there- after appointed shall hold office for terms of three years. [Id., % 4:, as amended by L. 1901, ch. 471. J Oaths and undertakings of commissioners. — Each commissioner before entering on the duties of his office shall take the constitu- tional oath of office and execute to the town and file with the town clerk an official undertaking in such sum and with such sureties as the town board shall direct. The town board may at any time 840 Town Boaed. L. 1900, ch. 451, §§ 5, 6, 7. require any such oommissioner to file a new official undertaking for suoh sum and with such sureties' as the board shall approva lid., § 5.] Contracts for the construction of water system. — The water commissioners of such district; shall advertise for proposals for the construction of a water system either under an entire con- tract or in parts or sections as the board may detennine. Such advertisements shall be published once in each of two successive weeks in each newspaper published in the town and if no news- paper is published therein, in two newspapers published in a city or village nearest to such town. The commissioners may require a bond or deposit from each person submitting a proposal, the liability on such bond to accrue or such deposit to be forfeited to the town in case sudi person shall refuse to enter into a contract in accordance with his proposal. The oommissioneirs may accept or reject any proposal, and make contracts with other than the lowest bidder or may reject all proposals and advertise again. No contract shall be made by which a greater amount shall be agreed to be paid than the maximum amount stated in the petition for the construction of such water system. Each contract shall be executed in duplicate one of which shall be given to the contractor and the other shall be filed in the office of the town clerk. The water commissioners shall immediately after letting the contract or contracts for the construction of the water system serve on the town board a written notice, specifying the amount of such con- tract or contracts and the amount of money needed for the con- struction of such water system. It shall be the duty of the town board to raise the money necessary by the issue and sale of bonds as provided in this act. [_Id., § 6.] Issue and sale of town hands. — Town bonds issued Tinder au- thority conferred by this act shall be signed by the supervisor and attested by the town clerk. Such bonds shall become due williin twenty years from the date of issue, and unless the whole amount of the indebtedness represented thereby is to be paid witliin five years from their date, tliey shall be so issued as to provide for the payment of the indebtedness in equal annual installmeuts, the first of which shall be payable not more than five years from their date. They shall bear interest at a rate not exceeding five per centum per annum, and shall be sold for not less than their par value. They shall be sold on sealed proposals or at public auction WatbSj Light and Sewee System. 841 L. 1900, ch. 451, §§ 8, 9, 10. upon notice published in a paper printed in the town, if any, and also in such other papers as may be designated by the town board, and posted in at least five public places in the town, at least ten days before the sale, to the person who will take them at tlie low- est rate of interest. Such bonds shall be consecutively numbered from one to the highest number issued and the town clerk shall keep a record of the number of eadi bond, its date, amount, rate of interest, when and where paynble and the purchaser thereof or the person to whom they are issued. The bonds shall be a charge upon the town and shall be collected from the property within the water district. [L. 1900, ch. 451, § 7.] Tax for payment of hands and interest. — The water commis- sioners shall annually apportion the amount to be raised for the payment of the principal and interest of the bonds upon the tax- able property in the water district as the same appears on the assessmentrroll and present a statement thereof to the town board on the Thursday preceding tlie annual meeting of tlie board of supervisors. Such statemeut shall give the names of the persons liable to pay the same and the amount chargeable to each. The town board shall transmit such statement to the board of super- visors at its next annual meeting. The board of supervisors shall levy such sums against the property liable and shall state the amount of the tax in a separate column in the annual tax-roll under the name of " water tax." Such tax when collected shall be paid to the supervisor and be by him applied in payment of the bonds. [M,§8.] Assessment of property partly in district. — In all cases where a farm or lot or the real property of a corporation or joint stock association is divided by the boundary line of a water district, it shall be the duty of the town assessors after fixing the valuation of the whole of such, real property as now required by law to deter- mine what proportion of such valuation is on account of that part of such real property lying within the limits of tlie water district, and shall designate the same upon their aseessmentrroll. The valuation of the real property lying within such water district so fixed and determined by the assessors shall be the valuation on which the water commissioners of the water district shall levy the water tax. [Id., § 9. J Supervising engineer and inspectors. — The water commission- ers may employ a supervising engineer to superintend and inspect 842 Town Boaed. L. 1900, ch. 451, §§ 11, 12, 13, 14, 15, 16. the construction of the water syatem or works connected there- with, and also such inspectors as may be necessary and fix the compensation of such engineer and inspectors. Such compensa- tion shall be treated as a part of the expense of construction. [L. 1900, ch. 451, § 10.] Acquisition of property by condemnation. — If the water com- missioners are unable to agree with the owners for the purchase of real property necessary for the construction of the water system, they may acquire the same by condemnation. \^Id.j § 11.] Establishment of water rents. — The board of water commission- ers shall establish a scale of rentsi for the use of water, to be called " water rente," and to be paid at such times as the board may prescribe. Such rents shall be a lien on the real property upon which the water is used. [Id., § 12.] Reservoirs. — In the construction of a storage reservoir connected with the system of waterworks, all vegetable or other matter sub- ject to decay shall be removed from the banks thereof between its highest and lowest possible flow line or such space be covered by gravel or stone tx> prevent such decay. [/cZ., § 13.] Connection with mains. — Supply pipes connecting with mains and used by private owners or occupante shall be laid and kept in repair at their expense. Such pipes; can only be connected with the mains by the permission and under the direction of the board of water commissioners. A member of the board or ite au- thorized agent may at any time enter a building or upon premises where water is used from supply pipe®, and make necessary exam- inations. [_Id., § 14.] Ordinances. — The board of water commissioners may adopt ordinances, not inconsistent with law, for enforcing the collection of water rents and relating to the use of water, and may enforce observance thereof, by cutting off the supply of water, or by the imposition of penaltiesi. [Id., § 15. J Annual report of water commissioners. — The board of water commissioners shall on the thirty-first day of October file with the town clerk a report for the year ending that day, containing a statement of the following facte: 1. The amount of money on hand at the beginning of the year, and the receipte from all sources during such year. 2. An itemized statement of the amount paid out during such year, and the balance on hand. Watee, Light and Sewee System. 843 L. 1892, ch. 256, §§ 1, 2. 3. The outstanding indebtedness of the district, either bonded •or otherwise, separately stated. 4. The estimated deficiency in the amount necessary to pay principal or interest or the expenses of the district during the next year, after applying thereto the probable amount of water rents. 5. The improvements and extensions made during suoh preced- ing year, and the general condition of the waterworks. 6. Such other facta as the board deems important for the in- formation of the water diotriot, together with suoh recommenda- tions concerning such district as may be deemed proper. \^Id., § 16.] § 6. Town boards may establish street lighting districts and contract for the lighting of streets therein; petition therefor; notice to be published ; amount of contract, how raised. Town hoards may establish lighting districts. — It shall be law- ful for the town board of any town in this state to contract for the lighting of the streets, avenues, highways, public places and public buildings therein, outside of the corporate limits of any incorporated village in said town, upon such terms and for suoh time or period not exceeding ten years, as the town board may deem proper or expedient, and for the payment of the expenses thereof may establish one or more lamps or lighting districts therein. It shall be lawful for the town boards of two or more adjoining towns in this state whenever a petition for the estab- lishment of a lamp or lighting district shall cover territory lying in two or more adjoining towns in this state, to contract for the lighting of the streets, avenues, highways, public places and public buildings therein, outside of the corporpte limits of any incorpo- rated village in said town upon such terms and for such time, or period not exceeding ten years, as the town boards of two or more adjoining towns in joint session assembled may deem proper or expedient and for the payment of the expenses thereof. [L. 1892, ch. 255, § 1, as amended by L. 1896, ch. 309; Heydecker's Gen. L. (2d ed.), p. 4541.] Petition. — 'No such contract shall be made unless a petition for such lighting, signed by a majority of the taxpayers of suoh lamp or lighting district shall be filed with the town clerk of said town thirty days before the contract is made, but in the county of 844: Town Board. L. 1892, ch. 255, §§ 3, 4. Nassau no suck contract sihall be made unless the petition for such lighting signed by a majority of the resident taxpayers in such lamp or lighting district, unless it be a reneiwal or extension of such a contract. \_Idem, § 2, as amended by L. 1899, ch. 492, and L. 1900, ch. 692.] Notice of filing petition. — The to'wn board, or if such district shall lie in two or more adjoining towns, then the town boards of each such town shall cause notices of the same to be published for on© week in one or more of the newspapers published in such town or towns, or if no newspaper be published in such town or towns, then by posting said notice in at least six public and con- spicuous places in said district of the filing of said petition, and the time and place when the same will be acted upon by said town board, or if such lighting district lies in two or more adjoining tO'wns, then when the same will be acted upon at a joint meeting of the town boards of such towns, to be held in the territory where such district is to be created. [Idem, § 3, as amended by L. 1896, ch. 309.J Amount of contract, how collected. — The amount of any con- tract that may be entered into pursuant to the provisions of this act, shall be assessed, levied and collected upon the taxable prop- erty in said town or district in the same manner, at the same time, and by the same officers as the town, taxes, charges or ex- penses of said town are now assessed, levied and collected, and the same shall be paid over by the supervisor to the corporation, company, person or persons furnishing or supplying said light. If the town boards of two or more adjoining towns shall, in joint session, establish] a lamp or lighting district in two or more ad- joining towns, they shall determine the relative proportion of the expense of such lighting which shall be borne by each of said towns, and the amount of such expense shall be assessed and levied on the taxable property in such lighting district in each of said towns, and collected in the same manner and at the same time, and by the same officers as the town taxes or charges or expenses of the town in which said district is located, are now assessed, levied and collected, and such relative expense shall be paid over by the supervisor of each of said towns to the corpora- tion, company, person or persons furnishing or supplying said light [Idem, § 4, as amended by L. 1896, ch. 309.] Water, Light and Sewee System. 845 L. 1901, ch. 348, §§ 1, 2, 3, 4. § 7. Town board may establish sewer system. Petition of taxpayers. — The town board of any town on the petition of a majority of the owners of real property in a proposed district, representing a majority of the taxable property therein, as appears by the last preceding completed assessment-roll, may establish a sewer system outside a village or city. The petition must describe the proposed district, and state the maximum amount proposed to be expended in the const ruofcion of such sewer system. Each petitioner shall state opposite his name the assessed valuation of the real property owned by him in such dis- trict according to the last preceding completed assessmentrroll. The petition must be signed by the petitioners and acknowledged in the same manner as a deed to be recorded. There shall be annexed to and presented with siich petition a map and plan of the proposed sewer system with specifications of dimensions and con- nections, and outlet or sewage disposal works prepared by a com- petent engineer at the expense of the petitioners. [L. 1901, ch. 348, § 1; Heydecker's Gen. L. {2d ed.), p. 4546.J Order of town hoard; appointment of commissioners. — If the town board is satisfied that the petitioners are a majority of the owners of real property in the proposed district, and own a ma- jority in value of the taxable property therein, they shall make an order establishing such district and appointing three taxpayers therein as sewer commissioners, who shall hold their oflBoes at the pleasure of the town board, [/derjij § 2. J Oath of office and undertaking of commissioners.- — Each com- missioner before entering on the duties of his office shall take the constitutional oath of office and execute to the town and file with the town clerk an official undertaking in such sum and with such sureties as the town board shall direct. The town board may at any time require any such commissioner to file a new official un- dertaking for such sum and with such sureties as the board shall direct.. [Idem, § 3. J Map and plan of system; approval of state hoard of health. — The sewer commissioners shall cause a copy of the map and plan of the proposed sewer system to be submitted to the state board of health, and if approved, it shall be filed in its office. Such map and plan may be amended with the approval of the state board of health, and if amended, it shall be filed in the office of the state board of health and of the town clerk. [Idem, § 4. J 846 Town Boaed. L. 1901, ch. 348, §§ 5, 6, 7, 8. Contracts. — The sewer commissioners of such distrlot shall ad- vertise for proposals for the consitruction of a sewer system ac- cording to such map and plan, either under an entire contract or in parts or sections as the board may determine. Such advertise- ment shall be published once in each of two successive weeks in ©adi newspaper published in the town, and if no newspaper is published therein in two newspapers published in a city or village nearest to such town. The commissioners may require a bond or a deposit from each person submitting a proposal, the liability on such bond to accrue, or such deposit to be forfeited to the town, in case such person shall refuse to enter into a contract in accord- ance with his proposal. The commissioners may accept or reject any or all proposals, and shall let the contract to the lowest bidder. No contract shall be made by which a greater amount shall be agreed tO' be paid than the maximum amount stated in the petition for the construction of such sewer, including the expense of super- intendence and inspection as provided in section six hereof. Each contract shall be executed in duplicate one of which shall be given to the contractor and the other shall be filed in the oflBce of the town clerk. \^Idem, § 5. J Engineer and inspectors. — The sewer commissioneirs may em- ploy an attorney, a supervising engineer to superintend and inspect the construction of any sewer or works connected therewith, and also such inspectors as may be necessary, and fix the compensation of such attorney, engineer and inspectors. Such compensation shall be treated as a part of the expense of construction. [Idem, § 6, as amended hy L. 1906, ch. 85.] Condemnation of real property. — If sewer commissioners are unable to agree with the owners for the purchase of real property necessary for the construction of the sewer system, they may ac- quire the same by condemnation. [^Idem, § 7.] Assessment of expense. — The sewer commissioners shall prepare and file in the office of the town clerk a map and plan of sndi dis- trict which shall show the highways and the several parcels of land therein. The expense of the construction of soich sewer shall be apportioned by such commissioners on the lands within such dis- trict in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom. After making such appor- tionment the board shall serve on each land owner a notice of the completion thereof and of the filing of such map and plan, and that at a specified time and place a hearing will be: had to consider and review the same. Such notice must be served at least six daya Water, Light and Sewee System. 847 .L. 1901, ch. 348, §§ 9, 10, 11, 12. before the hearing, personally, if such land owner can with rea- sonable diligence be found within the state, otherwise by mail addressed to tbe land owner's last known post oflBoe address. The commissioners shall meet at the time and place specified to hear objections to such apportionment, and may modify and correct the same. The sewer commissioners upon tlie completion of sucb apportionment' shall file tlie same in the office of the town clerk. The apportionment shall be deemed final ond conclusive unless an appeal is taken therefrom within fifteen days after the filing thereof. \_Idem, § 8. J Appeal. — A person aggrieved by an apportionment may, witliiu fifteen days after the filing thereof, appeal therefrom to the County Court of the county in which such district is situated. Such appeal shall be taken by a notice stating the grounds thereof, served personally or by mail upon each of the sewer commissioners and filed with the town clerk. [Idem, § 9. J Notice of appeal; reversal. — Either party may bring on the appeal on a notice of not less than ten nor more tlian twenty days. All appeals from the same apportionment must be consolidated and heard as one appeal. The County Court may affirm or re- verse the apportionment. If it be reversed on the ground that it is erroneous, unequal or inequitable, the court shall, by order of reversal, appoint threC' disinterested freeholders of the district as commissioners to make a new apportionment and no appeal sliall be allowed from such order. [Idem, § 10. J Reapportionment. — A reapportionment shall be made in the following cases: 1. By the commissioners appointed by the County Court where the original apportionment is reversed on the ground that it is erroneous, unequal or inequitable. 2. By the sewer commissioners of the districts where tlie orig- inal apportionment is reversed on any other ground. A reappor- tionment under this subdivision shall be made in like manner as the original. [Idem, § 11.] Meeting of commissioners. — The commissioners appointed by the County Court shall give notice of the time and place at which they will meet to make such reapportionment, and shall serve notice thereof, either personally or by mail, at least ten days before such meeting upon each owner of land within soioh district as finally fixed by the board of sewer commissioners. They shall meet at the time and place specified and make such reapportdon- 848 Town Board. L. 1901, ch. 348, §§ 13, 14, 15. ment in the manner herein prescribed for the sewer oommission- ers. They shall file such reapportionment in the office of tlie town clerk, and it shall be final and conclusive. [Idem, § 12.] Coriipensalion of commissioners. — Each commissioner appointed by the County Court is entitled to five dollars for each day neces- sarily spent in making such reapportionment, besides his actual necessary expenses. Such fees' and CKpenses are a charge against the town, and must be audited by the town board. The amount thereof sliall be added to the portion of the expense of constructing such sewer or sewear system which is to be assessed against prop- erty in such sewer district.. \_Idem, § 13. J Assessment on property benefited. — The sewer commissioners shall assess the expense of constructing such, sewer system on tlie property benefited in accordance with the apportionment estab- lished under this act Notice of such assessment shall be given to the owners, who may pay to the commissioners the amount assessed within thirty days after service^ of such notice. After the expiration of such thirty days the commissioners shall report to the town board the amounts assessed upon the several parcels of real property benefited and the assessments which have been paid. The town board shall direct the isane and sale of bonds for the aggregate amount of the assessments remaining unpaid. Such bonds shall be a town charge. After the sewer system is con- structed it shall be maintained by the commissioners and the cost of such maintenance shall be a charge upon the sewer district. [Idem, § 14.] Levy by town board and supervisors. — The town board shall annually apportion the amount to be raised for the payment of such bonds on the lots or parcels in default, so that the tax thereon will be the same as if an equal portion of the original assessment were then to be paid. Interest on an unpaid assessment shall be added to such tax at the rate payable by the bond or certificate of indebtedness, which must be computed to the time when the prin- cipal or an installment will become due; or if no principal will become due during the ensuing year, then the interest accruing during that j'ear upon the assessment or bonds must be levied on such lot or i>arcel. The town board shall present to the board of supervisors at its annual meeting a statement shovnng the amount due or to become due for principal and interest during the ensuing year on bonds issued under this act ; the persons liable to pay the same and the amount chargeable to each. The board of super- Watee, Light and Sewee System. 840 L. 1901, eh. 348, §§ 16, 17. vigors siiall levy such sums against the property liable and sliall atate the amount of the tax in a separate column in the annual tax-roll under the name " sewer tax." Such tax when eollected shall be paid to the supervisor and be by him applied in payment of the bonds. [Idem, § 15.] Collection of amount levied. — The amount apportioned by the sewer commissioners on any lot or parcel and any tax levied for collection thereof shall be a lien prior and siiijerior to any other lien or claim except the lien of an existing tax or local assessment. [Idem, § 16.] Repeal; effect thereof. — Ch,apter five hundred and forty-five of the laws of eighteen hundred and ninety-three and cliapter three hundred and twenty-eight of the laws of eighteen hundred and ninety-four are hereby repealed, but the repeal of such chapters shall not affect or impair any act done or right accruing, accrued or acquired, or penalty, forfeiture or punishment incurred prior to the time when this act takes effect, under or by virtue of the laws so repealed, but the same may be asserted, enforced, prose- cuted or inflicted as fully and to the same extent as if such laws had not been repealed; and all actions or proceedings civil or criminal commenced under or by virtue of the laws so repealed and pending December thirty-first, nineteen hundred and one may be prosecuted and defended to final effect in the same manner as they might under the laws then existing, unless it shall be other- wise sipecially provided by law. [Idem, § 17.] 850 Town Board. General Municipal Law, §§ 25, 26; L. 1900, ch. 234, § 1, CHAPTER LXII. OTHEE POWERS AND DUTIES OF TOWIf BOARDS. Section 1. Acquisition of lands by town board for soldiers' or other monu- ment or memorial structures. 2. Leases of public buildings to grand army posts. 3. Lease of buildings for justices of the peace. 4. Consents requisite to the establishment of hospitals or camp» for tlie treatment of pulmonary tuberculosis. 5. Collection and destruction of garbage in certain towns; pay- ment of expense. 6. Purification of water and sewerage. § I. Acquisition of lands by town board for soldiers' or other monument or memorial structures. The. governing board of a village or town, or the trustees of a monument association, may acquire not to exceed three acres of land, for the erection of a soldiers' monument, or a monument or other structure as a memorial of some distinguishing or im- portant event in the history of the state or nation, and for laying out such lands as a public park or square, if such lands are vacant or have buildings thereon not exceeding two thousand five hundred dollars in value, and if a judge of the county, or a justice of the Supreme Court of the district in which such, memorial is to be erected, shall give his written approval of the acquisition of such lands for such purposes. [^General Municipal Law (L. 1892, ch. 685), § 25 ; Heydecher's Gen. L. {'id ed.), p. 1160.] § 2. Leases of public buildings to grand army posts. A municipal corporation may lease, for not exceeding five years,, to a post or posts of the Grand Army of the Eepublic, or other veteran organization of honorably discharged Union soldiers, sail- ors or marines, a public building or part thereof, belonging to such municipal corporation, except schoolhouses in actual use as such, without expense, or at a nominal rent, fixed by the board or council having charge of such buildings. {^General Municipal Law (L. 1892, ch. 685), § 26; Heydecker's Gen. L. (2d ed.), p. 1160.] § 3. Lease of buildings for justices of the peace. The town boards of any town in a county adjoining or contain- ing a city of the first or second class may from time to time lease Othee Powees ai^d Duties of Town Boards. 851 L. 1900, ch. 234, § 2; Public Health Law, § 218a; L. 1894, ch. 666, §§ 1, 2. buildings or parts of buildings in any portion of said town for tbe use of justices of the peace of said town to hold court therein. [L. 1900, ch. 234, § 1, as amended hy L. 1901, ch. 256; Heydech- er's Gen. L. {2d ed.), p. 4543.J That there shall not he leased for the purposes set forth in sec- tion one of tliis act more than one building for each justice of the- peace in said town. [Idem, § 2.] § 4. Consents requisite to the establishment of hospitals or camps for the treatment of pulmonary tuberculosis. A hospital, camp or other establishment for the treatment of patients sujBfering from the disease known as pulmonary tuber- culosis, shall not be established in any town by any person, asso- ciation, corporation or municipality, unlessi the board of super- visors of the county, and the town board of the town, shall each adopt, a resolution authorizing the establishment thereof, and de- scribing the limits of the locality in which the same may be estab- lished. [Public Health Law (L. 1893, ch. 661), § 218a, as inserted by L. 1903, ch. 638.] § 5. Collection and destruction of garbage in certain towns;, payment of expense. Within any village having over ten thousand inhabitants it shall be lawful for the trustees of such village, and within any town having over ten thousand inhabitants, or within any district in any such town established by the town board of such town, it shall be lawful for the town board of such town, to provide for the col- lection of and to cause to be consumed by fire or heat and to pro- hibit the throwing, casting or deposit in any body or stream of water, or upon any ash heap or other place than such as may be provided by them within saich village, town or district, any ani- mal or vegetable refuse, dead animal, carrion, offal, swill or gar- bage. And it shall be lawful for the toAvn board of any such, town, or the trustees of any such village, to contract for the col- lection and for the consumption by heat or fire, of any such refuse or other aforesaid matter, or for the purchase, maintenance and operation of any appliances for the collection and consumption thereof. [L. 1894, ch. 666, § 1; Heydecker^s Gen. L. {2d ed.), p. 4478.] Any person offending against any soich provision as aforesaid made by any such town board or trustees for the collection, or for 852 Town Boaed. L. 1894, ch. 666, § 3; L. 1894, ch. 667, § 1. tiie prohibition of the throwing, oasting or deposit, o£ any sncih refuse or other aforesaid matter shall be deemed guilty of a misdemeanor, lldem, § 2. J Any expense incurred in any town, or any disti-ict in any town, pursuant to the provisions of this act shall be levied, assessed and collected upon the taxable property in the town or district as to which the same is incurred in the same manner at the same time and by the same officers as the town taxes, charges or expenses of such town are assessed, levied and collected, and shall be paid over to the supervisor of such town, and by him applied to the payment of such expense. Any expense incurred in any village, pursuant to the provisions of this act, shall be annually raised as a part of the expenses of such village, and shall be levied, assessed and collected in the same manner that other expenses of such vil- lage are raised and shall be kept separate from the other funds of such village and shall be applied by the trustees thereof to the payment of such expenses. [^Idem, § 3. J § 6. Purification of water and sewerage. The local authorities of the several cities, towns and villages of the state having charge of the supply of water and the care of sevrorage in their respective localities, are hereby authorized, on behalf of their cities, towns and villages, respectively, to enter into contracts with the owners of any process or apparatus for the purification of water and sewei*age whether protected by patents or not, and either contract for the use of apparatus and process for a term of years or for the purchase of the same as to them shall seem advisable. \_L. 1894, ch. 667, § 1 ; Heydecher's Gen, L. (2d ed.), p. 4478.] § 6a. Tree warden; protection of shade trees; appropriation. Twenty-five or more persons residing in any town and assessed upon the last preceding assessment-roll thereof may file with the town clerk a petition for the appointment of a tree warden in such town. Within thirty days after the filing of such petition, the town board may appoint a tree warden to serve for one year from the date of such appointment. He shall receive a reasonable compensation for his services to be fixed by the town board. He shall have the full care and control of all public shade trees in the town, and shall prosecute complaints for malicious injury to, or unlawful acts concern- ing, public shade trees. He shall have charge of the expenditure of any public money appropriated or granted for setting out shade trees in the town. A town board of a town in which a tree warden is appointed may, by resolu- tion, appropriate annually not exceeding two hundred dollars, to be known as the shade tree fund, and which shall be used and expended by the tree warden for the setting out and preservation of shade trees along the highways in such town. [Town Law, § 45, added by L. 1905, ch. 502, in effect May 17, 1905.] Town BoAEr) as Local Board of Health. 853 Public Health Law, § 20. CHAPTER LXIII. TCWN BOARD AS LOCAL BOARD OF HEALTH. SkctioK 1. Town board to act as local board of health; health officer of town. 2. General powers and duties of local boards of health; rules and regulations; suppression of nuisances; subpoenas; warrants of arrest; penalties. 3. Board to supervise registration of births, marriages and deaths; physicians, midwives, clergymen, etc., to furnish cer- tificates; cost of registration a town charge. 4. Burial and burial permits. 6. Contagious and infectious diseases ; duties of boards of health ; reports of health officers to state commissioner of health; dis- ease in alms-house. 6. Complaints as to nuisances; order of board. 7. Removal of nuisances by board or its officers; expense to be paid by owner. 8. Expense of abatement of nuisances a lien upon the premises. 9. Jurisdiction of town board of health over city or village; unit- ing of towns and villages in a combined sanitation and regis- tration district. 10. Expenses incurred by town board of health a town charge; property of village exempted from taxation therefor. 11. Mandamus against local board of health at instance of state board of health. 12. Duties of local boards of health as to the suppression of in- fectious and contagious disease affecting domestic animals. § I. Town board to act as local board of health ; health officer of town. There shall continue to be local boards of health and health offioersi in the several cities, villages and townsi of the state.' . In towns the board of health shall consist of the tovra board and another citizen of the town of full age biennially ap- pointed by the town board at a meeting thereof after each bien- nial town meeting for the term of two years from and after such town meeting and until his successor is appointed. The state com- missioner of health shall appoint for each municipality except in the cities of the state on the nomination of tlie local board of health, a competent physician, not a member of the local board of health, 1. Popper to sue and be sned. A board of health is not a, corporation, and cannot sue or be sued unless expressly authorized by statute. People v. Supervisors of Monroe, 18 Barb. 567; Gardner v. Board of Health, 4 Sand. (6 Super. Ct.) 153; affd. 10 N. Y. 409. 854 Town Boaed. Public Health Law, § 21. to be the health officer of the municipality .2 The term of office of the health officer shall be four years and he shall hold office till the appointment of his succesaor. If a local board of health fails to nominate a physician for ap- pointment to the position of health officer within thirty days after the expiration of the term of office of the health officer, or if a vacancy in the office is not filled within thirty days, the state commissioner of health shall appoint a competent physician to the position, or, should a local board of health nominate a physician for appointment to the position of health officer, who, in the judgment of the state commissioner of health is not properly qualified for appointment to the position, the state commissioner of health shall notify the local board of health of such fact, and thereupon such local board of health shall within thirty days from the date of such notice present to the state commissioner of health the name of another physician for appointment to the position of health officer, failing in which, the state com- missioner of health shall appoint a physician to the position. He may be removed for just cause by the local board of health after a hearing, such removal must be approved by the state commissioner of health. The health officer need not reside within the village or town for which he shall be chosen, but unless he shall, he must reside in an adjoining town. If the proper authori- ties shall not fill any vacancies occurring in the membership of any local board within thirty days after the happening of such vacancy, the mayor of the city, president of the village, or supervisor of the town shall appoint a competent person to fill the vacancy for the unexpired term, which appoint- ment shall be immediately filed in the office of the county clerk, and a dupli- cate thereof filed with the clerk of the municipality for which such appoint- ment is made.3 Notice of the membership and organization of every local board of health shall be forthwith given by such board to the state department of health. The term municipality, when used in this article, means the city, village or town for which any such local board may be or is appointed. The provisions herein contained for the appointment and number of members of boards of health, and for the appointment of health officers, shall apply to all towns and villages, whether such villages are organized under general or spe- cial laws. [Public Health Law (L. 1893, oh. 661), § 20^ in part, as amended hy L. 1897, ch. 282, L. 1902, ch. 339, L. 1903, ch. 383, L. 1904, ch. 484, and L. 1906, ch. 253; Heydecker's Gen. L. (2d ed.), p. 2006.] §! 2. General Powers and duties of local boafds of health; rules and regulations; suppression of nuisances; subpoenas; warrants of arrest; penalties. Every such local board of health shall meet at stated intervals to be fixed by it, in the municipality. The presiding officer of every such board may call special meetings thereof where in his 2. Compelling action by toira board. If the town board fail to com- ply with the provisions of this section any citizen of the town may apply to the court for a mandamus to compel such compliance, it being a fixed and established rule that every citizen has a right to compel the performance by public officers, of the duty imposed upon them of executing the laws of the state which are enacted for the benefit of the community. People ex reli Boltzer v. Daley, 37 Hun, 461. For full provisions relating to the powers and duties of local boards of health, see Boyce's Health Officers' Manual, 1902. 3. Vacancies. The determination of a county judge as to whether a vacancy in the membership of a board of health should be filled without de- lay, is' a matter of discretion. The fact that a member of the board has a. temporary residence during the winter months in a city a short distance from the village, does not constitute such a removal from the village as to make the office vacant. Matter of Board of Health of New Rochelle, 64 Hun, 634; 19 N. Y. Supp. 131; 46 N. Y. St. Rep 147. The provision of this section formerly authorizing a county judge to fill a vacancy in a local board is un- constitutional. People ex rel. Bush v. Houghton, 182 N. Y. 301. Town Board as Local Boaed op Health. 855 Public Health Law, § 21. judgment the protection of the public health of the municipality requires it, and he ahall call such meeting upon the petition of at least twenty-five residents thereof, of full age, setiting forth the necessity of such meeting. Every such local board shall prescribe tlie duties and powers of the local health officer, who sihall be its chief executive officer, and direct him in the performance of his duties, and fix his compensation. In addition to his compensa- tion so fixed, the board of health may allow the reasonable ex- penses' of said health officer in going to, attending and returning from the annual sanitar}' conference of health officers, or equivalent meeting, held yearly within tlie state, and may also in its judg- ment whenever the services rendered by its health officer during any year are extraordinary, or extra hazardous, by reason of epi- demic, or otherwise, allow to him such further sum in addition to said fixed compensation as shall be audited by the town board of a town or by the board of trustees of a village which said ex- penses and said additional compensation sliall be a diarge upon and paid by the municipality as provided in section thirty of this act' Every such local board shall make and publish from time to time all siich orders and regnlntions as they may deem necessary 4. Orders and regulations. An order made by a town board of health at a meeting at which the citizen member was not present, not having been notified to attend, is invalid. Schoepflin v. Calkins, 5 INIise. 159; 25 N. Y. Supp. 696. There is no question but what the legislature may in the ex- ercise of its constitutional authority confer on boards of health the power to enact sanitary ordinances having the force of law within the districts over which their jurisdiction extends. PoUnskij v. People, 73 N. Y. 65; Health Department v. Knoll, 70 N. Y. 530; Metropolitan Board of Health v. Heister, 37 N. Y. 661 ; People ex rel. Cox v. Justices of Sessions, 7 Hun, 214. Regula- tions so adopted have the force of a statute, although they forbid and pre- scribe penalties for common law offenses. People ex rel. Meyer v. Special Sessions, 12 Week. Dig. 367. But the ordinances must be reasonable and de- clare with certainty the object and purpose for which they are enacted. },lc- Nall V. Kales, 61 Hun, 231: 16 N. Y. Supp. 7. Ordinances adopted by the board of health of a town forbidding the hav- ing or keeping within the town of any refuse vegetable or animal matter in a decayed or decaying condition and the boiling or cooking of garbage or re- fuse in an open vat or kettle permitting exhalations to escape into surround- ing air, were held reasonable and valid. Town of Newtoivn v. Lyons, 11 App. ,Div. 105; 42 N. Y. Supp. 241. But an ordinance providing that: "No cow shall be kept within two hundred feet of any dwelling in the village of Flush- ing without a special permit obtained from the board of health," was held invalid upon the ground that while it would have been competent for the board to have forbidden the keeping of cows within two hundred feet of a. dwelling house, it was not authorized to license cow stables in certain cases. 856 Town Boaed. Public Health Law, § 21. and proper for the preservation of life and health, and the execu- tion and enforcement of the Public Health Law in the munici- pality. It shall make without publication thereof, such orders and regulations for the soippression of nuisances, and concerning all other matters in its judgment detrimental to the public health in special or individual cases, not of general application, and serve copies thereof upon the owner or occupant of any premises whereon such nuisances or other matters may exist, or upon which may exist the cause of other nuisances to other premises, or cause the same to be conspicuously posited thereon.' It may employ such persons as shall be necessary to enable it to carry into efFect its orders and regulations, and fix their compensation. It may issue subpoenas, compel the attendance of witnesses, administer oaths to witnesses and compel them to testify, and for such pur- poses it shall have the same powers as a justice of the peace of the state in a civil action of which he has jurisdiction.' It may since such a power is not conferred by the statute. Village of Flushing v. Carraher, 87 Hun, 63; 33 N. Y. Supp. 951. Where the legislature has fixed a standard of limitation or rights, it is not competent for the board of health to impose additional restrictions. Metropolitan Board of Health v. Schmades, 10 Ab.. Pr. (N. S.) 205; 3 Daly, 282. 5. Suppression of nuisances. The board of health, while authorized to order the suppression of nuisances, cannot make such an order unless there be a nuisance in fact, and it is the actual existence of that fact which gives them jurisdiction to act. The determination of the board as to the ex- istence of the nuisance is not final and conclusive upon the owner of the premises, where it is alleged to exist. People ex rel. Gopcutt v. Board of Health, 140 N. Y. 1 ; 35 N. E. 320. The question of whether or not the nui- sance exists is always an open one, upon which the jurisdiction of the board is based. Coe v. Schultz, 47 Barb. 64; 2 Abb. Pr. (N. S.) 193; see, also. Village of Flushing v. Carraher, 87 Hun, 63; 33 N. Y. Supp. 951, in which it was held that a declaration by a, board of health that a particular establishment is a nuisance does not preclude the owner from contesting the question in the courts. A resolution declaring the damming of the water in a particular river to be a dangerous nuisance and detrimental to the health of the inhabitants, and ordering such nuisance to be removed within three days, is too vague, indefinite and uncertain to authorize the removal of a. mill dam which has been in existence for more than sixty years. Rogers v. Barker, 31 Barb. 447. 6. Issue of subpoenas and taking of testimony. A subpoena may be enforced by the board of health in the manner authorized by sections 854-862 of the Code of Civil Procedure, and a witness who, without reason- able cause refuses to be examined or to answer a legal and competent ques- tion may be committed to jail under a warrant issued by a judge of the court of record. Code Civ. Proc, sec. 856. Town Board as Local Boakd of Health. 857 Public Health Law, § 21. designate by resolution one of its members to sign and issue such subpoenas. No subpoena shall be served outside the jurisdiction of the board issuing it, and no witness shall be interrogated or compelled to testify upon matters not related to the public health. It may issue warrants to any constable or policeman of the mu- nicipality to apprehend and remove such persons as can not other- wise be subjected to its orders or regulations, and a warrant to the sheriff of tlie county to bring to its aid the power of the county whenever it shall be necessary to do so. Every warrant shall be forthwith executed by the officer to whom directed, who shall have the same powers and be subject to the same duties in the execu- tion thereof, as if it had been duly issued out of a court of record of the state. Every such local board may prescribe and impose penalties for the violation of or failure to comply with any of its orders or regulations, not exceeding one hundred dollars for a single violation or failure, to be sued for and recovered by it in the name and for the benefit of tlie municipality ; and to maintain actions in any court of competent jurisdiction to restrain by in- junction sucli violations, or otherwise to enforce such orders and regulations.' Whenever such local board of health, in any in- incorporated village shall deem the sewers of such village insulB- cient to properly and safely sewer such village, and protect the public health, it shall certify such fact in writing to the board of trustees of such village, stating and recommending what additions or alterations should in the judgment of such board of health be made with its reasons therefor, and tliereupon such board of trustees shall immediately convene and consider such recommen- dations, and if approved by such board of trustees, the same shall be certified to the state commissioner of health for his approval, and if such recommendations shall be approved by the state commissioner of health, it shall be the duty of the board of trustees or other board of such village, having jurisdiction of the construction of sewers therein, if there be such a board, whether sufficient funds shall be on hand for such purpose or not, to forthwith make such additions to or alterations in the 7. Penalties for violation. Town boards of health should fix a definite penalty for the violation of their regulations, and the amount so fixed should be the amount recovered in an action for such a penalty, and not a sum to be established at the trial for the off^ense. McNall v. Kales, 61 Hun, 231, 16 N. Y. Supp. 7; 40 N. Y. St. Rep. 719. In the case of Board of Health of New Rochelle v. Valentine, 32 N. Y. St. Rep. 919; 11 N. V. Supp. 112, it was held that an action for a penalty may be brought in the name of the board. See, also, Board of Health v. Copcutt. 140 N. Y; 12; 35 N. E. 320. 858 Town Boaed. Public Health Law, § 22. sewers of such village and execute such recommendations, and the expenses thereof shall be paid for wholly by said village in the same manner as other village expenses are paid or by an assessment of the whole amount against the property benefited, or partly by the village and partly by an assessment against the property benefited, as the board of trustees of such village shall by resolution determine. If the board of trustees shall determine that such expenses shall be paid partly by the village and partly by an assessment against the property benefited, as authorized by this section, it shall in the resolution making such determination fix the proportion of such expense to be borne by each, and the proportion thereof to be raised by an assessment against the property benefited shall be assessed and collected in the manner provided by the village law for the assessment and collection of sewer assess- ments. Said village is hereby authorized to raise such sum as may be necessary for the payment of the expenses incurred, which are a village charge, if any, as herein provided, in addition to the amount such village is now authorized to raise by law for corporation purposes, and such board shall have the right to acquire such lands, rights of way, or other easements, by gift, or purchase, or in case the same can not be acquired by purchase may acquire the same by condemnation in the manner provided by law. [Public Health Lam (L. 1893, ch. 661), § 21, as amended ly L. 1895, ch. 203, L. 1903, ch. 222, L. 1903, ch. 383, and L. 1906, ch. 39; Hey decker's Gen. L. (2d ed.), p. 2007.] § 3- Board to supervise registration of births, marriages and deaths; physicians, midwives, clergymen, etc., to furnish certifi- cates; cost of registration a town charge. Every such local board shall supcTvise and make compleite tlie regisitration of all births, marriages and deaths occurring within the municipality, and the cause of deatli and the finding of cor- oners' juries, in accordance with the methods and forms prescribed by the state department of health, and, afteir registration, promptly forward the certificates of such births, marriages and deaths to the state bureau of vital statistics. Every physician or midwife attending at the birth of a child, and no physician or midwife being in attendance, the parent or custodian of a child bom, and every groom, officiating clergyman or magistrate at every marriage shall 8. Penal provisions respecting the public healtli. Section 397 of the Penal Code provides that: "A person who wilfully violates any pro- vision of the health laws, the punishment for violating which is not other- wise prescribed by those laws or by this code, and a person who wilfully violates or refuses or omits to comply with any lawful order or regulation prescribed by any board of health or health officer, or any regulation lawfully made or established by any public officer under authority of the health laws, is punishable by imprisonment not exceeding one year or by a, fine not ex- ceeding $2,000, or by both." It is further provided in section 396 of the Penal Code that; "A person who wilfully opposes or obstructs a health officer or physician charged with the enforcement of the health laws in performing any legal duty, is guilty of a misdemeanor." As to public nuisances generally, see Penal Code, sees. 385-388. Town ,T5oabd as Local Boabd of Health. 859 Public Health Law, § 23. cause a certificate of such birth or marriage to be returned within thirty days thereafter to the local board of health or person designated by it to receive the same, which shall be attested, if a birth, by the physician or mid- wife, if any in attendance, no physician or midwife being in attendance, by the parent or custodian of a child born, and, if a marriage, by the officiating clergyman or magistrate. The person making such certificate shall be entitled to the sum of twenty-five cents therefor, which shall be a, charge upon, and paid by the municipality where such birth, marriage or death occurred. The cost of such registration, not exceeding twenty-five cents for the com- plete registered record of a birth, marriage or death, shall be a charge upon the municipality .9 The charge for a copy thereof shall be fixed by the board, not exceeding the same sum for a complete copy of a single registered record and the_ additional sum of twenty-five cents if certified to. Such copies shall be furnished upon request of any person, and when certified to be correct by the president or secretary of the board or local registering officer designated by it shall be presumptive evidence in all courts and places of the facts therein stated. The physician or midwife attending at ihe birth of a child, shall, at the time of filing such certificate of birth, unless it contains the given name of such child^ cause to be furnished to the parents or custodian of such child a name card, which shall be filled in by such parent or custo- dian with the given name of such child when named, and immediately filed in the same office where certificates of birth are filed. Blank name cards shall be furnished by local boards of health in the form prescribed by the state de- partment of health, the expense of which shall be a charge upon the munici- pality. Rules and regulations shall be adopted by local boards of health pro- viding for the enforcement of this section. [Public Health Law (L. 1893, ch. 661), § 22, OS amended by L. 1897, ch. 138, L. 1903, ch. 383, and L. 1904, ch. 392; Heydeoker's Gen. L. {2d ed.), p. 2009.] § 4. Burial and burial permits. Every such local board shall prescribe sanitary regulations for the burial and removal of corpses, and shall designate the persons who shall grant peirmits for such burial, and permits for the transportation of any corpse which is to be carried for burial 9. Cost of registration a toim charge. The statute imposes upon every local board of health the duty of supervising and making complete the registration of all births, marriages and deaths occurring within its juris- diction ; and the cost of so doing, not to exceed the amount prescribed in the act, is a town charge which must be audited and allowed by the board of town auditors. People rx rel. Wemmell v. Toirni Auditors, 34 Hun, 336. Records as evidence. While it was the primary object of the legislature to furnish information on the subject of vital statistics for sanitary pur- poses, yet the language employed in the statute is broad enough to make the certificates of the cause of death of persons on file in the office of the town clerk in which such persons died, admissible in evidence upon the trial of an action, although such certificates are not under oath; and such certificates are prima facie evidence of the facts therein set forth. Woolsey v. Trustees of Ellenville, 84 Hun, 236; 32 N. Y. Supp. 546; see, also, Keefe v. Supreme Council, 37 App. Div. 276; 55 X. Y. Supp. 827. 860 Town Boaed. Public Health Law, § 24. beyond tlie county where the death occurred. Where suoh per- sons are appointed by the board of health of any town, one of such persons shaE be the town clerk of such town. Every undertaker^ sexton or other peirson having charge of any corpse, shall procure a certificate of the deatli and the probable cause duly certified by the physician in attendance upon the deceased during his last ill- ness, or by the coroner where an inquisition is required by law,, and if no physician was in attendance, and no inquest has been, held or required by law, an affidavit stating the circumstances, time and cause of death, and sworn to by some credible person known to the officer granting the permit, and there shall be no burial or removal of a corps© until such certificate or afl5davit has been presented tO' tlie local board or to the person designated by it, and thereupon a permit for such burial or removal has been ob- tained. When application is made for a i)ermit to transport a corpse over any railroad or iipon any passenger steamboat within the sit-ate, the board of health, or the officers to whom such applica- tion is made, shall require such corpse to be inclosed in a hermeti- cally sealed casket of metal or other indestructible material, if tlie cause of death shall have been from a contagious or infectious disease. [Public Health Law (L. 1893, ch. 661), § 23, as amended by L. 1899, ch. 211; Heydecker's Gen, L. {2d ed.), p^ 2010.] § 5. Contagious and infectious diseases; duties of boards of health ; reports of health officers to state commissioner of health ; disease in alms-house. Every such local board of health shall guard against the intro- duction of contagious and infectious disease® by the exercise of proper and vigilant medical inspection and control of all persons and things arriving in the municipality from infected places, or Tvhich from any cause are liable to communicate contagion. It shall require the isolation of all persons and things infected with or exposed to such diseases, and provide suitable places for the treatment and care of sick ]>erson9 who can not otherwise be pro- 10. Burial permits. A permit for the burial of the dead, with a. transit permit obtained from the board of health of the place where the death occurs,^ authorizes a body to be buried either in the county where the death occurred or in any other county without any permit in the latter case from the local board of health. Eiokelherg v. Board of Health of Newtown, 47 Hun, 371. Towjj BoABD AS Local Boaed of Health. 861 Public Health Law, § 24. Tided for." It sliall prohibit and prevent all intercourse and com- munication with or use of infected premibes> places and things, and require, and, if necessary, provide the means for the thorough purification and cleansing of the same before general inteTcourse with the same or use thereof shall be allowed." It shall report to the state department of health, promptly, the facts relating to contagious and infectious diseases, and every case of small-pox or varioloid ^vithin the municipality. Health officers of villages and towns shall report in writing once a month to the stat© depart- ment of health all cases of such infectious and contagious diseases as may he required by the state department of health, and for such reporting the health officer sliall be paid by the municipality em- ploying him, upon the certification of the state department o£ health, a sum not to exceed twenty cents for each case so reported ; and the health officer shall report annually on or before the first day of January in each year the number of cases of consumption which have existed in his jurisdiction during that year, and for each case thus reported he shall receive a sum not to exceed ten cents, to be paid in the same manner as the other like charges are paid. It shall provide, at stated intervals, a suitable supply of vaccine virus, of a quality and from a source approved by the state department of health, and during an actual epidemic of small-pox obtain fresh supplies of such virus at intervals not exceeding one week, and at all times provide thorough and safe vaccination for all persons in need of the same. If a pestilential, infectious or contagious disease exists in any county almshouse or its vicinity, and the physician thereof shall certify that such disease 11. Quarantine. To justify the isolation of persona infected with or exposed to contagious and infectious diseases the fact must exist tjiat such persons are so infected or have been so exposed. No authority is given by the statute to the board of health or health officer to quarantine a person simply because he refuses to be vaccinated, and to continue him in quaran- tine until he consents to such vaccination. Matter of Smith, 146 N. Y. 68; revg. 84 Hun, 465; 32 N. Y. Supp. 317. The mere fact that a person has been exposed to the smallpox, although he refuse to be vaccinated, does not authorize the quarantine of such person ; but conditions for the communi- cation of the disease must exist. Smith v. Emery, 11 App. Div. 10; 42 N. Y. Supp. 258. 12, Exposing person affected -nrltli a contagions disease. Section 434 of the Penal Code provides that: "A person who wilfully exposes him- self or another, affected with any contagious or infectious disease in any public place or thoroughfare, except upon his necessary removal in a manner not dangerous to the public health is guilty of a misdemeanor." 862 Town Boaed. Public Health Law, § 25. is likely to endangeir the health of its inmates, the county superin- tendeint of the poor may cause such inmates or any of them to be removed to such other suitable place in the county as the local board of health of the municipality where the alms-house is situ- ated may designate there to be maintained and provided for at the expense of the county, with all necessary medical care and at- tendance until they shall be safely returned to such alms-house or otherwise discharged. The boards of health of Uie cities of New York, Brooklyn, Buffalo, Albany and Yonkers, shall report promptly to the state department of health all cases of small-pox, typhus and yellow fever and cholera and the facts relating thereto. [Public Health Law (L. 1893, ch. 661), § 24, as amended by L. 1903, ch. 383; Heydecler's Gen. L. {2d ed.), p. 2010.J § 6. Complaints as to nuisances; order of board. Every such board shall leceive and examine into all compkiuts made by any inhabitant concerning nuisances', or causes of danger or injury to life and health within the nninicipality, and may enter upon or within any place or premises where nuisance® or conditions dangerous to life and health or which are the cause or nuisances existing elsewhere are known or believed to esist, and by its members or other persons designated for tliat purpose, inspect and examine the same. The ownersi, agents and occupants of any such premises shall permit such sanitary examinations to be made, and the board shall furnish such owners, agents and occupants vdth a written statement of the results and conclusions of any such ex- amination. Every such local board shall order the suppression and removal of all nuisances and conditions detrimental to life and health found to exist within the municipality." Whenever the state department of health shall by notice to the presiding officer of any local board of health, direct him to convene such local board to take certain definite proceedings concerning which the state department of health shall be satisfied that the action recom- 13. Poirers of board as to nuisances. To justify a board of health in determining the exiatence of a nuisance facts must exist tending to show that the thing condemned is or is likely to become a nuisance. Unless such facts exist there is no justification for the exercise by the health officers of their jurisdiction. The question of the existence of a nuisance is in each case jurisdictional. If there is no nuisance the officers have no authority to act. Coe V. SchuUz, 47 Barb. 64; 2 Abb. Pr. (N. S.) 193; People ea rel. Copeutt v. Board of Health, 140 N. Y. 1 ; 35 N. E. 320; Vnderwood v. Greene, 42 N. Y. 140. Town Boaed as Local Board of Health. 86j Public Health Law, § 26. mended by them is necessary for the public good, and is within the jurisdiction of such board of health, such presiding officer shall convene such local board, which shall take the action directed. [Public Health Law (L. 1893^ ch. 661), § 25, as amended by L. 1903, ch. 383; Heydecker's Gen. L. (2d ed.), p. 2011. J § 7. Removal of nuisances by board or its officers; expense to be paid by owner. If the owner or occupant of any premises whereon any nuisance or condition deemed to be detrimental to the public health exist or the cause of the existence elsewhere, fails to comply with any order or regulation of any such local board for the suppression and removal of any such nuisance or other matter, in the judgment of the board detrimental to the public health, made, served or posted as required in this article, such boards or their servants or employes may enter upon the premises to which such order or regulation relates', and suppress or remove such nuisance or otlier matter. The expense of such suppression or removal shall be paid by thei ownei- or occupant of such premises, or by the person who caused or maintained such nuisance or other matters, and the board may maintain an action in the name of the municipality to recover such expense, and the same when recovered shall bo paid to the treasurer of the municipality, or if it has no treasurer to its chief fiscal officer, to be held and used as the funds of the municipality. \\'henever the suppression or removal of such nuisance or con- ditions detrimental to health demand the immediate expenditure of money, every such local board of health shall be authorized to use for such purpose any money in the hands of the board, or may call on the city council, village trustees or town board for such money or it may borrow the same on the credit of the municipality. All such moneys so expended or borrowed shall be immediately repaid to the fund or source whence they were received on the recovery of the same by action or otherwise Notice to oiraer. A board of health before a final determination as to the existence of a nuisance should give a reasonable notice to the person against whose rights the decision will operate, to enable him to defend him- self; the omission of such notice is fatally defective. People ex rel. N. Y. G. & H. R. R. R. Co. V. Board of Health, 58 Hun, .505; 12 N. Y. Supp. 561; Peo- ple ex rel. Savage v. Board of Health, 33 Barb. 344 ; 12 Abb. Pr. 88 ; 20 How. Pr. 458. Suppression of alleged nuisance. A town board of health has no juris- diction to suppress a, nuisance unless proof is made before tlie board that a nuisance exists. The board cannot impose a fine upon u, person who tears up and obstructs a drain contrary to the rules of the board, where it does not appear by proof produced before the board that the obstructed drain was a nuisance, and where the person obstructing the drain has not been cited to appear before the board and show cause why he should not be ordered to remove the obstruction. Town of Fayette v. Greenleaf, 44 Misc. 352, 89 N. Y. Supp. 1093. Fnbllc nuisances. As to what are public nuisances, and as to the crime of maintaining public nuisances, see Penal Code, sees. 385-386. 864 Town Boaed. Public Health Law, § 28. from the persons' responsible for the expenses of guppression or removal." [Public Health Law (L. 1893, ch. 661), § 26, as amended by L. 1903, ch. 383; Heydecker's Gen. L. {2d ed.), p. 2012.] § 8. Expense of abatement of nuisances a lien upon the premises. If execution upon a. judgment for the recovery of the expense of the suppression or removal of a nuisance or other matter, pur- suant to an order or regulation of any such local board, is re- turned wholly or in part unsatisfied, such judgment, if docketed in the place and manner required by law tO' make a judgment of a court of record a lien upon real property, shall be a first lien upon such pi'emises, having preference over all other liens and incumbrances whatever. The board may cause such premises to be sold for a terra of time for the payment and satisfaction of such lien and the expenses! of tbe sale. Notice of such sale shall be published for twelve weeks successively, at least once in each 14. Abatement of nuisances. A board of health may abate a nuisance of a public character, and exercise every power necessary to this end, but it cannot go into the domain of public improvement and erect buildings and construct drains not necessary to the abatement of a nuisance and impose the burden upon the individual or his property. Haag v. City of Mt. Ver- non, 41 App. Div. 366; 58 N. Y. Supp. 581. The law confers upon boards of health very extensive powers. When acting in good faith, and when the public health or comfort demands summary procedure on their part, they are justified in taking possession of, purifying, or even destroying the build- ings or other property of a citizen. Regan v. Fosdick, 19 Misc. 489 ; 43 N. Y. Supp. 1102. If the only way in which a nuisance can be abated is by the destruction of a building, such destruction is authorized. Health Department V. Dassori, 21 App. Div. 348; 47 N. Y. Supp. 641. The abatement of a nuisance and the charge of the expense thereof upoa the owner or occupant causing the nuisance, should be exercised only in ex- treme cases, and then only upon notice and hearing. People v. Wood, 62 Hun, 131; 16 N. Y. Supp. 664. It seems that whoever abates an alleged nuisance and thus destroys and injures private property, or interferes with private rights, whether he be a public officer or a private person, unless he acts under a judgment or order of the court having jurisdiction, does it at his peril, and when his act is challenged in the regular judicial tribunals it must appear that the thing abated was in fact a nuisance. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; 35 N. E. 320. Under the act from which this section was derived it was held that a town board of health may lawfully make an order for the suppression and removal of a nuisance consisting of the discharge of sewage on lands of a town by a city. Bell v. Cili/ of Rochester, 58 Hun, 602; 11 N. Y. Supp. 305. Town Board as Local Board ov Health. 