4 Cornell University Law Library THE GIFT OF Date Cornell University Library KFN5750.A3 1900 State of New York town and county office 3 1924 022 870 491 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022870491 (EDITION OF 1900.) State of New York. TOWN AND COUNTY OFFICERS' MANUAL, CONTAINING ALL LAWS RELATING TO THE AFFAIRS OF TOWNS AND COUNTIES, AND THE POWERS AND DUTIES OF TOWN AND COUNTY OFFICERS, mrcLpiimo The Town- Law, -The Highway Law, The County Law, The GeneraIi Municipal 'Law, complete, and ^ch part^ of the Tax Law, The Poor Law, The Public Oeficees Law, Tnp Public Health Law, and all other General Laws as relate to Towns and Counties, [As Amended to tlie Close of the legislative Session of 1900.] WITH FORMS. ANNOTATIONS, CROSS REFERENCES AND A DIGEST OF FEES OF TOWN AND COUNTY OFFICERS. EXITED BY FRANK B. GILBERT, OF THE ALBANY COUNTY BAR, AUTH^R^f' 'DOMESTIC RELATIONS," ETC ALBANY, N. Y. MATTHEW BENDER, Law Ptjblisheb. 1900. COFTHIOHT, 1898. Bt MATTHEW BEKDER. CoFnaoHT, 1890. By MATTHEW BENDEK. COFYBIOHT, 1900. Bt MATTHEW BENDEE. NOTE. The Editor Irishes to call attention to some of tfae features of this work. Effort has been made to logically arrange under appropriate heads all the laws of the state in which town and county officers are interested. The duties of each town and county officer, which are not associated with those of other officers, are grouped in chapters relating to such officer. In a great many of the a£fairs of towns and counties, the officers are associated and act in unison. The laws affect- ing such affairs are arranged topically. Cross references are inserted at the end of the several sections for the purpose of calling attention to provisions found in other places bear- ing upon the same subject. In the chapters devoted to the exclusive powers and duties of the several officers, references are made to other parts of the work where other duties are prescribed which are per- formed in connection with other officers. The chief aim has been to^ make the Manual easy for use by town and county officers not learned in the law. In doing this it certainly has not been made useless to lawyers. Many appropriate forms are inserted in the body of the Manual where they can be referred to in connection with the provisions of the statutes to which they relate. The duties of town and county officers are so interlaced that in many instances it is impracticable to separate them. If a town or county officer would know all his duties well, he must be familiar with those of other officers. The book that contains the statutes directly applicable to all town and county officers will prove the most useful. ' The editor con- fidently asserts that this Manual contains all statutes which can be of general use and value to town and county officers.. Attention is called to the schedule of statutes contained in this Manual, which is inserted tor the purpose of showing readily the pages where the several sections of such statutes can be found. Albany, N. Y., Aug., 1899. F. B. G. TABLE OF CONTENTS. Chafte£ Page Schedule of statutes vii I. Towns; erection and alteratioB ........•• 1 n. Town meetings ; election and terms of town offloers 7 m. Town officers ; eligibility, oaths of offi<3e, -undertakings, vaeanoies, resignations 41 IV. The supervisor as a town officer ; general duties 69 V. Duties of town elerk, generally 66 VL Justices x>f the peace ; general duiies as town officers 14 VIL Taxable property and place of taxfetion ' 78 ym. Mode of assessmeat 102 IZ. EqualizatifiB of assessments and levy of taxes by boards of BupervisoFs; fq>peafts 12S Z. Collection of taxes 140 XL Sales by county treasurer f(» unpaid taxes and redemption of lands sold 166 Xn. Division fences ; duties of fence viewers 171 JLLU, Strayed amimals doing damage ; duties of fence viewers . . 180 XrV. Dogs, duties of town and county officers relative to 188 XV. Relief of poor ; superintendent of the poor ; alms-houses . . 195 XVI. Eelief of poor ; overseer of the poor 209 XVn. Settlement and place of relief of poor persons 235 ZVin. Support of bastards 243 TTY. Support of pocn: persons by r^ti^^ absocmSiBg parents or husband 253 Trg- Belief of veteran soldiers, sailors and marines 259 XXI. Highway commissioners and overseers of the highways. . . . 265 XX IT - Assessment of highway labor 298 XXm. County road system 809 XXrV. Performance of highway labor ; duties of overseer ; abate- ment of tax 812 XXV. Laying out, altering or discontinuing highways ; commis- sioners ; procedure ; private roads 828 XXVI. Injuries to, use of and encroachments upon highways 858 XXV II. Town bridges 868 JULY ILL. Duties of boards of supervisors as to highways and bridges. S79 (v) vi Table of Conteitts. Chapteb Page XXIX. State aid to highways 393 XXTXA. Use of bicycles on highways 399a Xirx. Turnpike, plank road and bridge corporations 400 XXXI. Ferries 413 XXXn. Town board ; auditing of accounts 416 XXXni. Town board ; other powers and duties 434 XXXrV. Town board as local board of health 450 XXXV. Duties of town officers as to jury lists 460 XXXVL School moneys, their apportionment and the duties of town and county officers in respect thereto 465 ZXXVn. Boards of supervisors ; powers and duties 484 ,»xxviii. Boards of supervisors as boards of county canvassers 607 {xxxix. Clerks of boards of supervisors , 610 XL. County treasurer 621 XLL County clerk 633 Xm. District attorneys, county judges and surrogates 643 XLin. Sheriff and coroner; powers and duties 6S3 XIiIV. Coroner's inquest 66S XLV. County jails 673 XLVI. Civil prisoners; jail liberties 688 XLVn. Provisions generally applicable to county officers 693 XLVIII. Actions by and against town and county officers 697 XUX. Town and county finances and property 604 Lb Penal provisions applicable to town and county officers. . . . 619 LL Fees of town and county officers 624 UL Miscellaneous provisions ; weights and measurers 639 Index 645 Index to fiomi •.... • ..u... 716 SCHEDULE OF STATUTES CONTAINED IN MANUAL. (SHOWING PAGES OF MANUAL WHERE THE SEVERAL SECTIONS MAT BE FOUND.) (I) Code of Civil Procedure. Sections. Page of Manual. Sections. Page of Manual 100-103 559 158, 159 690 104-108 560 183-184 563 109 561 185-187 '563 110-111 683 189 664 112-114 684 934 73 115-118 585 1027-1039 461 119 586 1030 463 136 578 1035, 1036 460 127 586 1037 463 128-131 579 1039, 1040 464 132 580 1936 598 133, 134 586 1936 601 135 580 1927-1930 603 136-140 581 1931 603 143 S80 3471a 66 145, 146 587 2484, 3485 547 147 588 t 2493, 2493 548 148 587 2501 648 149, 150 588 8144 75 151-154 589 3144-3147 76 156, 157 591 {2) Code of Criminal JProcedure. Sections. Page of Manual. Sections. Page of Manual. 132 75 838, 839 244 773 565 914 353 774, 775 566 915 254 776, 777 567 931 254 779 567 932 255 780-783 568 923-925 256 784-788 569 936 357 790 570 (vii) Vlll Schedule of Statutes. (3) Pencil Code. SectioBA Page of Maniial. Sections Page >f Manual, 42-44 619 415a 415 45-48 620 431 S59 49-50 621 434, subs. 1, S 359 52-54 621 470, 471 633 55 623 472 529 114-116 564 473 633 117 622 474 541 137 76 475 164 138-141 77 485 134 161 643 640, sub. 11 360 163-164 541 654a 359 165 491 661 359 i, Bub. 3 358 673 493 (4) Cfeneral Statutes. Laws. Page of Manual. Laws. Page at Manual, Transportation Corpora- 1845, cbaj». 280, §§ 1 497 tions Law (L. 1890, oh. 3,4 498 566). S 499 1847, oha$. 133, 10 89 §§ 139 403 1854, chap. 112, 11 €41 133 405 1861, ch«p. 8S, 1 488 134 406 8,4 489 135 407 1864, chap. 379, 1-3 571 136 373 ,403 1866, chap. 373, 5 90 139 408 1870, chap. 311, 1-3 834,325 140 89 1873, chap. 582, 2-t 370 142 409 1S75, chap. 315, 1 860 148, 149 410 2 361 150 411 1879, chap. 447, 3 529 1881, ch«p. 166, 1,8 65 Highway Law (L. 1890, 1881, chap. 531, 1 698 chap. 668.) 1889, chap. 95, 4 88 i889, chap. 402, 1,3 639 §§ 3,3 266 3,4 640 4 368-271 5 641 5 271 890, chap. 323, 1 440 6 373-374 l^90, chap. 291, 1 287 7 374 2-4 388 8 375 5 289 9 376 :890, chap. 333, 1,3 439 10 377 3-5 440 11 12 278 378 'Iranspcfrtation ' Ccrrpora- 13 4 1 286 280 284 S85 tions Law (L. 666). 1890, ch. It 15-17 18.19 §§ 81 443 30 289 123 400 21 2W) 133 401 22 ,33 291 134 400 34 392 125 4(» 35, ,26 267 Schedule of Statutes. IX Laws. Page of ManuaL Laws. Page of M^ual. Highway Lam (L, 1890, Highway Law (L. 1890, ohap. 568). ohap. 568). §§ 80-82 294 §§ 143-145 377 83 295 150-152 857 34,36 297 153 858 36 298 154 359 37-89 299 155, 156 360 40-42 800 157 361 48 301 158-160 362 44 302 161-163 363 46 303 164,165 864 46 304 170, 171 413 47,48 305 172-174 414 49-61 806 52.53 307 Town Law (L. 1890. ch. 54, 65 309 £69). 56,57 310 \' 68, 59a 311 §§ 3 1 60 312 3 4 61 313 4,6 5 62,63 315 10 8 64,65 816 11,12 OB 66 317 13 11 67-69 819 14 14 70 822 16 16 71,72 825 16 17 73,74 326 17 18 80 829 18 14 81,82 833 \ 19,20 16 83 834 21 171 84 836 22 21 86 337 23 23 86 838 24 27 87,88 839 25 28 89 840 ae, 27, 28 29 90 842 29-32 80 91,92 345 83 82 93,94 346 84,35 27 95 347 36 32 96 348 37 33 97 849 38 84 98,99 850 89 36 100 851 40 Bepealed. 101, 102 365 41,42 39 103 365 43 104, 106 366 added by L. , ch. 145 106-109 852 1899, 9B 110-118 853 60 41 114-117 354 51 42 118-120 355 62 49 121-123 356 53 50 130 368 64 51 181 Bep. by Co. L, 56 44 132 369 67 16 133, 134 ^70 68 46 135 371 59 47 136 872 60 44 137 374 62,63 48 138, 139 376 64 55 140-142 876 65 67 SCHEDTTLE OF STATUTES. Laws. Page of Manual. Laws. Page of Manual. Toum Law (L. 1890, 569). §§ 66 67 80 81.82 83 84 85, 86 100 101 102 103 104 105 106, 107 108, 109 120 121, 122 123. 124 125-127 128, 129 130 131-133 134, 135 160 161, 162 163 164 165 166 167, 163 169, 170 171 172-174 175 176, 177 178 179 180 181 182, 183 184 185 186, 187 188 added by L. 1899, oh. 230 188 added by L. 1899, eh. 68 189 added by L. 1899, ch. 57 190 191-193 194-195 210-212 oh. 52 58 59 61 68 66 70 171 172 178 174 175 176 177 178 180 181 182 183 184 185 187 187 416 418 437 426 428 430 422 430 434 419 420 421 429 430 425 Superseded 432 431 436 437 437 449 618a 24 25 26 617 Town Law (L. 1890, ch. 669). §§ 213 618 214 618a 1891, chap. 309, g§ 1, 2 275 1892, chap. 255, §g 1, 3 447 3, 4 448 1892, ch. 638 I\iblic Officers' Law (L. 1892, ch. 681).- 73 8§ 3 • 42 5 12 11 52 12 53 15 54 20 56 23, 24 595 25 696 25a 56 Legislative Law (L. 1892, oh. 682). §§ 48, 49 500 Oeneral Municipal Law (L. 1892, ch. 685). §§ 3 609 3 597 4-6 605 7 606 8,9 607 10,11 608 13 146 13' 610 14 611 15,16 613 17 613 18,19 614 20,21 615 22,23 616 25,26 449 27 438 Schedule ov Statutes. XI Laws. 3. Page of Manual. Laws. Page of Manual. aw (L. 1893, ch. County 6)36). Law (L. 1892, ch §§2,3 616 §§ 144 537 4 617 145-147 528 10 484 148 529 11,13 485 160 535 13 609 161 636 14 610 162, 163 638 15 164 639 16 130 165 640 17 495 180 553 18,19 496 181 654 20,21 499 (note) 182 555 23,23 501 183 573 24 489 184 655 25 490 185-187 556 26,27 502 188 557 28 603 189, 190 558 29, 30 504 200 542 81,32 605 201 543 33 606 ' 202 544 84,35 2 203 545 36 3 204 546 38 606 210 195 50 516 211 198 51 517 220 646 62,53 519 221 648 64 520 332 549 60,61 379 233 551 61 381 230 493 63 369 233 132 64 382 233 593 65-67 883 234, 235 593 68 384 236, 237 594 69 385 1893, oh. 545, 70 886 8 6 441 71 387 72,73 388 Public Bealth Law (L, 74 389 1893, ch. 661). 75,78 79,80 90,91 93 93 94-96 97,98 99-101 103,103 110 111 390 891 672 673 674 675 576 677 578 188 189 §§ 20 21 22 33,24 25 26,27 29 80,31 460 451 452 457 459 455 453 454 Ctynsolidated School Lau t 112 189 (L. 1894, ch. 656). 113 189 Tit. 2, §§ 13 466 114, 115 190 14-16 468 116-118 191 17,18 469 119-131 193 19 470 133-134 193 20-31 471 125-127 194 22-35 472 140 531 26-28 473 141 523 Tit. «, 1-8 474 142, 143 526 4 475 su Schedule op Statutes. Laws. Page of Mamial. Laws. Page of Maniuia Consolidated Sdwol Law (L. 1894, ch. 556). Tit. Tit. Tit. Tit. 4, 5, 6, 7, Tit. 15, §§ 1 2 2 7-9 10,11 72, 73 74,75 76,77 1-3 479 480 478 478 477 480 481 482 483 1895, ch. 770, 1,2 lAqwr Tax Law (L. 1896, ch. 112). §g 13 530 14 632 Poor Law (L. 1896, ch. §§ 8 198 4 201 6,6 202 7,8 203 9 204 10-18 205 ''•^ 207 210 21-23 212 24 214 25 215 36 217 27 230 28 222 40 236 41,42 227 43 229 44 230 45,46 231 47,48 233 49 234 50 235 51 236 63 237 68,54 238 55,56 239 57 227 60 243 61 244 62-64 245 65-«7 246 68 247 69,70 248 i71 249 72,78 250 74 251 80 259 81 260 Poor Law (L. 1896, ch. 325). §§ 82 262 83, 84 263 130, 131 267 132, 133 258 134 340 135 241 136 242 137 222 138 206 139 211 Domestie Relations Law (L. 1896, ch, 273). 