865 Public Health Law, § 28. week, in a newspaper of the city, village or town, or if no newsr- paper is published therein, in the newspaper published nearest to such premises. If the owner or occupant of the premises, or his agent, is known, a copy of such notice shall be served upon him, either personally, at least fourteen days previous to the sale, or by mail at least twenty-eight days prior thereto. The premises shall be sold to tbe person offering to take them for the shortest time, paying the amount unpaid on such judgment and interest and tbe expenses of sucih notice and sale. A certificate of the sale, signed and acknowledged by the president and secretary of the board, shall be made and delivered to the purchaser, and may be recorded as a conveyance of real property, and the purchaser shall thereupon be entitled to the immediate possession of such premises, and, if occupied, may maintain an action or proceeding to recover the possession thereof against the occupant, as against a tenant of real property holding over after the expiration of his term ; and the cost of any such action or proceeding, if not paid by the occupant, shall also be a lien upon such premises, having the Siame preference as the lien of such judgment, and the right of the purchaser to such premises shall be extended for a longei* term, which shall bear the same proportion to the original term as the amount of such costs bears to the amount paid by the pur- ''haser on such sala The term of the purchaser at any such sale shall commence when he shall have acquired possession of the premises sold. At any time within six months after recording such certificate, the owner of the premises or any lessee, mortgagee or incumbrancer thereof, or of any part of the same, may redeem the premises or any such part from such sale by paying to the purchaser the amount paid by him on the sale, and all costs and expenses incurred by him in any action or proceeding to recover possession with interest at the rate of ten per cent per annum thereon. If redemption is made by the- owner, the right of the purchaser shall be extinguished; if by a lessee, the amount paid shall be applied as a payment upon any rent due or which may accrue upon his lease; if by a mortgagee or an incumbrancer, the amount paid shall be added to his mortgage, incumbrance or other lien, or if he have more than one to the oldest, and shall thereafter be a part of such mortgage, lien or incumbrance and enforceable as such. [Puhlic Health Law (L. 1893, ch. 661), § 28; Hey- decker's Gen. L. (2d ed.), p. 2012.] '865a Town Boaed. Public Health Law, §§ 25, 25b. t ' § 8a. Removal of accumulation of water tending to breed mosquitoes; payment of expense. Owner to hear all or part of expense of removal. — Whenever the local board of health of a municipality shall determine that any accumulation of water wherein mosquito larvae breed, constitutes a nuisance or a danger or injury to life or health, tlie owner or owners of the premises on which the breeding place is located shall bear the expense of its suppression or removal, or so much thereof as the local board may have determined to be equitable as here- inafter provided, and for the amount thereof an action may be maintained in the name of the municipality and the same shall become a first lien on the premises as provided by sections twenty-six and twenty-seven of this article. [Puhlic Health Law (L. 1893, ch. 661), § 25, added by L. 1906, ch. 583.] Assessing cost on property benefited. — If such local board shall determine, in its discretion, that, owing to the natural conditions which are favorable to the breeding of mosquitoes and owing to the benefits to be secured to the public by the suppression of such conditions, some part or all of the expense of suppressing or removing a breeding place for mosquitoes should, in equity, be borne by the owners of the property which will be benefited by such sup- pression or removal, the local board shall make application as hereinafter provided, for the appointment of three commissioners, and the county court of the county in which are situated the premises whereon the breeding place is located, or, in case such premises are situated in more than one county, the supreme court, shall thereupon appoint three persons as commissioners to proceed with the work necessary for the suppression or removal of such breeding place, and to apportion, assess and collect the cost thereof, as so de- termined from the owners of such property benefited. Such appointment, ap- portionment, assessment and collection shall be made in the manner provided for the appointment of commissioners to suppress and iremove any such breeding place by draining the premises on which such breeding place is located by means of ditches and channels constructed over lands belonging to others and the owners of the premises to be drained and to apportion, assess and collect the cost thereof from the owners of the property benefited thereby. In any case where, under the provisions of this article commissioners are to determine what property is benefited and to what extent said property is benefited by the suppression or removal of any such breeding place, such commissioners shall not be restricted in their determination to property im- mediately adjoining the premises whereon such breeding place is located; and, in apportioning the benefit to any property, such commissioners may consider any circumstances by reason whereof any property will be benefited by the suppression and removal of such breeding place. [Public Health Law (L. 1893, ch. 661), § 25b, added by L. 1906, ch. 583.] Municipality may bear part of expense. — If such local board have deter- mined that, owing to the natural conditions which are favorable to the breed- ing of mosquitoes and owing to the benefit to be secured to the public by the suppression of such conditions, a part of the expense of such suppression or Town Board as Local Board of Health. 865b Public Health Law, §§ 25c, 25<1. Temoval shall be borne by the owner of such premises and a part thereof by the municipality wherein the premises are situated, such owner or occupant may proceed to suppress or remove such breeding place and shall be reim- bursed by the municipality for such proportion of the reasonable expense of such suppression or removal as the local board shall have determined should be borne by the municipality. For the purpose of ascertaining the actual cost of such suppression or removal, the local board or its duly authorized agents may at all times have access to the premises whereon the work ia being carrier on; and the owner of the premises shall furnish to such local board such information as such local board may deem necessary or desirable for the purpose of ascertaining such actual cost. If in any such case the owner of the premises shall not, within a reasonable time, proceed to sup- press or remove such breeding place, the local board may proceed to suppress and remove the same, and for such proportion of the expense of such sup- pression and removal as the local board shall have determined to be equitable, an action may be maintained against such owner, and the same shall become a first lien upon the premises as above provided. [Public Health Law (L. 1893, ch. 661), § 25c, added by L. 1906, ch. 583.] Assessing expense upon property benefited. — If such local board shall deem it necessary, in order to suppress or remove any such breeding place, that any swamp, bog, meadow or other low or wet lands within the municipality over which said board has jurisdiction, shall be drained and that it is necessary, in order thereto, that a ditch or ditches or other channel for the free passage of water should be opened through lands belonging to a person or persons other than the owners of said swamp, bog, meadow or other low or wet lands, or that any other act or thing be done upon or over land belonging to others than the owners of the lands wliereou such breeding place, shall be located, such board shall make application for the appointment of three commissioners to construct and complete such channels and ditches for the free passage of ■water, or to do such other act or thing as such local board shall have deter- mined to be necessary -ipon such lands in order to suppress or remove such breeding place, and to apportion, assess and collect the amount of the cost thereof from the owners of the lands which will be benefited by the suppres- sion and removal of such breeding place. Such commissioners shall be ap- pointed, and shall proceed, when appointed, to construct and complete such channels and ditches, or do such other act or thing as may be necessary, and to apportion, assess and collect the cost of the same from the owners of the lands benefited by such suppression or removal, in the manner provided for the appointment of commissioners for the drainage of any swamp, bog, meadow or other low or wet land and the apportionment, assessment and collection of the cost of such drainage, by chapter eight, part three, title sixteen of the revised statutes, as amended, known as the drainage law, and this article shall be construed with the provisions of such drainage law. In case of con- flict the provisions of this article shall be substituted for the provisions of such drainage law, but such parts of the provisions of the drainage law as are not necessarily superseded shall apply, [t'uhlic Health Law (L. 1893, ch. 661), § 25d, added by L. 1906, ch. 583.] 866 Town Boaed. Public Health Law, §§ 29, 30. § g. Jurisdiction of town board of health over city or village ; uniting of towns and villages in a combined sanitation and registration district. A town board of healtli shall not have jurisdiction over any city or incorporated village or part of such city or village in such town if such city or village has an organized board of health. The boards of health of any town and the incorporated villages therein, or any two or more towns and the incorporated villages therein, may unite, with the written approval of the state department of health, in a combined sanitary and registration district, and ap- point for snieh district one health officer and registering officer, whose authority in all matters of general apiplication shall be de*- rived from the boards of health appointing him ; and in special eases not of general application arising within the jurisdiction of but one board shall be derived from such board alone. When one or more towns and the incorporated villages therein unite in one registration district, the registrar of vital statistics of such com- bined district will be required to make separate returns to the state department of health of village and town certificate® of births, marriages and dea,ths. [Public Health Law {L. 1893, ch. 661), § 29, as amended by L. 1897, ch. 169, and L. 1903, ch. 383 ; Hey- decker's Gen. L. (2d ed.), p. 2014.] § lo. Expenses incurred by town board of health a town charge; property of village exempted from taxation therefor. All expenses incurred by any local board of health in the per- formance of the duties imposed upon it or its members by law shall be a charge upon the municipality, and shall be audited, levied, collected and paid in the same manner as the other charges of, or upon, the municipality are audited, levied, collected and paid." The taxable property of any village maintaining its own 15. Payment of expense by town. When a town board of health incurs expense in the performance of its duties in guarding against the in- troduction into the town of contagious or infectious diseases, or in providing suitable places for the sick who cannot otherwise be provided for, such ex- pense is a legal claim against tlie town and should be audited and allowed as are other town expenses. See Matter of Taxpayers of Plattsburgh, 157 N. y. 86; 51 N. E. 512. The charge by a town constable for burying the dead bodies of animals is • proper charge against the town, when done pursuant to the directions of the local board of health. Matter of Town of Eempatead, 36 App. Div. 321, 336; 55 N. Y. Supp. 345. Town Board as Local Boaed of Health. f^C)7 Public Health Law, § 31; Agricultural Law, § flO. board of health shall not be subject to taxation for maintaining any town board of health, or for any expenditure authorized by the town board of health., but the eosta and expenditures of the town, board shall be assessed and collected exclusively on the property of the town outside of any such village. [Public Health Law (L. 1893, ch. 661), § 30; Heydecher's Gen. L. (2d ed.), p. 2015.] § loa. Relief of indigent Indians in case of epidemic. Whenever an epidemic of a contagious or infectious disease shall prevail among the Indians of any nation, tribe or band in this state, the overseer of the poor of any town in which the reservation of such nation, tribe or band, is wholly or partly situated, may in accordance with rules and regulations adopted by the state com- missioner of health, cause needed medical attendance, provisions and maintenance to be furnished to any indigent Indian residing in the town, who, or a member of whose family, is afflicted with such disease while such disease shall continue ; and the cost thereof after being audited as herein provided shall be a state charge. A verified statement of any expenses incurred uinler this section shall be transmitted by the overseer of the poor to the state commissioner of health. Such commissioner shall examine into the matter, and if satisfied that such expenses were properly and n(^cessarily in- curred in accordance with the rules and regulations of the state commissioner of health, shall audit and allow the same, and when so audited, the amount thereof shall be paid Lv the state treasurer on the warrant of the comptroller to such overseer of the poor. [Puhlic Health Law (L. 1893, ch. 661), § 30a, added by L. 1905, ch. 303.] § II. Mandamus against local board of health at instance of state board of health. The performance of any duty or the doing of any act enjoined, prescribed or required by this article, may be enforced by man- '868 Town Boaed, Agricultural LaWj § 60. 'damug at thiei instance of the state depaxtment of liealth or its president or secretary, or of the local board of health, or of any citizen of full age resident of the municipality where the duty should be performed or the act done. [Public Health Law (L. 1893, ch. 661), § 31, as amended by L. 1903, ch. 383 ; Heydecker's Oen. L. (2d ed.), p. 2015.] § 12. Duties of local boards of health as to the suppression of infectious and contagious disease affecting domestic animals. Wheneiver any infectious or contagious disease, affecting do- mestic animals shall exist, be brought into or break out in thisi state the commissioner of agriculture shall take measures' to promptly suppress the same, and to prevent such disease from spreading. The local boards of health shall notify the commis- sioners of the existence of infectious or contagious disease affect- ing domestic animals in the districts subject to their jurisdiction. Any person or persons importing or bringing into this state neat cattle for dairy or breeding purposes shall report immediately upon bringing such cattle into the state to the commissioner of agricul- ture in writing, giving a statement of the number of cattle thus brought in, the place where they were procured, the lines over which they were brought and their point of destination within the state, stating when they will arrive at such point of destination, and upon the filing with the commissioner of agriculture at the time of making the said report, a certificate issued by duly authorized veterinary practitioner, to the effect that he has duly ex- amined said animal or animals and that said animals are free from any infectious or contagious disease, the commissioner of apicul- ture may issue a permit to said person or persons to remove said cattle immediately. Otherwise, said person or persons shall hold or detain such animals at least forty-eight hours at such point of destination for inspection and examination, provided they are not sooner examined or inspected, by the commissioner of agricul- ture or his duly authorized agent or agents. Each animal brought into the state in violation of the above provisions shall constitute a separate and distinct violation of the agricultural law. The pro- visions of this section, relating to the importation of neat cattle for dairy or breeding purposes, shall not apply to cattle imported into this state at a point where there is federal inspection. [Agricul- tural Law (L. 1893, ch. 338), § 60, as amended by L. 1900, ch. 118, L. 1901, ch. 321, and L. 1903, ch. 214.] Schools; Duties of Town and County Officebs. CHAPTER LXIV. SCHOOLS AND SCHOOL MONEYS, DUTIES OF TOWN AND COUNTT OFFICERS IN RESPECT THERETO. Skotioit 1. School commissioners to apportion moneys; duties of commis- sioners; county treasurer to furnish statement of moneys on hand for school purposes. 2. Correction of erroneous apportionment. 3. When districts are not entitled to moneys. 4. Supervisor to file original certificate; moneys to be paid to supervisor. 6. Supervisor to give bond before receiving school moneys; refusal to give bond a misdemeanor. 6. Grant, bequest or devise of property to towns for benefit of schools. 7. Supervisor to report to superintendent amount of gospel achool funds in his hands. 8. Disposition of fines and penalties for the benefit of the common schools; district attorney to report to board of supervisors fines collected; fines to be paid to county treasurer. 9. Supervisor to annually return to county treasurer amount of school moneys remaining in his hands. 10. Disbursement of school moneys; payment of moneys to district collector or treasurer ; library moneys ; accounts of school moneys; payment of moneys by predecessor. 11. Alterations of school districts; refusal of trustees to consent; supervisors of towns to be associated with commissioner to hear objections and determine. 12. Duties of supervisor as to the property and effects of dissolved school districts. 12a. Districts in two or more towns; equalization of assessment by supervisors. 13. Powers and duties of boards of supervisors as to school commis- sioners and school commissioner districts. 14. Duties of town clerks in respect to the common schools; com- pensation and expenses a town charge. 16. Unpaid school taxes, collector to return account of to trustees; trustees to transmit account, with certificate to county treasurer. 16. County treasurer to pay to collector of school district amount of unpaid taxes returned. /SR9) 870 Schools; Duties of Town and County Officees. Consolidated School Law, tit. 2, § 13. Section 17. County treasurer to lay account of unpaid school taxes before board of supervisors; action of board thereon; collection of such taxes. 18. Special provisions of the consolidated school law applicable t«» town officers. § I. School commissioners to apportion moneys; duties of commissioners ; county treasurer to furnish statement of moneys on hand for school purposes. The school commissioner, or commissioners of each county, shall proceed, at the county seat, on the third Tuesday of March, in each year, to ascertain, apportion and divide the state and other school moneys as follows : 1. Library moneys. — They shall set apart any library moneys apportioned by the superintendent. 2. State moneys. — From the other moneys apportioned to the county, they shall set apart and credit to each school district the amount apportioned to it by the state superintendent, and to every district which did not participate in the apportionment of the previous year, and which the superintendent shall have ex- cused, such equitable sum as he shall have allowed to it. 3. County treasurer to furnish statement of unexpended moneys. — They shall procure from the treasurer of the county a transcript of the returns of the supervisors hereinafter required, showing the unexpended moneys in their hands applicable to the payment of teachers' wages and to library purposes, and shall add the whole sum' of such moneys to the balance of the state moneyai to be apportioned for teachers' wages. The amounts in each supervisor's hands shall be charged as a partial payment of the sums apportioned to the town for library moneys and teachers' wages, respectively. 4. County treasurer to furnish statement of moneys accrued for benefit of schools. — They shall procure from the county treasurer a full list and statement of all payments to him of moneys for or on account of fines and penalties, or accruing from any other source, for the benefit of schools and of the town or towns, district or districts for whose benefit the same were received. Such of said moneys as belong to a particular district, they shall set apart and credit to it ; and such as belong to the schools of a town, they shall set apart and credit to the schools in that town, and shall ap- portion them together with such as belong to the schools of the Schools and School Moneys. 871 Consolidated School Law, tit. 2, § 13. county as hereinafter provided for the payment of teachers' ■wages. 5. Library moneys, how apportioned. — They shall apportion library moneys to the school districts, and parts of school dis- tricts, joint with parts in any city or in any adjoining connty, which shall be entitled to participate therein, as follcws: To eacii of said districts an amount equal to that which shall have been raised in said district for library purposes, either by tax or otherwise; and if the aggregate amount so raised in the districts within the county shall exceed the sum apportioned to the county, the said districts, respectively, shall be entitled to participate in such apportionment pro rata to the total amount apportioned to the county. 6. Apportionment according to attendance; attendance, how ascertained. — They shall apportion all of such remaining unap- portioned moneys in the like manner and upon the same basis among such school districts and parts of districts in proportion to . the aggregate number of days of attendance of the pupils resident therein, between the ages of five and eighteen years, at their re- spective schools during the last preceding school year, and also such children residing therein over four years of age who shall have attended any free kindergarten school legally established. The aggregate number of days in attendance of the pupils is to be ascertained from the records thereof, kept by the teachers as here- inafter prescribed, by adding together the whole number of days' attendance of each and every pupil in the district, or part of a district. [Thus amended by L. 1896, ch. 264.J 7. Moneys set apart to districts. — They shall then set apart the money so set apart and apportioned to each district, the school house of which is therein ; and to each part of a joint district therein the school house of which is located in a city or in a town in an adjacent county. 8. Certificate of apportionment. — They shall sign, in dupli- cate, a certificate, showing the amounts apportioned and set apart to each school dis'trict and part of a district, and the towns in which they were situated, and shall designate therein the source from which each item was derived; and shall forthwith deliver one of said duplicates to the treasurer of the county and transmit the other to the superintendent of public instruction. 9. Certificate to supervisor. — They shall certify to the super- Tisor of each town the amount of school moneys so apportioned to 872 Schools; Duties of Town and County Officees. Consolidated School Law, tit. 2, §§ 14, 15, 16, 17. his town, and tJie portions thereof to be paid by him for library purposes and for teachersi' wages, to each such distinct disitrict and part of a district. \_Consolidated School Law {L. 1894, ch. 556), tit. 2, § 13 ; Heydecker's Gen. L. {2d ed.), p. 1732.J § 2. Correction of erroneous apportionment. If, in their apportionment, through any error of the commisi- sioners, any district shall have apportioned to it a larger or a less share of the moneys than it is entitled to receive, the commis- sioners ma}, in. their next annual apportionment, with the ap- proval of the superintendent, correct the error by equitably adding to or deducting from the share of such district. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 14; Heydecker's Gen. L. (2d ed.), p. 1734.] § 3. When districts are not entitled to moneys. 'So district or part of a district shall be entitled to any portion of such school moneys on such apportionment unless the report of the trustees for the preceding school year shall show that a com- mon school was supported in the district and taught by a quali- fied teacher for such a term of time as would, under section six of this title, entitle it to a distributive share tinder the apportion- ment of the superintendent. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 15; Heydecker's Gen. L. {2d ed.), p. 1734. J § 4. Supervisor to file original certificate; moneys to be paid to supervisor. On receiving the certificate of the commissioners, each super- visor shall forthwith make a copy thereof for his own use, and deposit the original in the office of the clerk of his town ; and the moneys so apportioned to his town shall be paid to him immed- iately on his compliance with the requirements of the following section, but not before. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 16; Heydecker's Gen. L. {2d ed.), p. 1734.J § 5. Supervisor to give bond before receiving school moneys; refusal to give bond a misdemeanor. Immediately on receiving the commissioners' certificate of ap- portionment, the county treasurer shall require of each super- visor, and each supervisor shall give to the treasurer, in behalf of the town, his bond, with two or more sufficient sureties, approved Schools and School Moneys. 873 Consolidated School Law, tit. 2, § 18. "by the treafe'arer, in the penalty of at least double the amount the school moneys set apart or apportioned to the town, and of any such moneys unaccounted for by his predecessors, conditioned for the faithful disbursement, safe-keeping and accounting for such moneys, and of all other school moneys that may come into his hands from any other source.^ If the condition shall be broken, the county treasurer shall sue the bond in his own name, in behalf of the town, and the money recovered shall be paid over to the suc- cessor of the supervisor in default, such successor having first given security as aforesaid.' Whenever the oflBce of a supervisor shall become vacant, by reason of the expiration of his term of ser- vice or otherwise, the county treasurer shall require the person elected or appointed to fill such vacancy to execute a bond, with two or more sureties, to be approved by the treasurer, in, the pen- alty of at least double the sum of the school moneys remaining in the hands of the old supervisor, when the oflBce became vacant, conditioned for the faithful disbursement and safe-keeping of and aocounting for such moneys. But the execution of this bond shall not relieve the supervisor from the duty of executing the bond first above mentioned. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 17 ; Heydecker's Gen. L. (2d ed.), p. 1734.J The refusal of a supervisor to give such security shall be a mist- demeanor, and any fine imposed on his conviction thereof shall 1. For form of bond of supervisor on account of school moneys and the approval of the county treasurer, see Form No. 174, post. Undertaking of supervisor. Each supervisor is required to make and deliver to the town clerk of the town his undertaking, with such sureties as the town board shall prescribe, conditioned for the faithful keeping and ac- counting for all moneys and property, including the local school fund, be- longing to his town and coming into his hands as such supervisor. See Town Law, sec. 60, ante, p. 259. The undertaking required by the above section is in addition to his regular official undertaking and runs to the county treasurer rather than to the town. The form of an official undertaking of a town officer, and the liability of sureties thereon are prescribed by section 66 of the Town Law, ante, p. 266. As to general provisions respecting official undertakings, see Public Officers Law, sees. 10-13, ante, p. 267. 2. Liability on bond. The fact that the supervisor of a town in good faith deposited as a general deposit the school moneys received by him with a reputable firm of individual bankers, believed to be solvent, and that there- after such firm failed and such moneys were lost, is not a defense to an action brought upon the bond of such supervisor given pursuant to the provision* of the above section. Tillinghast v. Merrill, 77 Hun, 481; 28 N. Y. Supp. 1089. 874 Schools; Duties of Town and County Otfickes. Consolidated School Law, tit. 2, §§ 19, 20. lb© for the benefit of the common schools of the town.' Upon sucH refusal, the moneys so set apart and apportioned tO' the town shall be paid to an.d disbursed by some other officer or person to be des^ ignated by the county judge, under such regulations and with such safeguards as he may prescribe, and the reasonable compen- sation of such officer or person, to be adjusted by the board of supervisors, shall be a town charge. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 18 ; Heydecker's Gen. L. (2d ed.), p. 1735.] § 6. Grant, bequest or devise of property to towns for benefit of schools. Keal and personal estate may be granted, conveyed, devised, bequeathed and given in trust and in perpetuity or otherwise to the statei, or to the superintendent of public instruction, for the support or benefit of the common schools, within the state, or vsdthin any part or portion of it, or of any particular common school or schools within it; and to any county, or the school commissioner or commissioners of any county, or to any city or any board of officers thereof, or to any school commis- sioner district or its commissioner, or to^ any town, or supervisor of a town, or to any school district or its trustee or trustees, for the support and benefit of common schools within such county, city, school commissioner district, town or school district, or within any part or portion thereof respectively, or for the support and benefit of any particular common school or schools therein. 1^0 such grant, conveyance, devise or bequest shall be held void for the want of a named or competent trustee or donee, but where no trustee or donee, or an incompetent one is named, the title and trust shall vest in the people of the state, subject to its acceptance by the legislature, but such acceptance shall be presumed. [Con- solidated School Law (L. 1894, ch. 556), tit. 2, § 19 ; Heydeck- er's Gen. L. (2d ed.), p. 1735.] The legislature may control and regulate the execution of all such trusts; and the superintendent of public instruction shall supervise and advise the trustees, and hold them to a regular ac- 3. Refnsal to give bond. It is provided by section 42 of the Penal Code that a person who executes any functions of a, public office without having executed and duly filed the required security is guilty of a misde- meanor. But the acts of the supervisor are not invalidated because of his failure to execute the bond. See Penal Code, sec. 43. Schools and School Moneys. 875 Consolidated School Law, tit. 2, §§ 21, 22, 23. ooTinting for the trust property and its income and interest at such times, in such forms, and with, such, authentications, as he shall, from time to time, prescribe. [Consalidated School Law (L. 1894, ch. 556), tit 2, § 20; Heydecker's Gen. L. (2d ed.), p. 1735.J The common council of every city, the board of supervisors of every county, the trustees of every village, the supervisor of every town, the trustee or trustees of every school district, and every other officer or person who shall be thereto required by the super- intendent of public instruction, shall report to him whether any and if any, what trusts are held by them respectively, or by any other body, officer or person to their information or belief for school purposes, and shall transmit, therewith, an authenticated copy of every will, conveyance, instrument or paper embodying or creating the trust; and shall, in, like manner, forthwith report to him the creation and terms of every such trust subsequently cre- ated. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 21; HeydecTcer's Gen. L. (2d ed.), p. 1736.] § 7. Supervisor to report to superintendent amount of gospel school funds in his hands. Every supervisor of a town shall report to the superintendent whether there be, within the town, any gospel or school lot, and, if any, shall describe the same, and state to what use, if any, it ia put by the town ; and whether it be leased, and, if so, to whom, for what term and upon what rents ; and whether the town holds or is entitled to any land, moneys or securities arising from any sale of such gospel or school lot, and the investment of the proceeds thereof, or of the rents and income of sucb lots and investments, and shall report a full statement and account of such lands, moneys and securities.* [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 22; Heydecker^s Gen. L. (2d ed.), p. 1736.] Every supervisor of a town, shall in like manner report to the superintendent whether the town has a common school fund or- iginated under the "Act relative to moneys in the hands of over- seers of the poor," passed April twenty-seventh, eighteen hundred and twenty-nine, and if it have, the full particulars thereof, and of its investment, income and application, in such form as the 4. Gospel and school lots. Aa to powers and duties of supervisor in regard to gospel and school lots, see post, p. 889. 876 Schools; Duties of Town and County Officees. Consolidated School Law, tit. 2, §§ 24, 25. 26. superintendent may prescribe. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 23; Heydechet's Gen. L. {M ed.), p. 1736.] In respect to the property and funds in the last two sections mentioned, the superintendent shall include in his annual report a statement and account thereof. And, to these ends, he is au- thorized, at any time, and from time to time, to require from 'the supervisor, board of town auditors, or any officer of a town, a t&- port as to any fact or any information or account, he may deem necessary or desirable. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 24; Heydecker's Gen. L. (2d ed.), p. 1736.] § 8. Disposition of fines and penalties for the benefit of the common schools; district attorney to report to board of super- visors fines collected; fines to be paid to county treasurer. Whenever, by any statute, a penalty or fine is imposed for the benefit of common schools, and not expressly of the common schools of a town or school district, it shall be taken to be for the benefit of the common schools of the county within which the conviction is had ; and the fine or penalty, when paid or collected, shall be paid forthwith, into the county treasury, and the treasurer shall credit the same as school moneys of the county, unless the county comprise a city having a special school act, in which case he shall report it to the superinitendent, who shall apportion it upon the basis of population by the last census, between the city and the residue of the county, and the portion belonging to the city shall be paid into its treasury. [Consolidated School Law {L. 1894, ch. 556), tit. 2, § 25 ; Heydecker's Gen. L. {2d ed.), p. 1736.J Every district attorney shall report, annually, to the board of supervisors, all such fines and penalties imposed in any prosecu- tion conducted by him during the previous year; and all moneys collected or received by him or by the sheriff, or any other officer, for or on account of such fines or penalties, shall be immediately paid into the county treasury, and the receipt of the county treas- urer shall be a sufficient and the only voucher for such money." 5. Money received by district attorney for penalties. The district attorney is required to pay all money received for a penalty or forfeiture be- longing to the county to the county treasurer, and must render an account to the first term of the County Court of his county held in each calendar year of all money collected by him from any person belonging to tne county or to the state. See Code Civ. Proc, sees. 1967, 1968. Schools and School Moneys. 8771 Cionsolidatcd School Law, tit. 2, §§ 27, 28; tit. 3, § 3. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 26; Hey- decher's Gen. L. {2d ed.), p. 1737.] Whenever a fine or penalty is inflicted or imposed for the benefit of the common schools of a town or school district, the magistrate, constable or other ofiicer collecting or receiving the same shall forthwith pay the same to the county treasurer of the county in which the school house is located, who shall credit the same to the town or district for whose benefit it is collected. If the fine or penalty be inflicted or imposed for the benefit of the common schools of a city having a special school act, or of any part or dis- trict of a city, it shall be paid into the city treasury. [Consoli- dated School Law (L. 1894, ch. 556), tit. 2, § 27; Heydecher's Gen. L. {2ded.),p. 1737.] Whenever, by this or any other act, a penalty or fine is imposed ■upon any school district ofiicer for a violation or omission of official duty, or upon any f)erson for any act or omission within a school district, or touching property or the peace and good order of the district, and such penalty or fine is declared to be for, or for the use or benefit of the common schools of the town or of the county, and such school district lies in two or more towns or coun- ties, the town or county intended by the act shall be taken to he the one in which the school house, or the school hoiise longest owned) or held by the district, is at the time of such violation, act ot omission. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 28; Heydecker's Gen. L. (2d ed.), p. 1737.] § g. Supervisor to annually return to county treasurer amount of school moneys remaining in his hands. On the first Tuesday of March in each year, each supervisor shall make a return in writing to the county treasurer for the use of the school commissioners, showing the amounts of school moneys in his hands not paid on the orders of trustees for teachers' ■wages, nor drawn by them for library purposes, and the districts to which they stand accredited (and if no such money remain in his hands, he shall report that fact) ; and thereafter he shall not pay out any of said moneys until he shall have received the certi- ficate of the next apportionment; and the moneys so returned by him shall be reapportioned as hereinbefore directed." [Consoli- dated School Law (L. 1894, ch. 556), tit. 3, § 3 ; Heydecker's Gen. L. (2d ed.), p. 1738.] 878 Schools; Duties of Town and County Officees. Consolidated School Law, tit. 3, § 4. § 10. Disbursement of school moneys; payment of moneys to district collector or treasurer ; library moneys ; accounts of school moneys ; payment of moneys by predecessor. It is the duty of every supervisor : 1. Disbursements ; payments to district collector or treasurer. — To disburse the school moneys in his hands applicable to the pay- ment of teachers' wages, upon and only upon the written orders of a sole truste© or a majority of the trustees, in favor of qualified teachers. But whenever the collector in any school district shall have given bonds for the due and faithful performance of the duties of his office as disbursing agent, as required by section eighty of title seven of this act,' or whenever any school district shall elect a treasurer as hereinafter provided, the said supervisor shall, upoD the receipt, by him of a copy of the bond executed by said collector or treasurer as hereinafter required, certified by the trustee or trustees, pay over to such collector or treasurer, all moneys in his hands applicable to the payment of teachers' wages in. such district, and the said collector or treasurer shall disburse such moneys so received by him upon such orders as are specified herein to the teachers entitled to the same. [Thus amended hy L. 1896, ch. 177.] 2. Library moneys. — To disburse the library moneys upon, and only upon the written orders of a sole trustee, or of a majority of the trustees.' 3. Union free schools. — In the case of a union free school dis- trict, to pay over all the school money apportioned thereto, whether for the payment of teachers' wages, or as library moneys, to the treasurer of such district, upon the order of its board of education. 4. Accounts; audit. — To keep a just and true account of all the school moneys received and disbursed by him during each year, 6. For form of report of supervisor of school moneys in his hands, see Form No. 175, post. 7. The act here referred to is the Consolidated School Law (L. 1894, ch. 656). See Heydecker's Gen. L. (2d ed.), p. 1782. 8. Library moneys. The library moneys are apportioned by the school commissioner to the school districts entitled to participate therein, to an amount equal to that which shall have been raised for library purposes by tax or otherwise in each of such districta. See Consolidated School Law, tit. 2, sec. 13, sub. 5. Schools and School Moneys. 879 Consolidated School Law, tit. 3, § 4. and to lay the same, with proper vouchers, before the board of town auditors at each annual meeting thereof.' 5. Accounts to he kept in- book. — To have a bound blank book, the cost of which shall be a town charge, and to enter therein all his receipts and disbursements of school moneys, specifying from whom and for what purposes they were received, and to whom and for what purposes they were paid out; and to deliver the book to his successor in office. 6. Accounts to he filed in office of town clerk. — Within fifteen days after the termination of his office, to make out a just and true account of all school moneys theretofore received by him and of all disbursements thereof, and to deliver the same to the town clerk, to be filed and recorded, and to notify his successor in office of such rendition and filing. 7. Duties toward predecessor. — So soon as the bond to the county treasurer, required by section seventeen of title two of this act, shall have been given by him and approved by the treasurer, to deliver to his predecessor the treasurer's certificate of these facts, to procure from the town clerk a copy of his predecessor'a account, and to demand and receive from him any and all school moneys remaining in his hands. 8. Payments to successor. — Upon receiving such a certificate from his successor, and not before, to pay to him all school moneys remaining in his hands, and to forthwith file the certificate in the town clerk's office." 9. Audit of accounts by totrn board. The town officers are required to account to the town board or board of town auditors for all moneys re- ceived and disbursed by them at the meeting of such board held on the Tues- day preceding the biennial meeting and on the corresponding date in each alternate year, or in towns holding town meetings at the same time with the general election, on the third Tuesday of December in each year. See Town Law, see. 161, ante, p. 804, and the notes thereunder relating to accountings by town officers to the town board. 10. Paymenta to successor. It is provided in section 84 of the Town Law (see ante, p. 281), that every supervisor going out of office, when so re- quired, shall deliver upon oath to his successor all the records, books and papers in his possession or under his control belonging to the office held by him, and shall at the same time pay over to his successor the moneys be- longing to the town remaining in his hands. If a supervisor shall refuse to deliver books and papers pertaining to his office, to his successor, proceed- ings may be instituted to compel such delivery, pursuant to section 2471a of the Code of Civ. Proc. See ante, p. 282. 880 Schools; Duties of Town and County Office!ES. Consolidated School Law, tit. 6, §§ 2, 3, 4. 9. Recovery of pejialty. — By his name of office, when the duty is not elsewhere imposed by law, to sue for and recover penalties and forfeitures, imposed for violations of this act, and for any de- fault or omission of any town officer or school district board or O'fficer under this act, and after deducting his costs and expenses to report the balances to the school commissioner. 10. Erection, and alteration of school districts. — To act, when thereto legally required, in the erection or alteration of a school district, as in the sixth title of this act provided, and to perform' any other duty which may be devolved upon him by this act, or any other act relating to common schools." [^Consolidated School Law (L. 1894, ch. 656), Ht. 3, § 4; Heydecker's Gen. L. (2d ed.), p. 1748.J § II. Alterations of school districts; refusal of trustees to con- sent ; supervisors of towns to be associated with commissioner to hear objections and determine. With the written consent of the trustees of all the districts to be affected thereby, he may, by order, alter any school district within his jurisdiction, and fix, by said order, a day when the alteration shall take effect. [Consolidated School Law (L. 1894, ch. 556), tit. 6, § 2; Heydecker's Gen. L. {2d ed.), p. 1747.] If the trustees of any such district refuse to consent, he may make and file with the town clerk his order making the alteration, but reciting the refusal, and directing that the order shall not take effect, as to the dissenting district or districts, until a day therein to be named, and not less than three months after the date of such order. [Idem.; § 3.] Within ten days after making and filing such order he shall give at least a week's notice in writing to one or more of the as- senting and dissenting trustees of any district or districts to be affected by the proposed altea-ations, that at a specified time, and at a named place within the town in which either of the districts to bei affected lies he will hear the objections to the alteration." The 11. Erection or alteration of school district, proceedings as to. See Consolidated School Law, tit. 6, sees. 2-5, post, p. 880. 12. Necessity of notice. An order altering or dividing u school district, where the trustees of the district object, cannot be made without giving to such trustees at least a week's notice in writing that at a time and place specified by the school commissioner he will hear their objections to the pro- posed alteration. Neither the superintendent of public instruction nor the school commissioner can deprive the trustees of this statutory right. People Schools and School Moneys. 881 Consolidated School Law, tit. 6, §§ 5, 10. trustees of any district to be affected by such order mav request the supervisor and town clerk of the town or towns, within which such district or districts shall wholly or partly lie, to be asso- ciated with the commissioner. At the time and place mentioned in the notice the commissioner or commissioners, with the super- visors and town clerks, if they shall attend and act, shall hear and decide the matter; and the decision shall be final unless duly ap- pealed from. Such decision must either affirm or vacate the order of the commissioner, and must be filed with and recorded by the town clerk of the town or towns in which the district or districts to be affected shall lie, and a tie vote shall be regarded a decision for the purposes of an appeal on the merits. Upon such appeal the superintendent of public instruction may affirm, modify or vacate the order of the commissioner or the action of the local board. [Idem, § 4, as amended by L. 1895, ch. 223, and L. 1896, ch. 2 64. J The supervisor and town clerk shall be entitled each, to one dollar and fifty cents a day, for each day's service in any such matter, to be levied and paid as a charge upon their towti." [Idem, §5.J § 12. Duties of supervisor as to the property and effects of dissolved school districts. When a district is parted into portions, which are annexed to other districts, its property shall be sold by the supervisor of the town, within which its school house is situate, at public auction, after at least five days' notice, by notice posted in three or more public places of the town in which the school house is situated, one of which shall be posted in the district so dissolved. The supervisor, after deducting the expenses of the sale, shall apply its proceeds to the payment of the debts of the district, and ap>- ex rel. Board of Education v. Hooper, 13 Hun, 639. It is also held in this case that the provisions of the above title of the Consolidated School Law re- lating to the alteration of school districts applies with equal force and effect to a union free school district. 13. The compensation of supervisor and town clerk for services per- formed in proceedings relating to the alteration of school districts as pre- scribed in the above section is exclusive of any further compensation, and the provisions of section 178 of the Town Law fixing the compensation of town officers (see ante, p. 814), do not apply to supervisors and town clerks while performing such services. 882 Schools; Duties op Town and County O'fficees. Consolidated School Law, tit. 6, § 11; tit. 5, §§ 2, 7, 8. portion the residue, if any, among the owners or possessors of tax- able property in the district, in the ratio of their several assess- ments on the last corrected assessmenl^roU or rolls of the town or towns, and pay it over accordingly. [Consolidated School Law (L. 1894, ch. 556), tit. 6, § 10; Heydecker's Gen. L. {2d ed.), p. 1749.J The supervisor of the town within which the school house of the dissolved district was situate may demand, sue for and collect in his name of office, any money of the district outstanding in the hands of any of its former officers, or any other person ; and after deducting his costs and expenses, shall report the balance to the school commissioner who shall apportion the same equitably among the districts to which the parts of tlie dissolved districts were annexed, to be by them applied as their district meetings shall determine. [Consolidated School Law {L. 1894, ch. 556), tit. 6, § 11; Heydecker's Gen. L. (2d ed.), p. 1749.J § 13. Powers and duties of boards of supervisors as to school commissioners and school commissioner districts. School comimissioner districts. — The school commissioner dis- tricts duly and legally organized, and as the same existed January first, eighteen hundred and ninety-four, shall continue to be held and recognized as the school commissioner districts of the state until the same shall be altered or modified by the legislature. No city shall be included in, or form a part of any school commis- sioner district. In any school commissioner district that contains more than one hundred school districts, the board of supervisors may divide such commissioner district, within the county, and erect therefrom an additional school commissioner district; and when such district shall have been formed a school commissioner for such district shall be elected in the manner provided by law for the election of school commissioners. [Consolidated School Law (L. 1894, ch. 556), tit. 5, § 2; Heydecker's Gen. L. (2ded.), p. 1741.] Salary of school commissioner, how paid. — Every school com- missioner shall receive an annual salary of one thousand dollars, payable quarterly out of the free school fund appropriated for this purpose. [Id. tit. 5, § 7; Heydecker's Gen. L. {2d ed.), p. 1742.] Board may increase salary. — Whenever a majority of the super- visors from all the towns composing a school commissioner dis- trict shall adopt a resolution to increase the salary of their school Insert this on page 882, Gilbert's Supervisors' Manual, 3rd edition, between §§12 and 13. § 12a. Districts in two or more towns; equalization of assess- ment by supervisors. Where such reduction shall be duly claimed and where the valu- ation of taxable property can not be ascertained from the last assessment roll of the town, or where the valuation of such property shall have increased or diminished, since the last assessment roll of the town, or an error, mistake or omission on the part of the town assessors shall have been made in the description or valuation of taxable property, the trustees shall ascertain the true value of the property to be taxed from the best evidence in their power, giving notice to the persons interested, and proceeding in the same manner as the town assessors are reqiiired by law to proceed in the valuation of taxable property, the hearing of gTievances, and the revision of the town assessment roll. [Consolidated School Law (L. 1894, ch. 556), tlf. 7, § 65.J § 66. When a district embraces parts of more than one town, it shall be the duty of the supervisors of such towns so in part em- braced and they are hereby directed, upon receiving & written notice from the trustee or trustees of such district, or from three or more persons liable to pay taxes upon real estate therein, to meet at a time and place to be named in such notice, which time shall not be less than five or more than 10 days from the service thereof, and a place within the bounds of the towns so in part em- braced, and proceed to inquire and determine whether the valua- tion of real property upon the several assessment rolls of said towns are substantially just, as compared with each other, so far as said districts are concerned, and if ascertained not to be so, they shall determine the relative proportion of taxes that ought to be assessed up)on the real property of the parts of such district lying in different towns, and the trustees of such district shall thereupon assess the proportion of any tax thereafter to be raised, according to the determination of such supervisors, until new assessment rolls of the town shall be perfected and tiled, using the assessment rolls of the several towns to distribute the said propor- tion among the persons liable to be assessed for the same. In cases when such supervisors shall be unable to agree, they shall summon a supervisor from some adjoining town, who shall unite in such inquiring, and the finding of a majority shall be the deter- mination of such meeting. Such supervisors shall receive for their services $3 per day for each day actually employed which shall be a town charge upon their respective towns. [Idem, § 66.] Schools and School Moneys. 883 Consolidated School Law, tit. 5, § 9; tit. 4, §§ 1, 2. commissioner beyond the one thousand dollars payable to him from the free school fund, it shall be the duty of the board of super- visors of the county to give effect to such resolution, and they shall assess the increase stated therein upon the towns composing such commissioner district, ratably, according to the corrected valua- tions of the real and personal estate of such towns. [Id. tit. 5, § 8; Heydecker's Gen- L. (2d ed.), p. 1742. j Allowance of expenses. — -The board of supervisors shall an- nually audit and allow to each commissioner within the county a fixed sum of at least two hundred dollars for his expenses, and shall assess and levy that amount annually, by tax upon the towns composing his district. [Id. tit. 5, § 9 ; Heydecker's Gen. L. {2d ed.), p. 1743.] § 14. Duties of town clerks in respect to the common schools; compensation and expenses a town charge. It shall be the duty of the town clerk of each town : 1. Carefully to keep all books, maps, papers and records of his office touching common schools, and forthwith to report to the supervisor any loss or injury to the same. 2. To receive from the supervisors the certificates of appor- tionment of school moneys to the town and to record them in a book to be kept for that purpose. 3. Forth-ivith to notify the trustees of the several school districts of the filing of each such certificate. 4. To see that the trustees of the school districts make and de- posit with him their annual reports within the time prescribed by law, and to deliver them to the school commissioner on de- mand ; and to furnish the school commissioner of the school com- missioner district in which his town is situated the names and post- office addresses of the school district officers reported to him by the district clerks. 5. To distribute to the trustees of the school districts all books, blanks and circulars which shall be delivered or fonvarded to him by the state superintendent or school commissioner for thnt ] ur- pose. 6. To receive from the supervisor, and record in a book kept for that purpose, the annual account of the receipts and disburse- ments of school moneys required to be submitted to the town audi- tors, together with the action of the town auditors thereon, and to send a copy of the account and of the action thereon, by mail to 884 Schools J Duties of Town and County Officees. Consolidated School Law, tit. 7, §§ 72, 73. the superintendent of public instruction, whenever required by him, and to file and preserve tbe vouchers accompanying the ac- count. 7. To receive and to record, in the same book, the supervisor's final account of the school moneys received and disbursed by him, and deliver a copy thereof tO' such supervisor's successor in office. 8. To receive from the outgoing supervisor, and file and record in, the same book, the county treasurer's certificate, that his suc- cessor's bond has been given and approved. 9. To receive, file and record the descriptions of the school dis- tricts, and all papers and proceedings delivered to him by the school commissioner pursuant to the provisions of this act. 10. To act, when thereto legally required, in the erection or alteration of a school district, as in title six of this act provided. 11. To receive and preserve the books, papers and records of any dissolved school district, which shall be ordered, as herein- after provided, to be deposited in his office. 12. To perform any other duty which may be devolved upon him by this act, or by any other act touching conamon schools. Expenses and disbursements a, town charge. — The necessary ex- penses and disbursements of the town clerk in the performance of his said duties, are a town charge, and shall be audited and paid as such. [^Consolidated School Load {L. 1894, ch. 556), tit. 4, §§ 1, 2; Heydecker's Gen. L. {2d ed.), p. 1740.] § 15. Unpaid school taxes, collector to return account of to trustees; trustees to transmit account, with certificate to county treasurer. If any tax on real estate placed upon the tax list and duly de- livered to the collector, or the taxes upon nonresident stock- holders in banking associations organized under the laws of Con- gress," shall be unpaid at the time the collector is required by law 14. Bank shares, how taxed. Under section 24 of the Tax Law, ante, p. 363, the rate of tax upon the shares of stock of banks and banking asso- ciations is one per centum upon the value thereof. Such tax is in lieu of all other taxes including those for school purposes. Under such section the board of supervisors is required to ascertain the tax rate of each of the several towns, village, city, school and other tax districts in the county for the year for which the tax is imposed and the proportion of the tax on bank stock to which each of such districts shall be respectively entitled. This proportion is to be ascertained by taking such proportion of the tax upon the shares of stock as the tax rate of the school district shall bear to the ag- gregate tax rate of all the tax districts in which such shares of stock shall be Schools and School Moneys. 885 Consolidated School Law, tit. 7, i 74. to return his warrant, he shall deliver to the trustees of the district an. account of the taxee remaining due, containing a description of the lands upon which such taxes were unpaid as the same were placed upon the tax list, together with the amount of the tax so assessed, and upon making oath before any justice of the peace or judge of court of record, notary public or any other offioeo" au- thorized to administer oaths, that the taxes mentioned in any sucli account remain unpaid, and that, after diligent efforts, he hasi been unable to collect the same, he shall be credited by said trustees with the amount thereof. Upon receiving any such account from the oolleotor, the trustees shall compare it with the original tax list, and, if they find it to be a true transcript, they shall add to such account their oertifi- cate, to the effect that they have compared it with the original tax list and found it to be correct, and shall immediately transmit the account, affidavit and certificate to the treasurer of the county. [Consolidaied School Law (L. 1894, ch. 556), tit. 7, §§ 72, 73; Eeydecker's Gen. L. (2d ed.), p. 1779. J § 1 6. County treasurer to pay to collector of school district amount of unpaid taxes returned. Out of any moneys in the county treasury, raised for contingent expenses," or for the purpose of paying the amount of the taxes taxable. The evident meaning of this provision is that if the tax rate of s. town is five mills, that of a village is five mills, and that of a school dis- trict is five mills, that the school district will be entitled to one-third of the tax paid upon the stock of the bank located in the tax district. The board of supervisors is required by such section of the Tax Law to issue its warrant to the county treasurer directing him to pay to the collector or treasurer of the school district the proportion of such tax ascertained by it to belong to such school district. 15. Duty of county treasurer. Under the provisions of the above section, which require the treasurer of a county to pay to the trustees of a, school district, out of any moneys in the county treasury raised for con- tingent expenses, the amount of taxes upon lands of nonresidents returned by such trustees as unpaid, the authority of the county treasurer is limited to the particular fund specified; and if no such fund has been raised, or if it has been exhausted, he has no authority, and consequently no duty is im- posed upon him to pay. It is provided by section 232 of the County Law, amte, p. 41, that: "In order to enable the county treasurer to pay such expenses as may becoma payable from time to time, the board of supervisors shall annually cause such sum to be raised in advance in their county, as they may deem neceo- •ary for such purpose." ,886 Schools; Duties of Town and County Otticees. Consolidated School Law, tit. 7, i 75. SO returned unpaid, the treasurer shall pay to the collector the amount of the taxes so returned as unpaid, with one per centum of the amount in addition thereto, for the compensation of such collector, and if there are no moneys in the treasury applicable to such purpose, the board of supervisors, at the time of levying said unpaid taxesi, as provided in the next section, shall pay to the collector of the school district the amount thereof, with said addi- tion thereto, by voucher or draft on the county treasurer, in the same manner as other county charges are paid, and the collector shall be again charged therewith by the trustees. [Consolidated School Law (L. 1894, ch. 556), tit. 7, § 74, as amended hy L. 1897, ch. 512; Eeydecker's Gen. L. (2d ed.), p. 1780.J § 17. County treasurer to lay account of unpaid school taxes before board of supervisors; action of board thereon; collection of such taxes. Duties of hoard of supervisors. — Such account, affidavit and certificate shall be laid by the county treasurer before the board of supervisors of the county, who shall cause the amount of such un- paid taxes, with seven per cemt. of the amount in. addition thereto, to be levied upon the lands on which the same were imposed ; and if imposed upon the lands of any incorporated company, then upon such company; and when, collected the same shall be re- turned tO' the county treasurer to reimburse the amount so ad- vanced, with the expenses of collection ; and if impeded upon the stock of a nonresident stockholder in a banking association or- ganized under the laws of Congress, then the same, with seven, per cent, of the amount in addition thereto, shall be a lien upon any dividends thereafter declared upon such stock, and, upon notice by the board of supervisors to the president and directors of such! bank of such charge upon such stock, the president and directors shall thereafter withhold the amount so stated from any future dividends upon such stock, and shall pay the same to the collector of the town duly authorized tO' receive the same." [Consolidated School Law (L. 1894, ch. 556), tit. 7, § 75; Eeydecker's Gen. L. {2ded.),p.\1%0.] 16. Levy on. shares of bank stock. The provision of this section, pro- viding that an unpaid tax on bank stock shall be a lien upon any dividends thereafter declared upon such stock, is rendered obsolete by the provisions «f section 24 of the Tax Law, ante, p. 363, imposing a tax at the rate of one per cent, on the value of shares of bank stock in lieu of all other taxes. See preceding Note, No. 14. Schools and School Moneys. 887 Consolidated School Law, tit. 7, §§ 76, 77; tit. 15, §§ 1, 2. When owner may pay school tax to county treasurer. — Any per- son whose lands are included in any such account may pay the tax assessed thereon, with five per centum added thereto, to the county treasurer, at any time before the board of supervisors shall have directed the same to be levied. [Consolidated School Law {L. 1894, ch. 556), tit. 7, § 76, as amended by L. 1897, ch. 512; Hey- deckers Gen. L. {2d ed.), p. 1781.J Collection of unpaid too:, how made. — The same proceedings in all respects shall be had for the collection of the amount so di- rected to be raised by the board of supervisors as are provided by law in relation tO' the county taxes ; and, upon a similar account, as in the case of county taxes of the arrears- thereof uncollected, being transmitted by the county treasurer to the comptroller, the same shall be paid on his warrant to the treasurer of the county advancing the same ; and the amount so assumed by the state shall be collected for its benefit, in the manner prescribed by law in re- spect to the arrears of county taxes upon land of nonresidents; or if any part of the amount so assumed consisted of a tax upon any incorporated company, the same proceedings may also be, had for the collection, thereof as provided by law in respect to the county taxes assessed upon such company. [Consolidated School Law (L. 1894, ch. 556), tit. 7, § 77; Heydecker's Gen. L. (2d ed.), p. 1781.] § i8. Special provisions of the consolidated school law appli- cable to town officers. Liability of officers for loss of school moneys. — Whenever the share of school moneys or any portion thereof, apportioned to any town or school district, or any money to which a town or school dis- trict would have been entitled, shall be lost, in consequence of any willful neglect of official duty by any school commissioner, town clerk, trustees or clerks of school districts, the ofi5cer or officers guilty of such neglect shall forfeit to the town, or school district so losing the same, the full amount of such loss with interest thereon. [Consolidated School Law (L. 1894, ch. 556), tit. 15, § 1; Heydecker's Gen. L. (2d ed.), p. 1822.] Penalty for refusal or neglect to sue for penalty imposed for benefit of schools. — Where any penalty for the benefit o,f a school district, or of the schools of any school district, town, school com- missioner district or county, shall be incurred, and the officer or officers, whose duty it is by law to sue for the same, shall willfully 888 Schools ; Duties of Town and County Officers. Consolidated School Law, tit. 15, § 3. and unreasonably refuse' or neglect to sue for the same, such office or officers shall forfeit the amount of such penalty to the same use, and it shall be the duty of their successor or successors in office to sue for the same. [Consolidated School Law {L. 1894, ch. 556), tit. 15, § 2 ; Heydecker's Oen. L. (2d ed.), p. 1822.J Actions against school officers, including supervisors. — In any action against a school officer or officers, including supervisors of toiwns, in respect to their duties and powers under this act, for any act performed by virtue of or under the color of their offices, on for any refusal or omission to perform any duty enjoined by law, and which might have been the subject of am appeal to the superin- tendent, no costs shall be allowed to the plaintiff, in cases where the court shall certify that it appeared on, the trial that the de- fendants acted in good faith. But this provision shall not extend to suits for penalties, nor to suits or proceedings to enforce the decisions of /the superintendent. [Consolidated School Law {L. 1894, ch. 556), tit. 15, § 3; Heydecker's Gen, L. {2d ed.), p. 1823.] GrOSPEL AND ScHOOL LoTS. 889 Consolidated School Law, tit. 3, §§ 1, 2; R. S., pt. 1, ch. 15, tit. 4, § 3. CHAPTER LXV. GOSPEL AND SCHOOL LOTS. Section 1. Powers and duties of supervisors as to gospel and school lots. 2. Duties of supervisor as to gospel and school lots. 3. Apportionment of gospel and school lot funds among school districts. § I. Powers and duties of supervisors as to gospel and schooi lots. The several supervisors continue vested with the powers and charged with tlie duties formerly vested in and charged ujx)n the trustees of the gospel and school lots, and transferred to and im- posed upon town superintendents of common schools by chapter one hundred and eighty-six of the laws of eighteen hundred and forty-six." The several supervisors continued vested with the powers and charged with the duties conferred and imposed upon the oommis- sioners of common schools by the act of eighteen hundred and twenty-nine (oh. 287), entitled "An act relative to moneys in the hands of overseers of the poor." \_C onsolidated School Law (L. 1894, ch. 556), tit. 3, §§ 1, 2; Heydecker's Gen. L. {2d ed.), p. 1738.] § 2. Duties of supervisor as to gospel and school lots. The supervisor shall have power, and it shall be his duty, 1. To take and hold possession of the gospel and school lot of their town : 2. To lease the same for soich time not exceeding twenty-one years, and upon such conditions as they shall deem expedient: 3. To sell the same with the advice and consent of the inhabitr ants of the town, in town meetinc; assembled, for such price and 1. L. 1846, ch. 186. "An act to abolish the office of trustees of the gospel and school lots, and to transfer the powers and duties of the same to the town superintendent of schools." Sec. 1. The office of trustees of the gospel and school lots in the several towns in this state is hereby abolished; and the powers and duties now by- law conferred and imposed upon said trustees, shall hereafter be exercised by the supervisor. [Modified by L. 1856, ch. 179, sec. 27.] 2. The act formerly read: "The trustros, beside the ordinary powers of a corporation, shall, &c." 890 Schools; Duties of Town and County OrFiciats. K. S., pt. 1, ch. 15, tit. 4, §§ 4, 5, 6. •upon suoh terms of credit as sihall appear to them most advan- tageous : 4. To invest tihe proceeds of such siales in loans, secured by bond and mortgage upon uniaoumbered real property of the value of double the amount loaned: 5. To purchase the property so mortgaged upon a foreclosure, and to hold and convey the property so purchased whenever it shall become necessary : 6. To reloan the amount of such loans repaid to them, upon the like security: 7. To apply the rents and profits of such lots, and the interest of the money arising from the sale thereof, to the support of the gospel and schools, or either, as may be provided by law, in such manner as shall be thus provided : 8. To render a just and true account of the proceeds of the sales and the interest on the loans thereof, and of the rents and profits of such gospel and school lots, and of the expenditure and appropriation thereof, on the last Tuesday next preceding the annual town meeting in each year, to the board of auditors of the accounts' of other town ofiicers: 9. To deliver over to their suooessora in office, all books, papers and securities relating to the same, at the expiration of tiheir re- spective offices: and, 10. To take therefor a receipt, which shiall be filed in the derk's office of the town. \_R. S. pt. 1, ch. 15, tit. 4, § 3 ; Heydecher's Gen. L. (2d ed.), p. 4641. J The board of auditors in each town, shall annually report the state of the accounts of the trustees of the gospel and school lota in that town, to the inhabitants thereof, at their annual town meet- ing. [Idem, § 4.] Whenever a town having lands assigned to it for the support of tlie gospel or of schools, shall be divided into' two or more towns, or shall be altered in its limits by the rnnexing of a parti of its territory to another town or towns, such lands shall be sold by the trustees of tlie town, in which such lands were included immedi- ately before such division or alteration ; and the proceeds thereof, shall be apportioned between the towns interested therein, in the same manner as the other public monies of towns, so divided or altered, are apportioned. \Idein, § 5. J The shares of such monies, to which the town shall be respec- tively entitled, shall bo paid to the trustees of the gos'pel and school Gospel and School Lots. 891 L. 1895, ch. 232, §§ 1, 2, 3, 4, 5, 6. lots of the respective towns, and shall thereafter be subject to the provisions of this titla lldem, § 6. J § 3. Apportionment of gospel and school lot funds among school districts. It shall be lawful for the supervisor of any town having money arising from the sale of gospel lands, and known as gospel funds, to apportion such among the several school districts of his respective tovsm as hereinafter provided. [L. 1895, ch. 232, § 1 ; Heydecker's Gen. L. (2d ed.), p. 4642.] Any town having a gospel fund of five hundred dollars or less may apportion such fund with the consent and approval of a ma- jority of the town board of such town. Ibidem, § 2.] Any town having a gospel fund of more than five hundred dol- lars may apportion such fund in like manner by a vote at any annual or special town meeting. [Idem, § 3.] Where such apportionment is made, the supervisor shall pay to the trustees of the several school districts of his town its pro rata share according to the aggregate school attendance of each school district in the preceding year. \^Idem, § 4. J The trustees of such school districts shall execute and file with the supervisor of such town a bond of twice the amount of such apportionment, with sufficient sureties, to be approved by such supervisor. \^Idem, § 5.] Such trustees, upon the receipt of such money, shall apply the same for such purpose as the school district in annual or special meeting shall decide. [Idem, § 6.] JUEOBS. CHAPTER LXVI. GBAITD AND TEIAL JtTEOES ) COMMISSIONEES OF JTTEOES. Suction 1. Preparation of grand jury lists by board of supervisors; per- sona to be placed on lists. 2. Increase in number of jurors; duties of supervisors. 3. Inserting new names in box when list is nearly exhausted. 4. Supervisor, town clerk and assessors to make lists of trial jurors; names to be taken from assessment-roll. 6. Qualifications of trial jurors. 6. Who are disqualified to serve as trial jurors. 7. Who are entitled to be exempted from jury service, 8. Duplicate jury lists to be made and filed. 9. Proceedings where county clerk does not receive lists. 10. Jurors so returned to serve for three years. 11. Commissioner of jurors; office established; appointment. 12. Term of office ; salary ; rooms and accommodations. 13. Assistants and clerks. 14. Selection of trial jurors; aid of tax officers. 15. Preparation of list of trial jurors; notice to jurors. 16. Lists to be filed. 17. List of grand jurors. 18. Drawing jurors; ballots. 19. Removal of commissioner. 20. Application of act. 21. Fees of trial jurors. 22. Supervisors may make allowance to grand and trial jurors. 23. Extra allowance to trial jurors. § I. Preparation of grand jury lists by board of supervisors; persons to be placed on lists. The soipervisorsi of the several counties, of this state, except the city and county of N&w York, at their annual meetingsi in each year, shall prepare a list of the names of three hundred persons to serve as grand jurors at the terms of the Supreme Court and County Courts, to be held in their respective countieo during the (893) ^ 804 JUEOES. E. S., pt. 4, ch. 2, tit. 4, §§ 1, 3, 5. tJaen ensuiBg year and until new lists shall be returned/ [R. 8. pt.. 4, ch. 2, tit. 4. § 1, as amended hy L. 1896, ch. 574; Eey- decJcer's Gen. L. (2d ed.), p. 4904. J In preparing such lists the said boards of supervisors shall select such persons only, whose names appear upon the last assessment roll of the town or ward, as they know, or have good reason to be- lieve, are poiseessed of the qualifications by law required of persons to serve as jurors for the trial of isisues of fact, and are of approved integrity, fair character, sound judgment and well informed. [^Idem, § 3, 05 amended hy L. 1890, ch. 156.] Persons exempt by law from serving as jurors for the trial of issues of fact, shall not be placed on any list of grand jurors, re- quired by the preceding provisions." [Idem.] The lists so made out by the said boards of supervisors shall contain the christian and surname®, at length, of the persons named therein, their respective places of residence, and their sev- 1. Dnties of saporvisors as to grand juror lists. This section of the Revised Statutes makes it the duty of boards of supervisors to prepare a grand jury list for the county at each annual session of the hoard. The number of grand jurors, unless increased as hereinafter provided, is limited to three hundred. The board should, by a committee appointed for that purpose, apportion the grand jurors among the several towns and the wards of the several cities according to the population thereof, or by some other just and equitable method of apportionment. The apportionment having been made, it is the usual practice for the supervisor of each town- and ward to present to the board a list of the persons who, in his judgment, are qualified to serve as grand jurors. These lists are usually accepted by the board, although the primary duty of making the selection rests with the board itself. Notwithstanding the practice of each supervisor preparing the list from his own town or ward, selection of the jurors and the adoption and preparation of the list is the act of the board and this should plainly appear upon the record, and in the public proceedings of the board. There is usually in each board a committee on grand juries. The lists presented to the board by the individual supervisors should be submitted to this committee, and the committee should carefully consider the qualifica- tions of the persons included in each list, and thereupon consolidate the lists and make a. report to the board. Upon the adoption of the report by the board the lists as so consolidated and prepared will become the grand jury list for the county. Such list should then be certified by the clerk of the board of supervisors and filed in the office of the clerk of the county on or before the 10th day of December in each year. The above statute as to the preparation of grand jury lists by boards of supervisors does not apply where the office of commissioner of jurors has been established, under L. 18119, ch. 441. See post, p. 900. 2. As to exemptions from serving as jurors for the trial of issues of fact, see Code Civ. Proc, sec. 1030, post, p. 898. Oeand and Trial Jueoes; Oommissionees of Jukoes. 895 R. S., pt. 4, ch. 2, tit. 4, §§ 8, 9, 20, 21. eral oooupationa ; it shall be aertified by tbe olerk of the board of supervisors and stall be filed in the office of the clerk of the county on or before the tenth day of Decomber in each year.' [Idem, § 5, OS amended by L. 1896, ch. 34.] § 2. Increase in number of jurors; duties of supervisors. If the county judges of any other county of this State, or any three of them,* shall at any time be of opinion that a greater num- ber of persons than that herein required, should be returned to serve as grand jurors in their county, they may, by an order under their hands, direct such number to be increased ; but such increase shall not exceed one-half the number herein required to be selected for such county. [R. S. pt. 4, ch. 2, tit. 4, § 8 ; Heydecker's Gen. L. (2d ed.), p. 4905.] Upon any order which is authorized by the two last sections, being served upon the board of supervisors, they shall at their next annual meeting, increase the number of persons returned by them to serve as grand jurors, pursuant to such order. [Idem,, % 9.] § 3. Inserting new names in box when list is nearly exhausted. When it shall appear upon the representation of a county olerk, that there are less than fifty names remaining in the box containing the names of persons returned to serve as grand jurors, any three judges of the County Courts may select from the citizens of the county qualified to serve as grand jurors, and who shall not have served during the preceding twelve months, the names of fifty pei> sons, to serve as grand jurors. [R. 8. pt. 4, ch. 2, tit. 4, § 20 ; Heydecher's Gen. L. (2d ed.), p. 4907.] Such names shall be certified to the county clerk, who shall file such certificate in his office, and shall cause such names to be written on distinct pieces of paper, and deposited in the box con- taining any undrawn names of persons returned to serve as grand jurors, or if there be none, then in a proper box ; and from such lx>x, in either case, the clerk shall draw a grand jury to serve for 3. Defective list. Where it appears that a few persona named in a grand iury list are not possessed of the qualifications required by law, the whole list is not therefore to be declared irregular and null and void, es- riecially when it appears that the names were so added without fraud or de- sign, but by accident or oversight. Dola/n v. People, 64 N. Y. 485. 4. The power formerly conferred upon the judges of common pleas of the several counties is now imposed upon the county judge of the county. 896 JuEOES. K. S., pt. 4, ch. 2, tit. 4, § 22; Code Civil Procedure, §§ 1035, 1036, 1028. any cx>urt of oyer and terminer or general sessions, to be heid immediately after such drawing, lldem, § 21. J Such, drawing shall be made at the time, and in the same man- ner, in all respects, as herein provided in respect to persona r&- tumed by the supervisors, and the persons drawn shall be sum- moned in like manner, and subject to the same penalties for neglect. lldem, § 22.] § 4. Supervisor, town clerk and assessors to make lists of trial jurors ; names to be taken from assessment-roll. The supervisor, town olerk and asseesors of each town must meet on the first Monday of July, in the year one thousand eight hundred and seventy-eight, and in each third year thereafter, at a place within the to'wn, appointed by the supervisor; or, in case of his absence, or of a vacancy in his office, by the town clerk ; for the purpose of making a list of persons to serve as trial jurors for the then ensuing three years. If they fail to meet on the day specified in this section, they must meet asi soon thereafter as practicable.' [Code Civ. Proc, § 1035. J At the meeting specified in the last section, the officers present must select from the last assessmentrroU of the town, and make a list of the names of all persons whom they believe to be qualified to serve as trial jurors, as prescribed in the last artiola \_Code Civ. Proc, § 1036. J § 5. Qualifications of trial jurors. In order to be qualified to serve as a trial juror, in a court of record, a person must be : 1. A male citizen of the United States, and resident of the county. 2. Not less than twenty-one, nor more than seventy years of age. 3. Assessed, for personal property, belonging to him, in his own right, to the amount of two hundred and fifty dollars ; or the owner of a freehold estate in real property, situated in the county, belonging to him in his o^vn right, of the value of one hundred 5. Mere irregularities by public officers in making a list of persons to serve as trial jurors which cannot in any way affect the rights of the parties may be disregarded. Ferris v. People, 35 N. Y. 125. The statutes as to selecting, drawing and summoning jurors are merely directory. Friery v. tPeople, 2 Abb. Ct. App. Dec. 215. Grand and Trial Jurors; Commissioners of Jurors. 897 Code Civil Procedure, § 1029. and fifty dollars ; or the husband of a -woman -who is the owner of a like freehold estate, belonging to her, in her own right. 4. In the possession of his natural faculties, and not infirm or decrepit. 5. Free- from all legal exceptions ; of fair character ; of approved integrity; of sound judgment; and well infonned. \_Code Civ. Proc, § 102T.J But a person who was assessed, on the last asseesmentrroll of the town, for land in his possession, held under a contract for the purchase thereof, upon which improvements, owned by him, have been made to the value of one hundred and fifty dollars, is qualified to serve as a trial juror, although he does not possess either of the qualifications, specified in subdivision third of the last section, if he is qualified in every other respect \_Code Civ. Proc, § 1028. J § 6. Who are disqualified to serve as trial jurors. Each of the following officers is disqualified to serve as a trial juror : 1. The governor; the lieutenant-governor; the governor's pri- vate secretary. 2. The secretary of state ; the comptroller ; the state treas.urer ; the attorney-general; the state engineer and surveyor; a canal commissioner ; an inspector of state prisons ; a canal appraiser ; the superintendent of public instruction; the superintendent of the bank department ; the superintendent of the insurance department ; and the deputy of each officer, specified in this subdivision. 3. A member of the legislature, during the session of the house, of which he is a member. 4. A judge of a court of record, or a surrogate. 5. A sheriil, under sheriff, or deputy sheriff. 6. The property qnaliflcation must appear on and be evidenced by the assessment rolls. Armsby v. People, 2 T. & C. 157. It was held in accord- ance with this proposition that where, upon, challenge of the juror, it ap- peared that when he was placed on the jury list he was the owner of a farm for which he was assessed, but was not assessed for personal property, and before the trial he sold his farm, taking back a mortgage, that he was not eligible and that the challenge was properly sustained. Kelly v. People, 55 N. Y. 565. Mere possession of the amount of property is not enough. It must be assessed to him upon the town assessment-roll. Valton v. Nat. L. F. Ass. Boo., 17 Abb. 268. 898 JtTEOBS. Code Civil Procedure, § 1030. 6. The cleirk or deputy clerk of a court ocf record. [^Code Civ. Proc, § 1029.J § 7. Who are entitled to be exempted from jury service. Each of the following persons, although qualified, is entitled to exemption from service as a trial juror, upon his claiming ex- em pition therefrom: 1. A clergyman, or a minister of any religion officiating as such, and not following any other calling. 2. A resident ofiieer of, or an attendant, assistant, teacher, or other person actually employed in a state asylum for lunatics, idiots or habitual drunkards. 3. The agent or warden of the state prison, the keeper of a county jail, or a person actually employed in a state prison or county jail, and the keeper of every alms-house. {^Amended by L. 1896, ch. 566.J 4. A practicing physician or surgeon, having patients requiring his daily professional attention, a licensed pharmacist actually engaged in his profession as a means of livelihood, a duly regis- tered veterinary surgeon actually engaged in his profession as a means of livelihood, and a duly licensed embalmer actually engaged in his profession as a means of livelihood. [Amended L. 1895, ch. 532, and L. 1904, ch. 416.] 5. An attorney or counselor at law regularly engaged in the practice of the law as a means of livelihood. 6. A professor or teacher, in a college or academy, or an editor, editorial writer, artist or reporter of a daily newspaper or press association regularly employed as such and not following any other vocation. \_Amended by L. 1905, ch. 437.] 7. A person actually employed in a glass, cotton, linen, woolen or iron manufacturing company, by the year, month or season. 8. A superintendent, engineer, or collector on a canal, author- ized by the law of the state, which is actually constructed and navigated. 9. A master, engineer, assistant engineer or fireman, actually employed upon a ste'am vessel, making regular trips. 10. A superintendent, conductor, or engineer, employed by a railroad company, other than a street railroad company; or an operator or an assistant operator, employed by a press association or a telegraph company, who is actually doing duty in an office, or along the railroad or telegraph line of the company or association, by which lip is employed. [Aniended L. 1902, ch. 291.] 11. An officer, non-commissioned officer, musician or private of the national guard of the state, performing military duty, or a per- son who has been honorably discharged from the national guard, after five years' service in e!:,:„;e;r ;jff,',-:i',v,'_ Gbanb and Trial Jurors; Commissioners of Jurors. 899 Code Civil Procedure, §§ 1037, 1039. 12. A person who has been honorably discharged from the mili- tary forces of the state, after seven years' faithful service therein. But in order to entitle a person to exemption, under this sub- division, his service must have been performed before the twenty- third day of April, eighteen hundred and sixty-two, either as a general or staff officer, or as an officer, non-commissioned officer, musician or private in a uniformed battalion, company or troop of the militia of the state, and armed, imifoiTaed and equipped ac- cording to law; or a portion thereof, during that period and in that capacity, and the remainder since the twenty-third day of April, eighteen hundred and sixty-two, as a member of the national guard of the state. 13. A member of a fire company or fire department duly organ- ized according to the laws of the state and performing his duties therein; or a person who, after faithfully serving five successive years in such a fire company or fire department has been honorably discharged therefrom. 14. A duly licensed engineer of steam boilers, actually employed as such. 15. A person otherwise specially exempted by law. [_Code Civ. Proc, § 1030.J § 8. Duplicate jury lists to be made and filed. Duplicate lists of the names of the persons so selected, showing the place of residence, and other proper additions, of each of them, as far as those particulars can be conveniently ascertained, must be made out and signed by the officers, or a majority of them. Within ten days after the meeting, one of the lists must be trans- mitted by those officers to the county clerk, and filed by him ; and the other must be filed with the town clerk. [Code Civ. Proc, § 1037.J § g. Proceedings where county clerk does not receive lists. Before depositing the ballots', the county clerk must destroy each ballot, remaining in either of the boxes kept by him, and contain- ing the name of a resident of a town, for which a new list has been transmitted. If, for any reason, the list from a town is not re- ceived by the county clerk, by the first Monday of August, he shall give immediate notice thereof to the town clerk, and it must be transmitted as soon thereafter as practicable; and if after the same is received by the county clerk it has been or shall be lost or 900 JUKOES. Code Civil Procedure, § 1040; L. 1899, oh. 441, §§ 1, 2. destroyed, lie must forthwith give notice to the town clerk and a copy of the duplicated list on file in the town clerk's office, certified by him to be correct, or if that duplicate is also lost or destroyed or cannot be found, a new list to be made forthwith as prescribed for making the original list, must be transmitted to the county clerk as soon thereafter aa practicable; and the county clerk must prepare new ballots, and destroy the old ballots, con- taining the names of residenta of that town immediately after the receipt by him of the list therefrom. [Code Civ. Proc, § 1039.J § 10. Jurors so returned to serve for three years. Each person, whose name is contained in a list, so transmitted, must, unless he is excused or discharged, serve, as a trial juror, for three years from the first Monday of August of that year, and thereafter until another list from hisi town is received and filed. iCode Civ. Proc, § 1040.] § II. Commissioner of jurors; office established; appointment. Office established. — The oflice of commissioner of jurors is here- by established in and for each of the counties of Schenectady, Sara- toga, Richmond, Queens, Oneida, Herkimer and Niagara, and the board of supen^isors in any other county of the state, may adopt a resolution at its annual or special meeting called for that purpose, to establish the office of commissioner of jurors in such county. A copy of such resolution certified by the clerk of such board of super- visorsishallbefiled in the office of the derk of the county within ten days after its adoption and a certified copy thereof delivered within the same time to each of the officers herein authorized to appoint a commissioner of jurors for such county.' \_L. 1899, ch. 441, § 1, as amended hy L. 1903. rh. 901 . 1 _ Appointment. — In any county in which the office of oommis^ sioner of jurors is established as provided in the preceding section, 7. Commissioners of jurors in other counties. As to the appoint- ment of a commissioner of jurors in the counties of New Yorlc and Kings, and the drawing of special juries therein, see L. 1901, ch. 602. As to the office of commissioner of jurors in the county of Erie, see L. 1895, ch. 369, as amended by L. 1896, ch. 97; L. 1897, ch. 21, and L. 1901, ch. 230. As to the office of commissioner of jurors in the county of Onondaga, see L. 1897, ch. 194, as amended by L. 1898, ch. 74, and L. 1903, ch. 203. As to the office of commissioner of jurors in the county of Monroe, see L. 1897, ch. 346, &s amended by L. 1900, ch. 565, and L. 1902, ch. 408. Grand and Tbial Jueoes; Commissioners of Jurors. 901 L. 1899, ch. 441, § 3. and in the county of Albany, such commissioner and his successor shall be appointed in the following manner: 1. If only one justice of the Supreme Court resides in such county, he and the county judge and the county clerk shall make the appointment 2. If two or more justices of the Supreme Court reside in such county, they and the county judge shall make the appointment. 3. If no justice of the Supreme Court resides in such county, and the county has a separate surrogate, the county judge, surro- gate and county clerk shall make the appointment. 4. If no Supreme Court justice residas in such county and such county has no separate surrogate, the coimty judge, district at- torney, and county clerk shall make the appointment. The first appointment shall be made in the counties of Saratoga and Sche- nectady within thirty days from the date this act sbaU take effect, and in the other counties to which this act applies within thirty days after the adoption of the resolution to establish the office. The officers herein authorized to appoint a commissioner of jurors in a county shall constitute a board for that purpose and an ap- pointment of a commissioner by them must be in writing, signed by a majority of such officers and filed in the office of the clerk of the county, lldem, § 2, as amended by L. 1900, ch. 320, L. 1903, ch. 201, and L. 1905, ch. 102.] § 12. Term of office; salary; rooms and accommodations. Term of office; undertaking. — A commissioner of jurors first appointed under this act shall take office immediately, and shall hold office for a term which shall expire five years from the first day of January next succeeding his appointment^ and each com- missioner thereafter appointed under this act, except, to fill a vacancy, shall hold his office for a term of five years, froim the ex- piration of the term of his predecessor in office. All terms shall expire on the thirty-first day of December, and before entering As to office of commissioner of jurors in Westchester county and the regu- lation of his powers and duties, see L. 1892, ch. 491, as amended by L. 1893, ch. 269. As to the oifice of commissioner of jurors in Rensselaer county, see L. 1894, ch. 557, as amended by L. 1896, ch. 679. This act originally applied to both Albany and Rensselaer counties, but by L. 1900, ch. 320, sec. 2, it is provided that ch. 557 of L. 1894 shall not hereafter apply to the county of Albany, but such county shall be subject to the provisions of ch. 441 of L. 1899, which is the general act applying to all counties where the board of supervisors have adopted a resolution as provided in the above section. 902 JUEOES. L. 1899, ch. 441, §§ 4, 5, 6. upon tlie duties of his office, he shall execute an undertaking to the county in a sum to be fixed and approved by the appointing au- thority, not less than two thousand dollars, nor more than five thousand dollars, conditioned that he will faithfully perform the duties of his office, and account for and pay over all moneys which come into his hands by virtue thereof, which shall be filed in the ofiice of the county clerk. \_L. 1899, ch. 441, § 3, as amended by L. 1900, ch. 320.] Salary. — A commissioner of jurors shall be entitled to receive an annual salary payable monthly by the county treasurer. 1. In counties having a population of one hundred thousand and not more than one hundred and fifty thousand, fifteen hun- dred dollars. 2. In counties having a population of more than one hundred and fifty thousand and not more than three hundred thousand, not exceeding three thousand dollars to be fixed by the resolution creating the ofiice. 3. In counties having a population less than one hundred thou- sand, a sum to be fixed by the resolution creating the office, except in the counties of Niagara, Herkimer and Schenectady, where it shall be fixed by the board which makes the appointment, not ex- ceeding twelve hundred dollars. [Idem, § 4, as amended hy L.. 1906, ch. 221.] Rooms and accomm,odations. — In the city of i^ew York, the municipal assembly shall provide suitable rooms and accommoda- tions for the commissioner of jurors in each county within such city, and shall also make provision for necessary printing and advertising, and for supplying him with necessary books, station- ery and other articles. In any other county such rooms, accom- modations and supplies shall be provided for by the board of supervisors. Until such provision has been made a commissioner of jurors shall use the county clerk's office of his county to trans- act the necessary duties of his office and shall be supplied by the- county clerk with necessary books and other articles, which shall be a county charge. [Idem, § 5.] § 13. Assistants and clerks. A commissioner of jurors in a county of more than sixty-five thousand population according to the last preceding state or federal census may appoint one assistant commissioner of jurors whose compensation shall be fixed by the board appointing the commissioner, and one clerk whose compensation shall be fixed in the same manner; such compensation shall be paid by the county in equal monthly installments and an assistant commisi- sioner of jurors may be designated by the commissioner appoint- ing him to perform any o Gband and Trial Jueoes; Commissioners of Jurors. 903 L. 1899, ch. 441, §§ 7, 8, 9. jurors in his abeemce. A commissioner of jurors, or an assistant whom he designates for the purpose by a certificate filed in the office of the county clerk, may administer an oath or affirmation in relation to any matter embraced within the provisions of this act. [L. 1899, ch. 441, § 6.J § 14. Selection of trial jurors ; aid of tax officers. Trial jurors must be selected by the commissioner of jurors, who must alone decide upon their qualifications and exemptions, except as otherwise expressly prescribed by law. But this section does not impair the right to challenge a particular juror at the trial. The commissioner may issue, to a person entitled to an exemption, a certificate of that fact, which exempts the person to whom it is granted from jury duty during the time limited therein. He must keep a record of all proceedings before him, or in his office. [L. 1899, ch. 441, § 7.] Tax officers to give aid. — The president and commissioners of the department of taxes and assessments in the city of New York must render to the commissioner of jurors of each of the counties of Richmond and Queens all the assistance in their power to enable him to procure the names of persons liable to serve as trial jurors, and in the other counties of this state in which coramission- ecTs of jurors shall be appointed in pursuance of this act, the supervisors, town clerk and assessors of each town must furnish like assistance. The officers herein mentioned shall forthwith upon the request of the commissioner of jurors of any county furnish him a jury list made by selecting and entering thereon from the last revised assessmcet^roll in their possession the names of all persons whom they believe possess the qualifications! for trial jurors as prescribed by law ; such a list must show the places of residence and other proper additions of each person so selected, so far as these particulars can be conveniently ascertained, and must be certified by the officers making the sama \_Idemj § 8. J § 15. Preparation of list of trial jurors; notice to jurors. List of trial jurors. — Immediately upon the receipt of the list meaitioned in the last section, the commissioner of jurors must oommence the preparation of the list of trial jurors in his county, and for that purpose the names of persons liable to serve as trial jurors must be entered in suitable books alphabetically with the occupation, places of business and residence of each as far as those 904 JUEOES. L. 1899, oh. 441, §§ 10, 11. particulars can b© convemently ascertained. Upon the comple- tion of such list by the commissioner he shall give notice by mail to the persons named in said list, that their claims for exemption ■will be heard by him upon a day named in said notice, and he may also include in said notice such portions of the law relating to jurors as may seem to him proper and expedient. He must hear and determine all claims for exemption and must keep a record of all persons exempted and the period of time for which exemp- tion is allowed. [L. 1899, ch. 441, § 9.] Notice to jurors, etc. — The commissioner may cause to be per- sonally served, upon any person within the county, a notice re- quiring him to attend at the commissioner's office at a specified time, not less than twenty-four hours after service of the notice, for the purpose of testifying concerning hisi own liability, or the liability of any other person to serve as a juror. A person so notified must attend and testify accordingly. If he fails to at- tend, as specified in tlie notice, for any cause, except physical inability, or if he refuses to be sworn or to answer any legal and pertinent question put to him by the commissioner, he forfeits fifty dollars for each failure or refusal. One or more successive notices may be served upon the same person, where he fails to attend, as required by a former notice, and he is liable to the same penalty for each failure so to attend. But the commissioner may, in his discretion, dispense with the personal attendance of a per- son so notified, where another person cognizant of the facts is produced and testifies in his stead ; and where a person has so at- tended twice they cannot be required to attend again in the same jury year. [Idem, § 10. J § 1 6. Lists to be filed. On or before the first day of December in each year the com- missioner must return to the county clerk, to be filed in his office, certified copies of the lists prepared by him of the persons liable to serve as trial jurors in the courts of record for the ensuing jury year. Before filing such certified lists, however, he must select therefrom and strike off therefrom, two hundred persons for each district of the Municipal Court of the city of New York in his county, if he be commissioner for a county in the city of New York, and he must on or before the first day of December in each year file with the respective justices of said Municipal Court., in. his county, certified lists of the persons so sedected and struck off Oeand and Tbial Jueoes; Oommissionees of Juboes. 905 L. 1899, oh. 441, §§ 12, 13. by him — the persons so selected to be residents of the Municipal Court district, for which they are selected. The list so filed shall consititute the jury lists for trials in the respective districts where they are filed until a new list shall be filed in accordance with the provisions of this act He may from time to time thereafter strike from the list kept by him the name of a person who is found by him to be exempt or disqualified, in that case he must record the reason why the name is struck off as exempt or disqualified. [L. 1899, ch. 441, § 11, as mnended by L. 1901, ch. 172.] In a county which has a commissioner of jurors, other than a county included in the city of New York, the commissioner shall, on or before the fifteenth day of Deoemher, in each year, file with each tovTn and city clerk in such county a list of the names of the residents of such town or city which have been placed by him on the trial jury list for such county. \^Idem, % 12.] § 17. List of grand jurors. In a county which has a commissioner of jurors, such commis- sioner and the board appointing him shall prepare in the month ef December of each year from the trial jury list filed as herein provided a list of the names of three hundred persons to serve as grand jurors in said county during the next ensuing jury year, and until a new list shall be returned. The list shall contain the christian names and surnames at length of persons named therein, their respective places of residence, and their several occupations. It shall be certified by said board and filed in the office of the county clerk within ten days thereafter. [^Idem, § 13.J § 18. Drawing jurors ; ballots. Ballots for drawing grand jurors. — The county clerk on the last day of December after the list has been transmitted to him, must prepare suitable ballots by writing, on a. separate piece of paper, the names of each person thus selected, as contained in the list, with his place of residence and other additions. The ballots must be uniform in appearance as nearly as may be, and the clerk must deposit them in the boxes now required by law to be kept for the purpose of drawing grand and trial jurors. The county derk before depositing the ballots, must destroy each ballot re- maining in either of the boxes kept by him, and containing the 90G J'UEOBS. L. 1899, ch. 441, |§ 15, 16, 17 ; Code Civil Procedure, §§ 3313, 3314. name of a resident of a town for which, a new list has been trans- mitted. [L. 1899, ch. 441, § 14.J Drawing jurors. — The grand and trial jurors shall be drawn, as now provided by law by the county clerk in the presence of the county judge, the sheriff and the commissioner of jurors, or a majority of them. Ibidem, § 15. J § ig. Removal of commissioner. Any commissioner of jurors appointed pursuant to the provi- sions of this act may be removed for cause by the board by whom the appointment was made. He may also be removed upon order of the appellate division of the Supreme Court of the department embracing the county in which he resides. The commissioner is entitled to notice of application to the appellate division for his removal. [L. 1899, ch. 441, § 16.J § 20. Application of act. This act shall not apply to the counties of 'New York, Kings, Erie, Monroe, Onondaga, Westchester or Rens&elaer, [L. 1899,. ch. 441, § 17, as amended hy L. 1900, ch. 320.J § 21. Fees of trial jurors. A trial juror, in an action or a special proceeding, in a court of record, is entitled, except as otherwise specially prescribed by statute in a particular court, or a particular county, to the fol- lowing fees: twenty-five cents for each cause in which he is em- panelled, to be paid by the party noticing the cause for trial ; or, if it is noticed by more than one party, by the party whom the court directs to pay it. [Code Civ. Proc, § 3313.] § 22. Supervisors may make allowance to grand and trial jurors. In the counties within the city of New York the municipal assembly, and in any other county the board of supervisors, may direct that a sum, not exceeding two dollars in addition to the fees prescribed in the last section, or in any other statutory pro- vision, be allowed to each grand juror, and each trial juror for each day's attendance at a term of a court of record, of civil or criminal jurisdiction, held within their county, except that in the county of Westchester and the counties of Rockland, Orange, Geand and Trial Jurors ; Commissioners of Jtjroes. 907 Code Civil Procedure, § 3315. Erie, ISTiagara, Ontario, Orleans, Livingston, Wayne, Wyoming, Cajuga, and Gennessee grand and trial jurors may be allowed a sum by the board of supervisors not exceeding three dollars for a day in addition to the other fees prescribed by the last section. If a different rate is not otherwise established as herein provided, each juror is entitled to five cents for each mile necessarily traveled by him in going to and returning from the term ; but such board of aldermen or board of supervisors may establish a lower rate. A juror is entitled to mileage for actual travel once in each calendar week during the term, except that in the counties of Queens, Rock- land and Orange grand and trial jurorg may be paid four cents a mile for each mile necessarily traveled in going to and returning for each day of actual travel during the term in lieu of any other mileage. The sum so established or allowed must be paid by the county treasurer upon the certificate of the clerk of the court, stating the number of days that the juror actually attended, and the number of miles traveled by him in order to attend. The amount so paid must be raised in the same manner as other county charges are raised. [Code Civ. Proc, § 3314, as amended by L. 1897, ch. 236, L. 1898, ch. 393, L. 1899, ch. 439, L. 1900, ch. 585, L. 1903, ch. 247, L. 1904, ch. 161, and L. 1906, ch. 334. § 23. Extra allowance to trial jurors. Where the trial, by a jury, of an issue of fact, in either a civil or a criminal action or special proceeding, in a court of record, occupies more than thirty days, the court, by an order entered in the minutes, may fix and allow, to each juror, such an extra com- pensation as it deems reasonable, for his services thereupon; the amount of which compensation, together with the expenses actually and necessarily incurred, for food for the jurors during the trial, is a county charge. [Code Civ. Proc, § 3315.] PiLB.T XI. Pbovisions Eelatinq to Counties and Towns. CHAPTER LXVII. ACTIONS BY AND AGAINST TOWN AND COUNTY OFFICEES. Skohon 1. Investigation by Supreme Court into the expenditure of town moneys by town officers. 2. Actions against town and county officers to prevent illegal acts; bonds; order restraining improper audit or fraudulent judg- ments; books, papers, etc., open to inspection. 3. Actions against municipal officers to prevent waste, etc. 4. Actions by and against certain town officers in their official capacities. 6. Officer, how described in summons. 6. Successor, when to be substituted. 7. When execution upon judgment cannot be issued against officer personally. § I. Investigation by Supreme Court into the expenditure of town moneys by town officers. If twenty-five freeholders in any town or village shall present to a justice of the Supreme Court of the judicial district in which such town or village is situated, an affidavit, stating that they are freeholders and have paid taxes on real property within such town or village within one year, that they have reason to believe that the moneys of such town or village are being unlawfully or corruptly expended, and the grounds of their belief, such jusi- tice, upon ten days' notice to the supervisor, and the officers of the town disbursing the funds to which such moneys belong, or the trustees and treasurer of the village, shall make a summary in- vestigation into the financial affairs of such town or village, and the accounts' of such officers, and, in his discretion, may appoint experts to make such investigation, and may cause the result thereof to be published in such manner as he may deem proper.' The costs incurred in such investigation shall be taxed by the 1. Taxpayer's action to restrain the unlawful expenditure of town and county money by public officers. See L. 1881, ch. 531, and Code Civ. Proc, sec, 1925, post, p. 911. (909) 910 Peo vision's Keiating to Counties and Towns. General Municipal Law, § 3. justice, and paid, upon his ordeir, by the officers whose expendi- tures are investigated, if the facts in such affidavit be s.ubstan- tially proved, and otherwise, by the freeholders making such affidavit. If such justice shall be satisfied that any of the moneys of such town or village are being unlawfully or corruptly ex- pended, or are being appropriated for purposes to which they are not properly applicable, or are improvidemtly squandered or wasted, he shall forthwith grant an order restraining such, unlaw- ful or corrupt expenditure, or such other improper use of such moneys." lGe7ieral Municipal Law (L. 1892, ch. 685), § 3; Heydecker's Gen. L. (2d ed.), p. 1151.] 2. Object and nature o£ proceedings. The above section provides for a judicial investigation of the financial affairs of a town or village, and is a remedial statute. It is designed to: (1) Prevent the present or future illegal appropriation of public moneys; and (2) determine the financial con- dition of the town and prevent future illegal appropriations of public moneys by pointing out what proper and what improper charges may have been allowed by a former town board. Thus, while the proceeding must be based upon present acts which contemplate the unlawful expenditure of money already on hand, or which may thereafter be produced from the sources of revenue of the town, the experts in their investigation are not limited to the particular year in which the illegal appropriation sought to be restrained is made. Matter of Town of Hempstead, 36 App. Div. 320; 55 N. Y. Supp. 345; affd., 160 N. Y. 685. A justice has no power to investigate or correct evils resulting from mere error in judgment upon the part of the town officers; it is only unlawful or corrupt expenditures of public moneys which come within the terms of the statute. See Matter of East Syracuse, 20 Abb. N. C. 131. The proceeding should not be instituted unless it can be shown that the officer acted illegally and without statutory authority; the proceeding will not be sustained in case it be shown that the officer acted in, good faith and without intent to defraud the taxpayers. See N. Y. G. £ H. R. B. R. Co. v. Maine, 54 N. Y. St. Rep. 384; 24 N. Y. Supp. 962. Appeal. An order made by a justice of the Supreme Court, and affirmed by the Appellate Division, determining the result of a summary investiga- tion into the financial affairs of a town or village, instituted by taxpayers and freholders under the above section, is reviewable by the Court of Appeals as a final order in a special proceeding. Matter of Taxpayers of Plattslurg, 157 N. Y. 78; 51 N. E. 512. A proceeding under the above section is a special proceeding within the definition contained in sections 3333 and 3334 of the code, and the decision of the justices therein is not, under section 2121 of the code, reviewable by a writ of certiorari. People ex rel. Guibord V. Kellogg, 22 App. Div. 177; 47 N. Y. Supp. 1023; see, also. Matter of Town, of Hempstead, 32 App. Div. 6; 52 N. Y. Supp. 618, in which case it was held that the proper way to review the order of a justice in such proceedings was by an appeal. Actions by and against Officees. 911 L. 1881, ch. 531, § 1. § 2. Actions against town and county officers to prevent illegal acts ; bonds ; order restraining improper audit or fraudulent judg- ments; books, papers, etc., open to inspection. All ofEoers, agents, commissdon£irs 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 main- tained against them to prevent any illegal official act on the part of any such officers, agents, oommissionera 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 munici- pal corporation by any person or corporation whose assessment, or by any number of persons or corporations, jointly, the sum of whose assessments shall amount to one thousand dollars, and who shall be liable, to pay taxes on such assessment or assessments in the county, town, village 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 pre- vious to the commencement of any such action or actions.' Such Colts. Since the proceeding under the above section ia a special pro- ceeding the costs are to be awarded in the discretion of the court at the rates allowed for similar services in an action brought in the same court; in the absence of a stipulation stenographers' fees cannot be taxed as costs in such a proceeding; but the fees of the experts employed therein are to be treated as similar to those of a referee, and are, therefore, properly taxable. The costs of such an investigation cannot be taxed against the officers of the town, who were not made parties to the proceeding, although their bills may have been found to be irregular. Matter of Toum of Hempstead^ 38 App. Div. 321; 55 N. Y. Supp. 345. 3. Action! BEainst totni and connty offlceri to prevent illegal aoti. In speaking of the above act Judge O'Brien says, in the case of Talcott v. City of Buffalo, 125 N. Y. 280 ; 26 N. E. 263 : " In a single section, authority was given to any person residing in the county, town or municipal corpora- tion, assessed for and liable to pay taxes therein, or who had paid taxes therein within one year previous to maintain an action against all officers, agents, commissioners and other persons acting for or in behalf of such county, town or municipal corporation, to prevent waste or injury to any property, funds or estate of such county, town or municipal corporation. That this legislation was aimed at ' frauds, embezzlements, and wrongful acts of public officers and agents,' as indicated by the title, is also clear when the causes that moved the legislature to its enactment and which are matters of public history are considered. The origin of the statute is to be found in certain well known fraudulent and corrupt acts on the part of officers and commissioners in the city and county of New York, whereby 912 Peovisions Eelating to Counties and Towns. L. 1881, ch. 531, § 1. person or persons, corporation or corporations upon the commence- ment of Siuch action, shall furnish a bond to the defendant therein, public funds were abstracted from the treasury mainly by the audit and allowance of fictitious claims and corrupt contracts, and the proceeds con- verted to the individual benefit and use of these officers and agents. The terms ' waste ' and ' injury ' used in this statute comprehend only illegal, wrongful or dishonest official acts, and were not intended to subject the official action of boards, officers or municipal bodies acting within the limits of their jurisdiction and discretion, but which some taxpayer might con- ceive to be unwise, and improvident or based on errors of judgment, to the supervision of the judicial tribunals. It is believed that no action was ever maintained under this statute with the sanction of this court, without some proof or allegation that the official act or proceeding complained of was without power or was tainted by corruption or fraud." Bad faith and breach of official duty is sufficient under the above act to enable a taxpayer to maintain an action against municipal authorities. Adamson v. Union B. B. Co., 74 Hun, 3; 56 N. Y. St. Hep. 214; 26 N. Y. Supp. 136. This section should be construed with section 1925 of the Code of Civil Procedure, which is contained in the section immediately following. Neither the above act nor section 1925 of the code were intended as a mode of putting an incapable or a confiding official under the protecting guardian- ship of the court, and of making him a ward in chancery to be shielded from the effects of his own folly, nor to enable a taxpayer to try a question of fraud between the officer and those who are dealing with him. If the officer is honest and faithful no suit against him is needed. The taxpayer may explain to him the facts and discover to him the fraud and the courts are open for his protection and the means of redress are at hand. It is only when, in the face of explanation and knowledge, he still refuses to act and persists in carrying out the wasteful contract that the action against him is needed; and then it rests upon his misconduct, upon his collusion and fraud, which must be alleged and proved. The legislature could not have intended that the courts should supply intelligence and prudence to in- capable officials at the demand of a, taxpayer, but manifestly did intend to give the latter protection against the dishonesty or. fraud of the municipal agents. Finch, J., in ^tejrZeri). CAapm, 126 N. Y. 342, 348; 27 N. E. 471. The only acts which can be complained of and against which the above statute may be invoked are those performed by municipal officers in the exercise of their official duties. See Potter v. CoIIis. 19 App. Div. 392; 46 N. Y. Supp. 471; afFd., 156 N. Y. 16; Shechy v. McMillan, 26 App. Div. 140; 49 N. Y. Supp. 1088; Paul v. City of New York, 46 App. Div. 69; 61 N. Y. Supp. 570. Object and construction of act. The object of the act is to secure the protection of public property, and to subordinate the acts of officials in its disposition or appropriation to the restraint of the law. It must be literally construed and applied to carry this object into eflfect. Starin v. Mai/or, 42 Hun, 549; 4 N. Y. St. Hop. 588; revd. on other grounds, 112 N. Y. ?06. In the cnse of People v. N. Y. rf M. B. By. Co., 84 N. Y. 565, it was held that the act of 1875, similar in many respects to the above act, was Actions by and against OSficehs. 913 L. 1881, ch. 531, § 1. to be apiproved by a justice of the Supreme Court or the county judge of the county in whiah the action is brought, in such penalty for the main purpose of authorizing the pursuit of the funds wrongfully abstracted from municipal treasuries into the Imnds of officials or other persons who wrongfully obtained or received them. Such statutes are intended to provide ample remedy and protection to taxpayers against all wrongful acts to their prejudice of the officers and agents of a, municipal corporation, affecting not only its property rights but its credit; and every process or means by which the corporation can be charged pecuniarily, or the taxable property within its limits be burdened, are embraced within their provisions. Aycrs v. Lawrence, 59 N. Y. 192. Who may bring the action. The action can only be brought by one who is a taxpayer, acting in good faith to protect his interests. Hull v. Ely, 2 Abb. N. C. 440. The object of the action being to prevent waste or injury to the property, funds or estate of a municipal corporation, it is the duty of the court to see to it that he who undertakes to champion the public cause is actuated by public motives, and that he is not making use of the power of the court to accomplish some private end. Kimball v. Hetdtt, 17 N. Y. St. Eep. 743; 2 N. Y. Supp. 697; affd., 15 Daly, 124. When action may be maintained. The taxpayer's action was not intended as a substitute for the action to restrain public nuisances, brought by public authorities, nor as a substitute for an action maintainable by an individual who has suflfered, or is likely to suffer special injury therefrom. Gallagher v. Keating, 40 App. Div. 81; 57 N. Y. Supp. 032. In this case a taxpayer, who did not claim to be the owner of property abutting on an avenue upon which it was proposed to erect an elevated railroad, sought to restrain the erection of such railroad and to enjoin the city from authorizing the construction thereof, and it was held that such an action would not lie under this statute, especially since it appeared that the proper city officers had issued a permit for the construction of such railroad more than a week before the commencement of the suit. In the case of Kittenger v. Buffalo Traction Co., 160 N. Y. 377; 54 N. E. 1081, it was held that a taxpayer was not entitled to maintain an action under the above act to procure a judgment declaring a consent already ob- tained by a traction company for the construction and maintenance of a street surface railroad, to be illegal and void, and to enjoin in such an action the building of the road. In the case of Ziegler v. Chapin, 126 N. Y. 342 ; 27 N. E. 471, it was said that an action ought not to be maintained by a taxpayer to restrain the purchase of property by municipal trustees merely on the ground that the proposed price is an extravagant one, and that the proceedings of the muni- cipal officers show a want of prudence and good judgment. The action can only be sustained upon allegations of fraud, collusion, or bad faith. And facts must be alleged showing that the officer acted fraudulently, collusively, and in bad faith ; it will not be sufficient to allege, as a mere conclusion, that he so acted. Wallace v. Jones, 82 N. Y. Supp. 449 (App. Div., 2d Dept., May 28, 1903). 914 Peovisions Relating to Counties and Towns, L. 1881, ch. 531, § 1. as the justice or judge approving the Siame shall direct, but not less than two hundred and fifty dollars, and to be executed by any Where public oiEclals are in good faith insisting upon a right of property in the municipality against a person, although they may be wrong in their legal position, the act does not authorize another taxpayer to interfere to restrain them, nor can the person against whom the right is asserted inter- fere in his right as a taxpayer merely. Rogers v. O'Brien, 1 App. Div. 397; 37 N. Y. Supp. 353. The authority conferred by the act extends only to official acts which, if performed, would produce a public injury, and the remedy for which by injunction was previously available to the attorney- general or some body or ofScer acting on behalf of the public. Rogers v. O'Brien, 153 N. Y. 357; 47 N. Y. Supp. 456. A taxpayer's action cannot be maintained under the above act to set aside grants of franchises by municipal authorities to street railway companies because they were made for a less sum in return to the municipality than might, by the exercise of due diligence, have been obtained, and because of fraud, there being no charge of corruption and the proceedings being regular. Adamson v. Nassau Electric R. Co., 89 Hun, 261 ; 34 N. Y. Supp. 1073. Where a bid of a corporation for street lighting was the lowest and was made in good faith, it was held that a taxpayer's action to restrain the municipality from entering into the contract could not be maintained, on the ground that the corporation had no right to erect its poles in the streets, and that hence the contract would be illegal. The corporation would be bound on entering into the contract to obtain the necessary rights to enable it to perform. Boyle v. Grant, 12 N. Y. Supp. 801 ; 36 N. Y. St. E«p. 207. Although a mere error in judgment as to price on a proposed purchase by a municipality may not suffice to sustain a taxpayer's action, yet an ex- cessive valuation so large as to indicate that the officers acting are not exercising the same fidelity, care, and caution as would be expected of an individual purchasing for himself with his own money, will sustain an action to enjoin the purchase. Winklen u. Bummers, 22 Abb. N. C. 80; 5 N. Y. Supp. 723. In the case of Warrin v. Baldwm, 105 N. Y. 534; 12 N. E. 49, it appeared that a county treasurer had been in the habit of paying him- self the fees allowed by law upon the sale of lands for unpaid taxes out of the trust funds belonging to the town chargeable with such fees which were in his possession, without previous audit by the board of supervisors. It was held that an action was maintainable under the Taxpayers' Act of 1881, by a taxpayer of the town to restrain such illegal payment. A taxpayer may maintain an action to annul a contract made by a town board which creates a monopoly of lighting the tovm for the specified period as an act tending to injure the taxpayers, though the direct effect is not a loss or a waste of public property. Pa/rfitt v. Ferguson, 3 App. Div. 176; 38 N. Y. Supp. 463; aflfd., 159 N. Y. 111. Actions to restrain awarding contracts. Where a statute under which a county or town officer or board acts requires a contract to be let to the lowest responsible bidder, an action under the above act will lie to restrain the awarding of such a contract to a person who does not appear Actions by and against O'ffioeks. 915 L. 1881, oh. 531, § 1. two of tKe plaintiffs, if there be more ttaji one party plaintiff, providing said two parties plaintiff sliall severally justify in tha to be the lowest bidder. Ae an instance, a board of supervisors had four bids for work on a county building, but refused to award the contract to the lowest bidder because of his refusal to contract to employ only union labor, the grounds of such action being a resolution of the board that only union labor should be employed, and that, if non-union men were employed, the work might be delayed by strikes. It was held that a taxpayer's action would lie to prevent waste of the county funds and to restrain the awarding of the contract to a higher bidder, which contract contained the clause as to the employment of union labor objected to by the lowest bidder. Davenport v. Walker, 57 App. Div. 221; 68 N. Y. Supp. lUl; see, also, Larned v. City of Syracuse, 17 App. Div. 19; 44 N. Y. Supp. 857. But the determination of the question as to what constitutes the lowest bid is quasi judicial and will not be reviewed by the courts in a taxpayer's action. Moron v. Trustees of White Plains, 12 N. Y. Supp. 61; 35 X. Y. St. Rep. 335; affd., 128 N. Y. 578. Action to restrain ezecntion of illegal contracts. A taxpayer may bring an action under the above act to enjoin the execution by public officials of an illegal contract. Armstrong v. Grant, 56 Hun, 226; 9 N. Y. Supp. 388. A city council will be enjoined at the suit of taxpayers from making a contract for paving streets with a specified material, which is the subject of a monopoly, although two-thirds of the abutting property owners petitioned for the use of such material, and the city charter provides that, in such case, the council has no power to contract for a different kind of pavement. Boon V. City of Vtica, 26 N. Y. Supp. 932; 5 Misc. 391. A taxpayer may, under the above statute, maintain an action to enjoin a municipality from paying for the services of an officer appointed in violation of the Civil Service Law. Rogers v. Common Council of Buffalo, 22 Abb. N. C. 144; 2 N. Y. Supp. 326. In the case of Peck v. Belknap, 130 N. Y. 394; 29 N. E. 977, it was held that such an action could be maintained against city officials to restrain them from entering into a contract of employment, in a position where a civil service examination is required, with one who has not passed the examination, or to restrain the payment of the salary of such an employee out of the funds of the city. It is not a defense to such an action that the employment by the city of some person for the purpose specified is proper and lawful, and that the compensation agreed to be paid was not extravagant. Action restraining payment or audit of claim. Where expenses are not a proper charge against a town, or are unauthorized, their audit is illegal, and payment of such expenses may be enjoined at the suit of a taxpayer. Rockefeller v. Taylor, 69 App. Div. 176; 74 N. Y. Supp. 812. Under the act of 1872, similar in some respects to the above act, it was held that a taxpayer might properly maintain an action to vacate an audit by a town board of a claim which the board had no authority to allow or where the audit was fraudulent and collusive. Osterhoudt v. Rigney 98 N. Y. 222. But it was also held in the same case that the statute did not abrogate the rule that the acts of a board of audit within its jurisdiction in the absence of fraud or collusion, are final and conclusive and cannot 916 Provisions EiElating to Counties and Towns. L. 1881, eh. 531, § 1. sum of five thousand dollars. Said bond shall be approved by said justiee or judge and be conditioned tO' pay all costs that may be be questioned in a collateral proceeding. An excessive allowance or an erroneous conclusion by the board upon the facts, does not constitute waste or injury to the property of the town within the meaning of the act. A member of the board of supervisors cannot act as attorney for the board. See Penal Code, sec. 473. In the case of Beebe v. Supervisors of Sullivcm County, 64 Hun, 377; 19 N. Y. Supp. 629; afifd., 142 N. Y. 631, it appeared that a board of supervisors, desiring to take proceedings against a county treasurer to recover money not accounted for by him, employed one of its members, an attorney, to bring the action. The attorney subsequently pre- sented a bill for his services which was audited by the board. The attorney did not vote upon his own appointment, nor upon the audit of his account. It was lield that an action might be maintained by a taxpayer to restrain the payment of such claim, and that the contract between such board and one of its members, involving the services of a member and the payment by the county therefor, was against public policy and was void. Where mandamus to compel payment by a town of notes made by its supervisor eleven years before had been denied, and the order of denial affirmed on the ground that the claim was unauthorized in its origin, was barred by the statute of limitations, and questionable on its merits, and where pending an appeal from such order to the Court of Appeals the board of town auditors allowed the claim on an oral assurance that the appeal would be withdrawn, two of them having an interest in the transaction, it was held that an action would lie at the suit of a, taxpayer to restrain a payment of the order for the amount of the claim. Wehh v. Bell, 22 App. Div. 314; 47 N. Y. Supp. 989. Action in relation to town bonds. A taxpayer may maintain an action under the above act to restrain the payment of town bonds, illegally issued; such an action is not subject to the objections which would defeat an action dependent upon the general equity power of the court, nor is it barred by any of the statutes of limitation. Strang v. Cook, 47 Hun, 46. But such an action will not lie to restrain a town supervisor from, paying over the interest on town bonds, from moneys in his hands levied and col- lected for that purpose, where the bonds are apparently valid and have been BO treated by the town and its taxpayers, and where no fraud is imputed. Calhoun v. Millard, 121 N. Y. 69; 24 N. E. 27. Any taxpayer residing in any municipality which has, in compliance with the Railroad Bonding Act of 1809, ch. 907, as amended, issued its bonds to aid in the construction of a railroad; may, by petition, institute proceedings to compel the county treasurer to observe the duties imposed upon him by such statute requiring him to use and invest the moneys paid to him, de- rived from taxes upon the railroads aided in their construction to the redemption of the bonds. Spaulding v. Arnold, 24 N. Y. St. Rep. 897; 6 N. Y. Supp. 336. As to pleadings and practice in actions brought under the above act. Bee cases cited under section 102.5 of the Code of Civil Procedure in Bliss's Code (5th ed.), vol. 2, pp. 2924-2933. Actions by and against Officees. 917 L. 1881, ch. 531, § 1. awarded the defendant in snob, 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 exe- cute 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 s.ummon3 in such action. If an injunction is obtained as herein provided for, the same bond may also provide 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.* In case the waste or injury complained of consists in any board, officer or agent in any county, town, village or municipal corpora- tion, by collusion or otherwise, contracting, auditing, allowing or paying, or conniving at the contracting, audit, allowance or pay- ment 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 municipal corporation, or by per- mitting a judgment or judgments to be recovered against such county, town, village or municipal oorporation, or against hiiiisclf in his official capacity, either by default or without the interpo- sition and proper presentation of any existing legal or equitable defenses, or by any such officer or agent, retaining or failing tfi pay over to the proper authorities any funds or property 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 enforce 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 dis- cretion, adjudge and declare the colluding or defrauding official personally responsible therefor, and out of his property, and that of his bondsmen, if any, provide for the colleotion or repayment thereof, so as to indemnify and save harmless the said county, 4. Bond to be fnrnished by plaintiff. The bond given by the plain- tiff in bringing an action under the above act must be in the form pre- scribed by the act or it will not be sufficient to comply with the provisions of sections 620 and 621 of the Code of Civil Procedure as to bonds in in- junction proceedings. Tappen v. Crissey, 64 How. Pr. 496. 