8§ 15-17 73 1896, chap. 371 437 Domestie Oommeree Law (L. 1886, ch. 375). §§ 11,12 643 13 643 14 40, 643 16 643 17 644 1896, ch. 820, § 1 126 2 127 3 128 Tax Law (L. 1896, oh. 908). §§ 2 78 3 80 4 80-88 6, 6 -90 7 91 8 92 9 94 10 95 11 96 12 97 13 99 14 101 20, 21 103 22 105 23 106 24 107 25, 26 108 I. 27 109 28 110 29 111 30 112 31 113 33 114 83.34 116 85 117 86 118 37 121 Schedule of Statutes. xiu Laws. Page of Manual. Tax Law (L. 1896, ch. 908). §§ 38,39 123 40 123 41 124 43,43 (added by L. 1899, oh. 713) 44 (added by L. 124A 1899, oh. 712) 124B 45,46 (added byL. 1899, ch. 712) 124C 47 (added by L, 1899, ch. 712) 124D 50 125 51 128 53,53 139 54 181 55 132 56 135 57 137 58 138 59 139 70 141 71 143 72,73 145 74 147 75,76 148 77 149 78-80 152 81,82 153 83 154 84 155 85 157 86 158 87 159 88,89 160 90,91 161 / 92 162 93,94 163 100 165 150, 161 166 153 167 153, 154 168 155, 156 169 157 160 174, 175 133 176 134 177 135 . 232 532 286, 237 533 240 534 257 120 258 150 259 151 260 155 261, 162 156 LaT7s. Page of Manual. Tax Law (L 1896, ch. 908). §g 363 147 364 144 Election Law (L. 1896, ch.909). §§ 11 20 13 ■ 20 16, 18, 58, 59, 82, 85, 86, 40A-40H 180 507 181 508 183, 133 509 135 510 136 513 137 518 163-166 (added by L. 1899, ch. 466) 87, 38 Lien Law (L. 1897 ', ch. 418). §8 92 70 93,94 71 98 71 1897, ch. 181, § 21 13 1898, oh. 115, § 1 893 2-4 393 5-8 394 9,10 896 11-14 397 15 898 16-18 899 1898, oh. 141, §§ 1, 3. 438 1898, ch. 554, §§1-3 444 4-7 445 8-10 446 11 447 1899, chap. 30 9 1899, chap. 152, §1 399A 3 399B 3 399C 4-10 399D 11,12 399E 1899, oh. 441, §§1,3 506A 3-5 506B 6-8 506C 9,10 006D 11-13 606E 14-16 506P 17 506G 1899, chap. 462, §3 361 1899, chap. 594, §1 5060 2-5 506H 1899, chap. 634, §1 899E 2,3 3990 1900, ch. 20, §§ 327-283 62-65 1900, chap 451, 449A TOWN AD COUNTY OFFICERS' MANUAL. CHAPTER. I. Towns ; Erection and Alteration. SaonON 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. Tiuae and place of holding first election in new town; term of office of town officers not to be abridged. i. 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. 6. Disposition of town property, upon alteration of town botind- aries; when property to be sold; duties of town boards respect- ing 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 town. 7. Meetings of town boards for disposition of property and appor> tionment of debts to be called by supervisor; action to enforce settlement. § 1. To'vrn, a municipal corporation. A town is a municipal corporation comprising the in- habitants 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 maj be conferred or imposed upon it by law. [Town Law, (L. 1890, chap. 569), § 2. J Taums in this State are of very limited corporate capacity. They have only such powers as are conferred by statute. They have no general power to enter into contracts, or to inour obligations, the payment of which can be enfcwced against them. Morson v. Town of Oravesmd, 89 Hun, 53. See aku Lorillard v. Toum of Monroe, 11 N. Y, 391, 2 Town and County Officers' Manual. § 2. Alterattom and erection of towns bjr boards of superTisors ; applleation therefor ; notice to be posted and published ; name oi nen^ town* Any such board may, at an annual meeting thereof, by a vote of two-thirds of all the members elected thereto, on the application of at least twelve freeholders of each of the towns to be afifeoted, divide or alter the bounds of any town in the county, or erect a new town therein. Notice of such application, signed by such freeholders, shall be posted in five conspicuous public places in each of such towns for four weeks next preceding the presentation of such application to the board; and a copy of such notice shall be published for at least six consecutive weeks next preceding the meeting of the board to which the application is to be made, in three newspapers 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 applicants shall present to the board, with such application and notice, due proof of the posting and publishing of such notice, and furnish 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 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. j The act of a board of supervisors erecting a new town ia one of legisla- tion, and it cannot be impeached by an omission to show, in an action to teat the^ validity of such act, that the preliminary notices, required to be girea prior to the application for the law, had been given. People v. Car- penter, 24 N. T. 86. This section does not require that the published copy of the noWoe of the application of twelve freeholders for the erection of a new town shall be subscribed by the freeholders. If the notices posted are subscribed it is sufficient. Idem. % 3. Time and place of holding first election in new town ; term of oSce 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 Towns; Erection and Alteration. 8 notice of such town meeting, signed by the chairman or clerk of the board of supervisors, in four conspicuous 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 elec- tors of the town presenj; shall substitute one of their number for each one so neglecting or refusing to serve; and the post- ing of the notice of such meeting shall be valid if done by any elector of the town. Nothing herein shall affect the right, or abridge the term of office of any town officer in any town, but they shall hold and exercise the offices in the town in which they shall respectively reside after the change or alteration. [County Law (L. 1892, ch. 686), § 35.J § 4. Establishment of disputed lines ; application therefor ; notice to be published and served upon to'ven ofBcers; resolution to be filed in ofiSce of secretary of state. Such board may establish and define boundary lines between the several towns of the county A notice of inten- tion to apply to the board to establish and define such boundary line, particularly 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 meeting of the board at which the application is to be presented, in three news- papers 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, distances and fixed monuments refered to therein, plainly and distinctly marked and indi- 4 Town and County Ofpicees' Manual. cated thereon, shall be filed in the office of the secretary of state within thirty days after the adoption of such resolution, who shall cause the same to be printed and published with the laws of the next state legislature after the adoption thereof. [County Law (L. 1892, ch. 686), § 36.] § B. Disposition of town property, upon alteration of to^n bound- aries ; 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 persona! property shall be altered, either by a division of a town into two or more towns or by the annexation of a part oi its territory to another town or towns, the town boards oi the several towns affected by such alterations shall meet as soon as may be after the first town meetings susbequently held in such towns, and shall make such agreement con- cerning 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 conveyances 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 posses- sion; and the proceeds arising from the sale shall be appor- tioned between the several towns interested therein, by the town boards of all the 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 town. But no town cemetery or burial ground shall be sold or divided, but the same shall belong to the town within which it may be situated after a division of the town shall have been made, and no lots heretofore granted by the people of this state to any tewn for the support of the gospel and of schools, com- Towns; Erection and Alteration. 6 monly called the gospel and school lots, shall be so sold or apportioned. [Town Law (L. 1890, ch. 669), § 3.] § 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 apportioned in the same manner as the personal property of a town, and each town shall be charged with its share of the debts, according 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 apportioned between the several towns interested therein, according to the amount of taxable property in each town as the same existed before such division or alteration, to be ascertained by the last assessment roll of the town. In making such division, there shall be set off to each town interested the unpaid taxes assessed and levied upon the real property within its borders and such as were assessed and levied upon personal prop- arty against persons or corporations, as resided within its borders at the time of the assessment; and each town, to which the same are apportioned, 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 afore- said taxable property, to be ascertained by the last assess ment roll of such 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 prop- erty, as ascertained by the said last assessment roll of said town, before the said division or alteration. [Town Law, § 4, as amended by L. 1896, ch. 459.] §7. Meetifi^s of toirn 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 6 Town and County Officebs' Manual. towns shall be required, in order to carry into effect the pro- visions of this article, such meeting may be called by either of the supervisors of such town, 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 altera- tion mentioned in section three of this article, any of such towns may begin and maintain an action against the other town or towns to make and enforce such settlement. The provisions of this article shall apply to towns heretofore and hereafter divided or altered. [Town Law» 8 5, as amended by L. 1896, ch. 459.] Town Mbetings; Election, btc, of Officebs. 7 CHAPTER II. Town meetings; election and tekms op town officers. Sitanos 1. Time and place of biennial town meetings; board of superTieors may fix time ; no town meeting to be held in November, 1898 ; town meetings in Erie county. 2. Changing place of holding town meetings; not to apply to towns in counties where town meetings are held at time of general elections. 3. Election of town ofScers ; vacancy in ofSce of justice of the peace; ballots when town meeting is held at time of general election. 4. 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. 6. Holding over after expiration of term. 6. Terms of office of town officers elected in springs of 1898 and 1899. 7. Number and terms of justices of the peace. 8. Justices of the peace; ballots for full term and vacancies. 9. Justices in new town: upon erection of new towns, or annexa- tion, justices of the peace, how to hold office. 10. Certificate of election of justices of the peace. 11. Commissioners of highways, number of, how determined. 12. Overseers of the poor; determination of number; resolution to be voted for; appointment of overseer by town board. 13. Inspectors of election; election and appointment; duties of town board as to appointment. 14. Election officers; their designation, number and qualifications. 15. Election officers in towns at general elections; poll clerks and ballot clerks 16. Powers of biennial town meetings. 17. Special town meeting ; for what purpose called; application therefor, made by whom. 18. Town meeting may vote sum of money for town house. 19. Purchase of site for, and erection of, town house. 20. Town meeting may vote for erection of lockups; use thereof. 21. Trustees of burial grounds; powers of. 23. Trustees to lay out grounds; free lots; sale of lots. 23. Burial grounds; when to belong to town. 24. Erection or discontinuance of pounds; election of pound masters. 25. Notices of town meetings. 2S. Presiding officers of town meetings; if no justice is present, pejson may be selected by electors. 