918 Peo VISIONS Relating to Counties and Towns. Code Civil Procedure, § 1925. town, village or municipal corporation from a part or tlie whole thereof; and in case of a judgment the court may, in its discre^ tioi), vacate, set aside and open said judgment, with leave and direction for the defendant therein to interposei and enforce any existing legal or equitable defense therein, under the direction of such person as the court may, in its judgment or order, desig- nate and appoint. All books of minutes, entry or account, and the books, bills, vouchers, checks, contracts or other papers con- nected with or used or filed in the ofiice of, or with any officer, board or commission acting for or on behalf of any ooimty, town, village or municipal corporation in this state are hereby declared to be public records, and shall be open, subject to reasonable regu- lations tO' be prescribed by the officer having the custody thereof, to the inspection of any taxpayer. This section shall not be so construed as to take away any right of the 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, may be enforced by action or otherwise, by the persons hereinbefore authorized to prosecute and maintain actionsi; 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 joined in such action or proceeding and their liabilities as such enforced by the proper judgment or direction of the court; but any recov- ery under the provisions of this act, shall be for the benefit of and shall be paid to the officer entitled by law tO' hold and disburse the public moneys of such county, town, village or municipal corporation, and shall, to the amount thereof, be credited the defendant in determining his liability in the action by the county, town, village, or municipal corporation or public officer. The pro- visions of this act shall apply as well to those cases in which the body, board, officer, agent, commissioner or other person above named has not, as to those in which it or he has jurisdiction over the soibject-matter of its action. [L. 1881, ch. 531, § 1, as amended by L. 1892, ch. 301. J § 3. Actions against municipal officers to prevent waste, etc. An action to obtain a judgment, preventing waste of, or injury to, the estate, funds or other property of a county, town, city or inoorporated village of the state, may be maintained against any ACTIOlSrS BY AND AGAINST OFFICERS. 919 Code Civil Procedure, § 1926. offioer liiereof, or any agent, commissioner, or other person, acting in itsi behalf, either by a citizen, resident therein, or by a corpo- ration, 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 affect any right of action in favor of a county, city, town or incorporated village, or any public officer. [Code Civ. Proc, § 1925, as amended hy L. 1892, ch. 524. j § 4. Actions by and against certain town officers in their offi- cial capacities. An action or special proceeding may be maintained, by the trustee or trustees of a school district; the overseer or overseers of the poor of a village or city; the county superintendent or superintendents of the poor ; or the supervisors 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 damages 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 Civ. Proc, § 1926, as amended hy L. 1897, ch. 302.J 5. The above section is evidently supplemental to the act of 1881 relat- ing to actions to restrain unlawful acts by municipal officers. The cases already cited under such act are in a mcaiure applicable to i-roceedings ia- stituted under the above section of the code. Boundary lines. It was held in the case of Govers v. Supervisors of Westchester County, 171 N. Y. 40, that the authorized action of a, board of supervisors in ascertaining and locating a boundary line established and settled by statute between towns within the county by reference to ancient maps, cannot in the absence of fraud, collusion or bad faith on the part of the board, be attacked in an action brought under section 1925 of the code since the words " waste and injury " used in that section include only illegal, wrongful or dishonest action. 6. Application of section. In respect to an action brought by a super- visor it was held, prior to the amendment of 1897, that the section merely prescribes the mode of enforcing such rights and claims as belong to the supervisor of the town without defending them or declaring their nature or extent. Bidelman v. State, 110 N. Y. 232; 18 N. E. 115. The section does not create new causes of action, but confers upon the officers named the right to maintain actions in their own name upon existing causes of action in favor of the bodies represented by them, or of predecessors, or upon a contract made by them. Chrigstrom v. McGregor, 74 Hun, 343; 20 N. Y. Supp. 517. 920 Pbovisions Eelating to Coitnties and Towiirs. Code Civil Procedure, §§ 1927, 1928, 1929. An action or special proceeding may be maintained, againat any of the officers specified in the last section, upon any cause of action, which accrues against them or has accrued against their predecessors, or upon a contract made by their predecessors in their official capacity and -within the scope of their authority. [Idem, § 1927.] The last two sections 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, the prosecution or defence of the action, as the case may be, must be conducted by the persons then in office, who represent that body. [Idem^ § 1928. j § 5. Officer, how described in summons. In an action or special proceeding, brought pursuant to section one thousand nine hundred and twenty-sdx or section one thousand . nine hundred and twenty-seven of this act^ the officer, by or against whom it is brought, must be described in the sum- mons, or other process by which it is commenced, and in the sub- sequent proceedings therein, by his individual name, with the addition of his official title. An objection growing out of an omis' sion to join any officer, who ought to be joined with the others, must be taken by the answe/^ or, in a special proceeding, before the close of the ease, on the part of the defendant; otherwise it is waived.' \_Code Civ. Proc, § 1929.J Section 182 of the Town Law, ante, p. 819, provides that an action on a contract made with any of the officers by whom a town is represented to enforce the liability of the town thereon, shall be in the name of the town. This section of the Town Law requires that an action on a contract of a town overseer of the poor shall be against the town and not against such officer although there is no express repeal of the above section of the code in the Town Law. This is so since section 1928 of the code provides that sections 1926 and 1927 do not apply to a case where it is especially provided by statute that an action may be maintained by or against the body repre- sented by the officers designated in such sections. Miller v. Bush, 87 Hun, 607; 34 N. Y. Supp. 286. The eflFect of such section of the Town Law would seem to supersede as to all officers named in the above section of the code the power of town officers of maintaining actions on contracts in their own names. 7. Actions against connty. In a. suit against » county, the board of supervisors should be named as defendants and the individual members of the board should not be named. Hill v. Supervisors of Livingston County, 12 N. Y. 52; see, also, Wilde v. Supervisors of Columbia County, 9 How. Pr. 315. Actions by and against Officees. 921 Code Civil Procedure, §§ 1930, 1931. § 6. Successor, when to be substituted. In such an aetion or speoial proceeding, the court muat, in a proper case, substitute a successor in office, in place of a person 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 de- fendant, without his consent, unless at least fourteen days' notice of the application for the substitution, has been personally served upon him. [Code Civ. Proc, § 19 30. J § 7. When execution upon judgment cannot be issued against officer personally. An execution cannot be issued upon a judgment for a sum of money, rendered against an officer in an action or special pro- ceeding, brought by or against him, in his official capacity, pur- suant to this article, except where it is rendered against the trus- tee or trustees of a school district, or the commissioner or com- misflioners of highways of a town. In either of those oases, an execution may be issued against and be collected out of the prop- erty of the officer, and the sium collected must be allowed to him, in the settlement of his official accounts, except as otherwise speci- ally prescribed by law. \Cod& Civ, Proc, % 1931.J 922 Provisions Relating to Counties and Towns. CHAPTER LXVIII. TOWN AND COUNTY FINANCES AND PBOPEETT. Skotion 1. Temporary loans, when to be made. 2. Funded debt not to be contracted except for specific object. 3. Municipal bonds, how paid. 4. Ketirement of bonds by new issue; sale of new bonds; certificate of amount of existing bonds; town meeting may authorize issue of bonds. 5. Municipal bonds, how issued. 6. Municipal bonds may be registered; fees for registry; effect of registry. 7. Coupon bonds may be converted into registered bonds. 8. Muneipal bonds not invalidated by certain defects. 9. Limitation of indebtedness of town and county under authority of board of supervisors. 10. Limitation of indebtedness in county containing city of more than one hundred thousand inhabitants. 11. Constitutional provisions as to loan of credit or gifts by towns, cities and counties; limitation of indebtedness. 12. Eesolutions of boards of supervisors authorizing issue of obliga- tions by town or county officers. 13. Actions by bond holders and municipal corporations against officers for misfeasance, malfeasance or negligence of officers in relation to the issue of municipal bonds. 14. Board of supervisors may abolish office of railroad commissioner. 15. County judge to appoint commissioners; term of office; com- pensation. 16. Oath and undertaking of commissioners. 17. When railroad stock and bonds may be sold or exchanged; dis- position of proceeds of sale. 18. Annual report of railroad commissioners and payment of rail- road bonds. 19. Accounts and loans by railroad commissioner. 20. Re-issue of lost or destroyed bonds. 21. Payment of judgments against town or county. 22. Liability for damages by mobs and riots. 23. Condemnation of real property. 24. Insurance of town or county property. 25. Supervisor to report to board of supervisors amount of town bonds outstanding; form of report; publication. 2G. Duplicate report to be presented to town meeting and filed in the office of town clerk. 27. Town board to cancel bonds and coupons which have been paid. 27a. Limitation of indebtedness. 28. Town board may borrow money to pay h' 'sments against town. Town and County Finances and Property. 923 General Municipal Law, § 4. § I. Temporary loans, when to be made. Moneys ahall not be borrowed by a municipal corporation on temporary loan, except in anticipation of tlie taxes of the current fiscal year, and for the purposes for which such taxes are levied, and ahall not be in excess of the amount of such taxes/ Such loans shall always be made payable within eight months, and in no case shall interest run on any such loan after such taxes are paid into the treasury of the corporation. [General Municipal Law {L. 1892, ch. 685), § 4; Heydecker's Gen. L. (2d ed.), p. 1152.] 1. Poxper to borroTT money. According to a large number of decided cases in this and other states, the power to borrow money, if not expressly granted by charter or by statute, docs not exist by implication in a municipal corporation. See Mayor of Nashville v. Ray, 19 Wall. (U. S.) 468; Police Jury V. Britton, 15 Wall. (U. S. ) 566; Wells v. Supervisors, 102 U. S. 625; Miruot V. West Roxbury, 112 Mass. 1; 17 Am. St. Rep. 52; Ha>wkins v. Carroll County, 50 Miss. 762; Hackettstown v. Swaokhamer, 37 N. J. L. 191; Wells V. Toum of Salina, 119 N. Y. 280; 23 N. E. 870. The case of Wells v. Town of Salina, supra, is the leading New York case upon this subject. In this case Judge Earl says: "It is the policy of the laws that town charges shall be met by annual recurring taxation, and thus extravagance and improvidence are in some degree checked, as those who create town charges or are the taxpayers when they arise, must bear the burden of taxation to meet them. It is quite easy for the taxpayers of to-day to create a debt which they are not to feel and which the taxpayers of the future are to discharge. The system of laws relating to towns requires that all bills for moneys expended or materials furnished, or services ren- dered to the town shall be verified and presented to the board of town auditors and audited by them, and then enforced by warrants of the board of supervisors against the taxpayers of the town. This whole system would be subverted if towns could borrow money upon credit to meet town charges. Then the money would have to be repaid whether the town had had the bene- fit thereof or not, and the wise provisions of the statutes to secure economy and safety by the audit of accounts would be entirely frustrated." In the case of Starin v. Toum of Qenoa, 23 N. Y. 439, Lott, J., said: " The towns of this state have not the general power to borrow money, nor are their oflBcers, in the exercise of their ordinary duties, authorized to issue bonds or any other evidence of indebtedness in the name of the towns repre- sented by them, for loans or other debts contracted or incurred on their behalf." And in the case of Parker v. Supervisors of Saratoga County, 106 N. Y. 392; 13 N. E. 308, Andrews, J., said: "The contention that boards of super- visors have no inherent povfer to borrow money or to issue negotiable paper, accords with the general understanding and with the tenor of the adjudged cases and the course of legislation which pre-supposes the necessity of ex- press legislative sanction in order to justify the exercise of this authority. In this state the powers of boards of supervisors are not only the subject 924 Peovisions Relating to OotrNTiEs and Towns. General Municipal Law, § 5. § 2. Funded debt not to be contracted except for specific object. A funded debt" sliall not be oontraeted by a municipal corpora- tion, except for a specific object, expressly stated in the ordi- nanoe or resolution proposing it; nor unlesS' such ordinance or resolution shall be passed by a two-thirds vote of all the members elected to the board or council adopting it, or submitted to, and approved by the electors of the tO'Wn or county, or taxpayers of the village or city when required by law. Such ordinance or of express affirmative definition, but for the purpose of confining the action of these bodies to the exercise of enumerated powers, it is declared that • no county shall possess or exercise any corporate powers, except such as are enumerated or shall be specially given by law, or shall be necessary to the exercise of the powers so enumerated or given.' The power of borrow- ing money is incident to the powers of a business corporation, unless ex- cluded by its charter. Boards of supervisors have the recourse of taxation for the raising of money for county purposes. The power to borrow money is not necessary to the execution of powers expressly given. But the denial of this power to those quasi public corporations also stands strongly upon considerations of public policy, and the 4octrine that they have no implied power to borrow money is an important safeguard to the protection of political communities against the creation of ruinous liabilities through the action of incapable, negligent or unfaithful public agents. We concur, therefore, with the proposition that the power of the board of supervisors to extend the original debt by means of new loans, or by renewals of prior obligations, if it existed, must be found in the statute, given either expressly or by implication." The above section of the General Municipal Law expressly limits the power of municipal corporations to borrow money upon a temporary loan except where taxes have been levied for the current fiscal year, and then only can money be borrowed for the purposes for which such taxes were expressly levied. The object and intent of the statute was to limit the power of municipal corporations to borrow money to those cases where the obligation of the municipality had been recognized and steps had been taken for the raising of money by taxation to meet such obligation. By subdivision 6 of section 12 of the County Law, ante, p. 46, boards of supervisors are authorized to borrow money for certain specified purposes and to issue county obligations therefor, and may authorize a town to borrow money and issue its obligations for town uses and purposes. 2. Funded debt. The words " funded debt," as used in the above section include all municipal indebtedness embraced within or evidenced by the bond, the principal of which is payable at a time beyond the current fiscal year of its issue, with periodical terms for the payment of interest, and where provision is made for payment by the raising of the necessary funds by future taxation and the qttasi pledging, in advance, of the municipal revenue. People ex rel. Peene v. Carpenter, 31 App. Div. 603; 52 N. Y. Bupp. 781. Town and County Finances and Propeety. 925, Greneral Municipal Law, §§ 6, 7. resolution shall provide for raising annually, by tax, a sum suffi- cient to pay the interest and the principal, as the same shall be- come due.' [General Municipal Law {L. 1892, ch. 685), § 5; Heydecker's Gen. L. (2d ed.), p. 1152.J § 3. Municipal bonds, how paid. Where the bonds of a municipal corporation have been law- fully iss'ued, and the payment of the principal or interest thereof shall not have been otherwise paid or provided for, the same shall be a charge upon such corporation, and shall be levied and assessed, collected and paid the same as other debts and charges. When for any reason any portion of the principal or interest due upon such bonds shall not have been paid, the same shall be assessed, levied and collected at the first assessment and collection of taxes by such corporation after such omission.* [General Municipal Law (L. 1892, ch. 685), § 6; Heydecker's Gen. L. (2d ed.), p. 1152.] § 4. Retirement of bonds by new issue; sale of new bonds; certificate of amount of existing bonds; town meeting may au- thorize issue of bonds. The bonded indebtedness of a municipal corporation, including interest due or unpaid, or any part thereof, may be paid up or retired by the issue of the new substituted bonds for like amounts by the board of supervisors or supervisor, board, council or ofE- cers having in charge the payment of such bonds. Such new bonds shall only be issued when the existing bonds can be retired by the substitution of the new bonds therefor, or can be paid up 3. For form of resolution providing for the issue of town and county bonds adopted by a board of supervisors, see Form No. 159, post. Each such resolution must contain a provision for raising annually by taxation a Bum sufficient to pay the interest and the principal as the same shall become due. Without such provision the bonds issued pursuant to the resolution ■would be of doubtful validity. 4. Payment of town bonds. It is the duty of a town to provide means for the payment of its bonds lawfully issued. In case of failure to perform its duty, the holder of the bonds may maintain an action against the town thereon, and this, although by the act under which they were issued, it is made the duty of the board of supervisors of the county to impose and levy a tax to pay the bonds. Such settled and admitted obligations of the town need not be audited and allowed by the board of town auditors. Marsh v. Town of Little Valley, 64 N. Y. 112; see, also, Horn v. To-rni of Nem Lots, 83 N. Y. 100. 926 Pkovisiobts Ejelating to Counties and Towns. General Municipal Law, § 7. by money realized by the sale of such, new bonds. Where sucih. bonded indebtedness! shall become due within two yearsi from the issue of such new bonds, such new bonds may be issued and sold to provide money in advance to pay up sueb existing bonds when tbey shall become due. Such new bonds shall contain a recital that they are issued pursuant to this section, which recital shall be conclusive evidence of their validity and of the re^larity of the issue; shall be made payable not less than one or more than thirty years from their date; shall bear date and draw interest from the date of the payment of the existing bonds, or the receipt of the money to pay the same, at not exceeding the rat© of five per centum per annum, payable quarterly, semi-annually or annu- ally ; and an amount equal to not less than two per centum of the whole amount of such new bonds may be payable each year after the issue thereof. Such new bonds shall be sold and negotiated at the best price' obtainable, not less than their par value; shall be valid and binding on the municipal corporation issuing them ; and until payable shall be exempt from taxation for town, county, municipal or state purposes. All bonds and coupons retired or paid shall be immediately canceled. A certificate shall be issued by the officer, board or body issuing such new bonds, stating the amount of existing bonds, and of the new bonds so issued, which shall be forthwith filed in the office of the county clerk. Except as provided in this section, new bonds shall not be issued in pur- suance thereof, for bonds of a municipal corporation adjudged invalid by the final judgment of a competent court A majority of the taxpayers of a town, voting at a general town meeting, or special town meeting duly called, may authorize the issue in pur- sraanoe of this section of new bonds for such invalid bonds, and each new bond so issued shall contain substantially the following recital : " The issue of this bond is duly authorized by a vote of the taxpayers of the said town," which shall be conclusive evi- dence of such fact. The payment, adjustment or compromise of a part of the bonded indebtedness of a municipal corporation shall not be deemed an admission of the validity or a recognition of any part of the bonded indebtedness of such municipal corporation not paid, adjusted or compromised." [General Municipal Law (L. 5. Issne of ueur bonds for esisting bonds. The law, as it existed prior to the amendment of 1S97 to the above section, did not expressly permit tlie issue of now lionds by a municipal corporation to take the place of bonds which had been declared invalid. But under the former law it was Town and County Finances and Peopebtt. 927; Greneral Municipal Law, § 8. 1892, cTi. 685), § 7, as amended by L. 1897, ch. 54, and L. 1901, ch. 333; Heydeckcr's Gen. L. {2d ed.), p. 1152.] § 5. Municipal bonds, how issued. Eaoh bond issued bj a municipal corporation shall be signed by each officer issuing the same, with the designation of his office; BJid the interest coupons attached thereto, if any, shall be signed by one of their number. Each bond shall state the place of pay- ment and, if no coupons are attached thereto, the name of the payee." \_General Municipal Law (L. 1892, ch. 685), § 8; Hey- decker's Gen. L. (2d ed.), p. 1154.J held that where bonds were issued in exchange for others, which were con- tested, and the validity of which was in dispute, the town will be deemed to have elected to compromise by the issue of the new bonds, and cannot there- after contest the validity of such new bonds on the ground of the illegality of those which had been retired. Hills v. Peekskill 8av. Bcmk, 101 N. Y. 490; 5 N. E. 327. Wherever under the present law it is sought to cure the defects in exist- ing bonds by the issue of new bonds the provisions of the above section relating thereto must be complied with. 6. Compliance with statute. The rule is settled in this state, that to entitle a party to recover in an action upon bonds issued by a municipality thei'e must be affirmative and extrinsic proof that all the preliminary con- ditions required to authorize the issue of such bonds have been complied with. Dodge v. County of Platte, 82 N. Y. 218; Town of Venice v. Woodruff, 62 N. Y. 465; People v. Mead, 24 N. Y. 114; Starin v. Town of Genoa, 23 N. Y. 439. Although where towns are authorized to issue bonds under special statutes to pay the expenses of improvements, the holder of the bonds must show that the requirements of the law have been complied with, yet where the plaintiff shows the taking of the oath by the commissioners appointed to carry out the improvement, that they entered upon the discharge of their duties, that the improvement was made by them, and that the bonds were issued by the town on the requisition from the commissioners for such improvement, and the defendants admit that the bonds sets forth in the complaint were made, signed and countersigned as therein mentioned, a prima facie ease of the due and proper issue of the bonds is established. Manhattan Sav. Jnst. v. Tovm of East Chester, 44 Hun, .537. The fact that the names of the commissioners authorized to issue the bonds •were lithographed on the coupons of such bonds was held not to make them, invalid, as the commissioners adopted and delivered as their own the signa- tures in that form. Beattys v. Town of Solon, 64 Hun, 120; 19 N. Y. Supp. 37. Ezecntion by two of three commissioners. Where town bonds are executed by two only of three commissioners authorized to issue such bonds, it will be presumed, in absence of any proof to the contrary that the third commissioner had notice of the meeting when the bonds were issued, and 928 Peovisions Kejlating to CbuwTiEs aitd Towns, General Municipal Law, § 9. § 6. Municipal bonds may be registered; fees for registry j effect of registry. Each, municipal corporation shall keep in the office of its clerk suitable books, in -which shall be entered a full desicription of the amount, rate of interest, class, number, date of issue, pursuant to what law, and maturity of all bonds issued by any of its officers, and, if such, statement is not already entered, of all bonds con- verted from coupon into registered bonds. A bond to which no coupons are attached may be registered, at the request of the payee,. in the books so kept in the office of such clerk, and a certificate of such registry shall be indorsed upon the bond by such clerk, and attested by his seal, if he has one. The clerk shall be entitled to a fee of twenty-five cents for each bond so registered. The prin- cipal and interest of a registered municipal bond shall be payable only to the payee, his legal representatives, successors or assigns, and shall be transferable only upon presentation to such clerk, with a written assignment duly acknowledged or approved. The name of the assignee shall be entered upon such bond so trans- ferred and the books so kept in the office of the clerk. It shall be the duty of the clerk or other officer having charge of the office where such registry is kept, to transmit a statement of such indebt- edness to the clerk of the board of supervisors of the county in which such office is situated, annually, on or before the first day of November. [General Municipal Law (L. 1892, eh. 685), § 9,, consulted with those who acted; and the absence of his signature will not, therefore, invalidate the bonds. Hills v. Peekskill Sav. Bank, 46 Hun, 180. Recital in bonds. The recital contained in a municipal bond should show the authority under which the officer acted who executed the bond. It was held in the case of Dodge v. Piatt, 82 N. Y. 218, 230, that since the recital in the bonds did not show or tend to establish any power or authority to issue the same, that the plaintiff could not be regarded as a bona fide holder of the coupons for value without notice; for no presumption is to be indulged in favor of the validity of bonds issued under statutory authority where the recital is such as to put the holder upon inquiry. A recital that all necessary legal steps and proceedings have been taken to comply with the laws under which the bonds were issued, does not estop the town board from disputing their validity, even in the hands of a bona fide holder. Starin v. Tovm of Genoa, 23 N. Y. 439; Craig v. Toion of Andes^ 93 N. Y. 405. Services in sale of bonds. An express power in a board of water com- missioners to sell water bonds carries with it the implied power to employ such reasonable or proper assistance as may be requisite to bring about an advantageous sale; and this power is not limited to the employment of a. broker to sell the bonds. Armstrong v. Village of Ft. Edward, 159 N. Y- 315; 53 N. E. 1116. ■ Town and County Finances and Propeett. 929 General Municipal Law, §§ 10, 11; County Law, § 13. as amended hy L. 1895, ch. 350; Heydecker's Oen. L. {2d ed.), p. 1154.] § 7. Coupon bonds may be converted into registered bonds. When the owner of coupon bonds of a municipal corporation shall present any sack bonds to the officers who issued the same, or their sucoesaors, with a written request for their conversion into registered bonds, such officer shall cut off and destroy the coupons and stamp, print or write upon each of the bonds a statement, properly dated, of the amount and value of such coupons, and that the interest, at the rate and on the date, as was provided by the coupons, as well as the principal, is to be paid to such owner, his legal representatives, successors or assigns, at a place therein stated, which shall be the place stated in the coupons, unless changed with the written consent of the owner; and thereupon such bonds may be registered in the office of the clerk of the municipal corporation. This section shall not apply where pro- vision is otherwise made by law or local ordinance, for the con- version or exchange of coupons for registered bonds. {^General Municipal Law {L. 1892, ch. 685), § 10; Heydecker's Oen. L. (2d ed.), p. 1154.] § 8. Municipal bonds not invalidated by certain defects. When the bonds of a municipal corporation have been issued and sold by the proper authorities, and the time fixed for their maturity shall be for a longer period than provided by the law under which they were issued, a variance of not exceeding sixty days shall not affect their validity. \_Oeneral Municipal Law (L. 1892, ch. 685), § 11; Heydecker's Gen. L. (2d ed.), p. 1155.] § 9. Limitation of indebtedness of town and county under au- thority of board of supervisors. An issue of town or county obligations shall not be authorized when such issue, with the amounts issued and outstanding under any previous or other authority of the board, shall exceed ten per centum of the assessed valuation of the real estate of such town or county, as it shall appear on the last assessment-rolls thereof, unless by the assent of a majority of the electors of such town or county, whose credit is proposed to be given, voting on the question at a regular town meeting of such town, or an annual 930 Provisions Relating to Oottnties and Towns. General Municipal Law, § 2; Constitution, art. 8, § 10. election in such county; but in no case shall the amount of such town or county obligations, issued and outstanding, exceed oner third of such assessed valuation. This section shall not include any case where special authority has been given by the legislature to issue such obligations in excess of the amounts herein author- ized. {^County Law (L. 1892, ch. 686), § 13, as amended by L. 1893, ch. 251 ; Heydecker's Gen. L. (2d ed.), p. 1204. J § 10. Limitation of indebtedness in county containing city of more than one hundred thousand inhabitants. No county containing a city of more than one hundred thousand inhabitants, nor any such city shall contract any debt, the amount of which, exclusive of its outstanding debt shall exceed a sum equal to five per centum of the aggregate valuation of the real property within its bounds, as assessed for state and county pur- poses upon the then last corrected assessmenti-roll, nor shall it con- tract any such debt if the amount thereof inclusive of its outstand- ing debts shall exceed a sum equal to ten per centum of such valu- ation. This section shall not be' construed to prevent the issuing of certificates of indebtedness or revenue bonds issued in anticipa- tion of the collection of taxes of amounts actually contained or to be contained in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes. Nor shall this section be construed to prevent the issuing of bonds to provide for the supply of water, but the term of the bonds issued to provide for the supply of water shall not exceed twenty years, and the sinking fund shall be created on the issuing of said bonds for their redemption by raising annually a sum which will pro- duce an amount equal to the amount of the principal of said sura and interest of said bonds at their maturity. This section shall not apply to debts contracted for the purpose of retiring or paying any existing indebtedness pursuant to the provisions of this chap- ter. \_General Mvnicipal Law (L. 1892, ch. 685), § 2, as amended by L. 1893, ch. 34:9 ; Heydecker's Gen. L. {2d ed.), p. 1151.] § II. Constitutional provisions as to loan of credit or gifts by towns, cities and counties; limitation of indebtedness. ISTo county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any indi- vidual, association or corporation, or become directly or indirectly the owner of stock in, or bonds of, any association or corporation; Town and County Finances and Pbopeety. 931 C!onstitution, art. 8, § 10. nor shall any saich county, city, town or village be allowed to incur any indebtedness except for county, city, or town or village pur- poses.' This section shall not prevent aueh county, city, town or village from making such provision for the aid or support of its poor as may be authorized by law. ISTo county or city shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the as- sessanentrrolls of said county or city on the last assessment for state or county taxes prior to the incurring of such indebtedness ; and all indebtedness in excessi of such limitation, except such as may now exist, shall be absolutely void, except as herein other- wise provided. No county or city whose present indebtedness exceeds ten per centum of the assessed valuation of its real estate 7. County, city or town pnrposea. The credit of the county, city or town cannot be loaned, nor can any such county, city or town incur any indebtedness except for a county, city or town purpose. Such a purpose !■; one which is necessary for the common good and general welfare of the municipality sanctioned by its citizens, public in character and authorized by the legislature. Sun Printing Co. v. Mayor, 152 N. Y. 257 ; 46 N. E. 499. In the case of Parsons v. Van Wyck, 56 App. Div. 329, 337 ; 67 N. Y. Supp. 1054, the court said : " Speaking generally, what undoubtedly was aimed at by the constitutional provision, was to prevent the appropriation of moneys raised by taxation for private enterprises and purposes as distin- guished from public, and although every public purpose is not necessarily a city purpose, yet where the object sought is to promote the welfare of all the citizens and the advantages to be derived from the proposed appropria- tion are common property and are within the legitimate scope of municipal enterprises in the way of securing the advancement, education, the con- venience or health of the people and the adornment of the city, it is com- petent for the legislature to authorize the expenditure." This remark is evidently as appropriate in the case of a town or county purpose as in that of a city purpose. In this case it was held that an act authorizing the con- struction of a soldiers' monument and the issue of bonds in payment thereof are a proper exercise of legislative function, and that the bonds so issued were for a legitimate city purpose. In the case of Deady v. Village of Lyon, 39 App. Div. 139; 57 N. Y. Supp. 448, it was held that an expenditure of money by a village for the purpose of retaining a county court house therein, and preventing its removal to another village, is in violation of the provisions of the above section to the effect that no county, city, town or village shall " give any money or prop- erty, or loan its money or credit to, or in aid of, any individual, association or corporation;'' this prohibition includes gifts to public as well as to private corporations. 932 Pkovisions Eelating to Counties and Towns. County Law, § 14. subject to taxation, shall be allowed to become indebted in any furtbeir amount until such indebtedness sihall be reduced within such limit. This section shall not be construed to prevent the issuing of certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually con- tained, or to be contained in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes. ISTor shall this section be construed to prevent the issue of bonds to provide for the supply of water; but the term of the bonds issued to provide the supply of water shall not exceed twenty years, and a sinking fund shall be created on the issuing of the said bonds for their redemption, by raising annually a sum which will produce an amount equal to the sum of the principal and interest of said bonds at their maturity. All certificates of indebtedness or revenue bonds issued in anticipation of the collec- tion of taxes, which are not retired within five years after their date of issue, and bonds issued to provide for the supply of water, and any debt hereafter incurred by any portion or part of a city, if there shall be any such debt, shall be included in ascertaining the power of the city to become otherwise indebted; except that debts incurred by the city of New York after the first day of Jan- uary, nineteen hundred and four, to provide for the supply of water shall not be so included. Whenever the boundaries of any city are the same as those of a county, or when any city shall in- clude within its boundaries more than one county, the power of any county wholly included within such city to become indebted shall cease, but the debt of the county, heretofore existing, shall not, for the purposes of this section, be reckoned as a part of the city debt. The amount hereafter to be raised by tax for county or city purposes, in any county containing a city of over one hundred thousand inhabitants, or any such city of this state, in addition to providing for the principal and interest of existing debt, shall' not in the aggregate exceed in any one year two per centimi of the assessied valuation of the real and personal estate of such county or city, to be ascertained as prescribed in this section in respect to county or city debt. [Oovstitution, art. 8, § 10, as amended hy vote of the people, Nov. 1, 1905, in effect Jaxmiary 1, 1906.] § 12. Resolutions of boards of supervisors authorizing issue of obligations by town or county officers. Every resolution of any such board, authorizing the issue of such obligations, shall specify the form thereof, the place of pay- ment, in annual installments or otherwise, within a period not Town and County Finances and Peopeety. 933 L. 1895, ch. 792, §§ 1, 2. exceeding thirty years from tlie date of such obligataon, and the rate of interest to be paid thereon, not exceeding the legal rate; and no such obligation shall be sold for less than par. Such reso- lution shall also contain a provision requiring adequate security to be given by the ofScer, or board of ofScers authorized to issue Bueh obligations, for the faithful performance of his, or their duty, in issuing the same, and the lawful application of the funds arising therefrom, and of the funds which may be raised by tax for the payment thereof, which may co'me into their hands.' iCounty Law (L. 1892, ch. 686), § 14; Heydecker's Gen. L. (2d ed.), p. 1205.] § 13. Actions by bond holders and municipal corporations against officers for misfeasance, malfeasance or negligence of officers in relation to the issue of municipal bonds. Recovery against officer by bona fide holder. — Any bona fide purchaser and holder of any bonds or other obligations for the payment of money payable to bearer and transferable by delivery, and any such purchaser and holder of any interest-bearing coupon or obligation originally attached to such bonds, which said bonds or coupons' shall have been issued or put in circulation by means of the misfeanace, malfeasance, or negligence of any public officer, of any of the civil or municipal divisions of this state, whose right of recovery or cause of action upon any such bond or coupon has been, or shall be determined by the judgment of a court of competent jurisdiction in any suit or action, or who has been or shall be a privy to such suit or action, may within three years after the determination of said right of recovery and cause of action begin an action against such officer, and recover all damages which said purchaser, holder or privy shall have suffered because of the misfeasance, malfeasance or negligence of such public offi- cer. [L. 1895, ch. 792, § 1; Heydecker's Gen. L. (2d ed.), p. 2462. J Recovery against officer by municipal corporation. — Any mu- nicipal corporation within this state, or any civil division of this state, which has been or shall be compelled to pay any negotiable bond, or any coupon originally attached to such bond, by the judg- ment of a court of competent jurisdiction, because of the mis- feasance, malfeasance or negligence of any public officer or agent 8. Fop form of regolution of board of supervisors authorizing the issua of town and county obligations, see Form No. 159, post. 934 Peovisions Relating to Counties and Towns. L. 1895, eh. 792, §§ 3, i. of such municipal corporation or civil division, may within three years from the time when such payment shall have been compelled as aforesaid, begin an action against any such officer in any court of competent jurisdiction and recover the amount so paid with interest from the time of such payment [ZdeWj § 2.] Statute of limitations. — No limitation of the time for com- mencing an action shall affect any of the actions hereinbefore mentioned except as herein provided, and in such action an order of arrest and an eocecution against the person of the defendant may be issued in the manner and form provided by the Code of Civil Procedure against a person who shall have wrongfully mis- appropriated money held by him in a fiduciary capacity, lldem, § 3.J Appeals. — In any suit or action upon any coupon or coupons hereinbefore mentioned, or upon any bonds hereinbefore men- tioned, or to recover any damages hereinbefore mentioned, any party to such action shall have and is hereby granted a right of appeal, to the general term or appellate division of the Supreme Court from the judgment of any trial court, or to the Court of Appeals from any judgment of the general term or of the appel- late division of the Supreme Court, although the amount in oon- troversy in such action has been or may be, less than five hun- dred dollars. Appeals from any inferior court to any appellate court, including an appeal to the Court of Appeals although the amount in controversy may be less than five hundred dollars, from any judgment in any suit or action to recover against any munici- pal corporation or civil division of this state upon any negotiable bonds or upon any coupon originally attached thereto, issued or put in circulation by the agents or ofiicers of such municipal cor- porations or civil division of this state, may be taken by any per- son who has been or shall be bound as a privy by such judgment within sixty days after such privy shall have been served by any of the parties to such civil action, with a copy of the said judg- ment and with a written notice of the entry thereof, and said ap- peal may be taken in the name of such party without entering an order of substitution as such party by said person so bound as a privy, upon his giving the security and serving the notices of appeal prescribed by the Code of Civil Procedure concerning an appeal by a party to such an action, and also upon giving to the party in whose name such an appeal is taken an undertaking with two sufficient sureties conditioned in the penal sum of five hun- Town and OotrNTY Finances and Pbopeett. 935 General Municipal Law, § 13. dred dollars, to save suoh party to such action in whose name suoh appeal shall be taken harmless of and from all costs and dis- bursements which may be recovered against him upon such appeal, which said undertaking shall be approved as to its form and as to the sufficiency of the sureties thereon by justices of the Supreme Court Said apipe^l when so taken by said privy shall be con- ducted and determined in the same manner as if taken by said party of the said action, except as herein otherwise provided. \_Idem, § 4. J § 14. Board of supervisors may abolish office of railroad com- missioner. The board of supervisors of any county may, upon the applica- tion of the auditing board of any municipal corporation therein, by resolution, abolish the office of railroad commissioners of such municipal corporation, and direct the manner of the transfer of their duties to the supervisor of the town, or the treasurer of the municipal corporation other than a town, and upon his compliancie with such directions, such transferee shall be vested with all the powers conferred upon such railroad commissioners and subject to all the duties imposed upon them." \_General Municipal Law (L. 1892, ch. 685), § 13 ; Heydecker's Gen. L. {2d ed.), p. 1156.] 9. Bight o£ appeal. The provision of the act for the protection of bona fide holders of negotiable municipal bonds put in circulation through official misfeasance to the effect that a party or privy of a party to any action upon such bonds, or upon coupons thereof is given a right of appeal to the several appellate courts of the state, including " an appeal to the Court of Appeals, although the amount in controversy may be less than $500," applies to those actions only in which the right of appeal had not been exhausted when the act was passed. Oermania Sav. Bank v. Suspen- sion Bridge, 159 N. Y. 362; 54 N. E. 33. 10. Office of railroad commisaioner aboliahed. The above section of the General Municipal Law was inserted as a new section by the Statu- tory Revision Commission. See report of Statutory Revision Commission, 1892. L. 1889, ch. 402, authorizes towns having railroad commissioners to transfer the powers and duties of such officers to the supervisors of such towns, and to abolish the office of railroad commissioner. The act of 1889 was not repealed by the General Municipal Law. The above section of the General Municipal Law would seem to provide additional means for abolish- ing the office of railroad commissioner, and notwithstanding this enactment action may properly be taken under the act of 1889. Such act is, therefore, inserted and is as follows: " Transfer of powers of railroad commissioner to supervisor. — Every town in which railroad commissioners heretofore appointed or elected under the 936 Peovisions Relating to Counties and Towns. General Municipal Law, § 14. § 15. County judge to appoint commissioners; term of office; compensation. The county judge of any county within which is a municipal corporation having or being eaititled to have railroad commission- ers, when this chapter shall take effect, and in which the duties imposed upon such commissioners are not fully performed, shall continue to appoint and commission, upon the application of twenty freeholders within such corporation, three persons, who provisions of any general or special statute of this state authorizing towns to incur indebtedness in aid of the construction of any railroad, remain in office, and in which the duties imposed by such statutes, upon such com- missioners, are not yet fully performed, is hereby authorized and empowered, at an annual town meeting, or at a special town meeting called for such purpose in the manner prescribed by law, to authorize the transfer of the powers and duties of such railroad commissioner or commissioners to the supervisor of such town, by a resolution to such effect passed and adopted by a majority vote of all persons voting at such town meeting. (L. 1889, ch. 402, sec. 1.) " Supervisor's bond. — Within twenty days after the passage of such resolu- tion at such town meeting, the said supervisor shall file in the office of the town clerk of said town a bond running to the people of the State of New York, executed by himself and two or more sureties, in a penalty to be fixed by the board of town auditors of said town as hereinafter provided, and conditioned for the faithful performance of the duties of railroad commis- sioners transferred to him under said resolution, and the payment over according to law of all moneys coming into his hands by reason of such transfer; such bonds also to be approved as to form and sufficiency of sureties by the county judge of the county in which said town is located. (Idem, aec. 2.) " Transfer', lohen to take effect. — Forthwith, upon the filing of such bond as aforesaid, the town clerk of the town shall indorse upon copies of such bond to be provided by the said supervisor, a certificate to the effect that the said bond has been filed in the office of such town clerk, and said super- visor shall serve such copies and certificate upon the railroad commissioners respectively, and thereupon it shall be the duty of such railroad commis- sioners to pay over to such supervisor all moneys remaining in their hands as railroad commissioners of such town, and to deliver all books, papers, securities and other property belonging to said town and remaining in their hands as such commissioners unto the said supervisor, and to take his receipt therefor, which receipt shall be to them a proper and sufficient voucher. Immediately upon the delivery of said moneys and property by the said railroad commissioners to the supervisor, as aforesaid, and in the manner aforesaid, the office of railroad commissioner of such town shall wholly cease, and the said supervisor shall thereupon be invested with all the powers conferred upon such railroad commissioner by the statute and proceedings under and by which they were appointed, and shall be subject to all the duties imposed upon such commissioners by such statute, and all securities Town and County Finances and Peopeett. 93T General Municipal Law, { 14. sihall be freehioldeir9 and resident taxpayers therein, oonmiiseion- ers for the purpose of performing the duties and completing the business required of them purauant to this chapter or any law. Such commissioners shall hold their office for five years, and until others are appointed by the county judge, unless their duties shall be sooner performed, or the office shall be abolished, who shall also, in like manner, fill any vacancies that may exist therein. Such commissioners shall each receive the sum of three dollars per day and evidences of debt transferred by said commissioners to said supervisor as aforesaid, which by the terms thereof are payable to the said railroad ■commissioners shall be paid when due to said supervisor, upon his indorse- ment as supervisor, in the same manner and to the same effect as if indorsed by said railroad commissioners. (Idem, sec. 3.) "Amount of bond, how fixed. — The board of town auditors shall meet for the purpose of fixing the penalty of the bond of said supervisor, as provided in the second section of this act, at the office of the town clerk within ten -days after the town meeting at which the resolution hereinbefore provided for was passed, upon a day to be fixed by said town clerk, whereof each member of said board shall be notified by said clerk either personally or by mail, at least three days before the time fixed for said meeting. In fixing the penalty of the bond to be given by said supervisor under the provisions of section 2 of this act, said board of town auditors shall take into con- sideration the amount of moneys likely to come into the hands of such super- visor by reason of the additional duties imposed upon him by this act. Hereafter, in a town in which the duties of railroad commissioner have been transferred to the supervisor, the general bond given by such officer, con- ditioned to safely hold and pay over all moneys coming into his hands and belonging to said town, shall be deemed to include and be a security for the payment over of all moneys coming into the hands of such supervisor under and by reason of the provisions of this act. (Idem, sec. 4.) " Additional compensation of supervisor. — For the performance of the additional duties devolved upon him under the provisions of this act, such supervisor shall be ent'tled to a reasonable compensation, to be fixed by the board of town auditors of such town.'' (Idem, sec. 5.) Bond of anpervisor acting as railroad commissioner. L. 1882, ch. 68, requires town supervisors administering funds received on account of bonded railroad indebtedness to give a bond with proper sureties. Such act is as follows: " The supervisor of any town or ward of any city receiving or disbursing any funds on account of the bonded railroad debt of said town or ward, before receiving or disbursing any such funds by virtue of any act of this state, shall execute to the town a bond with sureties who shall be able to justify in at least double the amount of the money to be received by him, as near as can be ascertained, said bond to be approved by the town clerk and conditioned for the proper and due disbursement of moneys received on account of bonded railroad debt and the faithful accounting thereof, which bond when given will be filed with the town clerk." 938 Peovisions Relating to Countijjs and Towns. General Municipal Law, §§ 15, 16. for eaak day actually engaged in tlie disokarge of their duties,, and the necessary dishurseonents to be audited and paid by the usual auditing and disbursing officers of such municipal corpora- tion. A majority of such commissioners, at a meeting of which all have notice, shall constitute a quorum. [General Municipal Law (L. 1892, ch. 685), § 14; Heydecker's Gen. L. (2d ed.), p. 1156.] I 1 6. Oath and undertaking of commissioners. Before eoitering upon their duties such conuniseioners shall take the constitutional oath of office, and make and file with the county clerk of their county, their joint and several undertaking, with two or more sureties to be approved by the county judge of their county, to the effect that they will faithfully discharge liieir duties as such comm.issioners', and truly keep, pay over and account for all moneys belonging to such corporation co'ming into their hands. [General Municipal Law (L. 1892, ch. 685), § 15; Heydecher's Gen. L. (2d ed.), p. 1156.J § 17. When railroad stock and bonds may be sold or ex- changed; disposition of proceeds of sale. The commissioners or officers of a municipal corporation, having the lawful charge and control of any railroad stock or bonds, for or in payment of which the bonds of such municipal corporation have been lawfully issued in aid of such railroad corporation, may exchange the stock or bonds of such railroad corporation for and in payment of such bonds, or the new substituted bonds of such municipal corporation, when such exchange can be made for not less than the par value of the stocks or bonds so held by them. If they cannot make such exchange they may sell such stocks or bonds at not less than par; but they may, on the application and with the approval, of the governing board of the municipal corpo- ration, owning such stock and bonds, exchangei, sell or dispose of such stock or bonds, at the best price and upon the best terms obtainable, for the municipal corporation they represent, and shall execute to the purchaser the necessary transfers therefor. All moneys received for any stock or bonds shall only be applied to the payment and ecxtinguishment of the bonds of the municipnl corporation, lawfully issued in aid of any such railroad, or sub- stituted therefor ; except that if the bonds so issued or substituted Town and County Finances and Pbopeety. 939' General Municipal Law, § 17. Have all been paid, or tlie moneys so realized shall be more tkan sufficient to pay them in full, and all the costs and expenses of the sale, such proceeds or balance thereof shall be paid by the officjers making the sale, to the supervisor of the town, or the treasurer of the municipal corporation, and applied to such lawful uses as the governing board of the municipal corporation, entitled to the same, may direct. The provisions of this section shall apply to all such commissioners or officers of a municipal corporation elected or appointed or acting under the provisions of any special act, and .the authority hereby conferred shall not be limited by the provisions of any such special act. [General Municipal Law (L. 1892, ck. 685), § 16, as amended by L. 1893, ch. 490; Heydeck- er's Gen. L. (2d ed.), p. 1157.] § i8. Annual report of railroad commissioners and payment of railroad bonds. The commissioners of a municipal corporation, having in charge the moneys received and collected, and who are responsible for the payment of the interest of the bonds lawfully issued by such mu- nicipal corporation, in aid of railroads, shall annually report to the governing board of the municipal corporation, the total amount of the municipal indebtedness of the municipal corporation they represent, upon such bonds or such new bonds substituted there- for, the date of the bonds and when payable, the rate of interest thereon, the acts under which they were issued, the amount of principal and interest that will become due thereon before the next annual tax levy and collection of taxes for the next succeed- ing year, and the amount in their hands applicable to the payment of the principal or interest thereon. Each year such governing board shall levy and collect of the municipal corporation sufficient money to pay such principal and interest, as the same shall become due and payable. When collected, such moneys, with the unpaid Slums on hand, shall be forthwith paid over to such commissioners, and applied by them to the purposes for which collected or held. When paid, such bonds shall be presented by such commissioners to the governing board of the municipal corporation, at least five days before the annual town meeting, village or city election, or meeting of the board of supervisors, next thereafter held, who shall cancel the same, and make and file a record thereof in the clerk's office of the municipal corporation, whose bonds were so paid or 940 Peovisions Eelatirg to Counties and Towns. General Municipal Law, §§ 18, 19. oanoelled. [General Municipal Law (L. 1892, ch. 685), § 17, as amended hy L. 1893, ch, 466 ; Heydecher's Gen. L. {^d ed,), p. 1157.] § ig. Accounts and loans by railroad commissioners. Suoh oormnissdoners shall preseoit to the auditing board of the municipal oorporation they represent, at each annual meeting of such board, a written statement or report, showing all their re- ceipts and expenditures, with vouchers. They shall also loan on proper security or collaterals, or deposit in some solvent bank or banking institutions, at the best rate of interest they can obtain, or invest in the bonds of the municipal corporation they represent, or in bonds of the state, or of any town, village, city or county therein, issued pursuant to law, or in the bonds of the United States, all moneys that shall come into their hands> by virtue of their office, and not needed for current liabilitiesi ; and all earnings, profits or interest accruing from such loans, deposits or invest- ments, shall be credited to the municipal oorporation they repre- sent, and accounted for in their annual settlement with the gov- erning board thereof. \_General Municipal Law (L. 1892, ch. 685), § 18; Heydecher's Gen. L. (2d ed.), p. 1158.] I 20. Re-issue of lost or destroyed bonds. When any bonds lawfully issued by a municipal oorporation in aid of any railroad, or in substitution for bonds so issued, shall be lost or destroyed, such commissioners may issue new bonds in the plaoe of the ones so lost or destroyed, at the same rate of interest, and to become payable at the same time, upon the owner furnish- ing satisfactory proof by affidavit, of such owneirship, and loss or deetruction, and a written indemnity, with at least' two sureties, approved as to form and sufficiency, by the county judge of the county in which suoh municipal corporation is situated. Every new bond so ise.ued shall state upon its face the number and de- nomination of the bond for which it is issued, that it is issued in the place of such bond claimed to have been lost or destroyed, that it is issued as a duplicate thereof, and that but one is to be paid. Such affidavit and indemnity, duly indorsed, shall be im- mediately filed in the county clerk's office. [General Municipal Law (L. 1892, ch. 685), § 19; Heydecher's Gen. L. {2d ed.), p. 1158.] Town and County Finances and Pbopebtt. 941 General Municipal Law, §§ 20, 21. § 21. Payment of judgments against town or county. When a final judgment for a sum of money shall be recovered against a municipal corporation, and the execution thereof shall not be stayed pursuant to law, or the time for such stay shall have expired, the treasurer or other financial ofSoer of such corpora- tion having sufficient moneys in his hands belonging to the cor- poration not otherwise specifically appropriated, shall pay such judgment upon the production of a certified copy of the docket thereof." [General Municipal Law (L. 1892, ch. 685), § 20; Heydecker's Gen. L. {2d ed.), p. 1159.] § 22. Liability for damages by mobs and riots. A city or county shall be liable to a person whose property is destroyed or injured therein by a mob or riot, for the damages sus- tained thereby, if the consent or negligence of such person did not contribute to such destruction or injury, and such person shall have used all reasonable diligence to prevent such damage, shall have notified the mayor of the city, or sheriff of the county, of a threat or attempt to destroy or injure his property by a mob or riot, immediately upon acquiring such knowledge, and shall bring an action therefor within three months after such damages were susitained. A mayor or sheriff receiving notification of a threat or attempt to destroy or injure property by a mob or riot shall take all lawful means to protect such property; and if he shall neglect or refuse, the person whose property shall be destroyed or injured, may elect to bring his action for damages against such officer instead of the city or county." [General Municipal Law {L. 1892, ch. 685), § 21 ; HeydecTcer's Gen. L. {2d ed.), p. 1159.J 11. Jndgmenta against county and toim. By section 230 of the County Law, ante, p. 31, a judgment against tbe county is made a county charge, and by section 180 of the Town Law, ante, p. 812, a judgment against a town is made a town charge. Money may be borrowed by a town to pay a judgment. See Town Law, sec. 189, as added by L. 1899, ch. 57, post, p. 945. 12. Quelling riots and mobs. It is provided in section 100 of the Code of Criminal Procedure that " when persons to the number of five or more armed with dangerous weapons, or to the number of ten or more whether armed or not, are unlawfully or riotously assembled in a city, vil- lage or town, the sheriiT of the county and his under-sheriff and deputies, the mayor and aldermen of a city, or the supervisor of a town, or president or chief executive officer of a village, and the justices of the peace or police justices of the city, village or town, or such of them as can forthwith be collected, must go among the persons assembled, and command them, in the same of the people of the state, immediately to disperse." 942 Peovisions Relating to Counties and Towns. General Municipal Law, § 22. § 23. Condemnation of real property. A municii>al corporation authorized by law to take and hold real property for the uses and purposes of the corporation, may, if it is unable to agree with the owners for the purchase thereof, acquire title to such property by condemnation. [General Mu- nicipal Law {L. 1892, ch. 685), § 22; Heydechers Gen. L. {2d ed.), p. 1159.] If any of such officers having notice of an unlawful or a riotous assembly, neglect to perform their duties under the above section, he is guilty of a. misdemeanor. Code Crim. Proc, sec. 109. Such officers may arrest the persons so assembled and for that purpose may command the aid of all persons present or within the county. If a person commanded to aid neglects to do so, he is deemed one of the rioters and is punishable accord- ingly. See Code Crim. Proc, sees. 107, 108. If it is made to appear to the governor, to a judge of the Supreme Court, to a county judge, to the sheriff of a county, or to the mayor, recorder or city judge of a city that an unlawful or riotous assembly exists with intent to commit a felony or to offer violence to person or property, or to resist law, any of such officers may order a commanding officer of any part of the National Guard to aid the authorities in suppressing violence and enforcing the law. Such order must be obeyed by the commanding officer and the troops required must appear properly armed at the time and place appointed. See Code Crim. Proc, sees. 111-113. The governor may declare the county in a state of insurrection whenever it appears that the power of the county has been exerted and is insufficient to quell a riot or enforce obedience to lawful mandates. After a proclama- tion issued by the governor, he may call out the militia. See Code Crim. Proc, sees. 115-117. Riot defined. Section 449 of the Penal Code defines a riot as follows: " Whenever three or more persons, having assembled for any purpose, dis- turb the public peace, by using force or violence to any other person, or to property, or threaten or attempt to commit such disturbance, or to do any unlawful act by the use of force or violence, accompanied with the power of immediate execution of such threat or attempt, they are guilty of riot." liiability of municipality for damages. The above section makes a county liable for damages occasioned by a mob or riot. It has been held that such liability exists although the trespassers in doing the damages did not commit the crime of riot or any other offense. To recover for such damages it is only necessary to show, by a preponderance of evidence, facts and circumstances from which the jury might infer that the property was destroyed by a mob or riot within the spirit, true intent and meaning of the statute. Marshall v. City of Buffalo, 50 App. Div. 149; 64 N. Y. Supp. 411. In this case it appeared that the property destroyed consisted of several un- occupied buildings, located in a residence and business part of the defendant city. There was evidence that one morning a crowd of men, women, boys and girls appeared upon the premises with shovels, axes and other tools and commenced to abolish the buildings and take the material away in wagons; Town and County Finances and Propeett. 943 General Municipal Law, § 23. § 24. Insurance of town or county property. Public officers having by law tbe care and custody of the public buildings and other property of a municipal corporation, may insure the aame at the expense and for the benefit of such corpora- tion. [General Municipal Law (L. 1892, ch. 685), § 23; Hey- decker's Gen. L. (2d ed.), p. 1159. j that from one to two hundred people were engaged in the work of destruction, which continued for three days, until only the foundation walls were left. It was held that there was suflBcicnt evidence to warrant the jury in finding that the buildings were unlawfully and with force and violence demolished and removed by a riotous and disorderly mob or in a riotous and disorderly manner by a mob in the execution of a common purpose and defiance of law and order. It was further held that wliere the property of an individual is destroyed by a mob, without any previous threat or attempt to injure it, and without any warning or notice to the owner thereof until after the damage is done, the city or county in which the property is situated is liable to the owner under the above section. This liability exists whether or not the authorities had notice or could have prevented the damages. In the case of Solomon v. City of Kingston, 24 Hun, 562, the facts were as follows: A building in which the plaintiff occupied a store caught fire; the fire not having as yet reached his store, he remained in it keeping the shutters and doors closed. A crowd which had assembled to see the fire, having shown an inclination to break into the store, the chief engineer turned a stream of water upon them, whereupon he was struck with a brick and went away to get a revolver. While he was gone a crowd burst open the door, went into the store and broke the show cases therein, threw and left upon the floor a portion of the plaintiff's goods and carried other por- tions of them away. It was held that the plaintiff could recover; that the fact that the crowd assembled for a lawful purpose, that is, to see the fire, did not constitute a defense, since they afterward united in unlawful conduct and wrongfully entered the store; and that under the circumstances the plaintiff was not bound to notify the mayor or the sheriff of the threatened danger to his property. In the case of Marshall v. City of Buffalo, above cited, Laughlin, J., in speaking of the liability of cities and counties for damages accasioned by mobs and riots uses the following language, which seems to appropriately define the purpose and intent of the above statute: "The liability does not depend upon the diligence of the public authorities. It is an extension of the ancient English law which made the inhabitants of the respective hun- dreds liable for burglaries and unlawful destruction of property. The theory of the statute is that it is the duty of municipalities to preserve the peace and protect the property of all persons within their limits, and that im- posing such liability would not only tend to incite the citizens and officials to greater vigilance, but that the compulsory payment of losses occasioned by riots would be a proper and just penalty for the negligence of which they have been presumptively guilty. The statute was intended to punish the inhabitants for permitting riots and unlawful assemblages and to incite them 944 Peovisions Relating to Counties and Towns. Town Law, §§ 210, 211, 212, 213. § 25. Supervisor to report to board of supervisors amount of town bonds outstanding; form of report; publication. When a town has a public debt, consisting of bonds, or other evidence of debt, issued on the credit of the town, the supervisor thereof, shall make a report to the board of supervisors of the county, at every annual session thereafter, of the amount of such indebtedness." [Town Law (L. 1890, ch. 569), § 210; Heydeck- er's Gen. L. (2d ed.), p. 1455b.] Such report shall be in tabular form, specifying the different acts under which the bonds or debts were issued, with the rate of interest thereon, the amount unpaid at the time of the election of the supervisor, and the amount of debt paid at the date of his report, and coming due during his term of office. [^Idem, § 211 ; Heydecker's Gen. L. (2^ ed.), p. 1455b.j The report so made, shall be published in the annual report of the proceedings of the board of supervisors'. \_Ideinj § 212 ; Hey- decker's Gen. L. (2d ed.), p. 1455b.] § 26. Duplicate report to be presented to town meeting and filed in the office of town clerk. The supervisor shall also, at the expiration of his term of office, at the annual town meeting, make and present thereto, a duplicate copy of such report to the board of supervisors, including and add- ing thereto, the amount of bonds issued, and the am.ounta and interest paid, since the date of the report up to the day and date of his term of office, duly attested before a justice of the peace of to prevent and suppress the same by making it a matter of interest to the taxpayers to give their moral support to the enforcement of law and order." The following eases are cited in this connection: Darlington v. Mayor, 31 N. y. 164; Ely v. Supervisors of Niagara Comity, 36 N. Y. 297; Sarles v. Mayor, 47 Barb. 447; Moody v. Supervisors of Niagara County, 46 Barb. 659; Lulce v. City of Brooklyn, 43 Barb. 54; Wolfe v. Supervisors of Rich- mond County, 11 Abb. Pr. 270; Eastman v. Mayor, 5 Eobt. 389; Davidson v. Mayor, 2 Robt. 258. In the case of Duryea v. Mayor, 10 Daly, 300; affd., 100 N. Y. 625, it was held that the city was not liable where it appeared that three or four boys in the day time, without any tools or implements, began tearing down the stoop of an old unoccupied wooden building. They were soon joined by from fifty to seventy-five other boys, ranging in age from eight to seventeen years. It was shown that they had no common purpose and v/ere merely gratifying individual propensities. The work was con- tinued for only an hour and the boys fled on the arrival of a police officer. 