8 Town and County Officers' Manuau SBOIION 27. Clerk of town meetings. 38. Duration of town meetings. 39. Challenges. 36. Minutes of proceedings. 31. Transaction of business not requiring a ballot; when questions are to be submitted; how determined. 32. Votes to expend over five hundred dollars, to be by ballot, if less, by viva voce. 33. Notice of propositions to be determined by ballot; ballot boxes; form of ballots. 34. Proclamation of opening and closing polls. 35. Ballots; electors in incorporated villages when not to vote on highway questions. 36. Canvass of votes; notification of oflBcers elected. 87. Town meetings in election districts; may be held in regular election districts, or town board may divide the town; application therefor. 38. 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. 39. Use of Myers automatic ballot cabinets at town meetings. 46. Special constables; appointment and powers. 41. Town meetings held at the time of general elections; canvass of votes. 42. Town sealer of weights and measures. 43. Ballots at town meetings held on election day. § 1. Time and place of biennial town meetings; board of super, visors may fix time ; no town meeting to be held in November) 1898; town meetings in Erie county. The electors of a town shall, biennially, on the second Tuesday of February, 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 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 coujaty may, by resolution, adopted at the first annual meetiag of such board, after their election, fix a time when the biennial town meet- ings 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 Novem- ber; and such time, when so fixed, shall not be changed for the period of four years. But such board of supervisors shall not provide for the holding of town meetings on the first Tuesday Town Meetings; Election, etc., op Ofpicees. 9 after the first Monday in NovemlDer, eighteen hundred and ninety* eight. The biennial town meetings in the towns in each countjf containing more than three hundred thousand and less than six hundred thousand inhabitants, according to the then last, preceding state or federal enumeration, shall be held on the second Tuesday of March, eighteen hundred and ninety-nine, and biennially there- after on the second Tuesday of March until otherwise directed by the board of supervisors of such county. [Town Law, sec. 10, as amended by L. 1898, ch. 363, and L. 1900, ch. 374, taking effect April 11, 1900.] Previous to the passage of chapter 481 of the Laws of 1897, town meetings were held annually. By that act (seetion 21) a town meeting was to be held in each town in the spring of 1898, at which town oflScers were to be elected for a term of one year. A town meeting -was also to be held in the spring of 1899, at which time town ofScers were to be elected for terms of two years, except justices of thB peace, who were to be elected for terms of four years. Town meetings are thus required to be held in the spring of 1899 and biennially thereafter. By the amendment of 1898, the board of supervisors of a county may, by resolution, provide for the holding of town meetings in the fall at the time of the general elections. Changing place of holding toten meeting. The place of holding the next town meeting should be determined by a motion or resolution, put in the usual form, upon fair notice to the electors. The result should be declared ty the proper oflScer and entered on the minutes. Attorney-General's opinion (1870), p. 450. The voting may be by ballot, viva vooe, or ayes and nays. If by ballot no previous notice that the vote is to be so taken is required. Attomey-Generalls opinion 855), p. 236. X. 1899, CHAP. SO. An act legalizing action by the boards of supervisors changing the time of holding town, meetings. Became a law February US, 1899. ■Section 1. The acts, resolutions and proceedings of boards of supervisors 0A Town and County Offioeks' Manual. under the authority conferred bj chapter three hundred and sixty-three of the laws of eighteen hundred and ninety-eight, changing the time of holding town meetings in their respective counties to the first Tuesday after the first Monday in November, are hereby legalized, ratified and confirmed, and in such counties town meetings shall be held in the year eighteen hundred and ninety-nine only on that day. § 2. This act shaQ take effect immediately. § la. Town nimy change date of holding town meeting. A tovra 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 shaU be submitted by such board on the written application of twenty -five tax- able voters of the town. The proposition must be submitted, voted on, and the result canvassed as prescribed by section thirty-two. If it 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 proposition 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 propo- Bition, shall expire on the day of such first meeting. There- after 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 meeting may in like manner change from such gen- eral election to any other day authorized by law. The term of office of all officers, except justices of the peace, in a town Town Meetings ; Eleotion, etc., of Officers. 9b which under this section changes its town meeting to general election day, shall be two years from the date of their elec- tion. [Town Law, § 43, as added by L. 1899, ch. 145.] § S. Changing place of holding town meetings ; not to apply to to^^ns in counties where toirn meetings are held at time of general election. The electors of a town may, upon the application of fifteen 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. 1898, ch. 363, taking effect April 20, 1898.] § 8. Election of town ofBcera ; vacancies in office of justice of the peace ; ballots ^hen town meeting is held at time of general election. There shall be elected at the biennial town meeting in each town, by ballot, one supervisor, one town clerk, two 10 Town and Coltntt Officers' Manual. justices of the peace, three assessors, one collector, one or two overseers of the poor, one or three commissioners of highways, not more than five constables, and two inspectors of election for each election district in the town ; if there shall be any vacancies in the office of justice of the peace, of any town at the time of holding its biennial town meeting, 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 candidates 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 for town offices who is not registered and entitled to vote at such general election. [Town Law, § 12, as amended by L. 1898, ch. 363, taking effect April 20, 1898.] Election of town ofElcers is by ballot. Nominations of town o£Bcers are to be made as prescribed by Article HI, §§ 56, 57, of the Election Law. [Jewett's Election Manual, 1898, pp. 60-67b.] Certificates of nominations of town oflicers are to be filed with the town clerk, as prescribed by §§ 58 and 59 of the Election Law. [Jewett's Election Manual, 1898, pp. 68, 68a.] Certificates of Nominations. In towns in which town meetings are held at the tune of general elections, certificates of nominations 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. (Election Law, Town Mbbtimos; Slbcpion, xto., o» OfFicsBS. 11 I 88, as amended by L. 189S, ohap. 38S; Jewetfe El««tion Manual, 1898^ p. 68.) In towns in which town meetings are held at the time of general elections, certificates of nominations for town officers, if of a party, shall be filed with the town and county clerks, not less than twenty and not more than thirty days before the election for which the nominations are made; if of independ- ent BOKiinations, not less than fifteen and not more than thirty days before such time. (Slection Law, § 59, as amended by L. 1898, chap. 363; Jewett's Sleotion Manual, 1898, p. 68a.) Segistration. When town meetings are not held at the time of genera] elections, no registration is required. (Slectioa Law, § 33, last sentence; Constitution, Article 11, ? 4. See Jewett's Election Manual, 1898, p. 41.) But whMi town meetings are held at the time of general elections, it is provided by the last sentence of the above section of the town law, that no person shall be allowed to vote who is not registered. Ballots. Ballots to be voted at town meetings are to be prepared in con- formity with § 81 of the Election Law. (Jewett's Election Manual, 1898, p. 86.^ Article IV of the Election Law, relating to the printing of official and sample ballots and their distribution, is applicable to ballots used at town meetings. Ballots when town meeting is held at time of general elections. 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 in any county at any such other eleo^ tion, 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 clerk between such town, city or village and such county, in the proportion of the number of candidates for town, city or village offices on such ballots respectively, to the whole number oi candidates thereon, and the amount of such expense sb apportioned to each such municipality shall be a charge thereon. Slcctiion Law, § 18 [Jewett's Election Manual, 1898, p. 26.] § 4. Term of oSBce of to'wn oScers; wkoa toi^n meetings are held at time of general election, term to begin on January 1 follow ' ing ; collector to complete duties of offlce. Supervisors, town clerks, assessors, commiasioners ot highways, collectors, overseen of the poor, inspectors of election and constables, whvi^n elected, shall hold theiv respective offices for two yeaw. 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 sefve until the next biennial town meet-- ing thereafter or until their successors are eleeted and have qualified. Whenevei the time of holding town meetings in any town is changed to the first Tuesday after the first Mon- 12 Town and Cottnty Offioees' Manual. day in November, except when changed as provided in section forty-three of this chapter, the town officers elected thereat shall take office on the first day of January succeeding their election. Bat the collector in each such town shall complete 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 successor. [Town Law, § 13, as amended by L. 1898, ch. 363, and L. 1899, ch. 145.] For § 43 of Town Law, see ante, § la. $)|6. Holding ever after ezpiratIo> of torm. Every officer except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed b} 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 beeu chosen, until his successor shall be chosen aud 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, shell, for the purpose of choosing his succcessor, be regarded as having been newly chosen for such terms. An appointment for a term shortened by reason of a predecessor holding over, shall be for the residue of the term only. [Public Officers Law, § 5.] The term qualified as used in this section and in § 13 of the town law maans to take an oath of office and to file the official undertaking as required bj low. People ex rel. Wiaiamacm v. McKinney, 52 N. Y. 374, 880. While the offleer maj hold over until his suoeessor has been chosen and has qualified, after the expiration of the term for which he was electod, a Taoancy exists which may be filled by the electors of the town at the fitat town meeting thereafter. People ex rel. Lovett y. Itandall, 151 N. Y. 497. § 6. Terms of offloo of town officers elected in spring of 1803 and 1899. There shall be elected at the town meeting in each town, in the spring of eighteen hundred and ninety-eight, one supervisor, one town clerk, one highway commissioner, oq« assessor, one collector, one or two overseers of the poor, not more than five constables and two inspectors of election for Town Meetings; Election, etc., op Officers. 13 each election district, all of whom shall hold office for a term of one year. At the town meeting to be held in the spring of eighteen hundred and ninety-nine, all of such offioera shall be elected in the manner and for the terms prescribed in this act. There shall be elected at the tewu meeting to be held in the spring of eighteen hundred and ninety-eight, one justice of the peace for a term of four years, beginning on the first day of January, eighteen hundred and ninety- nine. At the town meeting to be held in the spring of eigh- teen hundred and ninety-nine, there shall be elected two justices of the peace for a term of four years beginning on the first day of .January, nineteen hundred; and at the biennial town meetings thereafter held there shall be elected two justices of the peace for a like term, beginning on the succeeding first day of January. At the town meeting to be held in the spring of eighteen hundred and ninety-nine, there shall be elected three assessors, two for a full term of two years and one for a term of one year, beginning at the expiration of the term of office of the assessor, whose term will expire in the spring of nineteen hundred. At every biennial town meeting thereafter held, three assessors shall be elected for a term of two years. If in any town there are three commissioners of highways, there shall be elected at the town meeting to be held in the spring of eighteen hundred and ninety-nine, three commissioners of highways, two for a term of two years and one for a term of one year, beginning at the expiration of the term of office of the commissioner whose term will expire in the spring of nineteen hundred. At every biennial town meeting there- after held in any such town, three commissiones of high- ways shall be elected for a term of two years. The provi- sions of this act shall not affect or abridge the term of office of any town officer elected prior to the passage of this act. In those towns where boards of town auditors have been established by law and are in existence at the time of holding of the annual town meeting in the spring of 1898, the person elected to the office of town auditor at the said annual meet- ing in the spring of 1898, whether so elected before or after J4 Town and County Officbbs' Manual. itke passage of this act, shall hold office for the term of one jear, beginning at the expiration of the term of office of the (auditor whose term of office will expire in the spring of 1898. At the biennial town meeting held in the spring of 1899, in those towns where boards of town auditors have been so established there shall be elected three town auditors, two lor a full term of two years and one for a term of one year, l^eginning at the expiration of the term of office of thQ auditor whose term of office will expire in the spring of 1900. 4>t every biennial town meeting thereafter held in those towns where boards of town auditors have been established, 9,s provided by law, three town auditors shall be elected, for fk term of two years. [L. 1897, ch. 481, § 21, as amended by L. 1898, ch. 474.] This section is temporary. Its purpose is to fix the terms of the several town officers elected in the springs of 1898 and 1899, so that thereafter ther« pay be imiformity in such terms. It will be noticed that in order to carry out this purpose and to comply with the provisions of the constitution as to tke terms of justices of the peace [Constitution, art. vi, § 17, post, p. 74 ], it has been necessary to provide for the election of two justices in 1899 and two biennially thereafter. There will thus be five justices of the peace in each town for the second and fourth years under the biennial town meeting tystem, g IS. Number and terms of justices of tke peace. There shall be four justices of the peace in each town, divided into two classes, two of whom shall be elected \)iennially. Such justices shall hold office for a term of four years, commencing on the first day of January succeeding their election. [Town Law, § 14, as amended by L. 1897, chap. 481.] Constitutional provision. 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 shaiU be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold office for the residue of the unexpired ^erm. Their number and classification may be regulated by law. [State Constitution, art. vi, § 17.] § 8. Justices of the peace; ballots for full term and vacancies. When the electors of any town are entitled to vote for a Justice of the peace, to fill the vacancy caused otherwise Town Meetings; Election, etc., of Officers. 16 than by expiration of term, each elector may designate upon his ballot the person intended for a full term and for a vacancy, and if there are two vacancies, they may be desig- nated as the longer and the shorter vacancy ; and if three vacacies, 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 desig- nation, the first name on the ballot shall be deemed as intended for the full term of the office voted for, the second name for the longer vacancy, the third name for the shorter vacancy and the fourth name for the shortest vacancy. The provisions of this section shall apply to new towns erected; and officers to be elected in such towns, except for a full term, shall be deemed elected to fill vacancies. [Town Law, § 18, as renumbered and amended by L. 1897, ch. 481.] § 9. Justices in neir to'wns; upon erection of neir towns, or annex- ations, justices of the peace, hotr to hold office. If there be one or more justices of the peace residing in a new town, when erected, they shall be deemed justices 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.] 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 justices of the peace residing in any town, they shall hold and exercise 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 olass, only one person shall be elected to fill the vacancy in that class. Whenever by the erection 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 oflf^ the inhabitants of such town shall, at its next annual town 16 Town and County Officers' Manual. meeting, supply the vacancy so produced in the classes to which such justices belong. [Town Law, § 20, as renum- bered by L. 1897, ch. 481.] § 10. 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, tran- smit 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 therein certified. [Town Law, § 57, as amended by L. 1898, ch. 363.] FORM NO. 1. Cketipicate 01" Election or Justices. STATE OF NEW YORK, ) . County of ) To F Q, Esq., County Clerk of County: I do hereby certify that at the biennial town meeting of the town of held therein on the day of , 1..., G H was duly elected justice of the peace for a full term. Dated this day of 1... CD, Tovm Clerk. § 11. Commissioners of hightvays; number of, how determined. The electors of each town may, at their biennial town meetings, determine by ballot whether there shall be elected in their town one or three commissioners of highways. Whenever any town shall have determined upon having 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 meeting, and when such propo- sition shall have been adopted no other commissioner shall be elected or appointed until the term or terms of those in oflBce at the time of adopting the proposition shall expire or become vacant; and they may act until their terms shall severally expire or become vacant as fully as if three con- tinued in oflBce. 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 law. [Town Law, § 15, as renumbered and amended by L. 1897, ch. 481.J Town Meetings; Election, etc., of Officers. 17 § IS. Overseers of the poor; determination of number; resolution 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 thereafter no other overseer shall be elected or appointed, until the term of the overseer continuing in office at the time of adopting the resolution 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 least twenty-five resident taxpapers whose names appear upon the then last preceding town assessment- roll, 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 over- seer of the poor, no overseer of the poor shall thereafter be elected in such town except as hereinafter provided, and the overseers of the poor of such town elected at the town meet- ing 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 days before the expiration of the term of office of such elected overseer whose term expires latest, the town board of such town shall meet and appoint one overseer of the poor for such town, •who shall hold office for one year from the first day of May next after his appointment and annually in the month of April in each year thereafter an overseer of the poor shall be appointed by the town board of such town for the term of one year from the first day of May next following such month of April. Each overseer of thepoor so appointed shall execute and file with the town clerk an official undertaking in such form and for such aum as the town board may by resolution 2 18 Town and County Offickrs* Manuaik require and approve. An overseer of the poor, so 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 ap- pointment to any other town 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 such town, but shall not exceed, in any one year, the sum of one thousand dollars, and shall be a town charge. At any subsequent town meeting after the expiration 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 determine 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 regulat- ing the election of overseers of the poor, and the term or terms of the overseer or overseers first so elected shall com- mence upon the expiration of the term of office of the over- seer 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, chap. 481. J § 13. Inspect,''-'? of election; election and appointment; duties of tOTm board as .^ appointment. The presiding officer of each biennial town meeting shall, immediately after the votes are canvassed, appoint by writ- ing, two additional inspectors of election for each election district, to be associated with the two inspectors who shall have been elected, and which inspectors, so to be appointed, shall be those two persons in each election district who shall have received the highest number of votes next to the two persons who shall have been elected inspectors, and which inspectors, so to be appointed^ shall belong to and be of the same political faith and opinion on state and natioaal issues Town Meetings; Election, etc., of Opficebs. 19 as one or the other of the two political parties which, at the last preceding general election for state officers, shall have cast the greatest and next to the greatest number of votes in said town, but they shall not belong to the same political party nor be of the same political faith and opinion on state and national issues as the inspectors who shall have been elected. If the two inspectors elected belong to dif- ferent political parties, the inspectors appointed shall be the two candidates for inspectors not elected and receiving the highest and next to the highest number of votes respectively, and belonging to different political parties. No ballot shall be counted upon which more than two names for inspector for any one election district shall appear. The various election inspectors elected, or elected and appointed, for towns, under the provision of existing laws, shall con- tinue to serve as such inspectors until January first, eigh- teen hundred and ninety-five. On or before the second Tuesday in September next the several election inspectors in the various towns, appointed under the provisions of existing laws, shall each appoint one additional election inspector, who shall serve with the other three election inspectors during their term of office; such appointment shall be made in writing, and filed in the office of the town clerk. Such additional inspector shall belong to and be of the same political faith on state and national issues as the political party which, at the last preceding town meeting, shall have cast next to the highest number of votes, and when possible shall be one of the persons who, at the said town meeting, received next to the highest num- ber of votes for election inspector. The additional inspector so appointed shall be subject to the provisions of existing laws, and of this act. [Town Law, § 17, as re-numbered and amended by L. 1897, chap. 481. J Constitutional provision as to non-partisanship in election boards. By the state constitution of 1895, Article EC, § 6, it is provided that " all laws creating, regulating or affecting boards or officers charged with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties which, at 20 Town and County Officers' Manual. the general election next preceding that for -vs-hich suoh boards or oflSoers are to serve, cast the highest and the next highest number of votes. All such boards and oflBcers shall be appointed or elected in such manner, and upon the nomination of such representatives of said parties respectively, as the legislature may direct. Existing laws on this subject shall continue until the legislature shall otherwise provide. This section shall not apply to town meetings, or village elections." The last few sentences of the above section were added for the pirrpose of carrying into effect this constitutional provision. § 14. Election ofiBcers; their designation, number and qualifica- tions. There shall be in every election district of this state the fol- lowing election officers, namely, four inspectors, two poll clerks and two ballot clerks, whose term of office 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. 