13. Fop form of annual report of town indebtedness, see Form No. 176, post. Town and Oountt Finances and Pbopebtt. 945 Town Law, §§ 214, 189. Lis town, and which report shall he filed in the town clerk's office of the town, subject to the inspection, by an elector thereof. [Town Law (L. 1890, ch. 569), § 213; Heydecker's Gen. L. (2d ed.), p. 1455b.] § 27. Town board to cancel bonds and coupons which have been paid. All such bonds and coupons thereof paid, shall be cancelled by the town board of the town, at a meeting thereof to be held for that purpose, within ten days previous to the annual town meeting; and a record thereof shall be filed, signed by the board, in the town. [Town Law, (L. 1890, ch. 569), § 214; Heydecker's Gen. L. (2d ed.), p. 1456.] § 27a. Limitation of indebtddness. ISTo town including a portion of the Adirondack park shall here- after contract any debt or debts, which shall exceed the sum of three thousand dollars, except upon the duly verified petition of the owners of at least sixty-five per centum of the taxable real property therein, as such real property appears on the last preceding com- pleted assessment roll of such town. For the purposes of this act, the consent of the comptroller shall be deemed to be the consent of the state. This section shall not apply to debts contracted for the purpose of retiring or paying any existing indebtedness pursu- ant to law. [Town Law (L. 1890, ch. 569), § 215, added L. 1904, ch. 436.] § 28. Town board may borrow money to pay judgments against town. Whenever a final judgment recovered against a. town exceeds one thousand dollars, the town board of such town may borrow the sum necessary to pay such judgment by the issue of bonds to be signed by the supervisor and attested by the town clerk. Such bonds shall become due within twenty years from the date of issue, and unless the whole amount of the indebted- ness represented thereby is to be paid within five years from their date, they shall be so issued as to provide for the payment of the indebtedness in equal annual installments, the first of which shall be payable not more than five years from their date. They shall bear interest at a rate not exceeding five per centum per annum, and shall be sold for not less than their par value. They shall be sold on sealed proposals or at public auction upon notice pub- lished in a paper printed in the town, if any, and also in such other papers as may be designated by the town board, and posted in at least five public places in the town, at least ten davs before the sale, to the person who will take them at the lowest rate of interest. Such bonds shall be consecutively numbered from one to the highest number issued and the town clerk shall Keep a record of the number of each bond, its date, amount, rate of interest ■when and where payable, and the purchaser thereof or the person to whom they are issued. [Town Law, § 189, as added by L. 1899, oh. 57; Sevdeoker's Gen. L. (2d ed.) , p. U51.} ' """■'^'^'^ ^ 946 Pkovisions Relating to Counties and Towns. Penal Code, §§ 42, 43, 44, 45. CHAPTER LXIX. PENAL PROVISIONS APPLICABLE TO TOWN AND COUNTY OFFICEES. Section 1. Acting in public office without having qualified. 2. Bribery in executive office. 3. Prevention of officers from performance of duties. 4. Taking unlawful fees or rewards for doing or omitting to do official acts; taking fees for services not rendered. 5. Corrupt bargains for appointments to office. 6. Grants of rights to make appointments or perform official duties. 7. Wrongful intrusion into public office; officer refusing to sur- render to successor. 8. Neglect of public officer to perform duties of his office. 9. Misappropriation of public funds and falsification of public accounts by public officers. 10. Public officers not to be interested in contracts. § I. Acting in public office without having qualified. A person who executes any of tihe functions of a public office without having taken and duly filed the required oath of office, or without having executed and duly filed the required security, is guilty of a misdemeanor as prescribed by law. l_Penal Code, § 42, as amended hy L. 1893, ch. 692.J The last section must not be construed to affect the validity of acts done by a person exercising the functions of a public office in fact, where other persons than himself are interested in main- taining the validity of such acts. [^Idem, § 43.] § 2. Bribery in executive office. A person who gives or offers a bribe to any executive officer of this state with intent to influence him in respect to any act, decision, vote, opinion or other proceeding as such officer, is pun- ishable by imprisonment in a state prison not exceeding ten years, or by fine not exceeding five thousand dollars, or by both. {^Penal Code, § 44. J An executive officer, or person elected or appointed to an execu- tive office, who asks, receives or agrees to receive any bribe, upon an agreement or understanding that his vote, opinion or action upon any matter then pending or which may by law be brought before him in his official capacity, shall be influenced thereby, is punishable by imprisonment in a state prison not exceeding ten. Penal Provisions. 947 Penal Code, §§ 46, 47, 48, 49, 50. years, or by a fine not exceeding five thousand dollars, or liy both ; and in addition thereto forfeits his office and is forever disquali- fied from holding any public ofiiee under thij state. [^Idem, § 45.] § 3. Prevention of officers from performance of duties. A person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, is guilty of a misdemeanor. IPenal Code, § 46.] A person who knowingly resists, by the use of force or violence, any executive officer, in the performaiaoe of his duty, is guilty of a misdemeanor. [Idem, § 47.] § 4. Taking unlawful fees or rewards for doing or omitting to do official acts; taking fees for services not rendered. A public officer or a deputy clerk, assistant or other subordinate of a public officer, or any person appointed or employed by or in the office of a public officer, who shall, in any manner, act for or in behalf of any such officer, who asks or receives, or consents or agrees to receive any emolument, gratuity or reward, or any promise of emolument, gratuity or reward, or any money, property or thing of value or of personal advantage, except such as may be author- ized by law for doing or omitting to do any official act, or for per- forming or omitting to perform, or for having performed or omit- ted to perform any act whatsoever directly or indirectly relating to any matter in respect to which any duty or discretion is by or in pursuance of law imposed upon or vested in him, or may be ecseTcised by him by virtue of his office, or appointment or em- ployment, or his actual relation to the matter, shall be guilty of a felony, punishable by imprisonment for not more than ten years or by a fine of not more than four thousand dollars, or both. [Penal Code, § 48.] An executive officer who asks or receives any emolument, gratu- ity or reward, or any promise of any emolument, gratuity or re- ward, for omitting or deferring the performance of any official duty, is guilty of a misdemeanor. [Idem, § 49.] An executive officer who asks or receives any fee or compensa- tion for any official service which has not been actually rendered except in cases of charges for prospective costs, or of fees demand- able in advance in the oases allowed by law, is guilty of a misde- meanor. [Idem, § 50.] 948 Pkovisions Relating to Counties and Town. Penal Code, §§ 52, 53, 54, 55, 56, 57. § 5. Corrupt bargains for appointments to office. A person who gives or offers to give any gratuity or reward, in consideration that himself or any other person shall be ap- pointe-d to a public office, or to a clerkship, deputation, or other subordinate positions, in such an office, or shall be permitted to exerci&ei, perform or discharge any prerogatives or duties, or to receive any emoluments of such an offioe, is guilty of a misde- meanor. \_Penal Code, § .52. J A person who asksi or receives, or agrees to receive, any gratuity or reward, or any promise thereof, for appointing another person, or procuring for another person any appointment to a public office or to a clerkship, deputation or other subordinate position in such an offioe, is guilty of a misdemeanor. If the person so offending is a public officer, a conviction also forfeitsi his office. [^Idem, § 53.] § 6. Grants of rights to make appointments or perform official duties. A public officer who, for any reward, consideration or gratuity, paid or agreed to be paid, directly or indirectly, grants to another the right or authority to discharge any functions of his office, or permits another to make appointments or perform any of its du- ties, is guilty of a misdemeanor, and a conviction for the same forfeits his office and disqualifies him forever from holding any offioe whatever under this state. [Penal Code, § 5 4. J A grant, appointment, or deputation, made contrary to the pro- visions of either of the last two sections is avoided and annulled by a conviction for the violation of either of those sections, in re- sjject to such grant, appointment or deputation ; but any official act done before conviction, is unaffected by the conviction. [Idem, § 55.] § 7. Wrongful intrusion into public office; officer refusing to surrender to successor. A person who wilfully intrudes himself into a public office, to which he has not been duly elected or appointed, or who, having been an executive or administrative officer, wilfully exercises any of the functions of his office, after his right so to do has ceased, is guilty of a misdemeanor. [Penal Code, § 56.] A person who, having been an executive or administrative offi- cer, wrongfully refuses to surrender the official seal, or any books Penal Peovisions. 949 Penal Code, §§ 117, 470, 471. or papers, appertaining to his office, upon the demand of his law- ful successor, is guilty of a misdemeanor. [Penal Code, § 57.] § 8. Neglect of public officer to perform duties of his office. A public officer, or person holding a public trust or employ- memt, upon whom any duty is enjoined by law, who wilfully neg- lects to perform the duty, is guilty of a misdemeanor. This and the preceding section do not apply to cases of official acts or omis- sions, the prevention or punishment of which is otherwise specially provided by statute. [Penal Code, § 117.] § g. Misappropriation of public funds and falsification of pub- lic accounts by public officers. A public officer, or a deputy, or clerk of any such officer, and any other person receiving money on behalf of, or for account of the people of this state, or of any department of the government of this state, or of any bureau or fund created by law, and in which the people of this state are directly or indirectly interested, or for or on account of any city, county, village or town, who 1. Appropriates to his own use, or to the use of any person not entitled thereto, without authority of law, any money so received by him as such officer, clerk or deputy, or otherwise ; or, 2. Knowingly keeps any false account, or makes any false entry or erasure in any account of, or relating to, any money so received by him; or, 3. Fraudulently alters, falsifies, conceals, destroys or obliterates any such account; or, 4. Wilfully omits or refuses to pay over to the people of this state or their officer or agent authorized by law to receive the same, or to such city, village, county or town, or the proper officer or authority empowered to demand and receive the same, any money received by him as such officer when it is his duty imposed by law to pay over, or account for, the same ; Is guilty of felony. [Penal Code, § 470. J An officer or other person mentioned in the last section who wilfully disobeys any provision of law regulating his official con- duct, in cases other than those specified in that section, is guilty of a misdemeanor, punishable by a fine not exceeding one thou- sand dollars, or imprisonment not exceeding two years, or both. [Idem, § 471.] 950 Pbovisions Relating to Counties and Towns. Penal Code, § 473. § 10. Public officers not to be interested in contracts. A public officer, or school officer, wlio is authorized to sell or leas© any property, or to mate any contract in his official capacity, or to take part in making any such sale, lease or contract, who voluntarily becomes' interested individually in smch sale, lease or contract, directly or indirectly, except in cases where such sale, lease or contract., or payment under the same, is subject to audit or approval by the superintendent of public inatruction, is guilty of a misdemeanor. IPenal Code, § 473.] Weights and Measures. 951 L. 1854, ch. 112, § 11; Penal Code, § 161; Domestic Commerce Law, S 11. CHAPTER LXX. MlSCELIiATfEOUS PROVISIONS; WEIGHTS AND MEASTTEES. Section 1. Supervisor may cause dead bodies to be removed from one ceme- tery to another. 2. Neglect of town clerk to return names of constables. 3. Duties of state superintendent of weights and measures. 4. Copies of standard weights and measures. 6. County sealer; duty of supervisors. 6. Town sealer. 7. Weights and measures to be sealed; fees. 8. Delivery of standards to successor in office. § 1. Supervisor may cause dead bodies to be removed from one cemetery to another. The supervisor of any town containing a private cemetery may remove any dead bodies or human remains interred in such eeme^ tery to any other cemetery within such town, if the owners of such cemeteries and the persons residing within the state who are next of kin of such deceased persons consent to such removal. The owners of such cemeteries may remove the remains of deceased persons interred therein to any cemetery within such town, or to some cemetery designated by the persons who are next of kin of such deceased persons. Notice of such removal shall be mailed or served personally upon the next of kin of such deceased persons, if known to such owners, within ten days of such removal. [_L. 1854, ch. 112, § 11, as amended by L. 1897, ch. 463.J § 2. Neglect of town clerk to return names of constables. A town clei-k who wilfully omits to return to the county clerk the name of a person who has qualified as constable, pursuant to law, is punishable by a fine not exceeding ten dollara {^Penal Code, § 161. J § 3. Duties of state superintendent of weights and measures. The state superintendent of weightsi and measures shall take charge of the standards adopted by this article as the standards of the state ; cause them to be kept in a fire- proof building belong- ing to the state, from which they shall not be removed, and take all other necessary precautions for their safe-keeping. He shall correct the standards of the several cities and counties and provide them with such standards, balances and other means of adjust- 952 Peovisiokts Relating to Counties and Towns. Domestic Oommerce Law, §§ 12, 13, 14. ment as may be necessary, and, as often as once In ten years, compare the same with those in his possiession, and he shall have a general supeirvision of the weights and measures of the state. {^Domestic Commerce Law {L. 1896, ch. 376), § 11; Heydecker's Gen. L. {2d ed.), p. 2803.] § 4. Copies of standard weights and measures. The state shall have a complete set of copies of the original standards of weights and measures adopted by this article, which shall be used for adjusting county standards, and the original standards shall not be used except for the adjustment of this set of copies and for scientific purposes. The state superintendent of weights and measures shall see that the foregoing provisions of this section are complied with and procure such apparatus and fixtures, if the same have not already been procured, as are neoessary in the comparison and adjustment of the county standards. He shall cause all the city and county standards to be impressed with the emblem of the United States, the letters " IST. Y.," and such other device as he shall direct for the particular county. [Domestic Commerce Law (L. 1896, ch. 376), § 12; Heydecker's Gen. L. {2d ed.), p. 2804.] § 5. County sealer; duty of supervisors. There shall be a county sealer of weights and measures in each county, who shall be appointed by the board of supc'rvisors and hold office during the pleasure of such board. He shall take charge of and safely keep the county standards, provide the several towns with such standard weights, measures and balances, stamped with such devices as the board of supervisors may direct, as may be wanting, and compare the town standards with those of the county as often as once in five years. In towns where there are no stand- ards or no town sealer, he shall perform the duties of a town sealer. The board of supervisors of each county shall procure the proper standards for each town therein not provided therewith, and the expense thereof shall be paid by such town. [Domestic Commerce Law {L. 1896, ch. 376), § 13; Heydecker's Gen. L. {2d ed.), p. 2804.] § 6. Town sealer. There shall be a town sealer of weights and measures in each town, to be appointed by the town board and hold office during its Weights and Measttees. 953 Domestic Commerce Law, §§ 16, 17. pleasure. He shall take charge of and safely keep the town standards and see that the weights, measures and all apparatus used in the town which are brought to him for that purpose, conform to the town standards. l^Domestic Commerce Law {L. 1896, ch. 376, § 14; Heydecker's Gen. L. (2d ed.), p. 2804. j § 7. Weights and measures to be sealed; fees. Whenever the sealer of a city, county or town compares weights and measures and finds that they correspond or causes them to correspond with the standards in his possession, he shall seal and mark such weights and measures with the appropriate devices. Each sealer shall receive for his services the following fees : For sealing and marking every beam, ten cents. For sealing and marking measures of extension, ten cents per yard, not exceeding fifty cents for any one measure. For sealing and marking every weight, five cents. For sealing and marking liquid and dry measures, ten cents for each measure. He shall have a reasonable compensation for making weights and measures conform with the standards in his possession. [Do- mestic Com/merce Law {L. 1896, ch. 376), § 16; Hey decker's Gen.L. {2ded.),p. 2805.J § 8. Delivery of standards to successor in ofHce. Whenever the state superintendent of weights and measures resigns, is removed from office or removes from the city of Albany, or when any city, county or town sealer resigns, is removed from office or removes from the city, county or town in which he has been appointed or elected he shall deliver to his successor in office all the standard beams, weights and measures in his possession, and on the death of any such sealer of weights and measures his representatives shall in like manner deliver to his successor in office such beams, weights and measures. In case of refusal or neglect to deliver such standards entire and complete, as in this section required, the successor in office may maintain an action against the person or persons so refusing or neglecting, and recover double the value of the standards not delivered and double costs. One-half of the damages recovered in every such action shall be retained by the person so recovering, and the other shall be applied to the purchase of such standards as may be required in his office. [Domestic Commerce Law (L. 1896, ch. 376), § 17; Heydecker's Gen.L. (2ded.),p. 2805.] 954 Peovisions Eelating to Counties and Towns. CHAPTER LXXI. Fees oe County and Town Offiobes. BEiOTlON 1. Assessors. 2. Auditors, town. 3. Collectors. 4. Constables. 5. Coroners. 6. County clerks. 7. County treasurer. 8. Court criers. 9. Election officers. 10. Fence viewers. 11. Health officer. 12. Highway commissioners and overeeerfc 13. Jurors. 14. Jurors, commissioners of. 15. Justices of the peace. 16. Overseers of the poor. 17. Physicians. 18. Pound masters. 19. Printers' fees. 20. Railroad commissioner. 21. Sealer of weights and meaBUTM. 22. School commissioners. 23. Sheriffs. 24. Supervisors. 25. Town clerks. 26. United States loan commiSBionera. S 1. Assessors. Compensation, chargeable to towns, for each day'g eerVieea for the town in completing assessment [Town Law, § 178, ante, p. 814.] $2 00 As fence viewers, compensation for services performed in settling disputes as to all questions submitted to them relating to division fences, per day [Town Law, § 104, ante, p. 450] 1 50 Fees for traveling to place where strayed ?nimals are kept, per mile 10 Fees for certificate of charges in proceedings relative to strayed animals [Town Law, § 125, ante, p. 457] 75 Compensation for services in determining damages for injuries to sheep caused by dogs, under County Law, § 118, per day. ... 2 00 [For special provisions relating to compensation of assessors in towns having an assessed valuation of $20,000,000 and in the towns in Monroe and Nassau counties, see Town Law, § 178, as amended by L. 1903, chap. 4!)-2. anlr, p. 814]. Fees of County and Town Officees. 955 Meeting leith state assessors. Section 174 of the Tax Law {ante, p. 409 ) , requires the state tax commissioners to visit each county at least once in two years, " to inquire into the methods of assessment and taxation, and ascertain whether the assessors faithfully discharge their duties." It is customary for the several town a&seasors to meet such state tax commissioners, on such visits at some place within the county. The statute is silent as to the amount to be paid as com- pensation for the services and for the expenses of the assessors on such visits, and as to whether such compensation and expenses are a county or town charge. The visit of the state tax commissioners is to ascertain the manner of the performance by assessors of their official duties as town oflScers. The service of assessors in connection with this visit is for the benefit of the town, and not for the county and the compensation therefor is a town charge. The amount of this compensation is the same as for all other services for the town, viz.: two dollars per day. If the services are performed by the assessors for the county, they would come within the rule that where services are rendered by a public officer for which no compensation is fixed by statute, they are deemed to have been rendered gratuitously. See People ex rel. Friel v. Commissioners, 2 App. Div. 86, 88, and Throop on Public Officers, § 446, and cases cited. In such case, however, the assessors would be entitled to their expenses, under { 42 of the Public Officers Law. S 8. Auditors, town. Compensation : In towns of less than twelve thousand inhabitants, for each day, not exceeding ten in any one year $3 00 In towns of more than twelve thousand inhabitants, for each day, not exceeding thirty in one year [Town Law, § 176, ante, p. 818] 8 00 § 9. Colleotora. Feet : On all taxes paid within thirty days from date of notice of receipt of assessment-roll, on amount of $2,000 and less .... 2 per cent. On amounts of over $2,000 1 per cent. On taxes collected after expiration of thirty days 5 per cent. On taxes returned to county treasurer as unpaid [Tax Law, § 81, ante, p. 430] 2 per cent. For collecting dog tax, on every $100 collected 10 00 For each dog killed because of non-payment of tax [County Law, § 115, ante, p. 464] 1 00 S 4. Censtables. In civil actions: In an action brought before a justice of the peace, or in a justice's court of a city: For serving a, summons 25 For serving a summons and executing an order of arrest. . . 1 00 956 Peovisions Relating to Counties and Towns. In dvil actions — ( continued ) : For serving a summons and levying a warrant of attachment. . $1 00 For serving a summons and afiSdavit and executing a requisition, in an action for a chattel 1 00 For serving an order directing the action to be continued before a justice other tlian the one before whom it is pending and for attending before the latter 50 And in addition if he so attends with a. person in his custody.. 50 For collecting money by virtue of an execution, for every dollar collected, to the amount of fifty dollars 05 For every dollar collected over fifty dollars 02% And where a judgment or an execution is settled afier a levy, the constable is entitled to poundage on the sum at which the settlement is made, not exceeding the value of the prop- erty levied on. For each mile necessarily traveled, going and returning to serve a summons or to serve or to execute any other man- date, except a venire, the distance to be computed from the place of abode of the person served, or the place where it is served, to the place where it is returnable 10 But where two or more mandates in one action are served or executed on one journey, or where a mandate is served on or executed against two or more persons in one action, he is entitled, in all, for each mile necessarily traveled, to only. ... 10 For notifying the plaintiff of the execution of an order of arrest. 25 And for going to the plaintiff's residence, or, if he is found elsewhere, to the place where he is found, to serve such a notice, for each mile traveled going and returning. 10 For subpoenaing each witness, not exceeding four 25 For notifying the jurors to attend a trial , 1 50 For taking charge of a jury during their deliberations 60 Where witnesses, not exceeding four, are subpoenaed by any person other than a constable, the fee therefor is, each 13 In a special proceeding : For notifying jurors to attend to assess damages, in proceed- ings relating to highways , 2 00 For notifying jurors to attend in any other case, unless a, fee therefore is specially prescribed by law, for each person notified 10 And for each mile actually and necessarily traveled, going from and returning to his place of residence 10 For serving a precept or other mandate, by which the special proceeding is commenced 25 For serving a warrant, in any case where » fee therefor is not specially prescribed by law 60 For serving an order, directing the special proceeding to be continued before justice other than the one before whom it is pending, and for attending before the latter 60 Fees or County and Town Officees. 957 In a special proceeding — (continued) : And in addition if he so attends with a person in his custody. . $0 50 For arresting and commiting any person, pursuant to process. . 1 00 For subpoenaing each witness, not exceeding four 25 For each mile necessarily traveled, going and returning, to serve or execute a mandate, the distance to be computed from the place where it is served or executed, to the place where it is returnable, unless a different rate of travel fees upon the service or execution thereof is specially prescribed by statute 10 Where two or more mandates are served or executed in one special proceeding, the limitation upon the amount of travel fees specified in the preceding subdivision applies [Code Civ. Proc, § 3323]. In criminal cases: For serving a warrant 75 For each mile traveled, going and returning 10 For taking a defendant in custody on a mittimus 25 For each mile traveled in taking a prisoner to a jail, going and returning 10 For serving every subpoena 25 For every mile traveled in serving a subpoena, going and returning 05 For notifying a complainant 25 For each mile traveled in notifying a complainant, going and returning 05 For keeping a prisoner after being brought before a justice, and by his direction in custody, per day 1 00 For taking charge of a jury during their deliberations 60 For attending any court, pursuant to a notice by the sheriff, per day 2 00 For attending any court of record in Albany, Genesee and West- chester counties 3 00 For each mile traveled, going and returning from court 05 Which fees (last two items) shall be chargeable to the county, and shall be paid by the treasurer thereof on the production of the certificate of the clerk, specifying the number of days and distance traveled. [L. 1866, ch. 692, § 8, as amended by L. 1877, ch. 89.] The board of supervisors may allow such further compensation for the service of process, and the expenses and trouble attending the same, as they shall deem reasonable: For services in criminal cases, for which no compensation is specially provided by law, such sum as the board of super- visors of the county shall allow. [R. S., pt. IV, ch. 2, tit. 8, § 4, in part.] Mileage. Whenever a subpoena for witnesses in criminal cases or complaints, containing one or more names, shall be served by a 958 Provisions Relating to Counties and Towns. constable or other officer, such officer shall be allowed for mileage only for the distance going and returning, actually traveled to make such service upon all the witnesses in such case or complaint, and not separate mileage for each witness, unless the board of supervisors auditing accounts for such services shall deem it equita- ble to make » further allowance [L. 1836, ch. 506, § 1.] § 5. Coroners. Fees upon inquest. The coroners in and for the State of New York, except in the counties of New York and Kings, and such other counties as shall have prescribed a different compensation, shall be entitled to receive the following compensation for services performed, chargeable to the comity: Mileage to the place of inquest and return, per mile $0 10 Viewing body 5 00 Serving of subpoena, per mile traveled 10 Swearing each witness 15 Drawing decision 1 00 Copying decision for record, per folio 25 (But such officers shall receive pay for one copy only.) For making and transmitting statement to board of super- visors, each decision 50 For warrant, of commitment 1 OO For arrest and examination of offenders, fee shall be the same as justices of the peace in like cases. (See Justices of the peace.) [L. 1873, ch. 833, § 1, as amended by L. 1874, ch. 535.] Fees when performing duties of sheriff. When required to do the duties of a sheriff, shall be entitled to and receive the same fees a» sheriffs for the performance of like duties: Shall be reimbursed for all moneys paid out actually, and necessarily, by him in the discharge of official duties as shall be allowed by the board of supervisors- Shall receive for each and every day and fractional part thereof spent in making decision (except for one day's service) 3 OO For performing the requirements of law in regard to wrecked vessels, for each day and fractional part thereof 3 00 And a reasonable compensation for all official acts performed, and mileage to and from such wrecked vessel, per mile 10 For taking ante-mortem statement he shall be entitled to the same rates of mileage as before mentioned, and for each day and fractional part thereof 3 00 For taking deposition of injured person in extremis [L. 1873, ch. 833, § 1, as amended by L. 1874, ch. 535] 1 00 Fees of corona (M witness. Whenever, in consequence of the per- formance of his official duties, a coroner becomes a. witness in a criminal proceeding, he shall be entitled to receive mileage to and from his place of residence, ten cents per mile, and three dollars per day for each day, or fractional parts thereof, actually detained as such witness. [L. 1873, ch. 832, § 3, as amended by L. 1874, ch. 535.] Fej;s of County and Town Officebs. 959 Fees of jurors; report of coroner. The fees of jurors necessarily summoned upon any coroner's inquest shall be not to exceed one dollar for each day's service, shall be a. county charge and shall be audited and allowed by the boards of supervisors in the same manner as other fees and charges mentioned in this act. But the coroner holding such inquest and summoning said jurors shall make report to the next succeeding board of supervisors after every such inquest of the names of such jurors and the term of service of each, and upon what inquest rendered, on or before the third day of the annual session in each year. [L. 1873, ch. 833, § 4, as inserted by L. 1878, «h. 286.] § 6. County clerks. Fees generally. A county clerk is entitled, for the services specified, except where another fee is allowed therefor by special statutory provision, to the following fees to be paid in advamce: For searching and certifying the title to, and incumbrances upon real property, for each year for which the search is made for each name, and each kind of conveyance or lien .... $0 05 For a copy of an order, record or other paper, entered or filed in his ofiice, for each folio 08 For filing a transcript, and making an entry as prescribed in section 1258 of the Code of Civil Procedure 12 For issuing an execution upon a judgment, a transcript whereof, or of the docket of which, has been filed in his oBice, to be paid by the party at whose request the execution is issued, and to be collected by the sheriflf in addition to the sum due upon the judgment 50 For recording and indexing a notice of the pendency of an action filed in his office, for each folio contained in the notice, 10 For cancelling such a notice, or a notice filed in his office, as prescribed in section 649 of the Code of Civil Procedure 25 For recording any instrument, which must or may legally be recorded by him, for each folio . 10 For filing a certificate of satisfaction, or other satisfaction- piece of a mortgage, and entering the satisfaction 25 For afiixing and indexing a notice of foreclosure of a mortgage as prescribed in section 2390 of the Code of Civil Procedure. . 25 For entering a minute that a mortgage has been foreclosed .... 10 For filing and entering a satisfaction of an assignment of a judgment 12 For filing and entering the bond of a collector or other officer authorized to receive taxes 12 For searching for a bond qq For entering a satisfaction thereof 12 For sealing any paper when required 12 For filing and docketing notice of a mechanics' lien 10 For filing and entering specifications and all other papers re- lating to a lien against a vessel 25 960 Peovisions Relating to Counties and Towns. Wees generally — (continued: For filing any paper required by law to be filed in his office, other than as expressly provided for in this section $0 06 For filing any paper deposited with him for safekeeping 06 For searching for such a paper, when required, for each paper necessarily opened and examined 03 For a certificate, other than that a paper, for the copying of which he is entitled to a fee, is a copy 25 For inquiring into, determining and certifying the sufficiency of the sureties of a sheriff 50 For attending upon the canvassing of votes, given at an election, 2 00' For drawing the necessary certificates of the result of the can- vass, for each folio 18 And for the necessary copies thereof, for each folio 09' The board of supervisors may fix the compensation of oounity clerks for services performed in respect to elections. [See Election Law, § 18.] For notifying the governor that any person has taken an oath of office, the necessary postage and 10 For notifying the governor that any person has neglected to take an oath of office, or to file or renew any security, within the time prescribed by law, or of a vacancy in an office in his county, the necessary postage and 10 For notifying any person of his appointment to office, the ex- penses actually and necessarily incurred in giving notice, which the comptroller deems reasonable, and 25 For entering in the minutes of the County Court a license to keep a ferry, and for a, copy thereof 1 00 For taking and entering a recognizance, from any person au- thorized to keep a ferry 25 But the county clerk is not entitled to any fee, under this section, for a copy of, or for filing or certifying, any paper, in a, civil action or special proceeding, in a court of which he is ex officio clerk. [Code Civ. Proc, § 3304.] ■Fees as cleric of a court : Upon the trial of the action, or the hearing, upon the merits, of the special proceeding, from the party bringing it on 1 00' For entering final judgment in the action, or entering a final order in the special proceeding, including the filing of the judgment-roll, and a copy of the judgment to insert therein. . 50 And in addition for each folio exceeding ten, contained in the order or judgment 10 For entering any other order or an interlocutory judgment, for each folio, exceeding five 10 For a certified or other copy of an order, record or other paper, entered or filed in his office, for each folio 05 Where, on an appeal from a judgment or order, a party shall present to the clerk a printed copy of the judgment or order Fees of County and Town Officees. 961 Veea a» olerk of a county — (continued) : appealed from, it shall be the duty of the clerk, as required, to compare and certify the same, for which service he shall be entitled to be paid at the rate of, per folio $0 01 For a, certified transcript of the docket of a judgment 12 For filing a transcript and docketing or redocketing » judg- ment thereupon 06 For all services, upon the filing of a. declaration of intention by an alien to become a citizen, including the oath or affirma- tion, the recording of the same, and a certificate thereof delivered to the alien 20 For all services, upon the admission of the alien to be a citizen, including the recording of the papers, and a certified copy of the record, which must be delivered to any person requiring it [Code Civ. Proc, §§ 3301, 3303] 60 Feet in criminal cases. (Chargeable to county.) For swearing a witness 06 For entering or respiting a recognizance 12% For calling and swearing a jury 19 For entering a sentence in the minutes kept by him l^Mt For every certified copy thereof, and for a transcript thereof for the secretary of state , 12% Copies of records, indictments and other proceedings, the like fees as are allowed in civil cases for copies of papers filed in his office, per folio [R. S., pt. IV, ch. 2, tit. 8, § 6] 08 The fees allowed to county clerks in criminal cases are county charges and are to be audited by the board of supervisors of the county in which such services are rendered and are to be paid in the same manner as other contingent charges of the county. [R, S^ pt. rV, eh. 2, tit. 8, ! 12.] Other fees: Notary public, of the fees payable by a, the county clerk of every county, except New York, Kings and Erie may retain [Executive Law, § 84] 80 For registering county bonds, for each bond [General Muni- cipal Law, § 9] 26 For registering each physician 1 00 When registered in another county 25 For registering each dentist 1 00 When registered in another county 25 For registering each veterinary surgeon 1 00 When registered in another county [Public Health Law, §§ 149, 150, 162, 181] 25 For registering each chiropodist [L. 1896, ch. 861, § 13] 2 00 For fees as to filing chattel mortgages, see Town clerks, ante. For filing and recording certificate of partnership 1 00 962 Pbovisions Eelating to Counties and Towns. other fees — (continued) : For each additional name of a partner beyond two $0 10 For a certified copy of certificate of partnership [Partnership Law (L. 1897, eh. 420), § 20] 60 § 7. County treasurer. Fees as to moneys paid into court : For receiving money paid into court upon the sum so re- ceived % per cent. For paying out the same, upon the sum so paid out % per cent. For investing money, pursuant to the direction of a court, upon the sum invested, not exceeding two hundred dollars . . % per cent. And upon the excess, over two hundred dollars M per cent. For receiving the interest upon an investment, and paying the same to the person entitled thereto, upon the interest so received and paid [Code Civ. Proc, § 3321] % per cent. Fees as administrator: For receiving and paying out all sums not exceeding one thou- sand dollars 5 per cent. For receiving and paying out all additional sums not amount- ing to more than ten thousand dollars 2% per cent. For all sums above eleven thousand dollars and all necessary expenses [Code Civ. Proc, §§ 2668, 2730] 1 per cent. Fees for receiving amd paying over taxes: The county treasurer may retain on all taxes paid and ac- counted for on account of the state tax 1 per cent. Not exceeding in any one year on account of all taxes received and paid out by him, including schools [Tax Law, § 91] . . . $1,500 00 Fees for receiving and paying over on account of taxable transfers : On all taxes paid and accounted for by him each year on the first fifty thousand dollars 5 per cent. On the next fifty thousand dollars 3 per cent. On all additional sums [Tax Law, § 237] 1 per cent. Pees on account of the collection of the liquor tax: Of all taxes, penalties and fines collected in counties containing a city of the second class 1 per cent. In counties containing a city of the third class 2 per cent. In all other counties, except those containing a city of the first class [Liquor Tax Law, § 14] 3 per cent. S 8. Conrt crlera. The compensation of criers of courts of record for attendance thereat, is per day $3 00 Traveling fees going to and returning from the place of attend- ance, per mile 05 In the county of Queens the crier receives a yearly salary of [County Law, § 230, sub. 4, as amended by L. 1902, ch. 507, ante, p. 32] 1,200 00 Fees of County and Town Officehs. 963 S 0. XSIeotlon officers. Inspectors of election, in towns: For each day actually and necessarily devoted by them to the service of the town upon days of registration and election day $2 00 For compensation for services for filing returns in office of county clerk 6 00 For mileage in going to and returning from clerk's office, for each mile [Election Law, § 18] 04 Ballot clerks and poll clerks are entitled to the same compensa- tion for services performed on election day. But the board of supervisors may establish in their county a higher rate, not exceeding six dollars per day. [Town Law, § 178, as amended by L. 1897, ch. 252, wnte, p. 814.] i 10. Fence Tlewers. The compensation of assessors and highway commissioners as fence viewers for services performed in settling disputes as to division fences, per day [Town Law, § 104, ante, p. 450] .... 1 50 Fees for traveling to place where strayed animals are kept, per mile 10 Fees for certificate of charges in proceedings relative to strayed animals [Town Law, § 125, ante, p. 457] 75 Compensation for services in determining damages for injuries to sheep caused by dogs [County Law, § 118, ante, p. 465], per day 2 00 S 11. Health officer. The compensation of the health officer of a town is to be fixed by the town board acting as a local board of health. [Public Health Law, § 21, ante^, p. 854.] In addition to such compensation the town board, as a local board of health, may allow the reasonable expense of such health officer in going to, attending and returning from the annual sanitary conference of health officers; and may also, whenever the services rendered by such health officer are extraordinary or extra hazardous by reason of epidemic or otherwise, allow to him such further sum in addition to his fixed compensation as shall be audited by the town board. [Idem.] Fees for reporting to the state department of health, for each case of infectious or contagious disease to be paid by the town. 20 For reporting annually to the state department of health, cases of consumption, for each case, to be paid by the town [Public Health Law, § 25, a/nte, p. 862] 10 g 12. HighTray commissioners and overseers. a. Highway commissioners: Compensation, for each day's services for the town [Town Law, § 178, ante, p. 814] 1 00 Fees as fence viewers, see Fence Viewebs. 964 Provisions Kei^ating to Counties and Towns. b. Overseers of hightoays: For each hour employed in executing the duties of his ofBce in excess of the amount assessed against him for highway labor [Highway Law, § 24, amte, p. 622] $0 12%' In the county of Nassau, commissioner of highways is entitled to $3,00 per day. In a town which has adopted the money system of taxation for highway purposes the town board may fix the com- pensation of the commissioner of highways at not less than two nor more than $3.00 per day. [See Town Law, § 178, as amended by L. 1903, ch. 492.] $13. Jurors. Compensation of trial and grand jurors may be fixed by the board of supervisors not exceeding in addition to the fee of twenty-five cents for each cause in which a trial juror is im- panelled for each day's attendance at a term of a court of record the sum of 2 00 In the counties of Westchester, Rockland, Orange, Erie, Niagara, Ontario and Genesee grand and trial jurors may be al- lowed, in addition to such fee of twenty-five cents, for each day a sum not cxeceding 3 00 Mileage is allowed, going to and returning from such courts, unless a lower rate is fixed by the board of supervisors, for each mile 05 A juror is entitled to mileage for actual travel once in each calendar week during the term, except that in the counties of Queens, Rockland and Orange, grand and trial jurors may be paid four cents a mile for each mile necessarily traveled in going to and returning for each day of actual travel during the term in lieu of any other mileage. [Code Civ. Proc, § 3314, as amended by L. 1903, ch. 247, ante, p. 906.] Where the trial occupies more than thirty days the court may fix and allow to each juror an extra compensation for his services thereupon to be paid, including all necessary expenses for food by the county. [Code Civ. Proc, § 3315.] S 14. Jurors, commissioners of. In counties where a commissioner of jurors is appointed, having a population of less than 100,000, the salary of such commissioner is fixed by the board of supervisors. In counties of over 100,000 and not more than 150,000 the annual salary is fixed by statute at 1,500 00 In counties of more than 150,000 and not more than 300,000 the annual salary is fixed by the board of supervisors not exceed- ing [L. 1899, ch. 441, § 4, ante, p. 902] 3,000 00 9 15. Justices of the peace. Compensation, chargeable to town, for services rendered, per day [Town Law, S 178, ante, p. 814] 2 00 Fees of County and Town Officees, 965 fees in dvil ckctiona. In an action brought before a justice of the peace: For a summons $0 25 For an order of arrest ,. . 25 For a warrant of attachment 25 For a requisition in an action for a chattel 25 For a. subpoena, including all the names inserted therein 25 For the acknowledgment of a power of attorney 25 For taking an affidavit or administering an oath 10 For drawing an affidavit, application or notice required by" statute, each folio 05 For drawing a bond or an undertaking 25 For hearing an application for a commission to examine one or more witnesses 60 For an order for such a commission, and attending, settling, and certifying interrogatories 60 For hearing an application to discharge a defendant from arrest, or to vacate or modify a warrant of attachment, or increase the plaintiff's security thereupon 60 For an adjournment, except where it is made by the justice upon his own motion 25 For a venire 25 For empanelling and swearing a jury 25 For hearing the plaintiff's evidence, where the defendant doe» not appear 25 For the trial of a demurrer 25 For the trial of an issue of fact, where the defendant appears. . 75 For receiving and entering the verdict of a. jury 25 For entering judgment 25 For filing each paper required by statute to be filed 05 For a transcript of u judgment 25 For a copy of any paper for which a fee is not expressly pre- scribed law, for each folio 0. As county officers. The following are county charges: Compensation while attending sessions of the board of super- visors and board of county canvassers, or while actually en- gaged in investigations or other duties committed to them by the board ( except in the counties of Albany, Broome, Columbia, Erie, Montgomery, Niagara, Onieda, Onondaga, Rensselaer, Westchester and Eichmond, in which counties provisions are made for compensation by special act), per day [County Law, § 23, ante, p. 12] $4 00 Mileage for once going to and from pl£,ce where session of board is held, per mile [County Law, § 23, ante, p. 12] OS Copying assessment rolls, as follows: For first 100 written lines, each line 03 For second 100 lines, each line 02 For each written line in excess of 200 [County Law, i 23, ante, p. 12] 01 Extending tax roll, for each line extended [County Law, § 23, ante, p. 12] 01 Supervisors while in attendance upon duties, five miles or more from the place of meeting of the board, are entitled to their actual expenses. [County Law, f 23, ante, p. 12.] § 25. Toxrs clerks. The following are town charges: Compensation for services performed for the town, each flayi [Town Law, § 178, ante, p. 814] 2 00 For services performed in the formation, alteration or dissolu- tion of school districts, each day [Consolidated School Law, tit. 6, § 5, ante, p. 881] 1 50 For election services, a sum to be fixed by the town board. [Election Law.] For each certified copy of jury list furnished to justices of the peace 1 00 The town clerk may charge individuals as follows: Fees for filing each chattel mortgage and contract of condi- tional sale 06 For entering the same OS For searching for each paper [Lien Law (L. 1897, ch. 418), §§ 9*, 114] 08 Fees of County and Town Offioebs. ^IB Feet — (continued) : For filing and entering bond of school tax collector, chargeable to school district [Consolidated School Law, tit. 7, § 80] $0 26 For filing marriage certificates and contracts [Domestic Rela- tions Law, § 17] 25 For certified copy thereof 10 Fees for records. Town clerks are required to search the files, papers, records and dockets of his oflSce and make transcripts thereof upon demand, and are entitled to the same fees therefor as county clerks. [Code Civ. Proc, § 961.] For filing any paper deposited with him for safe keeping 06 For searching for a paper filed with him — for each paper neces- sarily opened and examined 03 For a copy of an order, record or other paper entered or filed in his oflSce, per folio 08 For a certificate other than a paper for the copying of which he is entitled to a fee [Code Civ. Proc, § 3304] 25 Btrayed animals. For recording notice, for each strayed animal [Town Law, § 121, ante, p. 455] 10 Taw notices. For filing notices of nonresidents as to place where tax notices may be sent by collectors [Tax Law, § 70a, ante, p. 415] 1 00 S 26. ITnlted States loan conunlaslonera. The loan commissioners in each county may retain annually as full compensation for their services, in respect to the United States De- posit Fund, the following fees : Upon the sum of $25,000 or less % of 1 per cent. Upon a further sum of not less than $25,000 % of 1 per cent. If the whole sum exceeds $50,000 [State Finance Law, § 94, ante, p. 176] V& of 1 per cent. FOUMS. FORM No. 1. GsaSTEEAI. FOBM OF RESOLUTION OF BOAKD OF StJPEEVISORS. Resolution as to the water supply for the county buildings (or state gen- erally the subject of the resolution). Passed by the board of supervisors of county, pursuant to County Law, section 12, subdivisions 1 and 13 (or state law authorizing board to act), twelve supervisors voting in favor of such resolution, and three supervisors against the same. Whereas, the water supply for the county buildings, located in the village of , is insufficient for the uses and purposes of such buildings (or state specifically the reasons why the resolution is submitted), there- fore be it Resolved, That the committee on county buildings be, and they are hereby directed to examine as to the present supply of water now furnished for use in the county buildings, ascertain the cost of making such supply suffi- cient for the uses and purposes of such buildings and report the facts con- cerning the same to this board at its present session. (To be certified by chairman and clerk of board.) FORM No. 2. SBsoLtmoN Bequestino Actiqn bt State Legislatubi!. Resolution requesting the legislature of the state of New York to appro- priate the sum of dollars for the purpose of draining the creek, in the town of , county of Whereas, for a number of years the creek, in the town of , has annually overflowed and damaged, to a great extent, the property and highways within such town, which overflow was caused by the construction of a state dam for the use of the canal in such creek at , in the county of ; now, therefore, be it Resolved, That the board of supervisors of county hereby requests the legislature of the state of New York to appropriate the sum of dollars for the purpose of draining and cleaning out the said creek in the town of , county of , and for the purpose of performing such other work as may be necessary to pre- vent in the future the overflow of such creek in such town, the sum so appropriated to be expended by the superintendent of public works in ac- cordance with plans and specifications to be adopted by him; and (975) 976 FoEMS. Resolved, That we urge upon the member of assembly from this county, and the state senator from this district, that they each of them do all in their power to secure the passage of a bill by the legislature of the state of New York, at its coming session, to secure the appropriation of the amount hereby requested; and Resolved, That the clerk of the board of supervisors transmit a copy of this resolution to , the assemblyman of county, and to , the state senator from this district. FORM No. 3. Subpoena by Boabd ob Coumittee. (County Law, § 27, ante, p. 18.) The People of the State of New York to A. B.. We, the supervisors of the county of (or a committee of the board of supervisors of the county of ) , command you, that (all and singular) business and excuses being laid aside you attend before said board (or said committee), at the rooms of said board (or at [state place] ) , in the of the city of , on the day of , 19.., at .... o'clock in the noon, to testify touching ( state matter ) , and that you produce on such examination all books, papers and documents in your possession or under your control, relat- ing to (state matter) {or if any partioula/r book or document is required, so specify it), and for a failure to attend and to produce such books, papers and documents you will be deemed guilty of contempt and will be proceeded against in the manner provided by the Code of Civil Procedure. C. D., Ohairman. Dated this day of , 19.. FORM No. 4. AccoTmxs Against a CotjntT. (County Law, § 24, ante, p. 28.) Ar.BANX, N. T., Ootoher ...., 1890. The County of Albany, To Matthew Bbndeb, Dr. 1899. June 28. To 10 copies Cumming & Gilbert's Poor, Insanity and State Charities Laws, at $5.00 $50 00 To 5 copies Greene's Highway Laws of the State of New York, at $3.50 17 50 $67 50 FoKMs. 977 STATE OF NEW YORK, County op Albany, Matthew Bender, being duly sworn, deposes and says that the several items charged in the foregoing account are just, true and correct, and [if for dis- hursement and services, that the disbursements (and services) charged therein have been in fact made (or rendered) or are necessary to be made (or rendered) at the present session of the board of supervisors of such county] and that no part thereof has been paid or satisfied. MATTHEW BENDER. Subscribed and sworn to before me, this .... day of , 19 . . JOHN DOE, TJotary Public in and for Albany Oounty, FORM No. 5. CONTEACT WITH PeNITENTIAJIY FOB SuPPOBT OF PBISONEBS. (County Law, § 12, sub. 11, ante, p. 48.) This agreement, made this dUy of , 1903, between , keeper ( or superintendent ) of the County Penitentiary, party of the first part, the authorized agent of the county of , state of New York, and the board of supervisors of the county of , party of the second part, the agents of the county of , state of New York, authorized to make this contract by subdivision 11 of section 12 of the County Law; Witnesseth, That the party of the first part agrees for and in behalf of the said penitentiary, in consideration of the sum hereinafter mentioned, to safely keep and board all prisoners legally sentenced and committed by the several courts of the said county of , and delivered by the sheriff of such county or his deputies, or by any constable of any town in said county, for any term not less than sixty days, and to provide all such prisoners with proper medical care and attention, subject however to the rules and regulations established for the management and government of said penitentiary. Also to give to the aforesaid sheriflT or his deputies or any constable of said county, for prisoners so delivered at such penitentiary, a receipt stating the date and length of sentence and amount of fine, if any, imposed ,on said prisoner. The party of the second part agrees to deliver to such penitentiary all prisoners sent by the several courts of the county of to hard labor for a term of sixty days and upwards, from the date of this contract to and including the thirty-first day of December, 19.. And the party of the second part further agrees to pay to the party of the first part the sum of $2.10 per week for each and every person so kept for the said county of at the said penitentiary, and to pay all 978 Forms. drafts drawn upon the treasury of the said county of for the board, care and maintenance aforesaid, when accompanied by an account for the same, properly made stnd verified, and in accordance with the terms of this contract, on the first day of January, 19.., for the term ending on the thirty-first day of December, 19 . . And the party of the second part further agrees to pay as above to the party of the first part, the necessary expenses of sending back to the said county of all such prisoners whose terms have expired while at the said penitentiary, and the party of the first part further agrees to credit to the said county of all moneys which shall be col- lected for fines imposed on prisoners, sentenced and confined as herein stipu- lated at the said penitentiary, and to make return of the same on the first day of January, 19.., but any fines imposed and paid by labor of any con- vict, shall not, nor shall any part thereof be credited to the said county of It is also further agreed that any convict sentenced in the said county of to said penitentiary, who may become insane while con- fined in such penientiary, must be forthwith removed from the said pemten» tiary, when due notice is given to the superintendent of the poor of said county. This clause does not apply to persons convicted of felonies. Witness our hands and seals this day and year as above written. Keeper {or superintendent) of County Penitentiarjf. Chairman of Board of Supervisorg of .... ...i Ootmfy. FORM No. 6. Oath of Office of Clebk of Boabd of Supebtisobs. STATE OF NEW YORK, ) l ss. : COUNTT OF j I, A. B., do solemnly swear (or affirm) that I will support the constitu- tion of the United States, and the constitution of the state of New York, and that I will faithfully discharge the duties of the office of clerk of the board of supervisors of the county of , according to the best of my ability. A. B. Subscribed and sworn to before me, thU .... day of ,19.. 0. D. (Title of office.). FOEMS. 979 FORM No. 7. Statement of County and Town Accounts. (County Law, § 51, ante, p. 79.) I. — County Chaeges. Accounts against the county of , presented to the board of supervisors, at its annual meeting for the year 19.., with amount claimed by and allowed to each person named. CLAIMANT. Nature of Account. Amount claimed Amount allowed. A.B $350 00 $300 00 II. — Town Abstracts. Tovm of Abstract containing a list of claims audited by the town board (or board of town auditors) of the town of during the year ending on the day of , 19 . . , with the amounts claimed by and allowed to the several persons named thereia: Claimed. Allowed. A. L. Kellogg, services as attorney $275 00 $275 00 A. L. Van Duzen, town clerk 29 00 29 00 (And so on for each town.) III. — SupEBvisoBs' Accounts. County of To John Dooley, supervisor of the town of Stamford, Dr. December 30, 19.. Claimed. Allowed. To 16 days' attendance at annual session of the board of supervisors, at $4.00 $64 00 $64 00 To 4 days' services on the committee for the repair of the county jail, at $4.00 16 00 16 00 To making copy of assessment-roll IS 00 15 00 To 46 miles, to and from annual session of board, at $.08.. 3 68 3 68 $98 68 $98 68 (The same for each supervisor.) The board of supervisors of the county of was in session during the year ending December 31, 19.., for 16 days, and the distance necessarily traveled by each member of the board of supervisors in attending the meetings thereof is specified in the foregoing accounts of the several Bupervisors. 980 FoEMS. COUNTY OF , Office of Clbek of Boabd of Supervisoes, .!■ I, J. K., clerk of the board of supervisors of county, do hereby certify that the foregoing statement contains the names of all persons presenting claims against such county which were audited by such board of supervisors at its last annual session, or by the town boards or boards of town auditors of the respective towns in such county so far as returned to me, together with the amounts claimed and allowed thereon ; that no account was audited at such session of the board of supervisors, unless the same had been duly verified as required by law ; that the statement as to the number of days of the sessions of such board, and the mileage charged in the several supervisors' accounts are true and correct to the best of my knowledge and belief. Dated this day of , 19 . . J. K., Clerfc of the Board of Supermsora of i. • County. FORM No. 8. Clebk's Statement to Boabd of Supebtisobs. (County Law, § 164, ante, p. 105.) To the Board of Supervisors, county of ; I, A. B., clerk of county, hereby submit the following annual statement, as required by section 164 of the County Law: Receipts. Fees received during the year for searches and certificates thereof, Fees received for recording documents and certificates thereof .... Sums received for services rendered the county Sums received for official services $735 00 826 00 241 00 318 00 $2,120 00 Payments. Paid for clerical services to (A. B.) $1,216 00 Paid for fuel to (B. C.) Paid for lights to (C. D.) Paid for stationery to (E. F.) Paid for incidental expenses: To G. H To H. L 118 00 40 00 320 00 68 00 34 00 1,796 00 Balance $324 00 Sated this day of , 19. . A. B., County Clerk, FOEMS. 981 STATE OF NEW YORK, | County of j A. B., being duly sworn, deposes and says that he is county clerk of the county of , and that the foregoing account is true and correct, and that the amounts stated therein were actually received and expended by him. A. B. Subscribed and sworn to before me, this .... day of , 19. . Notary PuhUo. FORM No. 9. BXPOBT OF DiSTKICT ATTOBNET. (County Law, § 201, ante, p. 108.) A. B., district attorney, in account with the county of . . Dr. Cr. To penalties recovered $400 00 100 00 To amount paid county treas- urer. May 16, 1901 $100 00 Balance $300 00 Dated this day of .,19. A. B., District Attorney. STATE OF NEW YORK, County of .1' A. B., being duly sworn, deposes and says that he is the district attorney of the county of , and that the foregoing report is a true account of all moneys received by him by virtue of his office during the year ending with the day of , 19 . . A. B. Subscribed and sworn to before me, this .... day of , 19 . . C. D., Notary PubUe. 982 FOEMS. FORM No. 10. Calendab of Prisoners Confined in County Jaiu (County Law, § 97, ante, p. 142.) NAMES OF PRISONERS. When committed. By what precept. Cause of de- tention. By whom committed; (if disorderly person). FOBM No. 11. FoEM OF Application and Notice fob Alteration op Bottndabies ob Erection op Towns bt Boards op Supervisoes. (County Law, §§ 34, 36, ante, p. 188.) To the Board of Supervisors of the County of : Application is hereby made by the undersigned, freeholders of the towns of for the division of (or the alteration of) the boundaries of the towns of ( If the alteration of town boundary lines is desired, state as follows : ) The undersigned hereby respectfully request that the board of supervisors of such county alter the northern boundary line of the town of so that such line shall be established and defined as follows: (Specify by suflBciently definite metes and bounds the location of the pro- posed new boundary line.) And that the southern boundary line of the town of shall be established and defined as follows: (State specifically by suflSciently definite metes and bounds the proposed boundary line of such town.) (If it is proposed to divide a town and to erect therefrom a new town, the application should state as follows : ) The undersigned applicants respect- fully request that the board of supervisors of such town shall divide and alter the bounds of the town of in the county of , so that the boundaries of such town shall be as follows: (Specify in detail with sufficiently definite metes and bounds the proposed new boundary lines of the town to be divided.) That a new town be erected to consist of that part of the former town of lying northerly of (specify generally a division), and that the boundaries of such new town shall be as follows: (Specify in detail and with sufficiently definite metes and bounds the boundary lines of the proposed new town.) The said applicants also respectfully request the said board of super- visors that the name of the new town so erected shall be A map and survey showing the alteration of the boundaries of the said towns of (or showing the alteration of the boundaries of the Forms. 983 town of , and the boundaries of the proposed new town of ) , is attached hereto and made a part of this application. Dated this day of , 19 . . (Signed by at least twelve freeholders residing in each of the towns whose boundaries are to be changed.) Notice of Application. To whom it may concern: Take notice that the above application for the alteration of the boundary lines of the towns of (or for the division of the town of and the erection therefrom of a new town to be known aa the town of ) , will be made to the board of supervisors of the county of at the meeting of such board of supervisors at it* annual session, beginning on the day of , 19 . . FORM No. 12. Eesoltttion of Boabd of Stipervisors Dividing a Towh awd EEEcmra Therefrom a New Town. (County Law, § 34, ante, p. 188.) AN ACT and resolution to divide and alter the bounds of the tovm of More- house, in the county of Hamilton, state of New York, and to erect a new town therein, to be known and named " Inlet." Passed by the board of supervisors of the county of Hamilton, pursuant to section 34 of the County Law, on the 27th day of November, 1901, all the members elected thereto voting in favor thereof. The board of supervisors of the county of Hamilton does enact as follows: Section 1. From and after the passage of this act and resolution, thd bounds of the town of Morehouse, in the county of Hamilton and state of New York, shall be as follows: Commencing at a point where the boundary line between the counties of Herkimer and Hamilton intersects the middle of the south branch of the Moose river, and running thence easterly along the middle of the south branch of the Moose river to the boundary line between the towns of Morehouse and Arietta, as heretofore established; thence starting southerly and continuing along the said line between the said towns of Morehouse and Arietta to the line between the counties of Herkimer and Hamilton; thence northwesterly along the line between the town of Morehouse in the county of Hamilton, and the towns of Salisbury and Ohio, in the county of Herkimer, to the easterly boundary of the town of Wilmurt, in the county of Herkimer ; thence northeasterly along the boundary line between the said town of Wilmurt and the said town of More- house, as previously established, to the northeasterly boundary line of Nobleboro Patent and Arthurboro Patent; thence northerly along the boundary line between said town of Wilmurt and the town of Morehouse, as previously established, to the place of beginning. § 2. From and after the passage of this act and resolution a new town is erected to consist of that part of the former town of Morehouse lying north- erly of the middle of the south branch of the Moose river, and the bounds 984 FoEMS. of said town shall be as follows; Commencing at a point where the middle of the south branch of the Moose river intersects the boundary line between the counties of Hamilton and Herkimer and running thence northerly along said boundary line to a point where it intersects the southwesterly boundary of Township 41, Totten & Crossfield's Purchase; thence southeasterly along the southwesterly line of said Township 41 to the southerly corner thereof; thence northeasterly along the southeasterly boundary of said Township 41 to the easterly corner thereof; thence southeasterly on the boundary line between Township 40, Totten & Crossfield's Purchase, and Township 5, John Brown's Tract, to the old or former town line of the towns of Arietta and Morehouse as the same existed previous to an act of the legislature of this state, laws of 1860, chapter 200, passed April 7, 1860; thence southerly along the boundary line between the towns of Morehouse and Arietta, as existing prior to the passage thereof, to a point in the middle of the south branch of the Moose river; thence westerly along the middle of the south branch of the Moose river to the place of beginning. § 3. The name of the town erected by the last preceding section shall be " Inlet." § 4. This act and resolution shall take effect immediately. In witness whereof, I have hereunto subscribed my name and a£Sxed [seal.] my official seal this 28th day of December, A. D., 1901. THOS. J. HANDLEY, Cleric of the Board of Supervisors of the cotmty of HamiltOTi^ State of New York. FORM No. 13. Act or Boabd of Supbevisoeb Providinq foe ALTEuino the Bouitoaeies op A Town. (County Law, §§ 34-36, cmte, p. 188.) AN ACT to alter the boundary lines of the towns of Brandon and Santa Clara, in Franklin county. (By authority of section 34 of chapter 686 of the Laws of 1892. ) Passed November 23, 1896, two-thirds of all the members of said board and the supervisors of Brandon and Santa Clara being present and voting in favor thereof. The number of votes given for the act were 17, the number of votes given against the act were none. Upon the application of at least twelve freeholders of the towns of Bran- don and Santa Clara, respectively, the board of supervisors of the county of Franklin do enact as follows: Section 1. That the division lines between the towns of Brandon and Santa Clara be and hereby are changed and altered as follows: By includ- ing within the town of Brandon the whole of Township 8, Great Tract No. 1, of Macomb's Purchase, and that the town of Brandon consist of Township 8, Great Tract No. 1, of Macomb's Purchase. That the tovm of Santa Clara consist of and that there be included within such town of Santa Clara the FoEMS. 985 lollowjng described lands: Beginning at the southwest corner of Township No. 8, Great Tract No. 1, of Macomb's Purchase, and running thence south- erly along the west line of Townships Nos. 11, 14, 17, 18 and 23, to the northwest corner of the town of Harrietstown; thence easterly along and upon the north line of said town of Harrietstown to the east line of Town- ship No. 23; thence northerly to the northeast corner of Township No. 20; thence westerly to the southeast corner of Township No. 17; thence north- erly along the east line of Townships Nos. 17, 14 and 11 to the southeast corner of Township No. 8; thence westerly along the south bounds of Town- ship No. 8 to the place of beginning, containing all the land within said bounds. And that such towns of Brandon and Santa Clara be and hereby are respectively erected accordingly to so exist, be and be treated from and after the time this act shall take effect. S 2. This act shall take effect on the 15th day of February, 1897. The foregoing has been compared with the original act passed by the board of supervisors of Franklin county on the 23d day of November, 1896, «nd is a correct copy of the same. In testimony whereof, we have hereto set our hands and seal this 25th day of November, 1896. ALFRED C. MORSE, [L S.] Chairman, M. W. HUTCHINS, Clerk. I, Herbert J. Wilson, clerk of the board of supervisors of the county of Franklin, do hereby certify that I have compared the foregoing with the journal of proceedings of said board for the year 1896, and that the same is a correct transcript of a part of said journal of proceedings. [SEAL.] HERBERT J. WILSON, Clerk of the Board of Supervisors of FrankUn county. New York. FORM No. 14. Appuoatton foe Special Town Meethto. (Town Law, § 23, ante, p. 200.) To O. D., TovM Clerk of the town of in the county of The undersigned, taxpayers of said town, whose names appear on the last assessment-roll of said town (or supervisor, commissioner of highways, etc., as the case may be), hereby make application and require of you to call a special town meeting, pursuant to section 23 of the Town Law, for the purpose of (here state the purpose for which the special town meeting is to be called). Dated this day of 19 . . (Signed by at least twenty- five taxpayers or by proper town oflScerg.) 986 FoEMS. FORM No. 15. Notice of Special Town Mbetinq. (Town Law, § 24, cmte, p. 202.) Votice is hereby given that, pursuant to au application made therefor as prescribed by statute, a special town meeting of the electors of the town of , county of , will be held at > in the village of , on the day of , 19 • • , at .... o'clock in the noon, for the purpose of voting upon the follow- ing questions or propositions (stating them as contained in Town Law, § 23, ante), and for the transaction of such other business as shall be lawfully brought before such meeting. Dated , 19.. A. B., Town Clerk. FORM No. 16. Afflioation fob Submission of Pboposition to bb Voted Upon by Baixot AT Town Meeting. (Town Law, § 32, ., E. F., Sureties. (Acknowledgment, justification and approval as in supervisor's undertak- ing [Form No. 20, ante], except that the approval is by the supervisor, or town clerk, when the justice is a supervisor.) FORM No. 22. Undebtakino of Commissioner of Hiodwats. (Town Law, § 63, ante, p. 261.) Whereas, A. B., of the town of , county of , was on the day of , 19.., duly elected (or appointed) commissioner of highways of the town of in such county. Now, therefore, we, the said A. B. and C. D., residing at , and E. F., residing at , as sureties, do hereby, pursuant to section 63 of the Town Law, and other statutes made and provided, undertake and acknowledge ourselves, our heirs, administrators and executors, jointly and severally, firmly bound to and with the said town of in the sum of dollars; that the said A. B. will faithfully discharge his duties as such commissioner of highways, and within ten days after the expiration of his term of office, pay over to his successor all moneys remain- ing in his hands as such commissioner, and render to such successor a true account of all moneys received and paid out by him as such commis- sioner, in accordance with law, or in default thereof, and that we will pay all damages, costs and expenses resulting from such default, not exceeding the sum specified in this undertaking. Dated this day of , 19 . . A. B., Commissioner of Highways. C. D., E. F., Sureties. (Acknowledgment, justification and approval as in supervisor's undertak- ing [Form No. 20, ante], except that the approval is by the supervisor.) 990 FoEMS. FORM No. 23. Undertaking of Overseee of the Poor. (Town Law, § 62, ante, p. 262.) Whereas, B. F., of the town of , in the county of , was on the day of , 19- •, duly elected overseer of the poor of said town; Now, therefore, we, the said B. F., principal, and N. O., of the town of his surety, do hereby, pursuant to section 62 of the Towb Law, jointly and severally undertake that the said B. F. will well and faithfully discharge the duties of his office, and will pay according to law all moneys which shall come into his hands as such overseer, or in default thereof that we will pay all damages, costs and expenses resulting from such default. Dated this day of , 19. . B. F, Overseer of the Poor. N. O. (Acknowledgment, justification and approval as in supervisor's undertak- ing [Form No. 20, ante'], except that the undertaking is to b« approved by the supervisor.) FORM No. 24. Town Coixector's Undertaking. (Town Law, § 52, ante, p. 262.) Whereas, N. 0., of the town of , in the county of , was on the day of , 19. ., duly elected (or appointed) collector of said town and has received (or will receive) the assessment- roll of said town for the year 19 . . , calling for the collection of dollars, THowi, therefore, we, the said N. O., principal, and R. S. and T. W., of the town of , his sureties, do hereby, pursuant to section 52 of the Town Law, jointly and severally undertake and acknowledge ourselves firmly bound unto the said town of , pursuant to law, in the sum of dollars, that the said N. O. will well and faithfully execute his duties as collector, and pay over all moneys received by him as such col- lector to the officer or person entitled thereto, and account in the manner and within the time provided by law for all taxes upon the assessment-roll of his town, delivered to him for the ensuing year, or in default thereof, that we, the undersigned, will pay all damages, costs and expenses result'- ing from such default. Dated this day of , 19 . . N. O. R. S. T. W. (Acknowledgment, justification and approval as contained in supervisor's undertaking [Form No. 20, ante], except that approval is by supervisor.) EoEMs. 991 FORM No. 25. Constable's Undertaking. (Town Law, § 54, ante, p. 265.) Whereas, D. E., of the town of , in the county of , was on the day of , 19. ., duly elected (or appointed) constable of said town; Now, therefore, we, the said D. E., principal, and N. O. and R. S., of the town of , his sureties, do hereby, pursuant to section 54 of the Town Law, jointly and severally undertake that said D. E. will pay to each and every person who may be entitled thereto, all such sums of money as he may become liable to pay on account of any execution which shall be delivered to him for collection; and also pay each and every person for any damages which he may sustain from or by any act or thing done by said D. E. as such constable, by virtue of his office. Dated this day of , 19 . . D. E. N. O. R. S. (Acknowledge, justify and approve as in form for supervisor's undertak- ing [Form No. SJO, ante], except that the approval is by the supervisor or town cleric.) FORM No. 26. Resignation of Town Ofpicebs. (Town Law, § 64, ante, p. 269.) To A. B., Tomm. Clerk {or C. D., E. P.j O. H. and J. K., Justices of the Peace) of the tovm of .• I, M. O., of the town of , county of , having been duly elected (or appointed) to the office of in and for the said town of on the day of , 19 . . , and having duly qualified as such officer, do hereby resign such office, to take eflFect upon the delivery of this resignation. Dated ,19.. M. O. FORM No. 27. Appointment to Fill Vacancy in Town Office. (Town Law, § 65, ante, p. 271.) Whereas, a vacancy exists in the office of , in the town of county of , because of the ( resignation, or as the case may be) of M. N., who was elected to such office on the day of , 19 . . ; for a term of two years from the day of , 18 . . ; Now, therefore, in pursuance of the power vested in us by section 65 of the Town Law, we, the undersigned members of the town board of such town do hereby appoint N. O. of said town to fill the vacancy existing in such 992 FoEMS. office of ; the said N. O. shall hold such o£5c« until the nezi biennial town meeting (*) in such town, and until his successor is elected or appointed and has qualified, as provided by law. In witness whereof, we have hereunto set our hands and seals, at , in said town, on the day of , 19 . . B. F., Supervisor. [l. 8.] (Add other signatures of members of the town board, with designation of office, and seals.) * If town meetings are held at time of general election, the vacancy should, be filled to the first day of January following the election. FORM No. 28. Notice of Appointment to Town Office, (Town Law, § 65, cmte, p. 271.) Vo V. O.: You are hereby notified that you were appointed by the town board of tha town of , county of , as in and for the said town to fill the vacancy in that office occasioned by the (resignation or as the case may be) of M. N., the former incumbent of such office; such office is to be held by you until the next biennial town meeting of such town ( [or] until and including the 31st day of December succeeding the next biennial town meeting ) . Such appointment was duly executed by the mem- bers of said town board and filed in my office on the day of , 19. ., as provided by law. Dated ,19.. C. Z., Totnn Clerk. FORM No. 29. Oath op Supeevisoe, Town Cu;rk, Highway Commissioneb and Ovebseer ow the Pooe, Going out of Office, on Delivery of Books, Recobds, etc. (Town Law, § 84, ante, p. 281.) COUNTY OF Town of I, M. N., of the town of , being duly sworn, deposes and say that the records, books and papers herewith delivered, upon the demand of O. P., to him, as my successor in office as of said town of , are all the records, books and papers in my possession, or under my control, belonging to the said office of of said town, office is to be held by you until the next biennial town meeting of such delivery, to wit, the sum of dollars and cents, is aU the money belonging to said town remaining in my hands. M. N. Subscribed and sworn to before me, this .... day of , 19 . . R. S., (Title of office.) FoEMS, 993 FORM No. 30. FoBU OF Application fob Exemption of Fensioit. (Tax Law, § 4, sub. 5, a/nte, p. 330.) To the Assessors of the town of ; The undersigned applicant, a resident of the town of , and the owner of real property situated in such town as hereinafter described, hereby makes this application to you, and respectfully states as follows: 1. That such property is situated in town of , and is described as follows: (Describe generally the real property sought to be exempted, by street and number or otherwise.) 2. That the assessed valuation of such property is dollars. 3. That a pension was secured by the applicant (or by the applicant's hus- band, naming him) for military (or naval) services rendered the United States, and that, of the proceeds of such pension, the sum of dollars was used in the purchase of such real property. Wherefore, he requests that such property be exempted from taxation for state, county and general municipal taxation, as provided by subdivision 5 of section 4 of the Tax Iiaw. (Signature.) STATE OF NEW YORK, County of }■ , being duly sworn, deposes and says that he is the applicant for the above specified exemption; that he has read the foregoing applica- tion and knows the contents thereof; that the facts stated therein are true to his own knowledge, except as to the matters therein stated on information and belief and as to those matter he believes it to be true. (Signature.) Subscribed and sworn to before me, this .... day of , 19 . . (Signature of officer.) FORM No. 31. Eepobt of Bank to Local Assesso>8, (Tax Law, § 23, ante, p. 362.) To the Assessors of the town of ; I, A. B., cashier (or other chief fiscal officer) of the Bank, having its principal office located in the of county of , N. Y., in pursuance of section 23 of the Tax Law, do hereby make the following statement of the condition of such bank on the first day of June, 19..: 1. The amount of the authorized capital stock of such bank is thousand dollars, divided into shares of the par value of hundred dollars each. 2. The total amount of the stock of such bank which has been paid in is dollars. 994 FoEMS. 3. The amount of the surplus of such bank ia dollars ; and the amount of its undivided profits is dollars. The following is a complete list of the names and residences of the stock- holders of such bank, and the number of shares held by each: Name of stockholder. Residence. No. of shares. Dated this day of , 19 . . A. B., Cashier {or other chief fiscal officer) of bank. Vebibtcation. STATE OF NEW YORK, „ ss. : County of A. B., being duly sworn, says that he is the cashier of the Bank; that he subscribed the foregoing statement as such cashier and has read the same and knows the contents thereof, and that such statement i» in all respects true. Signed A. B. Subscribed and sworn to before me, this .... day of , 19. . C. D., Notary Public count]f. FORM No. 32. Statement or Levy op Tax by Boabd of SrrpERVisoRa upon Bank Stock. (Tax Law, § 24, ante, p. 363.) To A. B., Cashier of the Bank, located in the village of county of , N. Y. ; The board of supervisors of the county of from an inspection of the assessment-roll of the town of have ascertained the facts contained in the following statement which is hereby submitted to you pursuant to the provisions of section 24 of the Tax Law: 1. The amount of the capital stock of the Bank, located in the of is thousand dollars. 2. The surplus of such bank is thousand dollars ; and the undivided profits thereof amount to thousand dollars. 3. The number of outstanding shares of such stock are and the value of each share of such stock, as ascertained in the manner pro- vided by section 24 of the Tax Law, is dollars. 4. The aggregate amount of tax to be paid by the Bank is dollars, and such amount has been levied upon such bank pursuant to the authority conferred by section 24 of the Tax Law. The foregoing statement is made to you in compliance with the provisions of section 24 of the Tax Law in pursuance of an order of the board of supervisors of the county of Dated this day of , 19 . . Signed D. E., Clerk of Board of Supervisors of county. FoEMs, 995 FORM No. 33. Wabbant OB Obdbb to County Teeasurbr foe Cohjectinq Bane Tax. (Tax Law, § 24, mite, p. 363.) To the County Treasurer of county : Pursuant to the authority conferred by section 24 of the Tax Law, as amended by L. 1901, chapter 559, and L. 1903, chapter 267, the beard of supervisors of the county of hereby orders and directs that there be collected by you of the banks and banking associations located in the several towns, villages and cities in the county of the amount of tax levied by this board upon such banks and banking associations, and that such sums when so collected be paid by you, less your commission of one per centum to be deducted for collecting and paying out such moneys, to the proper oflScers in the several tax districts of the county of The number of shares of bank stock assessable in each town, city, village and school district, the assessable value of such shares, the amount of taxes levied upon each bank and banking association therein, the tax rate of each of such tax districts for the year , and the proportion of the tax to which each of such tax districts is entitled under the provisions of such section 24 of the Tax Law as amended, will appear from the following statement : Town of No. of Assessable Amount Bank: shares. value. of tax. Wilbur National Bank 3,000 $450,000 $4,500 Tax rate for town of 005 Tax rate for village of 01 Tax rate for school district No , town of 005 Total tax rate , 02 There shall be paid to the town of $1,125 to the village of 2,250 to school district No. 11 of the town of 1,125 (Insert other towns in same manner.) For the payment of the above sums to the proper ofScers of such tax districts this shall be your sufficient warrant. Signed Board of Supervisors of county. D. E., Chairmcm, E. P., Clerk. FORM No. 34. Statement of Individual Bankeb to Assessobs. (Tax Law, § 25, ante, p. 367.) To the Assessors of the town of : I, L. M., individual banker doing business under the laws of this state, as an individual banker, having my principal place of business in the 996 FoEMS. of , county of , N. Y., do hereby report, pursuant to the provisions of section 25 of the Tax Law; that the amount of capital invested by me in such business as an individual bainker in the town of , on the first day of June, 19. ., is dollars. Dated this day of , 19. . Signed L. M., Individual Banker, (Verification as in Form No. 31.) FORM So. 35. Notice to Bank or Assessment. (Tax Law, § 26, ante, p. 367.) To tJie Bank: You are hereby notified, pursuant to section 26 of the Tax Law, that the shareholders of the Bank are assessed as such shareholders, for the suras set opposite their names in the following list: John Doe $2,000 Richard Roe 6,000 Dated this ......,, day of , 19 . . A. B., C. D., E. F.. Assessors of the town of t,%.,,x» FORM No. 36. Statement of Corporations to Assesbobb. (Tax Law, § 27, amte, p. 367.) I, A. B., president (or other proper officer) of the (name of corporation) hereby report, in pursuance of section 27, as follows: 1. The real property owned by such corporation consists of (describe same ) , situated in the town of , at (or in the ward of the city of , at ) , for which the corporation paid the sum of dollars. 2. The capital stock of such corporation actually paid in is dollars ; the sum of dollars has been paid by such corporation for real property, and dollars of the capital stock is held by the Susquehanna Valley Home for Orphans, leaving a balance subject to taxation of dollars. 3. The principal office of such corporation is situated in the town of Dated this day of , 19. . A. B. Forms. 997 Vebhhoa.tion. STATE OF NEW YORK, ) V ss. : COUNTT OF j A. B., being duly sworn, says that he is the president of the (name of corporation) ; that he subscribed the foregoing report as such oflScer, and has read the same and knows the contents thereof, and that such report is in all respects just and true. A. B. Subscribed and sworn to before me, this .... day of , 19 . . C. D., Votary PubUc, ooimtjf. FORM No. 37. Statement of Agent. (Tax Law, § 34, ante, p. 376.) To the County Treasurer of the county of ; I, A. B., residing in the county of , agent of , a nonresident creditor, having debts owing to him therein, hereby transmit a statement of such debts owing on May 1, 19.., in pursuance of section 34 of the Tax Law, as follows: Name of Debtor. Residence. Amount. $946 75 Henry Smith City of Binghamton, tenth ward 1,210 15 Dated this day of 19, . A. B. STATE OF NEW YORK, j CoUNTT OF j A. B., being duly sworn, deposes and says that he is the agent within the county of , of ; that said is a non- resident of such county, and has debts owing to him therein; that he has read the foregoing statement of such debts subscribed by him and know» the contents thereof, and that the same is a true and accurate statement of such debts. A. B. Subscribed and sworn to before me, this .... day of , 19 . . Notary PuhUo. 998 FoEMS. FORM No. 38. Notice or Completion of Assessment-boiIi, (Tax Law, § 35, ante, p. 377') TJotice is hereby given that the assessors of the town of (or, of ward of the city of ) , have completed their assessment-roll for the current year; that a copy thereof has been left with the undersigned, A. B., at his oflSce (or, as the case may be), in (if in a city, specify the street number) , where it may be seen and examined by any person interested therein until the third Tuesday of August next, and that on such day, at o'clock in the noon, said assessors will meet at , in the said town (or ward), to Ihear and examine all complaints in relation to such assessments, on the application of any person conceiving himself aggrieved thereby. Dated this day of 19 . . A. B., C. D., E. P., Assessors. FORM No. 39. AmDATiT ON Application to Cobbect Assessmbict. (Tax Law, § 36, ante, p. 378.) STATE OE NEW YORK, County of A. B., being duly sworn, says that he is assessed on the assessment-roll of the town of , for the year 19 . . , for dollars ; that such assessment is incorrect and excessive for the reason that just debts owing by him have not been deducted; that the amount of such debts is dollars, and that there is not included in such amount any debts contracted or incurred in the purchase of non-taxable property or securities owned by him or held for his benefit, nor for or on account of any indirect liability as surety, guarantor, indorser, or otherwise, nor for the purpose of evading taxation (or state specifically the respect in which tha assessment complained of is incorrect). A. B. Subscribed and sworn to before me, this .... day of , 19 . . C. B., Votary Puhlio, \ FORM No. 40. Notice of Filing Completed Assessment-roll With Clebe. (Tax Law, § 38, ante, p. 383.) "Notice is hereby given that the assessment-roll (or assessment-rolls), for the town (or city) of , in the county of , for the Forms. 999 year 19 . . , has been finally completed by the undersigned assessors, and a cer- tified copy thereof was filed in the office of the town (or city) clerk, at the of , where the same will remain open to public inspection for fifteen days. Dated this day of , 19. . A. B., C. D., E. F., Assessors of the town of FORM No. 41. Cebtificate of Keqlect OB Omission of Duty op One or the Asbbssobs. (Tax Law, § 40, ante, p. 384.) STATE OF NEW YORK, j County or l" We, A. B., and C. D., two of the assessors of the town of , in the county of , do hereby certify to the board of super- visors of such county, in pursuance of section 40 of the Tax Law, that E. F., the other assessor of such town, has neglected (or omitted) to verify the foregoing assessment-roll, or (state other omission), the cause of such neglect ( or omission ) being ( state the same ) . Dated this day of 19 . . A. B. C. D. FORM No. 41a. PmTioir of Taws Assessobs to Boabd of Supebtisobs fob CoBBBonoif or Assessment-boll. (Tax Law, § 53, ante, p. 398.) To the Honorable Board of Supervisors of ooxtnty: Your petitioners, A. B., C. D. and E. F., assessors of the town of , pursuant to the authority conferred by section 53 of the Tax Law, do re- spectfully show to your board that, I. In the assessment-roll delivered to L. M., supervisor of the town of , as provided by law, for the year , a mistake was made in transcribing so that the property therein assessed to D. F. was valued at dollars ; the actual value of such property as appears upon the original roll signed by the assessors for that year was dollars. II. In the assessment-roll for the year delivered to such super- visor as provided by law, taxable property owned by J. D. has been omitted therefrom. The description and the valuation of such property for the 1000 Forms. preceding year is as follows: (describe property, giving name of owner, num- ber of acres, valuation, etc.) III. Taxable property owned by A. L., consisting of (describe property J has been omitted from the assessment-roll as prepared by your petitioners for the current year ; that the value of such property is dollars. Wherefore, your petitioners respectfully pray that the value of the prop- erty assessed to D. F. in the assessment-roll for the year be changed from dollars to dollars. That the taxable property omitted from the assessment-roll of the year belonging to the said J. D. be included in the assessment-roll for the current year as described and for the valuation fixed as above. That there be placed upon the assessmen(>roll for the current year the taxable property omitted therefrom belonging to A. L., at a valuation of dollars. Signed A. B., C. D., E. F., Assessors for the town, of ....r..i ^:l Verification. STATE OF NEW YORK. County of. The undersigned, assessors for the town of , do severally depose and swear that they and each of them have read the foregoing petition and know the contents thereof; that the same ia true to the knowledge of the deponents except as to the matters therein stated to be alleged on information and belief, and that as to those matters they believe it to be true. A. B. C. D. E. P. Subscribed and sworn to before me, this .... day of , 19. . N. 0., Notary Public of the ootmtif of „ NonoK of Pbesentation of Petition. To J. D. wnd A. L.: Take notice, The petition hereto annexed will be presented by tie under- signed, assessors of the town of , to the board of supervisors of the county of , at its annual meeting to be held in the village of , county of , on the day of ,, 10.. A. B., C. D., E. F., Asteiaorg. FOEMS. 1001 Affidavit of Sebviob. STATE OF NEW YORK, i V ss. : County of j A. B., being duly aworn, says that he is of the age of more than twenty- one years, that on the day of , 19 . . , at , he personally served the within petition and notice upon J. D. and A. L. by delivering to and leaving with them true copies of the same. He further says that he knew the persons so served as aforesaid to be the same persons mentioned and described in the petition hereto annexed. A. B. Subscribed and sworn to before me, this day of 19.. N. 0., Notary PuWo of oowity. I FORM No. 42. Collector's Warrant. (Tax Law, § 56, ante, p. 403.) STATE OF NEW YORK, County of The People of the State of New York to R. O., Collector of the town of , of the county of t, greeting : You are hereby commanded to receive and collect from the several persons named in the assessment-roll hereunto annexed, the several sums named in the last column thereof opposite their respective names, on or before the 1st day of February, 19. . ; and on all taxes paid within thirty days after giving notice of the reception of this tax-roll and warrant, as required by section 70 of the Tax Law, you are hereby directed to receive and collect, in addition to the taxes raised in said assessment-roll, one cent on every dollar or sum less than a. dollar of taxes, as your fee for collecting the same. (If the aggregate amount shall not exceed two thousand dollars, two cents on every dollar or sum less than a dollar of taxes as your fee for collecting the same.) On all taxes remaining unpaid after the expiration of said thirty days, you are entitled to receive and collect, in addition to such taxes remaining un- paid, five cents on every dollar as your fees for collecting the same. You are hereby directed, out of the money so collected, to pay over on the first day of next: 1. To the commissioners of highways of said town, the sum of assessed and levied for the support of highways and bridges therein. 2. To the overseer of the poor of said town, the sum of , assessed and levied for the support of the poor therein. 3. To the supervisors of said town, the sum of , for the town expenses and charges assessed and levied on such town. 4. To the treasurer of said county, the residue of the money collected by you. 1002 FOEMS. You will proceed to collect such taxes in the manner provided by article 4 of the Tax Law. If any person named in such assessmont-roll shall neglect or refuse to pay taxes assessed therein to him or the fees for collecting the same, you are hereby authorized to levy and collect such taxes by distress and sale of the goods and chaltels of such person within said county, together with the costs and charges of such distress and sale, and for so doing, this shall be your sufficient warrant. Given under our hands and the seal of the county, on this day of , 19.. M. F., GhaArman. (County seal.) E. S., Clerk, FORM No. 43. Statement or Taxes Upon Certain Corpobations. (Tax Law, § 57, ante, p. 405.) To A. B., Treasurer of the county of : I, C. D., clerk of the board of supervisors of the county of , in pursuance of section 57 of the Tax Law, do hereby transmit the following statement : NAME OP CORPORATION. Western Union Telegraph Co do do Ontario and Western Railroad Co. do Districts iu which assessed. Valuation of property. Amonr.t of ta.Y. Town of c;ity of ,thirdward.. S8.000 CO 7000 00 5,000 00 U.OOO 00 8,000 00 $85 m 6.5 16 40 03 Town of 2'0 00 City of , first ward. . . ?-5 0l> Dated this day of ., 19.. C. D., Clerk of Board of Supervisors, FOBM No. 44. Abstract of Tax-rolls, (Tax Law, § 59, ante, p. 406.) To A. B., Treasurer of the county of : I, C. D., clerk of the board of supervisors of the county of ..., in pursuance of section 59 of the Tax Law, hereby transmit an abstract of the tax-rolls of such countv as follows: >',\MK OF COLLBUTOR John Smith , Michael Flood District Town of Town of Aiii'innt lo l>n coll'M-ted. £9,000 00 17,000 00 Purpose of taxes. Hiirhw.H.A-R nnd bridges $1 OOf ■liip,,..rlof •lo.ir ... 3000 ■iriv, II rhai'Ki'S 4 000 sr,!il.- tax . . . 1 000 IIi;,-;i\va3'saiKl bridge.*! 3,000 &a. ic itc. To whom to be paid. John Brown < onimlssion er of hi^'h wnys, .-vbrarn Moore ate. Wbpn to be jiaid Keh. 1, 19. FoEMS. 1003 FORM No. 45. Notice bt Collkctoe of Receipt of Assessment-boix and Waeeant. (Tax Law, § 70, ante., p. 414.) Notice is hereby given that I, the undersigned, collector of taxes in and for the town of (or ward of the city of ) , have received the tax-roll and warrant for the collection of taxes for the present year, and that I will attend at , in said town (or ward) on ( naming three days, if in a town, or five days, if in a city ) , in each week, for thirty days from the date hereof, from 9 o'clock in the forenoon until 4 o'clock in the afternoon, for the purpose of receiving the taxes assessed upon such roll. Dated this day of , 19. . JOHN BROWN, Collector, FORM No. 46. Notice of Tax Sale by Coixectob. (Tax Law, § 71, ante, p. 416.) By virtue of the warrant delivered to me, as collector of the town of , I have levied upon and taken possession of the following goods and chattels of R. S. (or in the possession of R. S.), (describe in detail property seized ) and I shall sell the same at public auction at in the town of , on the day of next, at o'clock in the noon on that day. Dated this day of , 19 . . r. M. A., Colleotor. FORM No. 47. Affidavit to be Attached to Collkctob'8 Return of Unpaid Taxes. (Tax Law, S 82, ante, p. 430.) STATE OF NEW YORK, ) J. ss. : County of j A. B., being duly sworn, deposes and says that he is the collector of taxes for the , in the county of ; that the annexed is m, true account of the taxes remaining unpaid upon the assessment-roll of said town for the year 19..; that the sums mentioned therein remain unpaid,. and that he has not, upon diligent inquiry, been able to discover any personal property, out of which the same might be collected by levy and sale. (If such tax is uncollected upon lands assessed to nonresidents, also state the reason why the same was not collected.) A. B., Subscribed and sworn to before me, Colleotor. this .... day of , 19. . (Signature of Notary.) (Annex statement.) The form of the return is to be prescribed by the state board of tax commissioners. 1004 ToEMS. FOBM No. 48. Application of Supebtisoe fob Extension of Time fob CoLLEonoir or Taxes. (Tax Law, § 85, a/nte, p. 434.) To the County Treasurer of the county of ; Application is hereby made, in pursuance of section 85 of the Tax Law, for an extension of time until March 1, 19.., for the collection of taxes in the town of , for the reason that (state reason for delay). Dated this day of , 19 . . A. B., Supervisor of the town of , FOBM No. 49. Obdeb of Tbeasitbee Geanting Exteitsion. (Tax Law, § 85, ante, p. 434.) Upon application made to me, in pursuance to section 85 of the Tax Law, by A. B., supervisor of the town of , for an extension of time for the collection of taxes in such town, and the reason stated in such appli- cation appearing to me sufficient, and proof ha-ying been made to me that J. F., the collector of such town, has paid over all moneys heretofore collected by him and has made a return of nonresident taxes remaining unpaid, and renewed his bond in a penalty twice the amount of the taxes remaining un- collected, a certified copy of which has been delivered to me, it is hereby Ordered, That the time for the collection of taxes remaining unpaid in ;uch town is hereby extended until the 1st day of March, 19 . . Dated this day of , 19 . . E. D., County Treasurer of the coiJMtjf of FORM No. SO. Dbcisiow of Fence Viewebs WHsaf Transfeb of Trru hab Been Made. (Town Law, | 102, ante, p. 449.) COUNTY OF ) „, !■ «*■ ■■ Town of j Whereas, a. dispute has arisen between D. B. and T. W., adjoining owners of land in the town of , in regard to the division fence between said lands, caused by a transfer of title of a portion of the adjoining lands owned by D. B. (or as the case may be) ; Now, therefore, we, the undersigned fence viewers of said town, having been duly chosen by the said owners to bear and determine the matter, pur- suant to sections 102 and 103 of the Town Law, and having given due notice to each owner of the time and place of this meeting, and having viewed the premises and heard the parties and evidence produced, do hereby determine FoEMS. 1005 and decide that said D. B. shall maintain and keep in repair that portion of the fence (here describe it), and that said T. W. shall maintain and keep in repair that portion of the fence (here describe it) ; and we further determine that the value of fence between said lands is $...., and that the said D. B. shall pay to said T. W. $. . . . as his proportion for said fence (as the case may be), and that each pay one-half (or as the case may be) of the costs and expenses of this proceeding, which are $ . . . . In witness whereof, we have hereto set our hands on this day «{ , 19.. N. 0., P. R., Fence Viewer*. FORM No. 51. NoTica5 TO Choose Fence Viewbb. (Town Law, § 103, ss.: Toum of \ Whereas, on the day of , 19.., there strayed (or was found doing damage) on the inclosed lands of D. B., in said town, the following animals (here describe them), which said beasts belong to T. W, (or, and the owner of said animals is unknown); now, therefore, we, the undersigned fence viewers of said town, duly chosen to determine the matter submitted to us, after proof of due service of a notice of the time and place of this meeting on the owner of the animals (or on proof that the owner of said beasts is unknown), and after viewing the premises and hearing the parties (or after hearing the claimant) and all witnesses produced, do hereby, pursuant to section 130 of the Town Law, determine that the said animals entered on the inclosed lands of B. D., from the premises of T. W., over that portion of the division fence which belongs to T. W., to maintain and keep in repair; and that the damages sustained by D. B. are $...., and that the charges for keeping said beasts are $...., and the costs and expenses of this proceeding are $ . . . . (or that the claimant's lien is not enforceable by reason of; state the reasons). Dated this day of , 19. . N. O., R. S., Pence Viewers. FORM No. 62. Application to Fence Vikwees as to Sheep Killed ob Injubed by Dogs. (County Law, § 118, ante, p. 465.) To A. B. and C. D., Fence Viowers of the tovm {village or city) of Whereas., on the day of , 19 . . , sheep and lambs owned by me were attacked by dogs, and killed and injured. I hereby make application to you to inquire into the matter, and issue a certificate of the damage I have sustained thereby, in pursuance to section 118 of the County Law. Dated this day of , 19 . . A. B. FORM No. 63. Cebtificate as to Damages. (County Law, § 118, ante, p. 465.) COUNTY OF ) J. ss. : Town of \ We, the undersigned, fence viewers of the town of , upon the application of A. B., residing in such town, to inquire into the killing and 1010 FOEMS. injury of certain sheep and lambs owned by bim, having inquired into the matter, and examined witnesses in regard thereto, do hereby certify that such sheep and lambs were killed and injured by dogs, and in no other way; the number of sheep and lambs killed was ; the number injured was ; the value of such sheep and lambs killed or injured immediately previous to euch killing or injury was $ , and the value of such sheep and lambs after being so killed or injured was $ We do hereby further certify that our fees herein amount to $ In witness whereof, we have hereunto set our hands on this day of ,19.. C. D., E. F., Fence Viewera. FORM So. 64. Oedbb op the Oveeseebs of a Town to Remove a Poob Peeson to the County Poor HotrsE. (Poor Law, § 20, ante, p. 520.) County of , ss.: A. B., having applied for relief to the overseers of the poor of the town of , who having inquired into the state and circumstances of the applicant, and it appearing that he (or she) is in such circumstances as to require permanent relief and support, and can be safely removed, the undersigned overseers hereby order the said A. B. to be removed to the county alms house, to be relieved and provided for, as the necessities of such appli- cant may require, at the expense of the said county (or town, if in a county where the towns are required to support their own poor ) . Given under our hands, at , this day of , 19. . A. B., C. D., Overseers of the Poor. FORM No. 65. BUPEEINTENDENTS' OEDEB TO PAY EXPENSES InCUBHED BY OVEESEEES PBEVIOtTB TO THE Removal op a Poob Pebson. (Poor Law, § 21, ante, p. 522.) To the Treasurer of the county of .■ Pay to A. B. and C. D., overseers of the poor of the town of in said county, dollars, a sum which was necessarily paid out, or contracted to be paid, for the relief or support of E. ¥., a pauper, previous to his removal to the county poor house, and which sum the undersigned, superintendents of the poor of said county, judged was reasonably expended by the said overseers, before the said pauper could properly be removed, and charge the same to the county ( or, if a town pauper, to the town of in said county). Given under onr hands, at this day of , 19. ., Bupermtendents of the Poor. EoEiia. 1011 FOBM No. 66. Supeevisob's Obdeb foe a Poor Person who Requikes Tempoeaby Relief. (Poor Law, § 23, wnte, p. 523.) The overseers of the poor of the town of , having applied to the undersigned, a supervisor of said town, relative to A. B., a person apply- ing to them for relief, and having examined into the facts and circum- stances, and it appearing that the said A. B., so applying, requires only temporary relief (or, is sick, lame, or otherwise disabled, so that he or she can not be conveniently removed to the county alms-house ) , the undersigned hereby orders the said overseers to apply dollars per week for the relief of the said A. B,, until they have expended the sum of ten dollars, or such sum less than that amount as may be found sufficient for the temporary relief of the said poor person, A. B. Given in said town, the day of , 19. . C. D., __^ Supervisor. FORM No. 67. Sanction of Coxtnty Superintendent for the Expendituee of a Greater Sum than Ten Dollars. (Poor Law, § 23, ante, p. .523.) County of ss.: The undersigned, one of the superintendents of the poor of the county of , having been applied tn Ijy the overseers of the poor of the town of in said county, to give his sanction for the expenditure of a greater sum than ten dollars for the relief of A. B., as authorized by the supervisor's order hereunto annexed, and having inquired into the facta of the case, and being satisfied that the said A. B. cannot be properly re- moved to the county alms-house, and that he is in need of further relief, hereby gives his sanction to the continuance of the weekly allowance specified in said order, until the expenditure amounts to dollars over and above the sum of ten dollars authorized by the supervisor's order in this case and to be charged to the county (or town), as specified in said order. Given under my band at this day of , 19 . . C. D., Superintendent of the Poor. FORM No. 68. jObdeb roB Supplies to Poor Persons and Vebificatiow op Accouhtb FOB Audit. (Poor Law, § 25, ante, p. 525.) Afton, N. Y., , 19 . . To ; Please furnish to the articles named in the following schedule, in the quantities and to the amount therein specified, not exceeding a total of dollars, and charge the same to the account of the town of Afton. Overseer of the Poor, 1012 Forms. Schedule. lbs. of tea $. lbs. of sugar lbs. of flour etc., etc. — Veeification. County of , being duly sworn, deposes and says that pursuant to the order of the overseer of the poor of the town of the articles named in the foregoing schedule were furnished to , the person mentioned in such order, and that he ( or she ) actually received such articles in the amount therein specified, and that the prices charged therefor are reasonable and not above the usual market rates. Subscribed and sworn to before me, this .... day of , 19.. FOBM No. 69. FoBU OF Ovkbsexb's Book Showinq Statistics Eelatiko to Poor Pebsows Relieved. (Poor Law, § 26, ante, p. 526.) (Note. — Section 26 of the Poor Law contemplates the keeping by overseers of two forms of books, the one containing statistics relating to the poor persons relieved and supported, and the other containing a statement of the amount expended. This section also provides that the overseer shall keep in such books a statement in regard to children placed by them in families. No form is required for this statement, nor need a separate book be kept. Such statement can be made in either of the books required by this section.) Name of poor person. Age. Sex. Native Country. Cause rendering relief necessary. Amount of relief furnished. John Smith 65 Male. United States .... Intemperance $ FOKMS. S w d 6 e O ft a ^ 8 ►^ ^ gi^ 1 -. 15 « sg .a o ■(J a o ^^ fi-^ (>' a 2 o ,£3 g fr >> O ■kj en B § : O ■< O c> a a g in o> .a ^ 3 » iTi m >> s S g o o « S3 «» " 1U. c •o *3.S C 3! 30. O a j< ' ^n • o. o p s o fl 1 a o to : £ : a B : 1 1 : a t : 1 O • OW OSg -its 1° o'o is. £ 3 S t-3CQ •d V =1 83 23 B& •on o a 1 1014 FOEMS. FOKM No. 71. Accounts op Ovbrsbers of the Pooe to be Ebndeked to Town Boabds ob Common Council. (Poor Law, § 26, ante, p. 526.) To the Tovyn Board of the town of ." Account of , overseer of the town of Af ton, for amounts received and expended for the support and relief of the poor during the year ending , 19 . . Receipts. June 10. From county treasurer $10 00 Sept. 15. From George L. Church, for sale of property of John Smith, who had absconded 12 50 Expenditures. June 15. To Richard Brown, for groceries $10 00 Sept. 16. To county treasurer, pursuant to Poor Law, § 135.... 12 50 Chenango County, ss. : , overseer of the poor of the town of Afton, being duly sworn, deposes and says that the foregoing account is just and true; that the amount stated therein to have been received for the support and relief of the poor is all that has been received by him during the year ending , 19. ., and that the amount stated to have been ex- pended were actually and necessarily expended by him for the purposes speci- fied, during such time. Overseer of the Poor. Subscribed and sworn to before me, this . , , , day of , 19 . . Nota/ri/ PuiUe. FORM No. 72. Report of Oversebbs op the Poob. (Poor Law, § 27, ante, p. 528.) (Note. — ^The report is to contain the account prescribed in Form No. 71, brought down from the meeting of the town board before the annual town meeting, to the second annual meeting of the town board held before the annual meeting of the board of supervisors; to such account should be added the following statement.) There is in the town poor fund of the town of , on this date, the sum of dollars and cents. (If a deficiency exists, state amount. ) The sum of dollars and cents is necessary for the temporary and out-door relief and support of the poor of the town of , for the year beginning , 19 . . FOEMS. 1015 Such estimate is based upon the following facts. (Here state items for which it will be necessary to raise money.) Dated 19 . . C. D., Overseer of the Poor, We hereby approve the foregoing account and estimate of the sum required ior the support and relief of the poor of the town of for the year beginning , 19 . . Dated , 19.. D. E., Supervisor. F. G., Justice of the Peaoe. H. I., J. K., L. M., " " " N. O., Town Clerk. FORM No. 73. KEFOBT op StTPEBVISOB OF ToWN TO ClERK OF BOABD OP StTPEEVISOBS IW Towns Where aix the Poor are not a County Charge. (Poor Law, § 137, ante, p. 530.) The supervisor of the town of , in the county of reports to the clerk of the board of supervisors, pursuant to section 137 of the Poor Law, as follows: The number of paupers relieved or supported in said town during the year preceding the day of , 19 . . , as appears from the accounts of the overseers of the poor, was Of the persons thus relieved the number of county paupers was The number of town paupers The whole expense of such support was $ Allowance to overseers for support of county paupers Allowance to overseers for support of town paupers Allowance to overseers for their services Allowance to overseers for transportation of paupers Allowance made to justices Allowance to physicians, for medicine and attendance Of the whole number of paupers relieved by the overseers during the year, they report that there were foreigners idiots, and mutes. The number of paupers under their charge, at the time of auditing their accounts, is stated at of which were males and females. (If there are any otbor charges they should be specified.) I hereby certify that the foregoing is a correct abstract of the accounts of the overseers of the poor of the town of , for the year ending the day of , as the same have been settled by the board of town auditors. Dated this day of , 19 . . A. B., Supervisor. 1016 FOEMS. FORM No. 74. Notice from One Town to Another (in a County Wheee the Towns ARE Liable to Support their Own Poor), Requiring the Overseers OF THE Town in Which the Poor Person Has a Residence to Provide FOR His Support. (Poor Law, § 42, ante, p. 536.) County of ss.: To the Overseers of the Poor of the town of , in said county : You are hereby notified that A. B., a poor person, who has gained a settle- ment in your town, to which he belongs, is in the town of , in said county, and is supported at the expense of the said town of , for which the undersigned are overseers. You are, therefore, required to provide for the relief and support of the said poor person. Given under our hands at , this day of , 19 . . E. F., C. D., Overseers of the Poor of the tovm of (This notice should be served on one of the overseers of the poor of the town where the poor person belongs.) FORM No. 75. Notice of Overseer of the Poor to Appear Before Superintendent of thb Poor and Contest Aixeged Settlement of a Poor Person. (Poor Law, § 43, ante, p. 537.) County of ss.. To the Overseers of the Poor of the town of , in said county : Please take notice that the undersigned, overseers of the poor of the town of , in said county, will appear before the superintendents of the poor of said county, at the poor house ( or, other place, as may be designated ) , on the day of , at ten o'clock in the forenoon, to con- test the alleged settlement of A. B., a poor person, as set forth in your notice of the , 19.. Dated , 19.. J. H., L J., Overseers of the Poor of the tovm of FORM No. 76. Subpoena in Case of Dispute Concerning Settlement of Poor Persons. (Poor Law, § 44, ante, p. 538.) County of ss.: The People of the State of New York to 0. D., greeting: You are hereby required, personally, to appear before the undersigned, superintendents of the poor of the said county, at the poor house (or, such other place as is designated in the notice ) , on the day of , Forms. 1017 19.., at ten o'clock in the forenoon, to testify in behalf of the overseers of the poor of the town of , in said county, concerning the alleged settlement of A. B., a poor person. Dated at , this day of , 19 . . Superintendents of the Poor. FORM No. 77. Decision of Superintendents Concekning the Settlement of Poob Pebsons. (Poor Law, § 44, O/nte, p. 538.) County of as. ; The undersigned, superintendents of the poor of said county, having con- vened as required by the overseers of the poor of the town of , in said county, pursuant to their notice, proceeded to hear and determine a controversy which had arisen between the said overseers and the overseers of the town of , in said county, concerning the settlement of A. B., a poor person; and upon such hearing of the facts, the undersigned hereby decide that the legal settlement of the said A. B. as such poor person, is (or, is not) in the said town of And the undersigned hereby award to the overseers of the poor of the town of , the prevailing party, the sum of dollars, costs of said proceeding, by them expended. Given under our hands and seals at , this day of , 19-. [L. 8.] [L. S.] [L. 8.] Superintendents of the Poor. FORM No. 78. Supebintendents' Notice that Poor Person Will Be Supported at the Expense of a Town in a County Where the Towns Support Their Own Poor. (Poor Law, § 46, ante, p. 539.) County of S3.: To the Overseers of the Poor of the town of , in said county : A. B., a poor person, having been sent to the poor house as a county poor person, and the undersigned, superintendents of the poor of said county, having inquired into the fact, and being of the opinion that the said poor person has a legal settlement in the town of , in said county, pursuant to the provisions of section 46 of the Poor Law, you are hereby notified that the expenses of the support of said poor person will be charged to the town of , unless you, the overseers of said town, within 1018 FOEMS. (here insert such time, not less than twenty days, as the super- intendent shall appoint), after the service of this notice, show that the said town of ought not to be so charged. Dated at , this day of , 19. . A. B, C. D., E. F., Superintendents. FORM No. 79. Decision of Superintendents After Re-Examining Settlement or Poor Person, on Appijcation of Overseers. (Poor Law, § 46, ante, p. 539.) County of ss.: The undersigned, superintendents of the poor of the said county having on application of the overseers of the poor of the town of , on whom the notice of which the annexed is a copy was served, re-examined the subject-matter of the said notice and taken testimony in relation thereto, do hereby decide that the poor person, A. B., therein mentioned, has a legal settlement in the town of , to which, as such poor person, hs belongs ( or, has not a legal settlement in said town of ) . Given under our hands, at , this day of , 19.. A. B., C. D., E. F., Superintendent! of t?i* Poor. FOHM No. 80. NonoB OF Decision of Superintendents as to Settlement of Poor Persons. (Poor Law, § 49, ante, p. 540.) To , Overseer of the Poor of the town of .• Take notice, that a decision of the superintendent as to the legal settlement of A. B., a poor person, of which the annexed is a. true copy, was on the day of made and a. duplicate thereof filed in the office of the county clerk of county, on the day of , 19 . . C. D., Superintendent (or, Overseer, as the case may be). (There is no express requirement that a notice of the decision of the super- intendent should be served on the defeated parties; but section 49 of the Poor Law ( ante,, p. ) , authorizes an appeal within thirty days after the service of a notice of the decision. The service of a notice similar to the above form is, therefore, required to limit the time of appeal.) Forms. 1019 FORM No. 81. Notice of Appeal to County Court from Decision of Supekintendents OP the Pooe. (Poor Law, § 49, ante, p. 540.) COUNTY COURT— County of In the Matter of the Settlement of A. B., a Poor Person. Take notice that the undersigned, E. F., overseer of the poor of the town of , appeals to the County Court of county from the decision of C. D., superintendent of the poor of such county, made as to the legal settlement of A. B,, a poor person, on the day of , 19. ., and demands a new trial of the matters in dispute as to »uch settlement in the said County Court, without a. jury. Dated 19. . E. F., Overseer of the Poor of the town of To O. B., Overseer of the Poor of the toicn of {or other party interested therein). i FORM No. 82. NoTicK or Imfbopeb Removal or Poor Person from a Town, City ob County. (Poor Law, § 51, ante, p. 542.) County of ss.. To , Superintendent of the Poor of the county of ( or Overseer of the Poor of the town of ) ; You are hereby notified that A. B., a. poor and indigent person, has been improperly sent (or, carried, transported, brought or removed, or enticed to remove, as the case may be) from the said county (town or city) of to the county ( town or city ) of , without legal authority, and there left, with intent to make the said county (town or city) of , to which the said removal was made, chargeable with the support of the said poor person. You are, therefore, pursuant to the provi- sions of section 51 of the Poor Law of the state of New York, required forth- with to take charge of the said poor person. Given at , in said county of , the day of , 19.. Superintendents of the Poor of the county of {or, Overseers of the Poor of the town of ) . 1020 Forms. FORM No. 83. Notice of Denial of Eemoval of Pooe Persons. (Poor Law, § 52, ante, p. 543.) County of ss.: To the Superintendents of the Poor of county: You are hereby notified that the undersigned, superintendents of the poor of the county of , deny the allegation contained in your notice, of the supposed improper removal of A. B., as mentioned in your notice to the undersigned, in the manner and with the intent in said notice alleged. Given under our hands, at , this day of , 19 . . 8uperint&nden.ts of the Poor of the county of FORM No. 84. accoitnts of overseees of the poor for moneys received from putattve Fathers and Paid Out for the Support of Bastards. (Poor Law, § 68, ante, p. 550.) To the Town Board of the town of : The following is an account of moneys received and paid out by me on account of bastards during the year ending , 19. . Receipts. Jan. 10. From J. N., putative father of R. 0., bastard $ Jan. 12. From J. A., putative father of K. L., bastard Expenditures. Jan. 15. To 0., for professional attendance and medicine to M. O., mother of R. R., bastard Jan. 16. To J. H., for groceries and fuel to M. O., mother of R. 0., bastard Dated , 19.. A. B., Overseer of the Poor of the town of County of , ss.: A. B., overseer of the poor of the town of , being duly sworn, deposes and says that the foregoing is a true and just account of all the moneys received and expended by him for the support of bastards and the maintenance of mothers of bastards during the year ending , 19 . . That the amounts therein stated to have been received by him were all the amounts actually received, and that the amounts therein stated to FOEMS. 1021 have been expended were actually and necessarily expended by him for the purposes therein specified. A. B., Overseer of the Poor of the town of Subscribed and sworn to before me, this day of , 19. . FORM No. 85. Aqbkement Upon Compbomise with Putative Fathbe of Bastard. (Poor Law, § 74, ante, p. 554.) Know all men by these presents, that whereas, complaint was made on the day of , 19 . . , before , Esq., a justice of the peace of the county of , by , on oath, charging with being the reputed father of a child, of which the said is now pregnant, and which, when born, will be a. bastard, and likely to become (or, the father of a bastard child, of which the said was on the day of , 19 . . , delivered, and which said child is) chargeable to said county; and Whereas, the said was arrested on said charge, and brought before and justices of the peace of said county, and , the father of said child (of which the said is now pregnant) (or, so born a bastard), as aforesaid; Now, therefore, of the poor of said county, for and in con- sideration of the sum of dollars, to paid, as such superintendent (or overseer), and by virtue of the statute in such case made and provided, do hereby compromise the said charge, and release and dis- charge the said from all liability to the , or to the superintendent of the poor (or overseer of the poor) thereof, by reason of the liability of the said to support the said (or bastard) child, or from any other cause, by reason of the birth of said (or bastard) child. Given under hand and seal this day of , 19. . Signed, delivered and duly acknowledged in the presence of and before , Justice of the Peace. FORM No. 86. Notice of Commander of Post of Grand Abmt of the Repubuo, as to Relief of Poor Soldiers, etc. (Poor Law, §§ 80 and 81, ante, p. 569.) To , Superintendent of the Poor of the county of (or Overseer of the Poor of the town or city of ) . Please take notice that the post of the Grand Army of the Republic in the town (or city) of , county of 1022 FOEMS. do undertake the supervision of the relief of the following named veterans of the war of the rebellion, and their families : That the relief committee of such post is composed as follows : That the officers of such post are as follows: Dated , 19.. A. B., Oommander of the Post, &. A. B. FORM No. 87. KxQmssTs OF Officers or Grand Aemt Posts foe the Relief of VETERAifs. (Poor Law, §§ 80 and 81, ante, p. 569.) To , Superintendent of the Poor of the county ( or Overseer of the Poor of the tovm) of : Whereas, ;, a veteran of the late war of the rebellion, is (state reasons for necessity of relief; i. e., disability, unable to work, etc.), and is in need of relief; Therefore, in pursuance of section 80 of the Poor Law, and the recom- mendation of the relief committee of the post, G. A. R., of the town ( or city ) of , which is hereto annexed, we hereby request that you grant the said relief to the amount of dollars per week. Dated ,., 19,, A. B., Commander of Post, O. A. R. B.C., Quartermaster. (The recommendation of the relief committee of the post is to be attached, and may be in the following form) : Having examined the necessities of , a veteran of the late war of the rebellion, and it appearing that the said veteran is, because of sickness, unable to care for himself and is in actual need of assistance, we, the undersigned, members of the relief committee of the post of the Grand Army of the Republic in the town (or city) of do hereby respectfully recommend that relief be granted to the said to the amount of dollars per week. Dated , 19.. CD., D. E., E. F., 'Belief Committee of ,,..\ Post, 0-. A. B. FoEMS. 1023 FORM No. 88. Notice of Division of Town into Highway Commissionee Districts. (Highway Law, § 25, ante, p. 593.) Notice is hereby given that the undersigned members of the town board of the town of , county of , at a special ( or regu- lar) meeting of such board held on the day of , 19. ., have divided such town into (two or) three highway commissioner districts, pursuant to section 25 of the Highway Law. The boundaries of such districts are as follows: District No. 1. (Briefly and accurately describe boundaries.) District No. 2. (Briefly and accurately describe boundaries.) District No. 3. (Briefly and accurately describe boundaries.) A. B., highway commissioner, is assigned to district No. 1 ; C. D., highway commissioner, is assigned to district No. 2; E. F., highway commissioner, is assigned to district No. 3. Dated , 19.. R. F., Superviior. L. M., J. K., K. R., S. O., Jtisticea of the Peace. FORM No. 89. Statbicent of Commissioner of Highways to Sitpervisob as to Unpkb- FORMED Highway Labor. (Highway Law, § 4, sub. 1, ante, p. 594.) To D. //., Supervisor of the tovm of : Upon an inspection made by me of the highways and bridges in each highway district in the town of , between the Ist and 15th days of September, 19. ., pursuant to subdivision 1 of section 4 of the Highway Law, I find that, in my opinion, the labor assessed in the following highway district has not been entirely performed therein. The following is a state- ment containing the districts in which such labor has not been performed and the number of days' labor, which, in my opinion, are in arrears, and also a, list of the persons and corporations owning property therein, and of the number of days' labor still to be performed by such persons and corpo- rations : District No. 1. Total number of days' labor unperformed 120 Days' Days' Names of property owners. labor labor assessed. unperformed. John Brown 31 9 (In the same manner as to other property owners.) Dated this day of , 19 . . JOHN DOOLEY, Commissioner of Highways, 1024 Forms. FORM No. 90. Notice or Transmission of Statement of Unpebfoemed Labob. (Highway Law, § 4, sub. 1, ante, p. 594.) Take notice: That the undersigned, commissioner of highways of the town of has this day transmitted to D. L., supervisor of the town of , a. statement containing the names of all property owners in the several high- way districts in the town of , who have been assessed for high- way labor therein, and who, in my opinion, have failed to perform the full amount of the highway labor so assessed. The said D. L., supervisor of the town of , will, on the day of , in the village of , state of New York, hear all persons interested itt the performance of labor on the highways in each of such districts. Dated this day of , 19 . . JOHN DOOLEY, Commissioner of Highways. FORM No. 91. Consent of Town Boabd. (Highway Law, § 10, ante, p. 606.) COUNTY OF ^ Town of ( At a special meeting of the town board of the town of , called by the supervisor (or town clerk) thereof, held on this day of , 19. ., the following preamble and resolution was adopted: Whereas, the highway (or bridge) known as (here describe it) was de- stroyed by (describe how) on , 19. . (or has become damaged), and there not being sufficient moneys in the hands of the commissioners of highways to rebuild (or repair) the same; therefore, be it Resolved, That we do hereby consent that the commissioners of highways of the town of cause said highway ( or bridge ) to be immediately rebuilt (or repaired) according to law. (Town board sign here.) Town Clebk's Certificate to Tean script. TOWN OF Office of Town Clebk, I do hereby certify that I have compared the above transcript of the pro- ceedings of the town board of said town, at a special meeting held on the day of , 19 . . , with the original record thereof in my office, and that the same is a correct transcript therefrom, and of the whole of such original. Dated this day of , 19 . . * 0. P., Tovm Clerk. FOEMS. 1025 FORM No. 02. Request fob Special Session of Town Board to Audit Expenses. (Highway Law, § 11, ante, p. 607.) To the Supervisor (or Town Clerk) of the town of , in the county of : The undersigned, commissioners of highways of the town of , do hereby request that the town board be convened in special session, for the purpose of auditing the bills and expenses incurred in the erection ( or repair ) of the highway (or bridge) under consent given by said board on the day of , 19.. Dated this day of , 19 . . A. B., C. D., E. F., Oommiaaionera of Highways. FORM No. 93. Cebtificate of Supekvisor and Town Clebk. (Highway Law, § 11, ante, p. 607.) COUNTY OF ) Town of ( The undersigned, supervisor and town clerk of the town of do hereby certify that at a special session of the town board this day held, for the purpose of auditing and allowing the bills and expenses incurred by the commissioners of highways of said town, under the consent given by said town board, the day of , 19 . . , the following bills and accounts were audited and allowed, with interest: Date. IN WHOSE FAVOR. Nature of work done and material furnished. Amount allowed. Dated this day of 19. R. S., Supervisor. O. P., Town Olerk. 1026 ToKMS. FORM No. 94. Account and Ceetipicate of Commissioners of Highwats. (Highway Law, § 12, ante, p. 609.) The Town of , To L. M., Dr. January, 19. ., to (days' labor on) $. January, 19 . . , to ( feet of plank ) Total $ . L. M. (Verification as in Form No. 171, post.) COUNTY OF Town of . . The undersigned, commissioners of highways of said town, do hereby certify that in the foregoing account of L. M., the services mentioned were actually performed, and the material mentioned was actually furnished, and the same was BO performed and furnished at our request. Bated this day of , 19 . . A. B.. C. D., E. F., CoTnmisaiOTiers of Highways. \ ss. : FORM No. 96. Complaint that Toll-bbidoe is Unsafe. (Highway Law, § 13, ante, p. 609.) Town of COUNTY OF L. M., being duly sworn, complains on oath to the commissioners of high- ways of the town of , in the county of , that he believes the toll-bridge belonging to situated on the (give name of stream ) , at ( describe place ) , has become and is unsafe for public use and travel; and that the reasons for his belief are as follows (set forth reasons). L. M. Subscribed and sworn to before me, this .... day of , 19 . . G. H., Justice of the Peace. FoEMs. 