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 understandingly, 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, other than that of inspector of elections ; or, who has been convicted of a felony and not restored to citizenship, or who holds any public office except notary public or commissioner of deeds, town or village assessor, justice of the peace, village trustee, water commissioner, officer of a school district, overseer of highway, 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 than is excepted herein. Each class of such officers shall be equally divided between the two political parties which at the general election next preceding ihat for which such officers are to serve, cast the highest and the next highest number of votes. Where election officers are appointed the qualifications required of them by this section shall be determined by an examination by or under the direction of the appointing board or officer. [Election Law (L. 1896, ch. 908), § 11, as amended by L. 1897, ch. 410, and L. 1899, ch. 630.] § 15. Election officers in towns at general elections; poll clerks and ballot clerks. Inspectors of election in towns shall be elected and appointed as provided in section nineteen of the town law. Town Mbbtinqs; Election, etc., op Officbes. 21 At the first meeting of the inspectors of election in every district in which the law provides for the election of inspectors, the inspectors elected shall appoint one of the poll clerks and one of the ballot clerks, and the inspectors appointed shall appoint the other poll clerk and ballot clerk. 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 such election district is situated. The poll clerks and ballot clerks so appointed shall hold their office during the term of office of the inspectors appointing them, except as hereafter provided. The persons so appointed as poll clerks and ballot clerks shall be voters 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 ballot clerk shall be absent, the inspectors of election in such district 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 constitu- tional and statutory oaths of office. [Election Law (L. 1896, chap. 908), § 13.] § 16. Powers of biennial toTTn meetings. The electors of each town may, at their annual town meet- ing: 1. Determine what number of constables, not exceeding five, and pound-masters shall be chosen in their town for the then ensuing year; 2. Elect such town officers as may be required to be chosen ; 3. Direct the prosecution or defense of all actions and pro- ceedings in which their town is interested, and the raising of such sum therefor as they may deem necessary; 4. Take measures and give directions for the ezercise of their corporate powers; 22 Town and County Officbrs' Manual. 5. Make provisions and allow rewards for the destruction of nozous weeds and animals, as they may deem necessary, and raise money therefor; 6. Establish and maintain pounds at such places within their town as may be convenient; 7. Direct public nuisances in their town, affecting the security of life and health, to be changed, abated or removed and raise a sum of money sufficient to pay the expense thereof; 8. Make from time to time such prudential rules and regulations as they may think proper, for the better improv- ing of all lands owned by their town, in its corporate capacity, whether common or otherwise; for maintaining and amend- ing partition or other fences around ur within the same, and directing the time and manner of using such land. 9. Make like rules and regulations for ascertaining the sufficiency of all fences in such town and for impounding animals, impose such penalties on persons offending against any rule or regulation established by their town, excepting such as relate to the keeping and maintaining of fences, as they may think proper, not exceeding ten dollars for each offense, and apply the same, when recovered, in such manner as they may think most conducive to the interests of their town; 10. In towns bound to support their own poor, direct such Bums to be raised, as they may deem necessary for such pur- pose, and to defray any charges that may exist against the overseers of the poor in their town ; 11. Determine any other question lawfully submitted to them; 12. Direct the sale and conveyance by the supervisor in the name of the town of property owned by it. [Inserted by L. 1900, ch. 377, taking effect April 11, 1900.] Every order or direction, and all rules and regulations made by any town meeting, shall remain in force until the same shall be altered or repealed at some subsequent town meeting. [Town Law, sec. 22, as renmnbered and amended by L. 1897, ch. 481.J Fianng number of constables. The limit a town may fix to the number of constables, must be by formal resolution, otherwise the five who have the most votes are all elected and entitled to serve. People v. Adams, 8 Wend. 396. Town Mbetings; Election, etc., of Officees. 23 Tofum Auditors. Electors may vote to elect, at biennial town meetings (Town Law, § 172, post, p. 419 ); or to discontinue (Town Law, § 177, post, p. 431. Bonds. Taxpayers voting at biennial town meeting may vote to issue new bonds in place of bonds declared invalid. General Municipal Law, § 71, post. § 17. Special town meeting; for what purpose called; applica* tion therefor, made by 'whom. Special town meetings shall also be held whenever twenty- five 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 ques- tion 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 therefor; or to vote upon any proposition which might have been determined by the electors of the town at the last annual town meeting, but was not acted upon thereat; or to vote upon or determine any question, proposition or resolution which may lawfully be voted upon or determined at a special town meeting. Special town meetings may also be held upon the like appli- cation of the supervisor, comimssioners of highways, or over- seers 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 bylaw, but now authorized by law, shall be as valid and of the same force and efifect 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 renum- bered by L. 1897, ch. 481.] 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. When the proceedings at a special town meeting called to consider the propriety of instituting or defending certain suits and to raise money there- for were regular, and authorized the relator to begin certain actions, the 24 Town and County Officers' Manual. 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 mandamus to compel such audit. People ex rel. Wells v. Hempstead, 4 Hun, 94. Legalizing informal acts of town meetings by board of supervisors. 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 irregular acts of any one or more town or village officers, performed in good faith, and within the scope of their authority. [County Law, § 15.] General powers. A tovra meeting has no power to discontinue a highway once established. Hughes v. Brigham, 135 N. Y. 347. FORM NO. 2. Application for Special Town Meetinq. To C D, Tovm Clerk of the Town of in the County of The undersigned, twenty-five taxpayers of said town, whose names appear on the last assessment-roll of said town [or supervisor, commissioner of high- ways, &c., 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 , 18. . . [Taxpayers or officers sign here]. § 18. ToTv-n meeting maiy vote sams of money for to'wn house. The electors of any town in which there shall not be a town-house, at any biennial town meeting, or at a special town meeting lawfully called by the town clerk, may vote by ballot any sum of money, for the purchase of a site and the building of a town-house, or for the purpose of contributing to the erection of a building for the joint use of the town and ol an incorporated village within its limits. A special town meeting shall not be called under this section within one year from the meeting at which a proposition for the purposes specified herein has been submitted. If such smn is not raised by tax in one installment the town board of such town may borrow the sum necessary to purchase such site and build such house 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 date of issue, and unless the whole amount of the indebtedness 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 anmmi, and shall be sold at not less than their par value. They shall be sold on sealed proposals or at public auction upon notice published in a paper printed in the town, if any, 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 the lowest rate of interest. Such bonds shall be consecu- tively 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. The board of supervisors of the county may cause Town Meetings ; Election, etc., of Officees. 25 the sum so voted to be collected with the other expenses of the town. [[Town Law, sec. 190, as amended by L. 1899, ch. 531, and L. 1900, ch. 295, taking effect April 6, 1900.] Application for submission of proposition, and notice thereof, to be accord- ing to I 33 of the Town Law, post, p. 31. § 19. Purchase of site for and erection of town-house. Sites shall be purchased and houses erected by the town board in the name of the town, and shall be controlled by the town board; and the electors may, from time to time, vote such sum of money as may be necessary to keep any town- house in repair and insured, except where the building is to be erected within the limits of an incorporated village and the town is to contribute but a part of the expense of erecting the building, in which case the town board and the board of trustees of the village shall agree upon the terms and conditions of the use, management, control and repair of the portions of the town-house for town and village purposes respectively. [Town Law, § 191.] § 20. Town meeting may vote for erection of lock-ups; use thereof. The electors of each town, upon the application of ten free- holders of the town, may, by ballot at their annual town meeting, direct the erection of one or more houses of deten- tion, or lock-ups, for the detention of persons committed by the magistrates thereof, and direct such sums to be raised in their town by tax, for the expense of building, or of main- taining the same, as they may deem necessary. Such houses of detention, or lock-ups, may be used for the purpose of temporarily keeping and confining all persons arrested by any constable or officer in the town prior to trial or examination, or committed by any magistrate of the town pending trial or examination before such magistrate, or after commitment to a county jail by a magistrate, when immediate removal to the county jail can not be made, and only until he can be con- veniently removed