1027 FORM No. 96. Notice to Owners of Toll-bbidoe. (Highway Law, § 13, write, p. 609.) To (owners or agent of the owners, acting aa agmit in respeot to tuoh hridge, as the case may be) -. You are hereby notified that the commissioners of highways of the town of , in the county of have, on complaint made, care- fully and thoroughly examined the toll-bridge situated on the , at (describe the situation), and found it to be unsafe for public use and travel. (State briefly wherein it is unsafe.) Dated this day of , 19 . . A. B., C. D., E. F., Commiasioners of Bighwayt. FORM No. 97. Appucation to Lat Water Pipes in the Hiohwat. (Highway Law, § 14, ante, p. 610.) To the Commissioners of Hightoays in the town of , in the county of ; The undersigned, an inhabitant of the said town of , does hereby make application to you for permission to lay and maintain water pipes and hydrants (or drainage or sewer pipes) under ground, within the highways of said town, pursuant to section 14 of the Highway Law, as follows: (Here state where the pipes are proposed to be laid.) Dated this day of , 19. . L. M. FORM No. 98. Consent to Lay and Maintain Wateb-pipes in Highway. (Highway Law, § 14, ante, p. 610.) The undersigned, commissioners of highways of the town of , in the county of , on the written application of L. M., do hereby consent that the said L. M. lay and maintain water-pipes and hydrants (or drainage and sewer-pipes) under ground within the highways of said town as follows: (Here state where the pipes are to be laid.) Subject, however, to the following conditions: That the said L. M. will replace all earth removed, and leave the highway in all respects in as good condition as before the laying of said pipes; that ha will keep such pipes (and hydrants) in repair and save the town harmless from all damages which may accrue by reason of their location in the high- iway; that upon notice by the commissioners, the applicant will make any repairs required for the protection and preservation of the highway; that lupon his default, such repairs may be made by the commissioners at tha 1028 FOEMS. expense of the said L. M., and that such expense shall be a lien prior to any other lien upon the land benefited by the use of the highway for such pipes or hydrants; and the commissioners of highways of such town may, upon the default of the said L. M., his assigns or legal representatives, revoke this consent and remove therefrom such pipes or hydrants. Dated this •. . day of , 19. . A. B., C. D., E. F., Oommissioners of EigMoa/ys. I, the undersigned, supervisor of the said town of , do hereby approve of the foregoing consent to L. M. G. H., Supervisor. 1, the undersigned, applicant above mentioned, do hereby consent to con- ditions contained in the foregoing consent. L. M. FORM No. 100. Commissionee's Report to First Meeting of Town Boabd. (Highway Law, § 19, ante, p. 615.) The undersigned, commissioners of highways of the town of , in the county of hereby render to the town board of said town, in pursuance of section 19 of the Highway Law, the following report: 1. The highway labor assessed in said town for the year ending on , 19.., was .... days; and the highway labor performed in said town during the said year was .... days, as appears by the reports rendered to us by the several overseers of the highways in said town. 2. The said commissioners have received during the said year the foUow- ings sums of money for fines and commutations, and from other sources: Date. FROM WHOM RECEIVED. On what account Amount. 3. They have paid out during said year, for which they have receipts in full, which are hereto attached, the following sums: Date. TO WHOM PAID. On what account. Amount. FOEMS. 1029 4. The improvements which have been made on the highways and bridges in said town during said year are as follows : ( Specify improvements. ) And the highways and bridges in said town are ( specify the condition they are in ) . Dated this day of , 19. . A. B., C. D., E. F., Commissioners of Highways. FORM No. 101. COMMISSIONEES' EePORT TO SECOND MEETING OP ToWN BOAKD. (Highway Law, § 19, sub. 3, ante, p. G15.) The undersigned, commissioners of highways of the town of , in the county of , hereby render to the town board of said town, pursuant to subdivision 2 of section 19 of the Highway Law, the following report: 1. The following improvements are necessary to be made on the highways and bridges in said town during the next fiscal year, viz.: (Here specify the improvements deemed necessary.) 2. The probable expense of making such improvements beyond what the labor to be assessed will accomplish, is by us estimated at $ . . . . Dated this day of , 19 . . A. B., C. D., E. F., Oommissioners of Highioayt. FORM No. 102. Highway Commissioners' List of Nonresident Lands. (Highway Law, § 32, ante, p. 624.) The following is a list and statement of the contents of all lots, pieces or parcels of land within the town of , in the county of , owned by nonresidents therein, made by the undersigned, commissioners of highways of said town: NAME OF TRACT OR PATENT. S Si i Number section. Township. 1 i 1^ Valua- tion. Dated this day of 19.. A. B., C. D., E. F., Commissioners of Highways. 1030 FoEMS. FORM No. 103. Appeal by Nonresident fbom Assessment fob Highway Labob. (Highway Law, § 36, ante, p. 629.) COUNTY COURT— County or Albany. In the Matter of the Assessment of highway labor of L. M. a nonresident owner of unoccupied lands in the town of L. M., a nonresident owner of unoccupied lands in the town of , county of , considering (or T. W., agent of L. M., a nonresident owner of lands in said town, who considers) himself aggrieved in the assess- ment for highway labor by the commissioners of highways of said town, upon the following described lands, to wit: (Here describe them as in the list made by the commissioners) does hereby appeal from the assessment of said commissioners to the county judge of said county. Dated this day of , 19. . L. M. FORM No. 104. NonCB BY THI! OWNKB OB HiS AGENT, TO THE COMMISSIOKKBB, OV THE APPHAL. (Highway Law, § 36, ante, p. 629.) To A. B., C. D., E. F., Commissioners of HigJiwoA/s of the town of You are hereby notified that, considering myself aggrieved by your assess- ment for highway labor of the land owned by me in said town, I have this day appealed to the county judge of the county of who will on the . .^ day of , at .... o'clock in the noon, at , in the village of , hear and decide on said appeal. Dated this day of , 19. . L. M. FORM No. 105. New Assessment by Overseer of Highways. (Highway Law, § 42, ante, p. 631.) The amount of labor assessed on the inhabitants of highway district No. . ., town of , being deemed by me, the undersigned overseer of highways in said district, insufficient to keep the highways therein in repair. FOEMS. 1031 I do therefore, pursuant to section 42 of the Highway Law, made a, further assessment as follows : NAMES. Days. NAMES. Days. J. D. R. S. T. W. B. R. Dated this day of , 19 . . L. M., Overseer of Highwayi, District Vo. FORM No. 106. OBDEB of COMlflSSIONEBS PERMITTING PlANTINQ OF TBEES OB CONSTBDCTION OF Sidewalks. (Highway Law, 8 43, ante, p. 631.) COUNTY OF ) Town of j We, the undersigned, commiBsioncrs of highways of said town, do hereby authorize L. M., at his own expense, to locate and plant trees and locate and construct sidewalks along the highway adjoining his premises, in highway district No in said town, according to a map or diagram hereto attached and made a part of this order. Dated this day of , 19. . A. B., C. D., E. F., Convmisaifyners of Highways. Map OB DiAGBAU Showing Location of Sidewalk and Tbee Pi 10.. A. B., C. D., E. F., Oommissioners of Highways. 1040 FoEMS. FOBM No. 122. Release or Damages by Owners of the Land. (Highway Law, § 80, ante, p. 660.) Know all men bif these presents, that I, R. S., of the town of , County of , N. Y., for and in consideration of the sum of (not exceeding $100), hereby consent that a highway be laid out and opened ( or altered ) across my premises in the town of , county of , N. Y., pursuant to the application of L. M., dated the day of , 19.., and release said town from all damages by reason of laying out and opening (or altering) such highway through my premises. In witness whereof, I have set my hand hereunto, on this day of , 19.. R. S. FOBM No. 123. Obdeb Laying Out Highway on Release feom Owners. (Highway Law, § 80, ante, p. 660.) At a meeting of the commissioners of highways of the town of , in the county of , on the day of , 19 . . , for the purpose of deliberating on the propriety of laying out a highway in said town, hereinafter described, application having been made by L. M , a person liable to be assessed for highway labor in said town, and a. release from the owners of the land through which the highway is proposed to be opened, having been given. /* is hereby ordered and determined that a highway shall be, and the same is hereby laid out in said town as follows: Beginning (here insert the survey bill), and the line of survey shall be the center of the highway, which shall be rods in width. Dated this day of , 19 . . A. B., C. D., E. F., Commissioners of Highways. FOBM No. 124. Dedication op Land and Release of Damages. (Highway Law, § 80, ante, p. 660.) Know all men by these presents, that I, E. S., of the town of , in the county of , N. Y., for value received, hereby dedicate to the town of aforesaid, a strip of land across my premises in said town, for the purpose of a, highway, described as follows: (Here de- scribe promises dedicated.) And I also hereby release said town from all damages by reason of the laying out and opening of said highway. In witness whereof, I have hereunto art my hand and seal, this [seal] day of , 19 . . E. S. FOEMS. 1041 STATE OF NEW YORK, 1 County of j On this day of , 19 . . , before me, the subscriber, personally appeared R. S., to me known to be the person described in, and who executed the foregoing agreement. G. H., Justice of the Peace. FORM No. 125. Consent or Town Board to Lay Out or Alter a Highway. (Highway Law, § 80, ante, p. 660.) The undersigned, the town board of the town of , in the county of , hereby consent that the commissioners of highways of said town make an order laying out (or altering) the proposed highway described in the application of L. M., pursuant to section 80 of the Highway Law. In witness whereof, we have hereunto set our hands on day of .' , 19.. (Signed by each member of town board.) FORM No. 126. Application to Lay Out a Hiqhwat. (Highway Law, § 82, ante, p. 662.) To the Commissioners of Highways of the toivn of , in the county of The undersigned, an inhabitant of said town of , liable to be assessed for highway labor therein, hereby applies to you to lay out a high- way in said town, commencing (describe the proposed highway), which pro- posed highway will pass through the lands of R. S. and T. W. (who consent to the laying out of the highway, or as the case may be). Dated this day of , 19 . . L. M. FORM No. 127. Application to Alter a Highway. (Highway Law, § 82, ante, p. 662.) To the Commissioners of Highuxtys of the town of , in th county of ; The undersigned, an inhabitant of said town of , liable t' be assessed for highway labor therein, hereby applies to you to alter ■ ' highway leading from to , in said town as follow- (Insert particular description of the proposed alteration by courses and distances.) The proposed alteration passes through the lands of R. S. and T. W. (who consent to the proposed alteration, or as the case may be). Dated this day of , 10 . . L. M, 1042 FoEMS. FOBM No. 128. Application to Discontinue a Highway. (Highway Law, § 82, ante, p. 662.) To the Commissioners of Highways of the town of , wi fic county of : The undersigned, an inhabitant of said town of , liable to be assessed for highway labor therein, hereby applies to you to discontinue the old highway beginning (insert description), on the ground that said highway- has been abandoned. Dated this day of , 19 . . L. M. FORM No. 129. Application for Appointment op Commissionebs. (Highway Law, § 83, ante, p. 663.) COUNTY COURT— County op In the Matter of the Application of L. M. to lay out (alter or discontinue) a highway in the town of , and the assessment of damages therefor. The petition of L. M., of the town of , in said county, respect- fully shows that your petitioner is a person liable to be assessed for highway labor in the town of , said county; that on the day of , 19 . . , he presented an application in writing to the com- missioners of highways of said town as follows: (Insert copy of application to the commissioners.) That said application was in good faith made; that the commissioners of highways have not laid out (altered or discontinued) said highway pursuant to section 80 of the Highway Law; that the lands have not been dedicated for the purpose of such highway by the owners thereof, nor have such lands been released by such owners for such purpose. Wherefore, your petitioner prays that three commissioners be appointed pursuant to section 84 of the Highway Law, to determine upon the necessity of the proposed highway (or altering or discontinuing the said highway), and to assess the damages by reason of laying out and opening (or altering or discontinuing) such highway. Dated this day of , 19 . . L. M. STATE OF NEW YORK, County op L. M., being duly sworn, says he has read the foregoing petition by him subscribed, and that the same is true to the knowledge of deponent, except EOEMS. 10 i3 as to the matters therein stated to be alleged on information and belief, and ; to those matters he believes it to be true. L. M. Subscribed and sworn to before me, this .... day of 19. . G. H., Justice of the Peace, [Application to be accompanied by the written undertaking of the petitioner aecuring payment of compensation of commissioners and costs, if unsuccessful.] FORM No. 130. Order Appointing Commissioners. (Highway Law, § 84, ante, p. 665.) At a term of the County Court of the county of held at in the , in and for said county. Present — Hon. E. E., County Judge. (Title as in Form No. 129.) On reading and filing the petition of L. M., of the town of , in. said county, dated the day of , 19 . . , praying for three commissioners to be appointed, pursuant to section 84 of the Highway Law, to certify as to the necessity of laying out and opening (altering or discon- tinuing) a highway beginning (insert the description) and to assess the damages by reason of laying out (altering or discontinuing) such highway. It is hereby ordered that S. S., G. G. and J. J., of the town of , said county, be, and they are hereby appointed as such commissioners. FORM No. 131. Notice to Commissionebs of Their Appointuewt. (Highway Law, § 84, cmte, p. 665.) To 8. 8., G. G. amd J. J. : Take notice, that you and each of you have been duly appointed com- missioners, by an order of the County Court, a copy of which is hereto annexed, and you are hereby required to fix a time and place at which you will all meet to hear the commissioners of highways and all other persons interested in the highway mentioned in the said order. Dated this day of , 19 . . L. M. FORM No. 132. Notice or Meeting of Commissioners. (Highway Law, § 85, ante, p. 666.) Notice is hereby given that the undersigned has made application to the commissioners of highways of the town of , in the county of , for the laying out (altering or discontinuing) of a highway in said town, commencing (here insert description as in application), which 1044 Forms. proposed (or altered) highway will pass through the lands of (describe who), and by an order of the County Court dated the day of , 19 . . , S. S., G. G. and J. J. were appointed commissioners to examine as to the necessity of said proposed highway (alteration or discontinuance), and to assess the damages by reason of the laying out and opening (alteration or discontinuance) of such highway; and that said commissioners will all meet at , in said town, on the day of , 19 . . , at .... o'clock in the noon, to examine the proposed highway (or the highway) and hear the commissioners of highways and all others in- terested therein, and to assess the damages if such highway be determined to be necessary (or is altered or discontinued). Dated this day of , 19 , , L. M. \- FORM No. 133. Affidavit of Posting and Seevicb op Notice. (Highway Law, § 85, ante, p. 666.) STATE OF NEW YORK, County of L. M., being duly sworn, says that he caused notices in writing, of which the within is a. copy, to be posted up at , at and , three public places in the town of , said county, on the day of , 19 . . , and that he served a. like notice on (name all the owners and occupants of the lands through which the high- way is proposed to be laid out, altered or discontinued ) on the day of , 19.., by (state how served), and that said notices were posted at the respective places, and served on the respective persons herein named, at least eight days before the time specified therein lor the meeting of said commissioners. L. M. Subscribed and sworn to before me, this day of , 19 . . G. H., Justice of the Peace. FORM No. 134. Certificate of Commissioners in Favor of Applicant. (Highway Law, § 86, ante, p. 667.) (Title as in Form No. 129, ante.) The undersigned, by an order of the County Court of county, dated the day of , 19. ., on the application of L. M., having been appointed commissioners to determine as to the necessity of laying out and opening (altering or discontinuing) a highway in the town of , in said county, beginning ( describe highway as in the appli- Forms. 1046 cation) which proposed highway (or highways) crosses the lands of (name the persons) and to assess and damages to be caused thereby; Now therefore, wCi, the said commissioners, having given due notice of the time and place at which we would meet, and all having met at , in said town on the day of , 19. ., pursuant to such notice, and having taken the constitutional oath of office, and on proof of the service and posting of the notices by the applicant, pursuant to section 85 of the Highway Law, having viewed the proposed highway (or highway proposed to be discontinued or altered) and the lands through which it is proposed to be laid out and opened (altered or discontinued) and having heard the commissioners of highways and the parties interested therein, and the evidence of all the witnesses produced; Now, therefore, we do hereby determine, and certify, that in our opinion it is necessary and proper that the highway be laid out and opened (altered or discontinued ) pursuant to the said application of L. M., dated the day of , 19. . ; and we have assessed the damages required to be assessed by reason of laying out and opening (altering or discontinuing) such highway, as follows: The damages of N. N. at $ ; the damages of W. W. at $ Dated this day of , 19 . . S. S., G. G., J. J., Commissioners. FORM No. 135. Cebtificate Denying Applicatioit. (Highway Law, § 88, ante, p. 668.) (Title as in Form No. 129, ante.) The undersigned, by an order of the County Court of county, dated the day of , 19 . . , on the application of L. M., having been appointed commissioners to certify as to the necessity of laying out and opening (altering or discontinuing) a highway in the town of , in said county, beginning (describe highway as in the appli- cation) which proposed highway (or highways) crosses the lands of (name the persons) and to assess the damages to be caused thereby; Now, therefore, we, the said commissioners, having given due notice of the time and place at which we would meet, and all having met at , in said town, on the day of , 19 . . , pursuant to such notice, and having taken the constitutional oath of office, and on proof of the service and posting of the notices by the applicant, pursuant to section 85 of the Highway Law, having viewed the proposed highway (or alteration or highway proposed to be discontinued) and the lands through which it is proposed to be laid out and opened (altered or discontinued), and having heard all the allegations of the commissioners of highways and the parties interested therein, and the evidence of all the witnesses produced; 1046 FoEMS. 'Now, therefore, we do hereby determine and certify that in our opinion such highway, or alteration or discontinuance, is unnecessary and improper and should not be laid out (or should not be made, or such highway should not be discontinued). Dated this day of , 19. . S. S., G. G., J. J., Oom,missio7i,ers. FORM No. 136. Notice of Motion to Confibm, Vacate oe Modht Decision. (Highway Law, § 89, ante, p. 668.) (Title as in Form No. 129.) To N. M. in said town. OflFense charged was grand larceny. Upon information taken and filed I issued a warrant for the arrest of defendant. Warrant was delivered to N. N., constable of said town. January 12, 19 . . Defendant was arrested and brought before me. De- fendant demanded an examination (or as the ease may be), which was had, and the following witnesses were sworn on such examination, viz.: (Here name them.) Defendant was held to answer the charge of grand larceny and admitted to bail (or as the case may be). To administering oath to complainant 10 cents. Drawing information ,,,,,.. 25 cents. (In same manner make itemized account of fees.) STATE OF NEW YORK, ■> County op t E. F., being duly sworn, says he is the claimant named in the foregoing claim; that the items of such account as above set forth are correct, and that the services charged therein have been in fact made or rendered, and that no part thereof has been presented to any preceding board of audit, for audit and allowance and that no part thereof has been paid or satisfied. E. F. Subscribed and sworn to before me, this .... day of , 19.. G. H., Justice of the Peace. FORM No. 169. Accounts of Town Officebs. (Town Law, §§ 167, 168, ante, p. 811.) John Dooley, highway commissioner (supervisor, overseer of the poor) of the town of , in account with said town. 1903 Receipts. Jan. 28. Received of A. B., town collector $275 00 Mar. 5. Received of J. K. for (state purpose and for what)... 125 00 1903. Expenditures. June 4. Paid to L. M. for 1,000 feet of oak plank, used in repair of bridge $25 00 Aug. 9. Paid to I. S. for labor performed in repairing bridge, 20 days, at $1.50 30 00 Forms. 1067 Vekificatiow. STATE OF NEW YORK, County of John Dooley, being duly sworn, deposes and says that he is the person mentioned as presenting the foregoing account; that the items of such account are correct; that the amounts stated therein to have been received by him as highvpay commissioner (or other officer) of the town of , are all that he has received as auch officer; that the expenditures stated therein have, in fact, been made for the purposes specified; that all of such expenditures were necessary and were made in good faith and for value received ; and that the balance of dollars is all the money in my hands belonging to said town. JOHN DOOLEY. Subscribed and sworn to before me, this day of , 19 . . L. M., Justice of the Peace. FORM No. 170. Cebtotcate of Examination of Town Officers' Accounts. (Town Law, § 170, ante. p. 816.) We, the undersigned, members of the town board of the town of , county of , do hereby certify, pursuant to section 161 of the Town Law, that we have examined the annexed account of John Dooley, highway commissioner (or other officer) of such town, and that the same is just, true and correct, and that the balance now in the lia'.ids of such highway commissioner ( or other officer ) according to such account is dollars. Dated , 18,, E. E., Supervisor. J. M., Justice of the Peace. D. 0., " " P. R., F. G., Town Clerk. FOBM No. 171. AlTIDATIT TO BE ANNEXED TO ACCOUNT PeESENTED TO ToWN BOABD FOB AUDIT. (Town Law, § 167, ante, p. 811.) (Itemized Account.) STATE OF NEW YORK, ) ' ss.: County of \ A. B., being duly sworn, deposes and says that he is the claimant mentioned in the foregoing account against the town of ; that the items of such account are correct, and that the disbursements or services (or 1068 FOEMS. articles specified, as the case may be) have been in fact made or rendered (or furnished, as the case may be), (or are necessary to be made or rendered at that session of the board), and that no part thereof has been paid or satisfied. A. B. Subscribed and sworn to before me, this .... day of , 19 . . J. N., Justice of the Peace, FORM No. 172. Abstract op Names or Persons Who Have Presented Accounts foe Audit. (Town Law, § 170, ante, p. 816.) To the Board of Supervisors of the county of : We, the undersigned, town board of the town of , pursuant to section 170 of the Town Law, do hereby certify that the following is a cor- rect abstract of the names of all persons who have presented to said board accounts to be audited, the amounts claimed by each of said persons, and the amounts audited by them respectively: NAMES. Amount audited. Dated this day of , 19 . . (Signed A. B., Supervisor, and other members of town board.) FORM No. 173. Appointment of Board or Auditors by Town Boabd. (Town Law, § 175, OMte, p. 818.) We, the undersigned, members of the town board of the town of county of , having duly met at on the day of , 19 . . , at .... M., do hereby appoint pursuant to a vote of the electors of such town at a town meeting held therein on the day of , 19. ., and section 175 of the Town Law, the following named persons, to wit, A. B., C. D. and E. F., to be town auditors of such, town until the next biennial town meeting held in such town. In witness whereof, we have set our hands and seals hereto on this day of ,19.. (Signed A. B., Supervisor, and by other members of town board.) FoEMS. • 1069 FORM No. 174. Bond of Supbbvisob on Account or School Moneys. (Consolidated School Law, tit. 2, § 17, ante, p. 872.) Know all men by these presents, that we, A. B., superviaor of the town of , in the county of and state of New York, as principal, and C. D. and D. E., as sureties, of the same town, are held and firmly bound unto E. F., as treasurer of the county of , in the penalty of dollars (a sum at least double the amount of school moneys set apart or apportioned to the town), to be paid to the said E. F., ■8 treasurer of said county, his successor in office, attorney or assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators and assigns jointly and severally, firmly by these presents. Sealed with our seals and dated the day of , 19 . . The condition of this obligation is such that if the above bounden A. B., as supervisor, as aforesaid, shall safely keep, faithfully disburse and fully and justly account for and pay over all the school moneys set apart or appor- tioned to said town of and all other moneys that may come into his hands as such supervisor from any other source, then this obligation to be void, otherwise to remain in full force and effect. A. B. [ls s.] C. D. [I. s.] D. E. [L. 8.] I Acknowledgment and justification as in Form No. , ante.) Approval of County Teeasubeb. County of , »s. ; I hereby approve of the above (or within) bond as to its form and manner of execution, and of the sufficiency of the sureties therein. Dated ,19.. E. F., Treasurer of county. FORM No. 175. Eepobt of School Moneys on Hand. (Consolidated School Law, tit. 3, § 3, ante, p. 877.) To Hon. J. K. Orant, County Treasurer of county : I, the undersigned, supervisor of the town of , in the county of , hereby return, as required by section 3 of title 3 of the Consolidated School Law, that the amounts of school moneys in my hands not paid out on the orders of trustees for teachers' wages, not drawn by them for library purposes, and the districts to which they stand accredited is as follows: District No. 1 $100 00 District No. 2 75 00 District No. 3 50 00 Total in my hands $225 00 Dated , 19. . GEO. H. HAGAN, Supervisor, 1070 FOEMS. FOKM No. 176. Anhttai, Eepoet of Town Indebtedniess. (Town Law, §§ 210, 211, cmte, p. 944.) To the Boa/rd of Supervisors of county: The undersigned, supervisor of the town of , in Bald county, pursuant to sections 210 and 211 of the Town Law, hereby reports the amount of public indebtedness of said town, as follows: Bonds issued or debts con- tracted in aid of. Kate of interest. Act under which bonds were issued. Amount unpaid at time of election of supervisor. Amount of indebted- ness paid at this date. Amoimt coming due during my term of olfice. Dated thia daj of #.»,.»».»if.«,» • • 19. A.B., Muperviior. i]srr>Ex:. ABATEMENT— Page. of highway tax for planting shade trees 632 for maintenance of sidewalk 633 on account of watering trough 634 for removal of fence 657 for maintenance of street lamps 657 ABANDONMENT— of wives and children, by husbands 561 seizure of property for support 662 sale of property seized 565 redemption by superintendent 567 ABSTRACT— of county accounts to be published 80 ACCOUNTS— against county, to be itemized 28 verification 28 presentation in certain counties 22 sufficiency of presentation 28 fraudulent presentation of 30 against town, of town officers 803 meeting of town board for audit 805 audit by town board 805, 806 certificate of rejection and allowance 806 audit, how made 806 of justices of the peace and constables 808 what to contain 809 fees in criminal proceedings 809 form 811 verification 811 town charges 812 audit by town auditors 817 ACTIONS— in name of county 2 by and against a county 3 special town meeting to raise money to prosecute or defend 200 prosecution or defense, town meeting to direct 242 power to borrow money for 243 for penalties, to be prosecuted by supervisors 275 1074 Index. ACTIONS— Continued. Page. by and against town, in name of town 819 for trespass on town lands 820 against officers to prevent illegal acts 909-921 in official capacities 919 for malfeasance in executing municipal bonds 933, 934 AGRICULTURAL LANDS— drainage, under agreements witli owners 317 submission of differences to fence viewers 318 findings of fence viewers 318 compensation of fence viewers 318 duties of fence viewers 319 when not deemed diversion of waters 318 AGRICULTURAL SOCIETY— real property exempt from taxation 336 ALMS-HOUSES — See Poor Persons; Superintendents of Poor. erection, alteration, and acquisition of lands for 49 acquisition of site and erection of buildings 60 superintendent of poor to control 479 to make rules as to 479 to appoint keeper 479 to purchase supplies, etc 479 to prescribe rate for bringing poor persons 480 keeper, when superintendent to act as 482 pestilence in, inmates to be removed 484 statement of amount expended for town poor 485 register, what to contain 487 children not to be sent to 489 not to be committed as vagrants 490 relief of poor persons ; removal to 520 expense of removal 522 support of poor persons 523 etate board of charities, duties as to 491 visitation and inspection 491 approval of plans 493 attorney-general and district attorneys to aid in investigation, 493 state poor in 494 visitation by state charities aid association 494 removal of bastard and mother to 554 state poor maintained in 575 expense paid by state 575 visitation and inspection 577 Indian poor, maintained in 579 ANIMALS, NOXIOUS— bounties for destruction of, a county charge 37 board of supervisors may make regulations as to destruction of . . 47 town meetings to provide for destruction 243 Index. 1075 ANIMALS, STRAYED— Page. lien upon, when doing damage 454 notice to be filed 455 fees for recording 455 impounding 455 notice to owner 450 charge for notice 4" damages, fence viewers to determine. 4^0 fees of fence viewers 457 proceedings 4.'H foreclosure of lien 457 by action 458 sale by fence viewers 457 proceeds, disposition 457 surplus, when unclaimed 459 pound masters, duties and fees 459 ASSESSMENT— ascertainment of facts for 355, 356 time of 356, 357 of state lands in forest preserve 301 copy of assessment-roll to be filed in offices of comptroller and forestry board 301 of bank shares 363 3'6 of individual banker 367 notice of, to bank or banking association 307 of corporations, how made 371-374 of agent, trustee, guardian, executor or administrator 374 of property omitted in preceding year 375 of debts owing to nonresidents of United States 376 of special franchises, see Special Franchises 386-393 illegal, re-assessment by board of supervisors 401 of highway labor, see Biglvway Labor 625 ASSESSMENT-ROLI. — See Assessors; Taxes; Taasation, etc. extension of, allowance to supervisors 13, 14 preparation of, by assessors 357 to contain names of taxable persons 3.58 description of lands 359 valuation of real property 359 I valuation of personal property 300 1 valuation of taxable rents reserved 300 valuation of special franchises 301 designation of real property of nonresidents in 309 corporations, how assessed on 371, 372 to contain assessment of property omitted in preceding year 375 completion of 377 notice ; contents of notice 377 verification of 381 sufficiency 382 1076 Index. ASSESBMENT-ROLL— Continued. Tage. when completed to be open to inspection 383 notice that it is open to inspection 383 to be filed in office of town clerk 383 to be delivered to supervisor 383 descriptions of nonresident real property changed by board of supervisors 397* correction of errors in, by board of supervisors 398 correction of manifest errors 399 correction of errors as to nonresident real property 400 to contain names of owners of dogs 463 ASSESSORS — See Exemptions; Taxes; Taxation; Town Officers. election 227 term of office 228 powers as to exemptions 328 report of exempt property by 354 may divide tax district 355 ascertaining facts for assessment 355, 359 majority of, must act y. 359 time of making assessment 357, 358 assessment-roll, preparation of 357-361 assessment of state lands in forest preserve 361 to file assessment-roll in offices of comptroller and forestry board 361 report of banks to 362 statements of corporations to 367 penalty for omission to make 368 effect of 368 county clerk to furnish data respecting corporations 369 assessment of corporations, how made 371-374 to include in assessment-roll assessment of debts due to non- residents 376 assessment-roll, completion of 377 to give notice 377 grievance day, to hear complaints on 378 necessity of complaint 378 statement of complainants 378 sufficiency of 379 examination of claimant 380 failure to appear 380 notice to, of application to County Court for apportionment of taxes 381 oath verifying assessment-roll 381 to post notice that assessment-roll may be inspected 383 valuation of railroad, telegraph, telephone or pipe line companies apportioned between school districts 383 forms prescribed by tax commissioners 384 neglect or omission of duty 384 duties of, as to special franchise assessment 388, 389" petition board of supervisors for correction of errors in assess- ment-roll 398 state tax commissioners to meet with 408 compensation 814 AUDIT — See Accounts; Board of Supervisors ; Town Board. efTect of, authorizing action against county 4 of county accounts, what constitutes 21 jurisdiction of board of supervisors as to 21 board acts judicially 22 when board may use discretion 22 how far conclusive 23 hearing evidence as to claims 24 Index. 1077 AUDIT— Continued. Page. affidavit of value of servicea 24 manner of making 24 compelling, by mandamus 26 review by certiorari 27 clerk to designate items allowed or disallowed 79 publication of abstracts 79 of town accounts, meeting of town board 805 power of town board 805 how to be made 806 when claim has been rejected 807 concurrent jurisdiction of board of supervisors 807 of justices of the peace and constables, appeal 808 accounts, what to contain 809 fees, in criminal proceedings 809 form of accounts 811 town charges 812 abstract of names of claimants 816 by town auditors 817 of illegal claim, action to restrain 915 AUTOMOBILES— See Highways. definitions of words and phrases used in Motor Vehicle Law 747 filing statement 748 registration and record 748 registration seal 748 owners previously registered 748 display of registration number 749 registration by manufacturers or dealers 749 fictitious seal or number 749 unregistered vehicle not to be operated 749 exemption of non-resident owners 749 speed permitted 750 speed at crossings, etc 750 meeting horses, etc 750 stopping on signal 750 giving name and address 751 speed tests and races 751 rules of the road 751 brakes, lamps, horn, etc 751 local ordinances prohibited 751a parks, parkways and cemeteries excepted 751b no effect on right to damages 751b filing chauffeur's statement 751b chauffeur's registration and record 751b chauffeur's badge 751b fictitious badge V51c unregistered chauffeur cannot operate 751c penalties for excessive speed, etc 751c penalties for othier violations 751c release from custody, bail, etc 751c acts repealed by Motor Vehicle Law 751d when Motor \'ehicle Law takes effect 751d BALLOT CLERKS— designation, number, qualifications 239 in towns, appointment 241 BANKS— stockholders taxable oh shares 352 reports to assessors for purposes of taxation 362 contents 362 penalty for neglect to make 362 1078 Index. BANKS— Continued. Paoe. assessment of shares 363 rate of tax 363 levy of tax by board of supervisors 363 collection of tax 364 distribution of tax by board of supervisors 364 powers of county treasurer as to collection of tax 365, 366 collection of taxes against 419 levy on stock 419 BARBED WIRE— use of, for division fences 453 BASTARDS— See Poor Persons. removal of mother, penalty 546 proceedings 547 support of mother 546 definition 547 vi^ho liable for support 547 mother and child poor persons 547 to be supported as poor persons 548 not to be removed without mother's consent 548 overseers to notify superintendent 549 superintendent to provide for mother and child 549 overseers to support, until superintendent takes charge 549 whether chargeable or not 549 to apply money received from father 550 compelling father to support 550, 551 collection and disposition of money for support 552 settlement, disputes 552 proceedings when chargeable to another town 552 order of supervisor for support of 553 removal of mother and child to alms-house 554 compromise with father 554 BICYCLES- See Automobiles. sidepath, appointment of commissioners 737 terms of office, vacancies, etc 738 construction 739 term defined 740 license fees, for use 740 form of badge 740 disposition , 741 regulations as to use 742 ordinances regulating use 743 what may prescribe 744 arrests for violation; deposit of bicycle 745 penal provisions as to use 743 entitled to free use of highways 746 BIRTHS— registration ; fees a town charge 858 Index. 1079 BLIND— Page. education and support 510 institutions to which admitted 510, 515 maintenance in New York institution 511 board of supervisors to furnish with clothing 511 State School at Batavia, admission 512 clothing and traveling expenses 513 itemized accounts against counties 514 BOARD OF SUPERVISORS— See Audit; County Officers; Highways; Poor Persons; Taxes, etc. constitutional requirement 6 in Nassau county, constitutionality of special act 6 meetings and organization 7 majority, a quorum 7, 8 power as to qualifications of its members 7 rules for conduct of proceedings 8, 9 committees, appointment 9 members, penalty for failure to perform duties 10 liability for neglect of duty 13 compensation 12, 14 special acts relating to 14 allowance for copying assessment-roll 13, 14 acts and resolutions, form and contents 14 passage 14 title 15 to be numbered and certified 15 validity 15 publication 16 proceedings to be printed 16 publication ; contract 16 contents 17 copy to be transmitted to state librarian 79 custody of county records 17 witnesses, examination 18 subpoena 18 administering oath 18 powers of committees as to 19 adjournment of hearing or examination 19 discharge, when arrested for failure to appear 19 undertaking 19, 20 audit of county accounts 21 what constitutes 21 jurisdiction as to 21 ads judicially 22 when discretion may be used 22 how far conclusive 23 hearing evidence as to claims 24 affidavit of value of services 24 manner of making 24 compelling, by mandamus 26 1080 Index. BOARD OF SUPERVISORS— Continued. Page. review by certiorari 27 presentation of accounts in certain counties 23 in Albany, Montgomery, Saratoga, Rensselaer 27 accounts to be itemized 28 verification 28 sufficiency of presentation 28 additional requirements as to 29 publication by clerk of board 79 unlawful, a felony 29 falsely making, and payment 30 fraudulent presentation of accounts „ 30 of county charges, see County Charges 31-43 general powers 44 as to county property 45 to direct raising of money for town charges 45 levy of taxes 46 to fix salaries of county officers 46 to borrow money for county buildings and other purposes.... 46 to authorize towns to borrow money 46 to provide for destruction of weeds and animals 47 to provide for protection and preservation of fish and game. . . 47 to divide school commissioners' districts 47 to regulate opening of county offices 48 to make contracts with penitentiary 48 to sue on undertakings 49 as to county buildings, and the acquisition of lands therefor.. 49 as to jury districts 50 to contract for board of prisoners 50 to raise money to enforce game law 50 may raise money for construction of side paths 52 may legalize informal acts of town meeting or village election.... 52 designation of newspapers for publication of session laws 53 to levy tax for expense of publishing local laws 57 designation of newspapers for publishing election notices 59 choMge of location of county buildings 59 petition for 60 action upon presentation of petition 61 submission of question to vote of people 61 establishment of fire district outside of village 62 discontinuance of fire district 65 effect of incorporation of village within limits of fire district .... 67 appropriation of money for erection of soldiers' monument 67 duties as board of county canvassers, see Oatwassers, County Board of 68-7T clerk, appointment of 78 general duties 78, 79 publish statement of accounts 78 report of indebtedness of county, town, etc., to comptroller... 80 statement as to taxes on certain corporations 81 Index. 1081 BOARD OF SUPERVISOES— Continued. Page. assistant district attorney, may authorize appointment of 101) appointment of person to act as surrogate 114 to create office of surrogate in certain counties 114 coroners may fix salaries of 128 jails, may employ convicts in 140 may establish houses of detention 144 wolk houses 144 loan office mortgages, powers as to 177 reports of county officers 178 official seal 179 towns, proceedings for erection or alteration 188, 189 disputed boundary lines, establishment 191 town meetings, biennial, may fix time 198 direct payment of fines, etc., collected by justice 298 banks, levy of tax upon 363 distribution of tax collected 364 equalization of valuations 394 examination of assessment-rolls 394 appointment of commissioners of equalization 395 report of commissioners 397 taxation, duties as to generally 394-406 may change description of nonresident real property 397 review of assessment against non-resident owners of rents reserved 397 correction of errors 398 petition by assessors 398 correction of manifest errors 399 moneys illegally collected to be refunded 399 errors as to assessment of nonresident real estate 400 re-assessment of property illegally assessed 401 levy of taxes 402 collector's warrant to be attached to tax roll 403 contents 403 clerk to render statement of taxes upon certain corporations to county treasurer 405 statement of equalized valuation to be forwarded to comp- troller 405 abstract of tax rolls to be furnished to county treasurer 406 duties as to distribution of tax on mortgages 446g dogs, may impose tax on 461 rate of tax when not fixed by 462 registration, may provide for 469 superintendents of the poor, to determine number 476 rules and regulations as to relief of poor 488 blind, maintained at institution, to furnish clothing 511 at state school at Btatvia, clothing and traveling expenses.. 513 itemized accounts against counties 514 deaf and dumb, when expense chargeable against county 517 clothing charge upon county 519 soldiers, sailors and marines, to provide for burial 572 to provide for headstones for graves of 573 1082 Index. BOARD OF SUPERVISORS— Continued. Paqe. abolish or revive distinction between tovi^n and county poor 582. county road system, adoption 639 appointment of county engineer 640 survey and classification of highways 640 maintenance of improved highways 640a rules, etc., for repairs on same 640a when state engineer and surveyor may refuse to cause further improvement 6401> adoption of county supervision of highways and bridges 642 return to former system 646 arrearages in performance of highway labor, levy 652 highways and bridges, may lay out and construct 708 bridges, may change location 710 destroyed by elements, may provide for construction 711 intersected by county or town lines, apportionment of expense, 712 county's share of expense, how raised 712 may authorize construction outside of boundary 713 over county line, to provide for maintenance 713 authorize towns to borrow money to construct highways and bridges 715 application 715, 716 resolution of board 716 bonds, how issued and sold 717 streets and avenues outside of city 717-719 survey of highway, may authorize commissioners to make 719 toll rates regulated by 719 highways in counties containing 300,000 acres of improved lands. . 720 apportionment of nonresident highway taxes 721 alteration of state roads 721 laws and regulations as to highways and bridges 722 as to use of wide tired vehicles 75" 2 use of abandoned turnpike and plank roads 722 regulate speed of automobiles 740 state roads, resolution 723 petition of land owners 723 resolution to construct 72& contract by board for construction 726 apportionment of cost upon towns and county 727 notice of completion to 728 construction of connecting sections 730 acquisition of right of way 732 turnpike, plank road and toll bridges, acquisition of lands 781 commissioners to lay out 782 acquisition of property 795 may authorize town to acquire 797 grand jury list, preparation 893, 894 allowance to grand and trial jurors 906 resolution authorizing issue of bonds 932 office of railroad commissioner, may abolish 935 county sealer of weights and measures, appointment 953 BONDS— of county, board of supervisors may borrow money on 46 of town, board of supervisors may autliorize issuance 46. Index. 1083 BONDS— Continued. Page. of municipalities, power to issue 923 issued for specific object 924 how paid 92.5 retirement by new issue 925 how issued 927 registration 928 coupon may be converted into registered 929 limitation of amount 929, 930 resolution of board authorizing issue 932 actions for malfeasance of officers in issuing 933 railroad, payment 939 reissue of lost or destroyed 940 BOREOW MONEY— power of municipalities 923 BOUNDARIES— of county, effect of alteration on debts 4 BRIBERY— of executive officer 946 BRIDGE CORPORATIONS— board of superviior.s to regulate toll rates 719 incorporation 778 acquisition of land, application to board of supervisors 781 construction of bridges by 784 completion of bridge, certificate of commissioner 784 rates of toll ; exemptions 785 toll gatherers ; penalty for running gate 786 fast driving over bridge, penalty 793 board of supervisors may acquire property 795 may authorize towns to acquire 797 BRIDGES— See Highways. special town meeting to raise money 200 injuries, treble damages 686 breaking, by load of more than four tons 68f! towns to construct and maintain 697 when over boundary lines 698 when over county line, county to aid 699 county to aid 690 expense of maintaining, statement of commissioner 699 statement to be delivered to board of supervisors 700 levy by board of supervisors 700 joint liabilities of towns ; contracts 700 refusal of commissioner of one town to rebuild or repair 701 over boundary line, application to repair 702 procedure if commissioners refuse to repair 702 order of court as to repair 703 proceedings by commissioners to compel repair 703 10S4 Index. BRIDGES— Continued. Page. order to be served on commissioners 703 commissioners to comply with order 703 to report to town board 704 appeals from order 704 costs of proceedings 704 repair by any person or corporation 704 cost to be refunded 705 fast driving, penalty 705 iron, certificate of state engineer as to completion 706 over waters between towns and cities of over 1,500,000 706 J)oa/rd of supervisors, powers as to 708 may authorize change of location 710 may provide for construction, when destroyed 711 apportionment of expense, when intersected by town or county lines 712 county's share of expense, how raised 712 may authorize construction outside boundary 713 over county lines, maintenance 713 defective, liability of county 713 may authorize towns to construct 715 to borrow money therefor 715 bonds, how issued and sold 717 toll rates regulated by 719 laws and regulations respecting 722 BURIAL— permits by board of health 859 BURIAL GROUNDS, TOWN— trustees, election by town meeting 250 term of office 250 powers 250 to lay out grounds 251 lots ; free, and sale of 251 when belong to town 251 in district annexed to city 252 trustees, appointment, term of office 252, 253 BURYING GROUNDS— laying out highways through 670 CANVASS— of votes at town meetings, see Town Meetings 213 CANVASSERS, COUNTY BOARD OF— board of supervisors to act as 6S county clerk to be secretary of 6S meetings of 68 statement of canvass to be delivered to 69 correction of clerical errors in statements of inspectors 70 in statement of state or county board 71 statements of canvass by 72 Index. 1085 CANVASSERS, COUNTY BOARD OF— Continued. Page. decision as to persons elected 75 transmission of statements to secretary of state 76 CARRIAGES— use of highways by 691 term defined 693 CEMETERIES— exemption from taxation 340 duties of county treasurers as to cemetery trusts 98 CHARITABLE INSTITUTIONS— reports of commitments to 584, 587 by officers of institutions 585 accounts against municipalities to be verified 585, 588 superintendents, reports to clerks of board of supervisors 586,587 payments to, by municipalities 587 reports with relation to children placed in family homes 587 CHARITIES AID ASSOCIATION, STATE— visit of alms-houses 494 CHARITIES, STATE BOARD— powers and duties as to alms houses, see Alms-houses 491-495 duties as to state poor 574-581 CHATTEL MORTGAGfES— filing in town clerk's office 290 fees 291 discharge of 290 refiling 292 CHAUTAUQUA COUNTY— board of supervisors to fix salary of sheriff 50 CHURCHES— dwelling houses and real property of, exempt from taxation 336 CIVIL PRISONERS— when arrested 149 how long imprisoned 149 support of 151 contracts for 50 sheriff not to charge for 151 in house other than jail 151 privileges 151 conveyed through other counties 152 under United States process 152 when sick, may be removed 152 jail liberties 153 when entitled to 154 undertaking 154 execution and justification 155 effect 155 when insufficient 155 surrender by sureties 156 1086 Index. CIVIL PRISONERS— Continued. P-*^**^- escape, what constitutes ^°" liability of sheriflF 1^'^ indicted, when sheriff to produce 1^' CLERK OF BOARD OF SUPERVISORS— to forward to secretary of state names of newspapers for publica- tion of session laws ^^ appointment of '° general duties ' °> '" to publish statement of accounts audited by board 79 report of county, town and village indebtedness to comptroller 80 statement of taxes on railroad, telegraph, etc., companies 81 penalty for failure to make statement of report 81 statement of taxes upon certain corporations to be delivered to county treasurer 405 statement of equalized valuation to be forwarded to state comp- troller 405 abstract of tax rolls to be furnished county treasurer 406 report of supervisors and highway commissioners as to highways . . 638a reports of commitments to benevolent institutions 584-587 by superintendents of charitable institutions 586-587 COLLECTOR— See TiMces; Town Officers. election 227 term of oifice 228 undertaking, form and condition 262 recorded in county clerk's office 203 lien on property of collector and sureties 263 continuation and enforcement 264 to give notice of receipt of tax roll 414 notice to nonresidents 415 demand payment of tax after thirty days 416 levy on personal property 416 sale, disposition of proceeds 416, 418 on stock of banks 419 return unpaid taxes on debts due nonresidents 426 fees 430 return of unpaid taxes 430 form and contents 430 payments by, to proper officers 432 receipts to be given 433 failure to make, liability 433 undertaking, supervisor to prosecute 434 new, when time for collection of tax is extended 434 vacancy in office, town board to fill 435 failure to execute bond, sheriff to collect tax 436 undertaking, satisfaction by county treasurer 436 losses by default, chargeable to town 440 receipts to be given to person paying tax 441 dog tax, collection and payment 464 fees for collection 4g^ Index. 1087 COMMISSIONER OF JURORS— Page. appointment, etc., see Jurors 900-905 COMMUTATION— See Highway Labor. for performance of highway labor, rate, payment 649 COMPENSATION— of supervisor as member of board 12 special acts relating to 14 of county officers, county charge 32 court criers, county charge 32 of county judges and surrogates 115-117 how paid 117 of coroner, board of supervisors may fix 128 of town officers 814 CONDEMNATION— of real property by municipality 942 CONSTABLES — See Toiim Officers. attending courts, fees county charge 33 services in certain criminal matters 33 convej'ance of prisoners 3-1: sheriff to notify to attend courts 121 election 227 term of office 22S number, town meeting to determine 241 undertaking, form and condition 265 approval and sufficiency 265 effect and liability for breach 266 town clerk to certify names of, to county clerk 288 special, supervisor and two justices may appoint 238 badge, supervisor to furnish 238 powers and duties 238 instituting actions a misdemeanor 297 fees in criminal proceedings, when town or county charge 809 neglect of town clerk to return names 951 CONSUMPTION— hospitals and camps for, establishment 851 cases, report of health officer 861 CONTEMPT— prisoners confined for 158 CONTRACTS— in name of county 2 by town officers, in name of town 819 officers not to be interested in 950 CORONERS— See County Officers. fees for services of, a county charge 37 when to act as sheriff 126 county judge to designate j26 to execute duties until vacancy is filled 128 1088 Index. CORONERS— Continued. Page. salaries, board of supervisors to fix 128 inquest, see Coroner's Inquest 159-164 property found on deceased, disposition 162 statement to board of supervisors 163 fees as witness 163 may employ surgeon 163 report to board of supervisors 164 justices of the peace to hold inquest 164 CORONER'S INQUEST— when jury may be summoned 159 coroner disqualified 160 witnpssea, subpoena 160 verdict of jury 160 testimony in vrriting 161 to be delivered to magistrate 161 warrant, when issued 159-161 form 161 execution 162 proceedings on examination of defendant 162 disposition of property found on deceased 162 statement to board of supervisors 163 employment of surgeon 163 coroner as witness 163 fees of jurors 164 justices of the peace, when to hold 164 CORPORATIONS— names of, county clerk to report to secretary of state 102 supervisor to forward lists to state comptroller 281 place of taxation 349 personal property taxed where principal oflSce is located .... 349, 350 taxation of corporate stock 350 of railroad corporations 351 valuation of, how ascertained 351 statement of, to assessors 367 contents 367 penalty for omission to make 368 effect of 368 county clerks lu furnish data respecting 369 how assessed on assessment-roll 371-374 failure to pay taxes, sequestration 425 supplementary proceedings for collection of tax 428 dismissal of suit or proceeding 429 COUNTY— a municipal corporation 1 effect of declaring 1 actions and contracts in name of 2 actions by and against 3 boundaries, effect of alteration on debts 4 official seals / 179 kept by county clerk 180 Index. 1089 COUNTY— Continued. Page. temporary loans power to borrow money 0:' :! funded debt, contracted for specific purpose 'I- ' new bonds for retirement of old l)i' bonds, how issued 9J7 registration y2N coupon converted into registered 920 not invalidated by certain defects 929 limitation of indebtedness 929, 930 credit not to be loaned 931 liability for injuries from mobs and riota 941 COUNTY BUILDINGS— erection, alteration and acquisition of lands for 49 change of site by board of supervisors 59 petition of freeholders 60 action of board upon presentation of petition 61 submission of question to vote of people 61 legislature cannot change location 61 COUNTY CHARGES— generally 31 expenses in criminal actions 31 accounts of district attorneys 32 compensation of county officers 32 court criers 32 sheriff, as to criminals and summoning constables 33 constables, for attending courts of record 33 services in certain criminal matters 33 conveyance of prisoners 34 support of prisoners in jails 34 witnesses' fees in criminal actions 35 necessary expenditures by county officers 36 services of coroners 37 election expenses 37 bounties for destruction of noxious weeds and animals 37 compensation of supervisors 37 fees of justices of the peace 38 contingent expenses 38 court rooms and furniture 38 court expenses 39 costs in proceedings for removal of county officers 39 judgments against county 39 damages against county officer 39 costs and expenses of litigation 39, 40 county detective 41 stenographers' fees 41 how raised 41 publication of local laws passed by legislature 56 1090 Index. COUNTY CLERK— See County Officers; Fees. Page. duties of, relating to session law slips 58 secretary of county board of canvassers 68 to transmit statements of canvassers to secretary of state 76 election 100 governor to fill vacancy 100 undertaking 100 general powers and duties 101 custody of books, etc 101 to provide books at expense of county 101 to notify persons elected to office 101 to notify governor of vacancy 102 report of names or corporations 103 record of office 103 deputy, appointment of , 103 term of office 104 duties of 104 statement of receipts and expenses to board of supervisors 104 business hours in office of . . ! 105 false certificates 106 false statements in certificates 106 filing instrument without proof or acknowledgment 106 failure to publish statements 106 to furnish data respecting corporations 369 duties on taxation of mortgages. (See Mortgages, Taxation of) .446a-446i COUNTY ENGINEER— when board of supervisors may appoint 640 powers and duties 640 survey and classification of highways 640 maintenance of improved highways 640a rules, etc., for repairs on same 640a when state engineer and surveyor may refuse to 'cause further im- provement 6401) appointment, when county supervises highways 642 duties of, supervision of highways 642 reports to board of supervisors 645 duties as to construction of state roads 727 COUNTY FUNDS— duties of county treasurer as to 87, 88 deposit of, in banks 90 depositary to give undertaking upon receipt of 91 how drawn 92 county treasurer to deliver to successor 92 misappropriation by county treasurer 94 COUNTY JUDGE— election and term, 112 governor to fill vacancy 112 constitutional provisions as to 112 compensation of ; 115-117 how paid 117 COUNTY OFFICERS- necessary expenditures a county charge 36 costs in proceedings for removal, » county charge 39 salaries to be fixed by board of supervisors 46 board of supervisors may regulate hours of 48 undertakings, acts before executing 49 Index. 1091 COUNTY OFFICERS— Continued. Page. county clerk to notify persons elected 101 notice of vacancy to governor 102 reports to board of supervisors 178 penalty for failure to make 178 to be filed with clerk of board 178 moneys in hands, district attorney to recover 179 oflficial seals 179 oaths of office 180 failure to take 181 bonds and undertakings 181 effect 181 approval 182 to be recorded 182 sureties 182 removal by governor ■ 183 evidence in proceedings 184 order, how made, where filed 184 expenses a county charge action to prevent illegal acts 911 object of statute 912 when maintained 913 to restrain award of contract 914 audit of illegal claim 915 to prevent waste 918 by and against, in official capacities 919-92 '. for malfeasance in executing town bonds 933, 934 acting without having qualified 940 bribery 946 prevention from performance of duties 947 taking unlawful fees 947 illegal acts as to appointments 948 wrongful intrusion 948 neglect 949 misappropriation of public funds 949 not to be interested in contracts 950 COUNTY POOR— superintendent inay direct overseers to care for 483 COUNTY ROADS— maintenance, state to aid in 638 system, board of supervisors may adopt 639 map to be filed 639 county engineer 640 survey and classification of highways 640 maintenance of improved highways 640a rules, etc., for repairs on same 640a when state engineer and surveyor may refuse to cause further im- provement B40'o expense of constructing and maintaining 640b money therefor, how raised 640b bonds may be issued 641 proceeds, application 641 exempt from jurisdiction of town officers 641 in counties of less than 200 square miles 770-776 1092 Index. COUNTY SUPERVISION— Page. of highways and bridges, board of supervisors may provide 642 county engineer, duties 642 contracts for construction 643 bridges, construction 644 examination by county engineer 644 issue of town bonds for erection 644 reports of commissioners to county engineer 645 of county engineer to board of supervisors 645 COUNTY TREASURER— See County Officers; Taxation; Schools. to keep record of session laws 57 election of 83 appointment to fill vacancy 83 undertaking 84 deputy county treasurer in certain counties 86 undertaking 86 general powers and duties 86-90 to receive county moneys 87 to keep accounts 88 to render statements to board of supervisors 88 to render to comptroller statement of penalties 88 receipt and payment of state tax 89 special report as to investment of trust moneys 89, 90 to exhibit books and accounts to boards of supervisors 90 extension of time for making reports 90 banks of deposit, designation by 90, 91 interest on deposits 91 undertaking of depositary 91 designation does not affect liability of 92 drafts upon, how drawn 92 books and funds to be delivered to successor 92, 93 penalty for neglect to make report of statement 94 misappropriation of moneys and securities 94 failure to pay on order of court 94 duties under Liquor Tax Law 95 fees for collection of liquor tax 97 duties in respect to cemetery trusts 98 transfer tax, collection of 98 receipt upon payment 98 fees for collection 99 report of amount received to comptroller 99 official seal 179 not to be supervisor 254 collection of tax on banks 365, 366 payment of tax to, by railroad, telegraph, telephone and electric light companies 420 of school tax by railroad corporation 421 by railroad, where town was bonded 422 duties as to 422 to issue warrant for collection of tax on debts due nonresidents . . . 426 supplementary proceedings for collection of tax 428 dismissal of suits or proceedings 429 return of unpaid taxes to 430, 43 1 collector's failure to pay over taxes, duties 433 Index. 1093 COUNTY TREASURER— Continued. Page. extension of time for collection of tax 4.>4 satisfaction of collector's bond 436 payments to creditors of county 438 state tax, comptroller to charge 438 paj-ment, how made 438 fees 433 accounts to be stated by comptroller 440 losses by default, chargeable to county 440 sales by, for unpaid taxes 442-440 in counties embracing no part of forest preserve 443 list of property and notes to be published 443 how conducted 443, 444 redemption. . . 444 redemption of real property stricken from tax rolls 444 conveyance to purchaser 444, 44.5 effect 445 purchase money, when refunded 445 list of lands sold, transmitted to comptroller 446 duties as to taxation of mortgages. (See Mortgages, Taxation of) 446a-446i COURT CRIERS— compensation county charge 32 COURT EXPENSES— a county charge 39 COURT HOUSES— erection, alteration and acquisition of lands for 49 CRAIG COLONY FOR EPILEPTICS— admission of patients 506 support ; clothing a county charge 508 CRIMINAL ACTIONS— expenses, when county charge 31 accounts of district attorney 32 fees of justices and constables, when town or county charge 809 CRUSHED STONE— purchase, in certain towns 766 DEAF AND DUMB— list to be furnished to superintendent of public instruction 515 indigent, admission to institutions 516 when expense chargeable against county 517 admission to Institution for Improved Instruction of Deaf Mutes 517 to Western New York Institution 518 to Northern New York Institution 518 clothing charge upon county 519 DEATHS— registration ; fees a town charge 858 1094 Index. DECORATION DAY— Page town board may vote money for 822 DELIVERY OF BOOKS AND PAPERS— by outgoing officers 281 proceedings to compel 282 DEPUTY SHERIFFS— appointment of 122 number 123 powers 123 undertaking 123 sheriff to notify to attend courts 124 DISEASES— contagious and infectious, duties of board of health 860 report of cases, fee 861 vaccine virus to be supplied 861 DISTRICT ATTORNEY— See County Officers. election 107 governor to fill vacancy 107 undertaking 107 report of moneys received 108 assistant, board of supervisors may authorize appointment 109 powers of 109 appointment in Erie, Monroe, Onondaga and Rensselaer counties 109 salaries of 110 employment of counsel Ill to recover moneys in hands of county officers 179 DITCHES— right of highway commissioner to dig, for free passage of water. . . 622 DIVISION FENCES— adjoining owners to maintain 447 owners may permit lands to lie open 448 on change of title of lands 449 disagreement, determination by fence viewers 449 disputes between owners 450 proceedings of fence viewers 450 witnesses, subpoena and examination 450 fence viewers, fees and compensation 450 damages for failure to erect or repair 451 appraisal by fence viewers 451 destroyed by accident 451 damages by animals, where not properly maintained 452 use of barbed wire 453 fence viewers to prescribe kind 453 DISINFECTANTS— purchase of for use in jails 140 I:.TDEx. 1095 DOGS— Page. tax. on, board of supervisors may impose 462 rate, when board does not fix 462 description, owner to deliver to assessors 463 aasessment-roll to contain names of owners 463 collector to pay to supervisor 464 fees for collection 464 payment, when to be proved 464 killing sheep, liability of oviTiers 465 damages, fence viewers to ascertain 465 certificate of amount of damages 465 to be evidence 466 town board to audit 466 amount ordered paid in excess of dog fund 466 owner of sheep to refund to town if he recovers from owner of dog 466 chasing sheep to be killed 467 vicious, justice may order killed 467 penalties for failure to kill 46P who deemed owner 468 registration, board of supervisors may provide 469 adoption of resolution 469 fee ; issue of tag 470 assessors to deliver list of owners to town clerk 470 town clerk to compel 471 penalties for failure ; collection 471 seizure, when not tagged 472 disposition of fees and penalties 472 unregistered may be killed 473 mad, persons bitten by, to be sent to Pasteur Institute 531 DRAINAGE OF LOW LANDS— commissioners, appointment 299 petition for 299 compensation 300 acquisition of title 301 cost a lien on land 300 town bonds, issue and sale 300 assessment of cost on municipalities and lands 302 payment 302 notice 302, 303 levy and collection 304 issue of bonds by town to pay 304, 305 water commissioners, town oflScers as 306 powers and duties 306, 307 town, supervisor as 307 compensation 312 repairs or enlargement of ditch 307 order for 308 survey and report by engineer ,308 contracts let by supervisor 309 1096 Index. DRAINAGE OF LOW LANDS— Continued. Page. expense, assessment 310 assessments, collection 311 right of contractor to enter on lands 312 right of way, acquisition 314 examination of ditches 315 agricultural, under agreements with owner 317 DRAINS— right of highway commissioner to dig, for free passage of water ... 622 ELECTION NOTICES— designation of newspapers to publish 69 ELECTION OFFICERS— designation, number, qualifications 239 ELECTIONS— See To^on Meetings. expenses incurred by county clerk, a county charge 37 ELECTRIC LIGHT CORPORATION— may pay tax to county treasurer 420 enforcement of tax, sale of instruments 424 EPILEPTICS— support at Craig Colony 606 a state expense 508 payment of expense of clothing by county 508 EQUALIZATION OF ASSESSMENTS— See Bocurd of Supervisors; Taxation. board of supervisors to examine assessment-rolls for 394 commissioners appointed by board of supervisors 305 eligibility 395 appointment of county judge in case of disagreement 305 examination of assessment-rolls 3P0 equalization of valuations 296 report of equalized valuations to board of supervisors 397 statement to be forwarded to comptroller by clerk of board 405 appeals from, by supervisor to state board 409 how and when brought 409 petitions for, prescribed by state board 410 rules respecting 410 time and place of hearing 410 determination of state board 411 costs on, to be fixed by state board 412 ESCAPE— of civil prisoner, what constitutes 150 liability of sheriff \~u actions for 157 EXECUTORS AND ADMINISTRATORS— assessment of personal property held by 345, 346 EXECUTOR OR ADMINISTRATOR— assessment of, generally 374, 375 Index. 1097 EXEMPTIONS FROM TAXATION— Paqe. property exempt 327 rule of construction 327 effect as to assessments for local improvements 328 powers of assessors 328 property of state 328, 329 of municipal corporations 329 in Indian reservation 330 exempt from execution 330 acquired by soldier's pension 330, 331 application for exemption 331 of charitable, etc., corporations 333 what corporations entitled to 333 of volunteer firemen 336 of dwelling houses and property of religious corporations 336 of agricultural society 336 of ministers and priests 336 of vessels engaged in ocean commerce 336 securities of nonresidents 337 deposits in savings banks 338 life insurance corporation, accumulations 338 co-operative, moneys collected 338 mutual, personal property 339 medical societies 339 of corporate stock 339 of hospital corporations 339 of cemeteries 340 of plank road and turnpike corporations 340, 341 of soldiers monument association 341 from assessment for highway labor 625 report of exempt property by assessors 354 from local taxation 446a from mortgage tax 446b FAIR GROUND^ exhibitions on, not to require license 832 FARM PRODUCE— peddling, no license required 827 FEEBLE-MINDED CHILDREN— support at Syracuse institution 50^! FEES OF COUNTY AND TOWN OFFICERS— assessors 954 auditors, town 955 collectors 955 constables 955-957 coroners 958 county clerks 959-90 1 county treasurer 902 court criers 962 election officers 963 fence viewers 963 health officer 963 highway commissioners and overseers 963 1098 Index. FEES OF COUNTY AND TOWN OFEICEKS— Continued. PAGE. jurors ^^^ jurors, commissioners of ''"* justices of the peace 964-967 overseers of the poor 96^ physicians ^68 pound masters 968 printers 968 railroad commissioner 969 sealer of weights and measures 969 school commissioners 969 sheriffs 969-972 town clerks 972 United States loan commissioners 973 FENCES — See Division Fences. rules as to, town meeting may make 245 removal from along highway, abatement of tax 657 FENCE VIEWERS— who are 447 duties as to division fences, see Division Fences 448-453 as to strayed animals doing damage 454-460 as to sheep killed or injured by dogs 465 drainage of agricultural lands 318 findings 318 compensation 318 duties and qualifications 319 FERRIES— County Court to license 798 undertaking of licensee 798 appendages for rope 799 superintendent of public works may lease right of passage 799 rates to be posted 799 FINES— remission of 143 prisoners to be discharged if unable to pay 143 received by county officers, reports to board of supervisors ITS collected by justice, payment 298 FIRE COMPANIES— real property exempt from taxation 336 town, town board to appoint members 833 organization 833 purchase of fire apparatus 833, 834 FIRE DISTRICTS— establishment of, by board of supervisors 62 fire commissioners, election of 63 powers und duties 63, 64 appropriation of money for fire protection 64, 65 levy of tax u|iiiii inhabitants "4 effect of inrurporation of village within limits of fire district 67 Index. 1099 FIRE WARDEN— Page. supervisor as 277, 278 compensation 278 FIRES IN WOODS— duties of town ofiBcers as to 277 fire wardens and fire districts 277 fire wardens and fire districts, see Forest Fires 277 FOREST FIRES— supervisor to act as fire warden 277 duties 278 compensation of fire wardens and otliers employed at 278 railroads to use appliances to prevent 279 when to be started to clear land 2P0 penalty for setting 280 FOREST PRESERVE— assessment of state lands in Sfil state lands, tax to be paid by state 430 FORMS— resolution of board of supervisors, general form 975 requesting action by state legislature 97" subpoena by board of supervisors 970 accounts against a county 976 contracts with penitentiaries 977 clerk of board, oath of office 978 statement of county and town accounts 970 of county clerk 980 district attorney, report of 981 alteration of town boundaries, application 982 resolution dividing a town and erecting a new town 983 resolution providing for alteration of boundaries 98 '- town meetings, application for special 985 notice of special 98i,> application for submission of proposition to be voted upon at, 98(i notice of submission of proposition 9S;> application for holding, in election districts 987 justice of Ihe peace, certificate of election 987 undertaking of supervisor 987 of justice of the peace 989 of commissioner of highways OS') of overseer of the poor goQ of town collector 990 of constable 991 resignation of town officers 991 appointment to fill vacancy in town office ggj notice of appointment to town office 992 oath of town officer on delivery of books 992 application for exemption of pension from taxation 993 report of bank to local assessors 993 1100 Index. FORMS— Continued. Page. statement of levy of tax by board of supervisors upon bank stock, 994 warrant to county treasurer for collecting bank tax 995 statement of individual banker to assessors 995 notice to bank of assessment 999 statement of corporations to assessors 996 of agent of nonresident creditor 997 notice of completion of assessment-roll 998 affidavit on application to correct assessment 998 notice of filing completed assessment-roll 998 certificate of neglect of one of assessors 999 correction of assessment-roll, petition of town assessors 999 collector's warrant 1001 statement of taxes upon certain corporations 1002 abstract of tax rolls 1002 collector's notice of receipt of roll 1003 notice of tax sale by collector 1003 collector's affidavit attached to return of unpaid taxes 1003 extension of time for collection of tax, application of supervisor . . 1004 order of treasurer granting 1004 division fences, decision of fence viewers upon transfer of title . . . 1004 notice to choose fence viewers 1005 certificate of apportionment of 1005 subpoena by fence viewers 1006 appraisement of damages for neglect to build or repair 1006 notice to build or repair 1007 notice to build, when destroyed by accident 1007 strayed animals, notice to be filed in office of town clerk 1007 notice to owners 1008 notice of sale by fence viewers 1008 notice of fence viewers' meeting 1008 determination of fence viewers as to damages 1009 sheep killed or injured by dogs, application to fence viewers 1009 certificate as to damages 1009 poor persons, order of overseers for removal to alms-house 1010 superintendent's order to pay expenses incurred by overseers, 1010 order of supervisor 1011 sanction of county superintendent for expenditure of more than ten dollars 1011 order for supplies, verification of accounts 1011 overseers' book showing statistics 1012 books of accounts of overseers 1013 accounts of overseers to be rendered to town boards 1014 report of overseer of the poor 1014 report of supervisor as to support of 1015 notice from one town to another requiring support of 1016 order of overseers for removal to alms-house 1010 notice to appear before superintendent in contest as to settle- ment 1016 subpoena in case of dispute concerning settlement 1016 Index. 1101 FORMS— Continued. Page. decision of superintendent concerning settlement 1017 notice of superintendent as to relief at expense of town 1017 decision of superintendent upon re-examination as to settle- ment 1018 notice of decision as to settlement 1018 notice of appeal to County Court from decision as to settle- ment 1019 notice of improper removal 1019 notice of denial of removal 1020 bastards, accounts of overseers for moneys received 1020 agreement upon compromise of putative father 1021 soldiers, sailors and marines, notice of commander of post of G. A. R. as to relief 1021 requests for relief of 1022 highway commissioner districts, notice of division of town into . . 1023 commissioner of highways, statement to supervisor as to unper- performed labor 1023 notice of transmission of statement 1024 consent of town board as to extraordinary expenditures for high- way purposes 1024 request for special session to audit expenses 1025 certificate of supervisor and town clerk as to audit of expenses. . . 1025 account and certilicate of commissioners of highways as to ex- penditures 1026 complaint that toll bridge ia unsafe 1026 notice to owners of toll bridge 1027 water pipes in a highway, application to lay 1027 consent to lay and maintain 1027 report of commissioners to first meeting of town board 1028 to second meeting of town board 1029 list of nonresident lands prepared by commissioner 1029 appeal by nonresident from assessment for highway labor 1030 notice of appeal 1030 new assessment by overseer of highways 1030 order of commissioner permitting planting of trees or construction of sidewalks 1031 sidewalks, application to expend highway tax upon 1031 authority of commissioners 1032 certificate of anticipation 1032 assignment to be indorsed on back of certificate 1033 water trough, certificate of abatement of highway tax 1033 system of taxation for working highways, application for change. . 1033 notice of assessment of highway labor upon corporation 1034 to agent of nonresident 1034 notice to nonresident to be filed in office of town clerk 1034 return of overseers of unperformed highway labor 1035 annual return of overseers 1036 weeds, brush and briers, notice to occupant to cut 1037 report of overseers as to amount expended 1038 1102 Index. FORMS— Continued. Page. afladavit as to use of wide tires 103!) laying out or altering highways, order upon consent of town board, 1039 release of damages by owners of the land 1040 order, on release from owners 1040 dedication of land and release of damages 1040 consent of town board 1041 application by taxpayers 1041 application for appointment of commissioners 1042 order appointing commissioners 1043 notice to commissioners of their appointment 1043 notice of meeting of commissioners 1043 afBdavit of posting and service of notice 1044 certificate of commissioners in favor of applicant 1044 certificate denying application 1045 notice of motion to confirm, vacate or modify decision 1046 order confirming decision 1046 certificate of commissioners as to laying out highway through orchard 1047 order of County Court 1047 order of appellate division 1048 description of highway abandoned 1048 private road, application for 1048 notice to owner or occupant to remove fences 1049 notice to remove obstruction or encroachment 1049 statement of expenses incurred in repair of bridges 1049 notice to commissioner of adjoining towns to repair bridge 1050 consent to rebuild or repair bridge 1050 petition of freeholders to commissioners of adjoining towns 1051 notice of motion for order compelling construction or repair of bridge 1051 afiidavit on motion for an order to build a bridge 1052 order of court to rebuild bridge 1052 application to board of supervisors for laying out highway 1053 notice 1053 proof of service of application and notice 1053 resolution of board of supervisors laying out highway 1054 authority to construct, etc., bridge or highway and to borrow money therefor, application to board of supervisors 1054 request by town board and commissioners 1056 application by town board to issue bonds when indebtedness has been incurred 1056 resolution of board of supervisors 1057 good roads law, petition to board of supervisors under lOGO resolutions to be adopted by board of supervisors 1061-1065 accounts of justices against town in criminal matters 1066 of town officers lOOfi certificate of examination of 1007 affidavit to be .annexed when presented for audit 1007 abstract of names of persons who have presented 1068 Index. 110. J FORMS— Continued. Page. appointment of board of auditors by town board 1068 bond of supervisors on account of school moneys 1009 report of school moneys on hand 1069 annual report of town indebtedness 1070 FULLER LAW— what is 637 GARBAGE— collection and destruction 851 GARDENS— laying out highways through 670 GOSPEL AND SCHOOL LOTS— supervisor to report funds to superintendent 875 duties of 889 apportionment of fund among school districts 891 GRAND ARMY OF REPUBLIC— lease of public buildings to 850 relief of poor veterans 569 GRAND JURY— list prepared by board of supervisors 893, 894 number of jurors, increase 895 inserting new names in box 895 GRAVEL BEDS— acquisition by overseer 604 GRIEVANCE DAY — See Assessors; Taxation, etc. meeting of assessors to hear complaint 378 complainants to file statement 378 sufficiency of statement 379 examination of claimant 380 failure to appear and testify 380 GUIDE BOARDS— erection of, by commissioner 599 application for 599 by turnpike companies 600 what to indicate 600 HABEAS CORPUS— suspension of during term of court 143 HAWKING AND PEDDLING— town board may prohibit, without a license 825 licenses issued by town clerk 826 by soldiers, sailors and marines 826 farm produce, no license required 827 penalty for, without license 823 for refusal to exhibit license 828 l!l04 Index. HEALTH— Page!. local board, town board as 853 appointment of health oflBeer 853, 854 meetings 854 duties of health officer 855 allowance to health officer 855 orders and regulations 855 for suppression of nuisances 856 subpoenas and warrants 856, 857 registration of births, marriages and deaths 858 cost a town charge 859 burial and burial permits 859 contagious and infectious diseases 860- report of health officers 861 fee for each case reported 861 vaccine virus to be supplied 861 nuisances, complaints as to 862 powers and duties as to 862, 863 removal ; expense paid by owner 863 expense of abatement, a lieu 864 removal of accumulation of water tending to breed mos- quitoes 865a payment of expense 865a jurisdiction in combined sanitation and registration districts.. 866 expenses incurred, town charge 866 relief of indigent Indians in ease of epidemic 867 mandamus by state department 867 diseases affecting animals, duties as to 8C7 HIGHWAY COMMISSIONER— See Highways; Town Officers. application for special town meeting 201 separate ballots for election, in certain towns 212 election of 227 term of office 228 number, how determined 235 submission of proposition 235 undertaking, form and condition 261 sufficiency and approval 261 duties in respect to fires in woods 277 delivery of books and papers to successor 281 proceedings to compel 282 one to be designated as treasurer 592 undertaking 592 powers of one 59$ district to be assigned to 593 duties when town is divided into districts 594 general powers and duties 594-598 erection of mile stones and guide boards 599 purchase of scraper and plow, and road machine 601 of stone crusher 603 additional tax, may cause vote to be taken 605 expenditure of money for extraordinary repairs 600 consent of town board 606 audit of claims for 607 Index. 1105 HIGHWAY COMMISSIONERS— Continued. Paoe. certificate as to necessity of services and materials 609 examination of toll-bridge 609 consent to laying sewer and waste pipes in highways 610 sue for injuries to highways 611 report to town board 615 contents 615 estimated coat of improvements 615 to prosecute overseers for penalties 62Z penalty for failure 622 drains or ditches for the free passage of water 622 meetings 624 assessment of highway labor 625 reports to state engineer 638a highway accounts 638a bridges, duties as to repair and rebuilding, see Bridges 697-707 turnpike, plank roads and bridges, duties 778-793 consent to use of highways 780 completion of road, certificate 784 duties as inspectors 788 change of route 790 encroachment of fences 792 highway labor upon 794 compensation 814 HIGHWAY COMMISSIONER DISTRICTS— division of town into 693 duties of commissioner 594 HIGHWAY DISTRICTS— town to be divided into 596 petition for establishment of separate 596 taxable inhabitants assigned to 597 overseers, appointment 597 inspection of highways 599 HIGHWAY LABOR— commissioner to assess 625 assessment, number of days 625 persons assessed ; exemptions 625 against property 625 roll, how made 626 application to new highway 627 separate valuations where land is partly in town and village or city 627 list of taxpayers, town clerk to copy 628 transmission to overseer 628 overseers may add names 628 appeal by nonresidents 629 on persons living on private road 629 where lands not owned by occupant 629 deduction by tenant 630 of persons omitted from assessment-roll 630 new, when labor assessed insufficient 631 1106 Index. HIGHWAY LABOR— Continued. Page. not worked, reassessment ^^^ abatement, for planting shade trees 632 for construction of side wallc 633 for maintaining watering trough 634 notice to residents to perform 647 to agents of nonresidents 648 commutation, payment 649 expenditure 649 by corporations 649 teams and implements 650 substitute may be furnished 650 penalty for neglect to perform 650 for idleness or faithlessness 650 recovery by overseer 651 list of persons who have not performed 651 overseer to make 651 penalty for failure to present 652 arrearages in performance, levy by board of supervisors 652 where highway is on boundary line between tovFn and village or city 656 abatement for removal of fence 657 for erection and maintenance of street lamps 657 rebate for using wide tires 658 HIGHWAY TAXATION— See Highmay Labor. systems defined 635 change by towns 635 application for vote for change 635 when change to take effect 635 money, levy of tax under 636 HIGHWAYS— duties of commissioner, see Highway Commissioner 594 inspection by commissioner 595 description to be filed 596 districts, division of town, see Eighioay Districts 597 moneys, how expended upon 598 entry upon adjoining lands 598 inspection by overseers 599 HIGHWAYS — See Highway Commissioner ; Bridges, etc. additional tax for, vote of electors 605 submission of proposition 605 extraordinary repairs, expenditure of money 606 consent of town board 606 audit of claims 607 change of grade, damages 608 claim to be presented to town board 608 determination of damages 608 accounts for services and materials 609 commissioner's certificate as to necessity 609 Index. 1107 HIGHWAYS— Continued. Page. pipes in, consent of commissioner (ilo injuries to, commissioner may sue for 611 defective, liability of towns (ilZ notice of claim 613 action against commissioner, if caused by his neglect 614 audit of claim by town board 614 trees and sidewalks, owners may plant and construct 631 county supervision, board of supervisors may provide for 639 county engineer, appointment 640 auties and poweis 640 survey and claasilication of highways 040 maintenance of improved high.vay!i 640a rules, etc., for repairs on same 640a when state engineer an'd surveyor may refuse to cause further improvement 640b construction and maintenance 640b on boundary lines of town and village or city 656 laying out, altering, or discontinuing 659 commissioner of highways may order 660 release from damages 661 application for 662 for appointment of commissioners 663 undertaking of applicant 664 commissioners, application for 663 appointment ; oaths ; duties 665 meetings ; notices 6Uu damages ; benefits deducted 668 decision denying application 608 motion to vacate, modify or confirm 6G8 costs on motion 685 final, if no motion is made 669 compensation 672 through orchards, gardens and vineyards 670 procedure 670, 671 buildings, yards, enclosures 671 burying grounds 672 costs, by whom paid 672 on motion to confirm, vacate or modify 685 damages and costs, audited by town board 673 in two or more towns, application to whom made 676 highways upon town lines 677 final determination and papers to be filed 678 adjournment of proceedings 684 papers to be filed in town clerk's office 685 method of creating 660 survey, commissioner may cause to be made 662 disagreement between towns as to improvement 674 commissioners to settle 674 proceedings where officers of different towns disagree 675 upon town lines, application for laying out 677 abandoned, when deemed 678 written description to be filed and recorded 673 lands used as, for twenty years 679 injuries, treble damages 686 liTilnwfiil nh=*+rnff inn n mi-iflomeaiior 687 1108 Index. HIGHWAYS— Continued. Page. deposit of injurious substances in 687 steam traction engines on, use regulated 688 trees along, to whom belong 689 injuries to, penalty 690 carriages meeting to turn to right 690 use of, by carriages, and other vehicles 691 intemperate drivers not to be employed 691 to be discharged upon notice 692 stone and rubbish not to be dumped in 693 removal of fences which encroach upon 693 falling trees into 694 to be removed 694 obstruction or encroachment, penalty 694 commissioners to notify owners to remove 695 penalties to be recovered by commissioners 696 board of supervisors may lay out, open, alter or discontinue 708 may authorize towns to construct 715 to borrow money therefor 715 bonds, how issued and sold 717 survey, may authorize commissioners to make 719 in counties containing 300,000 acres improved lands 720 laws and regulations respecting 722 state aid in construction of 723-736 board of supervisors to pass resolution 723 petition of land owners 724 gtate engineer to investigate 724 approval of resolution 724 plans and specification 725 estimate of cost 725 board to resolve to construct 726 state engineer to accept bids and award contracts 727 duties of county engineer 727 expense of constitution, payment 728 assessment upon abutting owners 729 order of construction 729 closing highway 729 completion, duties of state engineer 730 constructing and maintaining ditches 731 money tax upon abutting owners 731a connecting sections, construction ^ ^ 731a state engineer to prepare statistics 731b co-operation with highway officers 731c commissioners to furnish information to 731d street surface railroad not to be built upon 731d acquisition of right of way 732-736 proceedings in court 732 payment of award 735 disposition of lands acquired 736 ■use of bicycles on, see Bicycles 737-745 of automobiles on, see Automobiles 745-751 Index. 1109 HIGHWAYS— Continued. Page. crossing railroads, not to be at grade 752 auties of railroad commission 752 existing, changes in 754 proceedings before commission 754, 755 cost of maintenance of bridges and subway 756 payment of cost of construction 757-759 issue of town bonds 761 use of, by street surface railroad 761-763 discontinuance in towns having expended $300,000 for macadam road 764 damages, payment 765 New York and Albany post road 765 crushed stone, purchase in certain towns 766 widening, where narrowed by stream or river 768 proceedings therefor 768, 769 county, in counties of less than 200 square miles 770 amount expended; county bonds 771 improvement and repair 773 regulations controlling 774 railways and gas and water pipes in 775 town board may borrow money for 820 HOLIDAYS AND HALF HOLIDAYS— enumerated 105 business in public offices on 105 HOSPITAL CORPORATIONS— exemption from taxation 339 HOUSES OF DETENTION— board of supervisors may establish 144 IDIOTS— unteachable, support at Rome Custodial Asylum 505 duties of superintendents of poor 505 INDEBTEDNESS— of county, town and village, statement to comptroller 80 INDIAN POOR PERSONS— relief of 579 removal to alms-house 579 contracts for support 580 expenses of support paid by state 580 duties of superintendent of alien poor 580 relief of indigent Indians in case of epidemic 867 INDIVIDUAL BANKER— taxation of 354-367 INQUEST, COROKER'S — See Coroner's Inquest 159 1110 Index. INSANE— Page. commitment 496 costs a charge on county or town 497 poor and indigent, supported by state 497 relatives to support 498 proceedings to compel 556-560 duties of poor officers as to 498 poor officers to see that relief is granted 499 hospitals to which committed 499 dangerous, apprehension 500 duties of poor officers 500 discharge from hospitals 502 duties of superintendent of poor 502 INSPECTORS OF ELECTION— designation, number, qualifications 239 term of office 239 in towns, appointment 240 INTEMPERATE DRIVERS— not to be employed 691 to be discharged upon notice 692 INSURANCE— of town and county property. ,,,,., 943 ISLANDS— town lines intersecting 192 JAILS— erection, alteration and lands for 4S sheriffs to have custody of 136 number of rooms 137 duties of state commissioners as to 136 prisoners in, custody and control 138 civil, to be kept separate 138 male and female to be kept separate 138 liability of sheriff for injury to 139 to be furnished with wholesome food 140 employment 140 to be furnished with reading matter 141 record of commitments and discharges 141 of United States to be received 142 calendars of names to be presented to court 14? to be discharged if not indicted 142 if, unable to pay fine 143 communications with, prohibited 145 sale of liquors to 145 service of papers on 146 removal in case of emergency 147 purchase of disinfectants for use in 140 who may visit 144 Index. 1111 JAILS — Continued. Page. physician for, board of supervisors to appoint 145 designation of otlier place as 147 modification or revocation 147 effect of jail liberties 148 when revoked 148 civil prisoners, see Civil Prisoners 149 chamber rent in, sheriff not to charge for 12 prisoners confined for contempt 158 JAIL LIBERTIES— how long imprisoned in 150 in certain counties 153 powers of board of supervisors 154 boundaries, how designated 154 civil prisoner, when entitled to 154 undertaking 154 execution and justification 155 effect 155 when insufficient 155 surrender by sureties 156 escape, what constitutes 156 liability of sheriff 157 actions for 157 JUDGMENTS— against county, a county charge 39 against town or county, payment 941 town board may borrow money to pay 945 JUNK BUSINESS— licenses; how regulated 831 JURORS— grand, list prepared by board of supervisors 893, 894 trial, list, how made 896 qualifications 896, 897 fees 906 exemptions 898 duplicate lists 899 commissioners of, office established 900 appointment "0'' term of office, salary, rooms 901 assistants and clerks 902 selection of jurors; preparation of list 903 lists to be filed 904 of grand jurors 905 drawing grand jurors 905 allowance by board of supervisors to grand and trial 906 JURY DISTRICTS— establishment of, by board of supervisors 50 1112 Index. JUSTICES OF THE PEACE— Page. fees of, in certain criminal cases, a county charge 38 to hold inquest on dead body, when 164 preside at town meetings 203 acts ministerial 203 election of 227 vacancies, election to fill 227, 228 number and terms 231 ballots for full term and vacancies 232 constitutional provision as to 232 power of legislature as to office of 232 removal 233 in new towns 234 upon alteration of town boundaries 234 certificate of election 234 special constables, appointment 238 undertaking, form and condition 259, 260 sufficiency and approval 260 certificate of filing 260 oath of office, filing 260 acts legalized 261 duties in respect to forest fires 277-280 vacancy, town clerk to certify to county clerk 288 constitutional provisions 294 removal 295 by appellate division ; proceedings 295 deposit of books with town clerk 296 docket book 296 delivery of books and papers to successor 296 buying demands a misdemeanor 297 payment of fines and penalties 298 may order vicious dog to be killed 467 fees in criminal proceedings, when town or county charge 809 lease of buildings for use of 850 compensation 814 LEGALIZATION— by board of supervisors of acts of town meeting or village election, 52 LEVY — See Taxation; Taxes, etc. of taxes by board of supervisors 402 LIFE INSURANCE CORPORATIONS— accumulations exempt from taxation 338 on assessment plan, moneys collected exempt from taxation 338 mutual, personal property exempt from taxation 339 LIQUOR TAX— to be paid to and distributed by county treasurer 95 fees of county treasurer for collection of 97 Index. 1113 LIQUOR TAX LAW— Page. submission of propositions under, at town meeting 209 effect of insufficient notice 210 sufficiency of application 210 LOAN ASSOCIATIONS— accumulations exempt from taxation 338 LOAN COMMISSIONERS— appointment 166 qualification 166 discharge and cancellation of mortgages 166 bonds 167 powers of single commissioner 167 books and records 167 supervision of existing mortgages 168 loan of moneys 168 receipt and investment of fund 169 sale of real estate 170 deposit of moneys 170 new accounts, for parts of premises 171 to maintain actions 171 foreclosure ; redemption 171-173 disposition of surplus moneys 174 purchases for state 174 reports to comptroller 175 certified copy of mortgage 176 to exhibit mortgages and books to boards of supervisors 177 not to be supervisors 255 LOCK-UPS— town meeting may direct erection 249 use ; detention of prisoners 249 MARINES — See Soldiers, Sailors and Marines. MARRIAGE CERTIFICATES— filing and entry 291 fees 292 MARRIAGES— registration ; fees a town charge 858 MEDICAL SOCIETIES— in cities of first class, real property exempt from taxation 339 MEMORIAL DAY— town board may vote money for 821 MILE STONES— erection of, by commissioner 599 by turnpike companies 600 injuries, a misdemeanor 687 1114: Index. MINISTERS— Page. real property exempt from taxation 33ft MOBS AND RIOTS— injuries, liability of county 941 MONEY SYSTEM OF TAXATION— for highways, adoption 635 levy of tax under 636 amount of tax 636 towns adopting, payment by state to 637 MORTGAGES, TAXATION OF— definitions 446a exemption 'from local taxation 446a exemptions 446b recording tax 446b payment of taxes 446b eflfect of non-payment of taxes 446c trust mortgages 446e apportionment by state board of tax commissioners 446d payment over and distribution of taxes 446f expenses of officers 446h supervisory power of state board of tax commissioners and state comptroller 446h tax on prior advanced mortgages 446h effect of amendment of 1906 446i MOSQUITOES— removal of accumulation of water tending to breed 865a payment of expense >. 865a MOTOR VEHICLES— See AutomoUles. MUNICIPAL CORPORATION— See Bonds. defined 1 county declared to be 1 effect 1 NASSAU COUNTY— board of supervisors, constitutionality of special act 6 NEW YORK AND ALBANY POST ROAD— preservation 765 NONRESIDENT LANDS— commissioner of highways to make list of 624 assessment for highway labor, appeal 629^ NONRESIDENTS— securities exempt from taxation 337 real property of, designation in assessment-roll 369 surveys and maps to be made by supervisor 370 of United States, assessment of debts owing to 376 real property, description of, board of supervisors, may change.. 397 owners of rents reserved, review of assessment by board of supervisors 397 notice by collector of receipt of tax roll 415 addresses to be filed in office of town clerk 415 town clerk to furnish to collector 415 debts due to, collector to return unpaid tax 426 duties of county treasurer 426 warrant to sheriff for collection of tax 427 board of supervisors to apportion highway tax 721 Index. 1115 NUISANCES— Page. orders and regulations of boards of health 856 complaints as to 862 suppression by board of health 862, 863 expense paid by owner "of property 863 abatement 864 expense a lien on property 864 ORCHARDS— laying out highways through 670 OVERSEERS OF HIGHWAYS— See Bridges; Highways; Highway Labor. appointment 597 commissioner to require, to warn taxpayers 597 inspection of highways . . .■ 599 acquisition of gravel beds 604 general duties 617 destruction of weeds 618 collection of fines and commutation money 619 opening snow blockade 620 penalties for failure to perform duties 62? commissioner to collect 62? compensation 623 taxable inhabitants, to deliver list to town clerk 624 list, may add names 628 performance of labor, notice to residents 647 may require teams and implements 650 penalty for neglect, recovery 651 list of persons failing 651 penalty for failure to present 652 accounts to be rendered to commissioner 653 contents 653, 654 weeds and brush in highways 654 to notify owners to cut 655 OVERSEERS OF THE POOR— See Bastards; Poor Persons. application for special town meeting 201 election of 227 number, determination 236 appointment by town board, when 236 submission of question 236 undertaking 237 compensation 237 undertaking, when elected or appointed 202 delivery of books and papers to successor 281 proceedings to compel 282 removal of poor person to alms-house 520 expense to be paid by county treasurer 522 temporary relief, order of supervisor 523 where county has no alms-house 524 needs of poor persons, to examine monthly 525 settlement of accounts 525 books and accounts 526 contents ; how kept 526 presentation to town board 527 statements to be made to town board 528 estimate of expenditures 528, 529 abstract of accounts, supervisor to present to board of supervisors. 530 duties as to persons bit by mad dogs 531 settlement of poor persons, duties as to proceedings 537 1116 Index. OVERSEERS OF THE POOR— Continued. Page. unlawful removal of poor persons, duties 541-544 to notify superintendent of cases of bastardy 549 to support bastards, until cared for by superintendent 549 whether chargeable or not 549 application of money received from father 550 order of supervisor 553 compel relatives to support poor person 556 seizure of property of absconding parents 563 sale of property seized 565 reports as to children placed in family homes 587 compensation , ,,.,,,,,,,,,,,,.... 814 PEDDLING — See Ewwkvng and Peddling. PENALTIES— received by county officers, reports to board of supervisors 178 collected by justice, payment 298 PENITENTIARIES— board of supervisors may contract with 48 PENSION MONEY— property purchased, exempt from taxation 330, 331 application for exemption 332 PERSONAL PROPERTY— includes what, for purpose of taxation 325 taxation of 325 liable to taxation 326 assessment of, no deduction for certain indebtedness 341, 342 place of taxation 343 of agents, trustees, guardians, executors, or administrators . . . 344 rents reserved 344 residence, what constitutes 344 PHYSICIANS— for jail, board of supervisors may appoint 146 PIPE LINE CORPORATIONS— apportionment of valuation between school districts 383 PLANK ROAD CORPORATIONS— See Turnpike and Plank Road Corporations. exemption from taxation 340 341 POLL CLERKS— designation, number, qualiflcationg 239 in towns, appointment 241 POOR— support, special town meeting to raise money 20O Index. 1117 POOR PERSONS — See Overseer of Poor; Superintendent of Poor. Page. support, at alms-house, accounts with towns 485 county, superintendent may direct overseers to care for 483 estimate for support 486 town, statement of amount expended 485 animal apportionment to towns 485 rules and regulations for temporary relief 488 failure to make reports as to ; 488 children, support in families or charitable institutions 490 alien, not to be admitted to certain institutions 608 when relieved in alms-house 520 care, not to be put up at auction 522 temporary relief prior to removal to almshouse 522 when can not be removed to alms-house 523 order of supervisor 523 where county has no almshouse 524 needs of, overseer to examine monthly 525 settlement of accounts 526 estimates as to expenditures for 528 accounts of town officers 530 abstracts of overseer's accounts 530 treatment in hospitals 531 aettlement, how gained 533 of married women 535 when determined by that of parents 535 of children 534, 535 of apprentices ■ 535 once gained, unlawful removal 538 to be supported at place of 537 proceedings to determine 537 county superintendents to conduct 537 notice to appear before 537 hearing ; decision 538 of mother of bastard 548 of bastards, disputes concerning 552 effect of failure to provide support, when overseer has been notified, 538 board of supervisors to charge support to proper town 539 county, superintendent to determine who are 539 support in counties having no alms-houses 540 unlawful removal, a misdemeanor 541 proceedings in care of 542 denial ; service 543 support a. charge on town or county from which removed, unless denial served 544 action to recover for support 545 foreign, penalty for bringing into state 545 relatives to support 556 liability 556 insane poor 557 overseers to apply to court 557 Ills Index. POOR PERSONS— Continued. Page. hearing ; order of court 558 apportionment among relatives 558 order to specify time, etc 559 in eiieet a judgment 559 costs of proceedings 560 action on order 560 State, who are 574 relief of, duties of state board of charities 574 location of alms-houses for 575 to be conveyed to state alms-houses 675 expenses for support 576 duties of superintendent of state and alien poor 576, 578 visitation of state alms-houses 577 transfer to other states or counties 578 children, care and binding out 578 Indian, relief of 579-581 relief of, in case of epidemic 867 town and county, distinction abolished or revived 582 resolution of board of supervisors 582 abolishing, duties of overseers 583 investment of tovpn poor money 583 owning property, action to recover for support 584 support, town board may borrow money for 820 POUNDMASTERS— number, town meeting to determine 241 election 246 to care for pounds 246 duties and fees, as to strayed animals 459 fees 816 POUNDS— erection, town meeting may provide for 244 under control of poundmasters 246 PRIESTS— real property exempt from taxation 336 PRISONERS— See Jails; Sheriffs. support of, in jails, a county charge 34 contracts for board of 50 in jails 138 separation of 139 to be furnished with wholesome food 140 employment of 140 to be furnished with reading matter 141 record of commitments and discharges 141 of United States to be received 142 calendars or names of 142 discharge if not indicted 1 42 if unable to pay fine 143 communications with, prohibited 145 Index. 1119 PRISONERS— Continued. Page. sale of liquors to 145 service of papers on 146 removal in case of an emergency 147 civil, see Civil Prisoners 149 PRISONS, STATE COMMISSION OF— duties as to jails 136 PRIVATE ROAD— application for , 679 copy to be delivered to applicant 680 service of copy, on owners of lands 680 jury to determine necessity 680 list of jurors 681 how made up 681 place of meeting 681 damages ascertained by 681 to be paid before' road is opened 683 verdict 682 to be filed 682 motion to confirm, vacate or modify 683 fees to be paid by applicant 683 new hearing, costs 683 for what purpose to be used 684 damages, where laid out along division line 684 PROPOSITIONS— submission at town meetings, see Toion Meetinga 208 PUBLIC CONVEYANCES— intemperate drivers not to be employed 691 horses not to be left untied 692 owners liable for acts of drivers 692 QUEENS COUNTY— designation of newspapers for publication of session laws 55 RAILROAD COMMISSIONER— board of supervisors may abolish 935 supervisor may act as 935, 936 county judge may appoint 936 oath and undertaking 938 sale of stock and bonds 938 disposition of proceeds 938, 939 annual report 939 accounts and loans 940 RAILROAD CORPORATIONS— apportionment of valuation between school districts 383 may pay tax to county treasurer 420 school tax, payment to county treasurer 421 payment of tax to county treasurer, where town was bonded 422 disposition of tax paid 422 1120 Index. RAILROADS— Page. crossing highways, not to be at grade 752 manner, commission to determine 752 laying out new highways 753 changes in existing 754 proceedings before railroad commission 754, 755 acquisition of land by town 756 powers of commission 760 cost of repair of bridges and subway 756 payment of cost of construction 757-759 proceeding to compel compliance with order of commission. . . 760 town bonds issued for 761 street surface, use of highways 761-763 REAL PROPERTY— includes what, for purpose of taxation 322 rule for determining 322 special franchise as 322, 323 liable to taxation 326 place of taxation 347 when owned by nonresident or unoccupied 347 when divided by line of tax district 348 of nonresidents, designation in assessment-roH 369 surveys and maps to be made by supervisor 370 RE- ASSESSMENT— of unpaid taxes 437 RECORDING TAX ON MORTGAGES— (See Mortagages, Taxation of) 446a-446i RELIGIOUS CORPORATIONS— dwelling houses and property exempt from taxation 336 REMOVAI^ of county officers by governor 183 proceedings, evidence 184 order, how made, where filed 184 of town officers 270 application to appellate division, notice 270 of justice of the peace 270 RENTS RESERVED— owned by nonresidents, review of assessment by board of super- visors 397 taxes on, collector may levy 425 RESIGNATION— of town officers 269 RICHMOND COUNTY— designation of newspapers for publication of session laws 65 ROAD MACHINE— purchase by town or highway districts 601 contract for 601 application of highway tax 601 Index. 1121 ROME STATE CUSTODIAL ASYLUM— Page. idiots committed to 505 EULES— of procedure of board of supervisors 8, 9 SAILORS — See Soldiers, Bailors amd Ma/rines. SAVINGS BANKS— deposits exempt from taxation 338 SCHOOL COMMISSIONERS— districts, board of supervisors may divide 47 not to be supervisor 254 apportionment of school moneys 870-872 districts, board of supervisors may alter 882 salary, how paid 882 supervisors may increase 882 SCHOOL DISTRICTS— See Schools; School Moneys. apportionment of valuation of railroad, telegraph or pipe line companies between 383 apportionment of special franchise tax among 389 alteration and erection, duties of supervisor 880 supervisor to be associated with school commissioner 880 dissolved, duties of supervisor 881 SCHOOL MONEYS— apportionment by school commissioners 870 certificate to supervisor 871 correction of erroneous 872 when district not entitled to 872 supervisor to receive 872 undertaking to be given 872, 873 return to county treasurer of balance 877 disbursements; payments to collector or treasurer 878 library moneys 878 union free schools 878 accounts, how kept and filed 878, 879 payments to successors 879 liability of town officers for loss of 887 SCHOOL TAX— payment by railroad company to county treasurer 421 SCHOOL TRUSTEE— not to be supervisor 254 SCHOOLS— grant, devise or bequest to town for benefit 874 fines and penalties for benefit, disposition 876 district attorney to report as to 876 1122 Index. SCHOOLS— Continued. Page. duties of town clerk in respect to 883 unpaid taxes, collector to return 884 county treasurer to pay amount to collector 885 account of, to be laid before supervisors 886 SCRAPER AND PLOW— purchase by highway commissioner 601 SEALER OF WEIGHTS AND MEASURES— town, appointed by town board 238, 922 powers and duties 238, 922 SEALS— of counties, boards of supervisors, county treasurer 179 how impressed 180 SESSION LAWS— designation of newspapers for publication of 53 clerk of board of supervisors to forward name and address of newspapers to secretary of state 55 of a general nature published at expense of state 56 local, at expense of county 56 secretary of state to transmit copies to county treasurer and to papers designated 56 slips to be forwarded to newspapers 58 slips to be forwarded by county clerks to town, village and city clerks , . . . t > . t 58 SETTLEMENT— of poor persons, see Poor Persons 633-545 SEWERAGE— purification 852 SEWER SYSTEM— town board may establish 845 commissioners, appointment 845 map and plans 845 construction 846 assessment of expense 846 levy, for cost of construction 848 SHEEP— killed or injured by dogs, procedure, see Dogs 465, 466 SHELTER FOR UNPROTECTED GIRLS— commitment of girls to 58ft SHERIFF — See County Officers; Jails; Prisoners. fees as to criminals county charge 33 for summoning constables 33 contracts with, for board of prisoners , 50 election and terms , 110 Index. 1123 SHERIFF— Continued. Page. appointment to fill vacancy by governor 120 undertaking 120 special acts making office salaried 121 under-sheriffs, appointment 121 duties 121 deputies, appointment 122 appointment to be in writing 123 number 123 undertaking 123 powers 123 office, where kept 124 notice of, to be filed in office of county clefk 124 hours to be kept open 124 125 fees for services for the state 126 removal for non-payment of moneys 126 coroner, when designates as 126 when to perform duties of 127 to execute duties until vacancy is filled 128 mandates and process, duties in respect to service of 129 to deliver copy 129 execution and return 129 liability for neglect in serving 130 powers in case of resistance to service 130 claim of title to property seized, trial 131 certificate of new 132 former, to deliver books and papers to new 133 duties of former, upon new sheriff taking office 133 injury to records 135 permitting escapes or refusing to receive prisoners 135 civil prisoners, duties and liabilities as to, see Ciml Prisoners. . . .149-158 escape, liability for 157 indicted, when to produce 157 warrant for collection of taxes on debts due nonresidents 426 neglect to return 427 when person taxed has removed from county 427 SIDE PATHS— board of supervisors may raise money for construction of 52 SIDEWALKS— along highways, commissioner may authorize construction • 631 expenditure of money, commissioner may allow 633 anticipation of tax, certificate 633 SMALLPOX— duties of board of health 860, 861 SNOW BLOCKADE— wire fence to prevent, expenditure of money 616 how constructed 617 opening, when highway labor has been performed 620 1124 Index. SOLDIERS— Page. property purchased with pension, exemption from taxation 330, 331 SOLDIERS' BURIAL PLOTS— town board may purchase 822 removal of remains 822, 823 expense of maintenance a town charge , 824 SOLDIERS' MONUMENT— erection of by town or county 67 town board may acquire lands 850 SOLDIERS' MONUMENT ASSOCIATION— exemption from taxation 341 SOLDIERS, SAILORS AND MARINES— not to be sent to alms-houses 569 relief of, duty of Grand Army of Republic 569 post commander to file notice , 570 to give undertaking 570 to be sent to Soldiers' Home 572 burial, board of supervisors to designate persons to conduct 672 where to be made . , . , 572 headstones to be provided 573 may peddle without license 826 SPECIAL FRANCHISE— real property for purpose of taxation 322, 323 what taxed as 323, 324 valuation in assessment-roll 361 tax commissioners to value 387 to file assessment with town and city clerk 387 assessment, delivery of to assessors 388 apportionment between village and town for highway purposes, 389 apportionment among school districts 389 report of corporations liable to taxation to state board 390 assessment, hearing before state board 391 certiorari to review 391 defense of certiorari proceedings 392 deduction from tax for local purposes 392 tax not to aflfeet other tax 393 STATE AID— for construction of highways, see Eighuxiys 723-736 STATE LANDS— in forest preserve, tax to be paid by state 430 STATE POOR— relief of, see Poor Persona 574-581 STATEMENT— to comptroller, of county, town and village indebtedness 80 of taxes upon railroad, telegraph, telephone and electric light corporations 81 penalty for failure to make 81 Index. 1125 STEAM TRACTION ENGINES— Page. uae on highways regulated 688 STENOGRAPHERS— of Supreme Court, salary and fees a county charge 41, 43 STONE CRUSHER— commissioner and town board may purchase 603 custody and use of 603 STREETS AND AVENUES— board of supervisors may map out, outside of cities 717-719 STREET LAMPS— abatement of highway tax for maintenance 657 STREET LIGHTING DISTRICTS- town board may establish 843 contracts for lighting 844 SUPERINTENDENT OF THE POOR— See Alms-houses; County Officers; Poor Persons. not to be supervisor 254 election or appointment 475 number of, board of supervisors to determine 470 term of office 477 undertaking 478 powers and duties 478 as to alms-houses 470 to decide disputes as to settlement of poor person 480 to direct prosecution of penalties by overseer 480 to draw on county treasurer 480 to settle accounts of overseers 481 to furnish relief to county poor 481 to account to board of supervisors 482 to administer oaths, etc 482 one may be appointed keeper of alms-house 482 direct overseer to take charge of county poor 483 provide for support of idiots and lunatics 483 removal of persons from alms-house in case of pestilence 484 statement of amounts charged to towns 485 amount apportioned against towns 485 to be added to tax levy 486 estimate for support of county poor 486 reports to state board of charities 486 insane poor, duties as to 496-502 idiots, commitment to Rome asylum 505 epileptics, admission to Craig Colony 506 proceedings before, to determine settlement 537, 538 decisions to be entered and filed 540 appeals from, to County Court 540 unlawful removal of poor persons, duties 541-544 to provide for bastard and mother 549 compromise with father of bastard 554 reports as to children placed in family homes 587 1.126 Index. SUPERVISOR— Page. member of board of supervisors, penalty for failure to perform duty as 10 liability for neglect of duty 13 compensation .' 12 special acts relating to 14 allowance for copying assessment-roll 13, 14 application for special town meeting 200 election of 227 term of office 228 special constables, appointment 238 to provide badges for 238 eligibility 254, 255 undertaking, form and condition 259 sufficiency and approval 259 general duties 273 as to town moneys 273 as to actions in behalf of town 275 accounts of receipts and expenditures 275 to account to town board 275 to receive accounts against the town 276 to attend meetings of board of supervisors 276 to sell town property 276 to cause town survey to be made 277 duties as to fires in woods 277 fire warden, when to act as 277 duties as 278 compensation 278 list of corporations to be forwarded to comptroller 281 delivery of books and papers to outgoing 281 proceedings to compel 282 incorporation of villages, proceedings for 282 notice of hearing 284 proceeding on hearing , 284 compensation 285 notice of appeal from decision 286 hearing and decision of appeal 286 compensation 286 justice to pay fines and penalties to 298 drainage of low lands, duties as to 307 surveys and maps of nonresident real property 370 assessment-roll to be delivered to 383 appeal to state board from equalization of assessments 409 surplus on tax sale, payment to 418 conflicting claims, settlement 419 may institute supplementary proceedings for collection of tax.... 428 dismissal of suits or proceedings 429 to prosecute collector's bond 434 duties as to unpaid taxes ; reassessment 437 report to state engineer as to construction, etc., of highways .... 638a form of highway accounts 638a compensation as town officers 814 Index. 1127 SUPERVISOR— Continued. Page. licenses for peddling, endorsement 826 for transient retail business 828 for hacks, vendors, shows, etc 829 for junk business 831 school moneys, apportionment 871 certificate, to be filed in office of town clerk 872 receipt on filing undertaking 872 undertaking, sufficiency 872, 873 refusal to give, a misdemeanor 873 gospel and school funds, report 875 return to county treasurer of amount on hand 877 disbursement 878 payments to successor 879 erection or alteration of school districts 880 dissolved school districts, duties 881 duties as railroad commissioner 935, 936 report to board, of amount of town bonds 944 duplicate to be presented to town meeting 944 removal of dead bodies from one cemetery to another 951 SUPLEMENTARY PROCEEDINGS— for collection of unpaid tax 428 SURROGATES— election and term of 112 governor to fill vacancy 112 constitutional provisions as to 112 clerk of 113 temporary, who to act as 113 board of supervisors may appoint person to act as 113 may create office in certain counties 114 report of fees received to board of supervisors 114 compensation 115-117 how paid 117 SURVEYS, TOWN— supervisor to make 277 SYRACUSE STATE INSTITUTION FOR FEEBLE-MINDED CHILDREN— children supported and received at 503 discharge of pupils 504 expense of clothing pupils charge on county 504 TAXATION — See Taxation of Mortgages. definitions 321 tax district 321 county treasurer 322 land, real estate, real property 322 rule for determining 322 special franchise 323 personal estate 325 1128 Index, TAXATION— Continued. Page. property liable 326 exemptions, see Exemptions 327 lands sold or leased by the state 341 persoj:ial property, deduction for indebtedness 341 no deduction permitted because of purchase of non-taxable property 342 place of, of property of nonresidents 342 of personal property of residents 343 what constitutes residence 344 real property 347 of nonresident and unoccupied lands 347 divided by line of tax district 348 corporations 349 of corporate stock of corporations 350 of stockholders of bank 352 of individual banker 354 report of exenipt property by assessors 354 of banks 363-366 real property, subdivision of lots may be abandoned 385 TAX COMMISSIONERS, STATE BOARD OF— assessment of special francnise by 386-393 appointment, members, term of orflce, compensation 407 general powers and duties 407 to visit counties and meet with assessors 408 equalization of valuations of counties 408 appeals from eqicalieation by board of supervisors 409 how brought 409 form of petition 410 time and place of hearing 410 determination of board 411 costs to be fixed by board 412 TAX DISTRICT— defined 321 assessors may divide 355 TAXES— levy by board of supervisors 402 warrant of collector for collection of 403 statement of upon certain corporations by clerk of board of supervisors 405 collection, notice of receipt of tax roll 414 notice to nonresidents 4lr> town clerk to file address of nonresident 415 to furnish transcript to collector 415 after expiration of thirty days 416 sale of personal property 417 disposition of proceeds 418 claims to surplus, settlement 419 Index. 1129' TAXES — Continued. Page. against stock in banks 419 railroad, telegraph, telephone and electric light corpora- tions 420 payment by railroad company, where town was bonded 422 disposition of amount paid 422 against telegraph, etc., companies, enforcement 424 sale of instruments, etc 424 on corporations, sequestration of property 425 on rents reserved ; levy by collector 425 on debts due nonresidents 426 collector to return unpaid, to county treasurer 426 duties of county treasurer 426 warrant to sherifif for collection 427 warrant to sheriflf, when person taxed has removed from county 427 supplementary proceedings 428 dismissal of suits or proceedings 429 of tenant, amount to be retained 429 on part of lot 429 state lands in forest preserve 430 fees of collector 4.30 unpaid, return of collector 430, 431 injunction to stay, effect 432 payments by collector 432 receipts to be given collector 433 failure nf collector to make 433 sheriff to levy on property of collector 433 extension of time 434 new bond of collector 434 by sheriff, where collector fails to give bond 436 collector to give receipts 441 unpaid, reassessment 437 payments by county treasurer 438 state, payments to comptroller 438 fees of county treasurer 438 accounts with county treasurer 440 proceedings, where amount is not paid over 440 unpaid, sales of real property by county treasurer 442-446 in counties embriicing no part of forest preserve 414 list of property and notice to be published 443 how conducted 443, 444 redemption. 444 redemption of real property stricken from tax rolls 444 conveyance to purchaser 444 445 effect 445 purchase money, when refunded 445 list of lands sold, to be transmitted to comptroller 446 TELEGRAPH CORPOR.VTIONS— apportionment of valuation b^twj^n sehool districts 383 may pay tax to county treasurer 420 enforcement of tax, sale of instruments, etc 424 1130 Ikdex. TELEPHONE CORPORATIONS— Page. apportionment of valuation between school districts 383 may pay tax to county treasurer 420 enforcement of tax, sale of instruments, etc 424 TENANT— may retain amount of tax paid 429 assessment for highway labor, deduction from rent 630 TOLL RATES— board of supervisors may regulate 719 on turnpikes, plank roads and toll bridges 785 TOWN— a municipal corporation 187 powers of, as corporation 188 alteration and erection 188 application to board of supervisors 188 publication 188 resolution of board 189 proceedings generally 190 disposition of property 192 debts to be apportioned 193, 194 unpaid taxes, apportioned 194 meetings of town boards 195 new, first town meeting 190 disputed lines, establishment 191 proceedings therefor 191 disposition of property 192 debts to be apportioned 193 boundaries, intersected by islands 192 action by and against, in name of 819 contracts in name of 819 may borrow money for highway purposes and support of poor .... 820 temporary loans 923 power to boi-row money 923 funded debt, contracted for specific purpose 924 new bonds for retirement of old 925 bonds, how issued 927 registration 928 coupon fonverted into registered 929 limitation of indebtedness 929, 930 resolutions of board of supervisors authorizing 932 report of amount outstanding 944 duplicate to be presented to town meeting 944 cancellation, town board to provide for 945 credit not to be loaned 931 railroad bonds, payment 940 reissue of lost or destroyed 940 limitation of indebludness 94.5 Index. 1131 TOWN AUDITORS— See Accounts; Audit; Bonds, etc. Page. when to be fleeted ; 817 number; term of office 817 audit of town accounts 817 temporary appointment by town board 818 compensation 818 vatancif", supervisor to fill 818 discontinuance 819 TOWN BOARD — See Accoutits ; Audit; Bonds, etc. disposition of property and apportionment of debts where town ia divided 195 appointment of overseer of the poor 236 appointment to fill vacancies in town offices 271 to fill vacancy in office of collector 435 overseers of the poor to present books and accounts 527 estimate of expenditures, approval 528 how constituted 802 regular meetings 802 as governing board of town 802 special powers and duties 803 meetings for receiving town accounts 803 accounts of town officers 804 statement as to 804 for audit of accounts 805 audit of town accounts 805-807 of accounts of justices of the peace and constables 808 form of accounts 811 verification 811 town cliaiges 812 traveling fees for subpoenaing witnesses 8J'^> abstract of names of claimants 816 temporary appointment of town auditors 818 borrow money for highway purposes and support of poor 820 statement to be rendered to board of supervisors 820 surplus moneys, expenditure 821 memorial day, vote of money for 821 soldiers burial plots, purchase 822 removal of remains 822 expense a town charge 822, 823 hawking and peddling, may prohibit without license 825 licenpcs issued by town clerk 826 hacks, vendors, shows, etc., licenses in certain towns 8l!9 rules and regulations respecting 829 penalties paid to supervisor 830 regulations not to discrimimite against nonresidents 832 fire companies, appointment of members 833 ■water supply districts, establishment 834, 835 contract with water works corporation 835 1132 Index. TOWN BOARD— Continued. Page. VMter districts, establishment 838 petition ; map and plans 839 commissioners to construct works 83!) contracts for construction 840 town bonds, issue and sale 840 payment; assessment on property 841 control of water works 842 street lighting districts, establishment 843 petition 843, 844 contract for lighting 844 sewer system, establishment 845 commissioners, appointment 845 map and plan 845 construction 846 assessment of expense 846 levy by, and supervisors 848 soldiers' monument, may acquire lands for 850 Grand Army of Republic, lease of public buildings to 850 justices of the peace, lease of buildings for 850 establishment of hospitals or camps for tuberculosis 851 collection of garbage , . . . . 851 purification of water and sewerage 852 appointment of tree warden 852 appropriation for shade tree fund 852 as local board of health, see Health 853 cancellation of town bonds 945 limitation of indebtedness . . . . ^ 945 may borrow money to pay judgments 945 sealer of weights and measures, appointment 952 TOWN CHARGES— board of supervisors to direct raising money to pay 45 what are, generally 812 TOWN CLERK — See Toion Board; Town Officers, etc. post notice of special town meeting 202 as clerk of town meeting 204 notice of propositions 20S election of 217 term of office 228 delivery of books and papers to successor 281 proceedings to compel 2fi2 custody of books, records and papers 287 to certify to county clerk names of town officers 2K7 to notify county clerk of vacancy in office of justice 288 to deliver to supervisor copies of entries of votes for raising money 288 furniture and blank books 281) sign ' 2".)0 filing and discharge of chattel mortgages 200 filing and entry of marriage certificates 291 deputy, appointment 293 qualifications 293 Index. 11&3 TOWN CLERK— Continued. Page. copies of papers filed in office 293 duty aa to data furnished by county clerk respecting corporations. 369 duties as to tax notices to nonresidents 415 registration of dogs, duties as to 47 1 compensation 814 duties in respect to common schools 883 expenses a town charge 884 neglect to return names of constables 951 TOWN HOUSE— town meeting may vote money for 247 form of proposition 247 special, when and how called 248 issue and sale of bonds 248 purchase of site 249 erection and control 249 TOWN LANDS— town meeting to regulate use 244 TOWN MEETINGS— legalization of informal acts of 52 biennial, time and place 197 board of supervisors may fix time 198 on general election day 198 special acts relating to 198 town may vote to hold 198 place, electors may determine 199 general powers 24 1 designate number of constables 241 election of officers 241 prosecution or defense of actions 242 noxious weeds and animals 248 establish pounds 244 abatement of nuisances 244 town lands 244 fences, rules and regulations 249 support of poor 246 sale of property 246 special, for what purposes called 200 application therefor 200, 201 notices to be posted 202 submission of proposition under Liquor Tax Law 202 presiding officers 203 maintenance of order 203 town clerk as clerk 204 proclamation of opening and closing 20.') duration ; hours during which to be kept open 205 adjournment 200 challer,':;es of voters 200 Election Law to apply 206 1134 Index. TOWN MEETINGS— Continued. Page. minutes of proceedings 207 business not requiring ballot 207 submission of question 207 how voted 207 votes by ballot, if amount exceed $500 207 elector must be taxpayer 207 women may cast 208 ,. propositions determined by ballot 208 application for submission 208 by town ofiBcers 208 notice to be posted 208 ballots and ballot boxes 209, 211, 222 under Liquor Tax Law 209 notice and application 210 electors in villages, when not to vote 211 relating to highways, separate ballots 212 canvass of votes 213 result to be read 213 disposition of ballots 213 application of Election Law 214 in election districts, proposition therefor 214 canvass of votes 215 vote upon propositions not requiring ballot 216 notice of submission 216 ai time of general election, how conducted 217 canvass of votes 217 ballots 218 election expenses 218 filing certificates of nominations 220 time of 221 form of ballots for questions submitted 222 number of ballots 223 officers providing ballots 224 voting machines, use of 225 town officers elected at 227 may vote money for town house 247 for maintenance of lock up 249 trustees of town burial grounds 250 TOWN MONEYS— investigation into expenditure 909 TOWN OFFICERS— elected at biennial town meetings 227 when held at time of general election 227 term of office 228 extension, by act of legislature 2'2!t holding over after expiration 230 iJNUKX. 113 J TOWN OFFICERS— Continued. Page. eli;>ibility 254 qualifications 256 oaths of office 256 form 257 effect of failure or neglect to take 257 filing, deemed acceptance of office 258 who may administer 258 undertaking, form and liability thereon (see titles of respective town officers ) 266 resignation 269 notice of 269 removal, application to appellate division 270 notice '. 270 vacancies, how created 270 by neglect to file official oath 27 1 appointments to fill 271 omissions to transmit returns or certificates, county clerk to report 272 town clerk to certify names of, to county clerk 287 compensation 814 per diem allowance 815 investigation into expenditure of town moneys 909 nature and object of proceedings 910 action to prevent illegal acts 911 object of statute 912 when maintained 913 to restrain award of contracts 914 audit of illegal claim 915 to prevent waste 918 by and against, in official capacities 919 for malfeasance in executing town bonds 933, 934 acting without having qualified 943 bribery 940 prevention from performance of duties 947 taking unlawful fees 947 illegal acts as to appointments 948 not to be interested in contracts 950 TRAMP— defined 810 TRANSFER TAX— collection by county treasurer gg treasurer to give receipt gg fees for collection gg reports to comptroller of amount received 99 TRANSIENT RETAIL BUSINESS— license for g2g 1136 Index. TREES— Page. along highways, commissioner may authorize 631 to whom belong 689 penalty for injuring ^^^ abatement of highway tax 632 appropriation by town board for shade tree fund 852 TREE WARDEN— appointment by town board 852 TRUSTEES— assessment of personal property held by 345, 346 assessment of, generally ^ • 374 TURNPIKE AND PLANK ROAD CORPORATIONS— exemption from taxation 340, 341 erection of mile stones and guide posts 600 board of supervisors to regulate toll rates 719 may provide for use of abandoned roads 722 incorporation 778 location of road 779 consent of highway commissioner and supervisor for use of road. . 780 application to board of supervisors for acquisition of lands 781 board to appoint commissioners to lay out road 782 route laid out, held by 782 use of turnpike road by plank road 782 road, width and construction 783 certificate of completion 784 gates, rates of toll, exemption 785 toll gatherers ; penalty for running gates 786 location of gates 787 commissioners of highways as inspectors of roads 788 change of route 790 mile stones; guide posts and hoist gates 790 surrender of franchise 791 road to revert to town 791 injuries to road 792 encroachment of fences 792 dissolution, effect 793 towns to pay for lands not originally a highway 794 highway labor upon line 794 board of supervisors may acquire property 795 may authorize towns to purchase 797 UNDER-SHERIFFS— duties of 121 powers of 121 UNDERTAKING— of county treasurer S4 of deputy county treasurer 86 of town officers generally (see titles of respective town officers) .. 266 conditions generally of official 2R7 form and manner of executing; justification 267 liabilities of sureties '. 267 officers not to perform diitiea until given ; 268 validation of official acts before executing 269 Index. 1137 TUSnTED STATES DEPOSIT FUND— Page. what constitutes 1^5 loan commissioners, appointment IGU qualification 166 discharge and cancellation of mortgages 163 bonds 167 powers of single 167 books and records 167 supervision of existing mortgages 168 loan of moneys 168 to receive and invest fund 169 sale of real estate 170 deposit of moneys 170 new accounts for parts of premises 171 to maintain actions 171 foreclosure; redemption 171-173 disposition of surplus moneys 174 purchases for the state 174 reports to comptroller .' 175 certified copy of mortgage 176 fees 176 powers of boards of supervisors as to 177 XJPON ITS BORDERS— definition 722 VACANCIES— in public offices generally, how created 270 for refusal to file oath or undertaking 271 in town offices, how filled 270 in office of supervisor 272 VAGRANTS— defined 810 VESSELS — exemption from taxation 336 VILLAGE ELECTIONS— legalization of informal acts of 52 VILLAGES— efi'ect of incorporation within limits of fire district 67 incorporation of 282 proceedings before supervisor 282 notice of hearing 284 proceeding on hearing 284 decision of supervisor 285 notice of appeal from decision 285 hearing and decision of appeal 280 compensation for services of supervisors and town clerks .... 280 1138 IlTDES. VINEYARDS— Page. laying out highways through 670 VOTING MACHINES— adoption for use of town 225 who to provide 225 payment of cost 226 number of voters in election district 226 WARRANT— of collector for collection of taxes 403 WATER— purification 852 WATER DISTRICTS— in towns, establishment 838 commissioners, town board to appoint 839 construction of works 840 issue of town bonds 840 assessment of cost on property 84 i control of water works 842 WATERING TROUGH— abatement of highway tax 634 WATER SUPPLY DISTRICTS— town board may establish 834 WATER WORKS CORPORATION— contracts with town 835 town may acquire works 836 submission of proposition 836 WEEDS, NOXIOUS— bounties for destruction of, a county charge 37 board of supervisors may make regulations as to destruction of . . . 47 town meeting to provide for destruction 243 overseer of highwa}'s to cause to be destroyed 018 in highways, owners to cut 654 overseers to notify owners 655 duty of highway commissioners as to O.iS WEIGHTS AND MEASURES— duties of state superintendent 951 copies of standards 952 county sealer, appointment 952 town sealer, appointment 952 fees for sealing 953 standards to be delivered to successor 953 WIDENING HIGHWAYS— narrowed by stream or river 768 Index. 1139 WIDE TIRE— Page. rebate for use of 658 board of supervisors may regulate use 722 WIRE FENCE— purchase, to prevent snow blockade 616 WITNESSES— examination by board of supervisors 18 subpoena, hov\r issued 18 administering oath 18 powers of committees of board 1!> adjournment, discharge, when arrested 19 undertaking upon discharge 19, 20 fees of, in criminal cases, a county charge 35 traveling fees, for subpoenaing 816 WOMEN— vote at town meeting on propositions for raising money , 208 WORK HOUSES— board of supervisors may establish and maintain 144