to such Jail. [Town Law, § 192.] See § 33 of the Town Law, post, p. 31, for application and notice required for submission of question to vote at town meeting. §21. Trustees of burial grounds; powers of. The electors of any town may, at an annual town meeting, choose three or five persons to act as a board of trustees of any burial-grounds within the limits of and belonging to the town, as such electors may designate, and direct the super- visor of the town to convey by deed to such board of trustees, and their successors in office, for the purposes hereinafter mentioned, the lands already composing such grounds ; and also any other lands that may be hereafter acquired for the 26 Town and County Officers' Masttal.i purpose of enlarging such grounds. Such electors may also fill any Tacancies that may occur in the board of trustees. Such boards of trustees and all boards of trustees, heretofore created, pursuant to chapter forty-six of the laws of eightoea hundred and seventy-three, are hereby declared to be corpo- rate bodies, under the name of the board of trustees of the cemetery, for which they are chosen respectively, capable of suing and being sued as such, and of taking and holding gifts and bequests of personal property for the care and im- provement of the cemeteries under their charge, or any lot therein. [Town Law, § 193, as amended by L. 1894, chap. 418.] § 22. Trustees to lay oat grounds ; free lots ; sale of lets. Such board of trustees shall lay out into burial lots any grounds so conveyed to them; and within one year after the conveyance to them they shall cause to be recorded in the office of the clerk of the county in which they reside a plot or plots of ground so laid out by them, which shall clearly indicate the number and location of the several lots, which plots shall be duly certified to, under the hands and seals of the chairman and secretary of the board, and acknowledged before an officer authorized to take proof and acknowledg- ment of deeds. They shall designate and set aside certain lots which shall be free for the interment of the remains of indigent persons, deceased, and shall sell and convey, by di- rection of a majority of the board, under the hands and seals of its chairman and secretary, burial lots, at such termK as may be agreed upon between the parties, and expend the moneys realized from such sale in improving and preserving the particular burial ground from the sale of whose lots the moneys were received. [Town Law, § 194.] § 28. Burial grounds; nrhen to belong to toT^n. The title to every lot or piece of land which shall have been used by the inhabitants of any town in this state as a cemetery or burial-ground for the space of fourteen years shall be deemed to be vested in such town, and shall be sub- Town Meetings; Election, etc., of Officers. 27 ject, in the same manner as other corporate property of towns, to the government and direction of the electors in town meeting. [Town Law, § 195.J § S4. Erection or discontinuance of pounds; election of pound- masters. Whenever the electors of any town shall determine at an annual town meeting, to erect one or more pounds therein, and whenever a pound shall now be erected in any town, the same shall be kept under the care and direction of a pound- master, to be elected or appointed for that purpose. The electors of any town may, at annual town meeting, dis- continue any pounds therein. [Town Law, § 34, as renum- bered by L. 1897, ch. 481.] Pound-masters may be elected either (1) by ballot; (2) by ayes and noes, or (3) by the rising or dividing of the electors, as the electors may determine. [Town Law, § 35, as re- numbered by L. 1897, ch. 481.] § S5. Xotices of toTrn meetings. No previous notice need be given of the 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 band, 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. 481.] FORM NO. 3. Notice op Special Town Meetinq. Notice IS hereby given that, pursuant to an application made therefor a» psescribed hj statute, a special town meeting of the electors of the town of , county of ., will be held at ki the village of on the .... day of , 18.., at o'clock in the noon, for the purpose of voting upon the follow- ing questions or propositions, [stating them as contained in Town L. J 38, ante] , and for the transaction of such other busineas as shall be lafrfolly brought before such meeting, uftted ...•••.« •••■..*, 19. .• AB, TownCluit, 28 Town and County Officers' Manual. § 26. Pre3idmgofiBQersofto'wiimectinss;if no justice be present, person may be elected by electors. The justices of the peace of each town shall attend eyery town meetiugheld 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 is orderly and regularly conducted, and shall have the like authority to preserve order, to enforce obed- ience and to commit for disorderly conduct, as is possessed by the board of inspectors at a general election. If there be no justice of the peace at such meeting, then such person as shall be chosen 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, as amended by L. 1898, ch. 363.] The constitutional provisions as to bi-partisan election oflEioers or boards do not apply to town meetings. State Constitution, Art. II, § 6. Maintenap^x of order. The justices presiding at a town meeting have the same power to preserve order as inspectors of elections at a general election. By section 15 of the election law, it is provided 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 elections, and to keep the access thereto unobstructed, and to enforce obedience to their law- ful commands. The said board may appoint one or more electors to com- municate 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 ofiEending 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 provisions of this elec- tion law." See also Penal Code, § 41 k., sub. 17. (Jewett's Election Manual, p. 34.) For forms for precept and deputation, see Jewett's Election Manual, pp. 33, 33. Acts ofjtistices of the peace ministerial. Justices of the peace presiding at town meetings are in the position of inspectors of election and as such tliey are ministerial officers, and their acts and conduct in conducting the election cannot be reviewed by certiorari. People ex rel. Brooks v. Bush. 23 App. Town Meetings; Election, etc., op Officeks. 29 Div. 363; citing Matter of Many, 10 App. Div. 451; People ex rel. Van Sickle V. Austin, 20 App. Div. 1. § 27. Clerk of meetings. The town clerk last before elected or appointed, or, if he be absent, such person as shall be chosen by the electorspresent, shall be the clerk of such town meeting, except when held at the time of a general election, and shall keep faithful min- utes of its proceedings, 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 electorspresent shall take the constitutional oath of office before entering upon his duties as such clerk. [Town Law, § 26, as amended by L, 1898, ch. 363, taking effect April 20, 1898.] The toton clerk is to perform duties at a town meeting similar to ballot and poll clerks at general elections. Where the town meeting is held at the time of a general election, the election oflacers of the election district are to serve in a like capacity at the town meeting. § 28. Dnration of town meetings. Town meetings shall be kept open for the purposes of vot- ing in the daytime only, between the rising and setting of the Bun, and, if necessary, may be continued by a vote of the meeting during the next day, and no longer, and be ad- journed to another place not more than one-fourth of a mile from the place where it was appointed. [Town Law, § 27, as renumbered by L. 1897, oh. 481.] § 29. Challenges. If any person offering to vote at any town meeting or upon any question arising at such town meeting shall be chal- lenged as unqualified, the presiding officers shall proceed thereupon in the manner prescribed 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 to.wn meeting. [Town Law, § 28, as renumbered by L. 1897, ch. 481.] This section applies the provisions of the election law relating to challenges, to town meetings. See EUectiou Law, § 108 (Jewett's Election Manual, p. 132). 30 Town and County Opficees' Manual. g 30 Minutes of proceedings. The poll-list and minutes of the proceedings of every towa meeting, 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 remembered by L. 1897, ch. 481.] The ballot boxes used at such town meetings, with all the ballots voted, except the void and protested ballots, and a statement of the number of ballots in such boxes, are to be deposited with the town clerk as clerk of town board. Election Law, § 111 (Jewett's Election Manual, 1898, p. US). The void and protested ballots are to be enclosed in a sealed package, endorsed on the outside by the presiding officers of the town meeting, and filed with the minutes of the meeting. Election Law, § 111 (Jewett's Elec- tion Manual, 1898, p. 143). § 31. Transaction of business not requiring a ballot ; when ques- tions are to be submitted ; ho-w 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 without 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 presid- ing at such meeting shall ascertain and declare the result of the votes upon each question. [Town Law, § 30, as renum- bered by L. 1897, chap. 481.] § 32. 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 dol- lars or less, may be viva voce, unless ballot is required by the law authorizing the expenditure. [Town Law, § 31, as renumbered by L. 1897, chap. 481.] § 33. Notice of propositions to be determined by ballot ; ballot^ boxes; form of ballots. No proposition or other matter than the election of offi^ Town Meetings; Election, etc., op Officers. 31 cers, shall be voted upon by ballot at ?.ny town meeting, un- less the town oflScers or other persons entitled to demand a vote of the electors of the town thereon, 'ball, at leasl 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 requesting 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 state- ment of their account to date, with the facts and circum- stances which, in their opinion, make the appropriation ap- plied for necessary, and their estimation of the sum neces- sary for the purpose stated, which statement may be ex- amined 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' no- tice, posted conspicuously in at least four of the most publi.o places in town, of any such proposed question, and 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 questioH to be voted upon, 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 against the question to be voted upon, for the use of the electors. The vote shall be can- vassed, 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, chap. 481. J Provisions of Election Law applicable to propositions. The town clerk is required to furnish all ballots for town meetings. Election Law, g§ 82, 86 (Jewett's Election Manual, 1898, pp. 90, 100). The form of such ballots is prescribed by § 8? of the Election Law. Such section of the Election Law supersedes the provision contained in the above section of the Town Law to the effect that such ballots may be written. Section 16 of the Election Low (Jewett's Election Manual, 1898, p. 34), provides for the furnishing of a separate ballot box for the reception of ballots upon propositions, to be endorsed: " Box for questions submitted." 32 Town and County OrFioERs' Manual. § 34. Proclamation of opening and closing polls. Before the electors shall proceed to elect any town officer, proclamation shall be made of the opening of the polls, and proclamation shall in like manner be made of each adjourn- ment and of the opening and closing of the polls until the election be ended. [Town Law, § 33, as renumbered by L. 1897, ch. 481.J The last sentence of § 100 of the Election Law is to the same effect. ■; Section 100 of the Election Law (Jewett's Election Manual, 1898, p. .^o), relating to the duties of inspectors of election is applicable, so far as con- sistent, to the duties of officers presiding at town meetings. § 85. Ballots; electors in incorporated village when not to vote on high-way questions. When the electors vote by ballot, except in towns where the biennial town meetings are held at the time of general elec- tions, all the officers 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 near to conceal the contents, and shall be deposited by such officers in a box to be constructed, kept and disposed of, as may be, in the manner prescribed in the general election law. When any town shall have within its limits an incor- porated village, constituting a separate road district, exempt from the supervision and control of the commissioners of high- ways 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 vil- lage, no residents of such village shall vote at any biennial or special election in such town for any commissioner of high- ways 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 elections in such towns, the names of candidates for the office of highway commissioner shall be printed on a different ballot from the one containing Town Meetings; Election, etc., of Officers. 33 the names of candidates for other town offices. 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 by L. 1897, ch. 4818 and amended by L. 1897, ch. 363. j Ballots. Town clerks are required to furnishballots for use at town meet- ings. Election Law. g 86 (Jewett's Election Manual, 1898, p. 100). Such ballots must be in the form prescribed in § 81 of the Election Law. (Id. p. 86.) Such section provides that but one form of ballot shall be used containing ttie names of all the candidates to be voted for. The Election Law was enacted by L. 1896, chap. 909. By the above section of the Town Law, the names of candidates nominated for the office of highway commissioner in towns containing incorporated villages which are separate highway districts and not chargeable with the support of town highways, are to be printed upon separate ballots. Such section of Town Law was amended by L. 1898, chap. 363; retaining the pro- vision for such separate ballot. It would seem, therefore, that notwithstand- ing the provisions of the Election Law, separate ballots for highway commis- sioners may be prepared in the case specified. The ballots for use at town meetings are to be prepared from the lists of nominations filed with the town clerk as prescribed by the Election Law, §§ 58, 59, as amended by L. 1898, chap. 368. The number of oflScial ballots is regulated by the Election Law, § 85 (Jew- ett's Election Manual, 1898, p. 99). They are to be distributed as provided by § 87 of such law. (Id. p. 101.) All the provisions of Article IV of the Election Law (id. p. 86-103) relating to official and sample ballots, instruction cards and stationery, are applicable to town meetings. § 36. Canvass of votes ; notification of o£Scers elected. At the close of the polls at anj town meeting, the canvassers shall proceed to canv;iss the votes publicly at the place where the meeting was held. Before the ballots are opened, they i Tovrw AND 'C&ujrrr Of fSCKWs' Mawual. tttruiflg ^ -vwtes «f olaetore aibseat f wmh tineir dectioB .di$tricte in time ■©£ war m iSie actual military «r oflrai serTice of ^iiis state ■Qt<0iihe United States, diali be paid ifiane doillar* leasiu {Eleotifia law, sec. 1«, as amended by L. ISO©, oh. 881. ] Places of filtMg tertificaiee of nominatiaau-^stii^scisfi of ««nB» iiataloB of candidates for ^office to be filled fey the ©leatacs of iht entire state, or of any diTieian or disbricst greater tiiaa a oowiiy, shall ibe filed witii the secretary of state, esoeipt thait east .ce^rtaficadis of BQmriiiatioji of a candidate for member of aspesmbly for ith* assembly district o0mj>.Qsii)g the coiintise of FultQiB and Hamiltoft shall (be filed in the oUcb of ihe county clerk »f Futei county, ajid A «opy tlp^eof isrlafied iby t&e .county elerk of Fultoa eomsity, ehail he £led in th® ofi^e of the eounty -fitedf fflf JHamalton county, eo Icaag as tibe isaid «DBnties cwstitute one aissembly district and «jscept tJjat certificates of BominalaQtt of csJindidateB fosr offioes to ibe fiJtei &uLy by the eleotore -or a portion of the leleetore of ik& city of K'ew York shall he filed with the police boaard of the city of 'Mem York, in the affiee of ithe superintendent of elections- Gftrtificates of moininations of candidates for .offices to be filied only iby .the -mte» of filectorSj .part of whom are of Kew York city and part of whota are of a counly not wholly within the city of Mevr York shall be filed with the clerk of such county and in the office of the superin- tendent of elections and with the police board" of said city. Cer- tificates of nomination of candidates for offices of any other city, or for officers of a village to be elected at a different time frcan a gen- eral election, shaH be filed with the clerk of such cily, vill^e or town, respectiyely^ Certificates of nomination of candidates for town 'offices shaU be filed with the town derk. AU other certifi' cates of nomination shall be filed with the clerk of the county in whieh the candidates so nominated are to be voted for. All certifi- cates and corrected jcertificat^ of nomination, all objections to such certificates and aU declination .of uonfdnalions are hereby declared to be puMio reeords, anS it shall he tlas 4*Qtf of epery offieer or %oard 4o eAi%^it, witfeoist delay, every suek ^aper or papers to aury person who shaH req"uest to see ^e fiaiaae. It ^all also be tftie dijifey ■ef each ■sTi'eh ofiBeer or l)oai5d to keep a h&ck, wM A sihaiU Ibe ep^i to public mspeetion, in whi«^h «liali be eopregtly reeoirded I3ie na,iaes /at all eandidates -nomimated k^ ee^^caHkea iled in ithe office «if su^ officer or 'board, or certified thereto, fthe tMe of 'the ©ffioe €or whidi any such nomanatian i« made, tib® peiMtieal or other name the emMem -of the pcAitical party or iHd^>endent body mflfeiBg such nomrna^ion ; and in whieh shall Ao %e stated a;li declinations of nominations or ofejections to nominations, and the jjisaie .of #lisig each of the -said papers. {Eleetion Law, sec. &S, as amended 'hy L. 1900, ch. .381.] The times of fUng eertifiea/tes -of nommati&n.-'^The different «ertificates of noiaination shall ibeffled within fhefoUowing periods %efore the election for Which the nomiimtions are miide, to wit: Those required to Ise filed wiA the seeretaiy of state, if party ■nomi- nations, at least thirty and not m&re 4/hsai forty days ; if independ- ■ent nominations, at least twenty'fi'v^e -days and not more than forty 'days ; those requiTed to be filed with the county clei'k, or the police %oard of the city of JSTew ToA, or with the -city clerk of amy other •«aty, if party nominations, at least twenty-five and not more -than thirty-'five -days ; if independeat nominations, at least twenty and not more than thirty-five days; those required to be filed with a town or village clerk, if party nominations, at least fifteen and not more than twenty 4ays ; if independent nominations, at least ton and not more than tweaty days. In ease of a special eleetiaa 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 slich special election shall be filed with the proper officer or boards not less than fifteen days before such special election. [Election Law, sec. 59, as amended by L. 1900, ch. 381.] 40e Town and Countt Officees' Manual. Form of ballot for questions submitted. — ^Whenever the adoption of a constitutional amendment or any other proposition or question is to be submitted to the vote of the electors of the state, or of any district thereof, a separate ballot shall be provided by the same offi- cers who are charged by law with the duty of providing the official ballots for candidates for public offices. 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 amendment 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 district, the different amendments or propositions or questions shall be separately num- bered and printed, and separated by a broad solid line one-eighth of an inch wide. Opposite and before such amendment, question or proposition, so submitted, shall be printed two squares inclosed in ruled lines, one above the other. Preceding 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 upon this ballot, make a cross X 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 num- bered as in case of ballots for candidates for public office, it shall be impossible to identify or distinguish any one of such ballots from the others. On the back of each such ballot, below the stub, Town Meetings; Election, etc., of Oeficees. 4;0a shall be printed in addition to the endorsement as prescribed for general ballots, the words "Questions submitted," so as to distin- guish the said ballots from the official ballots for candidates for office. Ballots for the submission of town propositions and ques- tions 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 proposition submitted." [Election Law, sec. 82, as amended by L. 1900, ch. 381.J Number of official ballots. — The number 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 electors 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 ballets 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 polling place for a town meeting, held at any time or a village or city election held at a different 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 officer charged with the duty of providing such ballots. [Election Law, sec. 85, as amended by L. 1900, ch. 381.] Officers providing ballots and stationery. — The clerk of each county, except those counties the whole of which are within the city of New York, shall provide the requisite number of official and sample ballots, cards of instruction, two poll books, distance mark- ers, 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 40h TowSf AND Qmns-rs OsfiCfss' Mawcai. sgaling wax and suehi otlier aartieks of atflltKSilery as may be aecJes- mty for the proper conduct of th6 electi'OB,, and the canvass of the V»tfiSj. f 0!f each eleiJtioH district in sneh c&nnty and not within the city 6f K^ew Yotky for each- eleetion te be held thereat^ except that when town naeetings,. city or village election* and ekctionB for school officers ar© not held At th6 same time as a geoeral election, the clerk of such towsy eity or villa:g^ respectively, shall provide suck official and sample ballots and stationery fo* snch deetion or town, laeeting: If the town OMSeting is held ou general eledtion day bal- lets ttnd sample ballots for town officers and propositions shall be piTiSivided by the town eietk in like manner and in the same f&sw as at a towni meeting held at any other time, and AiStek town elerk shaU aliSO furnish inspeetora' and ballot el^rks' return sheets for making^ returns of the election of towB offiply tberefor, so that eadt eleetor whO' laay desire the satod may obtoia & satnple ballot, ssmilar easeepi as regards color and the number on the stub, to l^e ofBda} iallot to be voted at the polling place at tfrtnich he i» eatitkd to Totet {BkstioB Law, sec 06» aa amended ]iy I* IddK), eh, SSl,} Town Officers; Eligibility, etc. 41 CHAPTER III. Town officers; eligibility, oaths op office, undertak- ings, VACANCIES, resignations. Section l. Eligibility of town officers; supervisors. 2. Qualification fc holding office. 3. Oaths of office of town officers, how administered; filed in town clerk's office; efleot of failure to execute and file oath and undertaking. 4. Town officers to administer oaths. 5. Supervisor's undertaking. 6. Justices' undertaking: oath of office to be taken before county clerk; certificate that he has filed undertaking. 7. Official acts legalized when justice of the peace fails to take official oath or give undertaking. 8. Undertaking of commissioners of highways. 9. Undertaking of overseer of the poor. 10. Collector's undertaking. 11. Filing of collector's undertaking; lien on property of collector and sureties. 13. Constable's undertaking. 13. Form of undertaking and liability thereon, 14. Conditions, generally, of official undertakings; form and manner of executing; justification. 16. Officer not to perform duties until undertaking is given; property or money not to be delivered; liability of sureties if officer enters on duties before giving undertaking; duration of undertaking. 16. Validation of official acts before filing oath or undertaking. 17. Resignation of town officers; notice. 18. Bemoval of town officers; application to appellate division; notice. 19. Vacancies, how created. 30. Vacancies, appointme'ut to fill, how made and when filed. 21. County clerk to report omissions of town officers to district attorney. § 1. Eligibility to town offices ; supervisors* Every elector of the town shall be eligible to any town office, except inspectors of election shall also be able to read or write. But no county treasurer, superintendent of the poor, school commissioner; trustee of a school district, or 42 Town and County Officers' Manual. United States loan commissioner, shall be eligible to the ofiSce of supervisor of any town or ward in this state. [Town Law, § 50.J The provision that no trustee of a school district shall be eligible to the office of supervisor, relates to the time of the election, and the election of such supervisor is invalid. He cannot by resigning after the election become eligible to the office. People v. Purdy, 21 App. Div. 66; a£Ed. 154 N. Y. 439. § 2. Qualifications for holding office. No person shall be capable of holding a civil oflBce who shall not, at the time he shall be chosen thereto, be of full age, a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivi- sion or municipal corporation of the state for which he shall be chosen, or within which the electors electing him reside, or within which his official functions are required to be exer- cised. [Public Officers Law, § 3. J Candidates to file statement of election expenses. All candidates for town offices are required to file a statement of their election expenses with the town clerk, within ten days after their election. A failure to file is a misde- meanor and forfeits the office. Penal Ck>de, § 414 (Jewett's Election Manual, 1898, p. 75). § 3. Oaths of office of town officers ; how administered ; filed in to\^n clerk's office ; effect of failure to execute and file oath and undertaking. Every person elected or appointed to any town office, except justice of the peace, shall before he enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, take and subscribe before some officer authorized by law to administer oaths in his county, the constitutional oath of office, and such other oath as may be required by law, which shall be administered and certified by the officer taking the same without reward, and shall within eight days be filed in the office of the town clerk, which shall be deemed an acceptance of the office; and a neglect or omission to take and file such oath, or a neglect to execute and file, within the time required by law, any official bond or undertaking, shall be deemed a refusal to Town Officees; jlligibility, etc. 43 serve, and the office may be filled as in case of vacancy. [Town Law, § 51. J The constitutional oath of office is presoribed by the State Constitution, article XIII, § 13. Public Officers Law, § 10, is to the same eflEect as the above section. Justices of the peace are required to take their oath of office befote tha county clerk. Town Law, § 58, post, p. 46. Failure to execute and file oath and undertaking. In addition to tha effect of a failure to execute and file an official oath and undertaking as prescribed in the above section, the Public Officers Law, § 13, con- tains the following : " The officer or body making the appointment or certificate of election of a public officer shall, if the officer be required to give an official undertaking to be filed in an office other than that in which the written appointment or certificate of election is to be filed, forthwith give written notice of such appointment or election to the officer in whose office the undertaking is to be filed. If any officer shall neglect, within the time required by law, to take and file an official oath, or execute and file an official undertaking, the officer, with whom or in whose office such oath or undertaking is required to be filed, shall forthwith give notice of such neglect, if of an appointive officer, to the authority appointing such officer ; if of an elective officer, to the officer, board or body authorized to fill a vacancy in such office, if any, or if none and a vacancy in the office may be filled by a special election, to the officer, board or body authorized to call or give notice of a special election to fill such vacancy; except that the notice of failure of a justice of the peace to file his official oath, shall be given to the town clerk of the town for which the justice was elected." An attempt to file an oath of office within the required time is a sufficient compliance with the statute. Matter of Foley, 8 Misc. 196. An officer who fails to file an oath does not forfeit the office ipso facto; but until he is ousted he is an officer de jure, and can perform the duties of the office. ' Sorton v. Parsons, 37 Hun, 43. By section 15 of the Publio Officers Law the acts of publio officers performed before taking an official oath are as valid as if such oath had been duly taken and filed. See post, p. 54. The proper procedure is for the town clerk to notify the town board of the failure. The failure to file creates a vacancy, and the town board may fill. Town Ijaw, § 65, post, p. 57. See, also, Public Officers Law, § 20, sub. 7, post, p. 56, as to creation of ▼acancy by failure to file oath of office. FORM NO. 5. Form of Oath of Officb. STATE OF NEW YORK, ) , County OF ) " I, A B, do solemnly swear (or affirm) that I will suppo'-t the constitution of the United States, and the constitution of the State of New York, and that I will faithfully' dischaige the duties of the office of , according to the best of my ability. [(If office is elective add): And I do further solemnly swear, or affirm, that 44 Town and County Officers' Manual. I have not directly or indirectly paid, oflfered or promised to pay, contributed or offered or promised to contribute any money or other valuable thing, as a consideration or reward for the giving or withholding a vote at the election at which I was elected to said ofBce, and have not made any promise to influ- ence the giving or withholding any such vote.] Subscribed and sworn to before me ) A B t'his...day of ,18 ) CD. (Title of office.) § 4. Town oCBcera to administer oaths. Any town ofiQcer may administer any necessary oath in any matter or proceeding lawfully before him, or to any paper to be filed with him as such officer. [Town Law, § 56.] This section authorizes a town clerk to take a constitutional oath of office. g 5. Supervisor's undertaking. Every supervisor hereafter elected or appointed shall, witihn thirty days after entering upon his office, make and deliver to the town clerk of the town his undertaking, with such sureties as the town board shall prescribe, to the effect that he will well and faithfully discharge his official duties as such supervisor, and that he will well and truly keep, pay over and account for all moneys and property, including the local school fund, if any, belonging to his town and com- ing into his hands as such supervisor; and such undertaking shall, after its execution, be presented to the town board for their approval as to its form, and the sufficiency of the sureties therein, and until the same shall be so approved, none of the moneys, books, documents, papers or property of the town shall be turned over or delivered to such super- visor elect. [Town Law, § 60.] The county treasurer requires a supervisor to give a bond conditioned for the safe keeping of school moneys. Consolidated School Law, tit. 2, § 17, post, p. 469. . A supervisor, before receiving or disbursing any funds on account of the bonded railroad debt of a town, is required to give a bond with sureties who may justify in a sum double the amount received, to be approved by the town clerk. L. 1882, chap. 68. § 1. The form and contents of the undertaking, the force and effect thereof, and the validation of the official acts of an officer before filing his oath of office and making an undertaking, are prescribed in the Public Officers Law, g§ 11. 12, 15, post, pp. 52-54. Town Oppicbes; Eligibility, bto. 45 FORM NO. 6. Bond oe Undertaking of Supervisob, Geneeau Whereas, A B, of the town of , in the county of , was on the. .. .day of , 18 duly elected [or appointed] supervisor of the town of in such county; Now, therefore, we, the said A B and C D, residing at and E F, residing at , do hereby, pursuant to section 60 of the Town Law, and other statutes made and provided, undertake and acknowledge ourselves, our heirs, administrators and executors, firmly bound to and with the said town of , in the sum of dollars, that the said A B will well and faithfully discharge his duties as supervisor of such town, and that he will well and truly keep, pay over and account for all moneys and property, including the local school money, if any, belonging to his town and coming into his hands as such supervisor, in accordance with law, or in default thereof, that we will pay all damages, costs and expenses resulting from such default, to the amount specified in this undertaking. Dated this day of ,18 ... A B, Supervisor, C D, Surety. E F, Surety. STATE OF NEW YORK, ) ., , County of ) • On the day of in the year 18. . ., before me, the sub- scriber, personally came A B, CD, and E F. to me known to be the persons described in and who executed the within instrument, and severally acknowledged to me that they executed the said instrument. GH, (Official title.) County of ss.; C D and E F, being severally and duly sworn, each for himself deposes and says: C D, That he is one of the sureties named in the foregoing undertak- ing ; that he is a freeholder (a house holder) within the state of New York ; that he is a by occupation, and resides in , county of at No street [and has his place of business at street, in the city of ] ; that he is worth the sum of dollars [twice the amount of the undertaking], over and above all just debts and liabilities and property exempt from execution; and E F, that he is one of the sureties named in the foregoing undertaking ; that he is a freeholder [or house holder] within the state of New York ; that he is a * . by occupation and resides in county of , at No street, in the city of ; that he is worth the sum of dollars [twice the amount of the undertaking] , over and above all joint debts and liabilities, and property exempt from execution. Subscribed and sworn to before me, ) CD,) g^jg+jgg this . . . . day of 18.... J E F, ) " JK. (Official title.) We, the undersigned, members of the town board of the town of 4, 46 Town and County Ofticbrb' Manual. do hereby approve of the foregoing undertaking as to its form, manner of execution and su£Qciency of the sureties thereon. Dated 18... [Signed by members of town board.] [If the approval is by resolution, as prescribed by Public OflBcers Law, § 11, post, p. 52, a certified copy of the resolution should be annexed to the undertaking.} § 6. Justice's undertaking; oath of office to be taken before county clerk; certificate that he has filed undertaking. Every justice of the peace elected or appointed in any of the towns or cities of this state, except the city of New York, and any city whose charter requires such officer to give a bond or undertaking, shall, before he enters upon his duties of his oflSce, execute an undertaking with two sureties to be approved by the supervisor of the town, or the town clerk thereof where the justice of the peace is also supervisor of the town, or the common council of the city in which the justice shall reside, to the effect that he will pay over on demand, to the officer, or person or persons entitled to the same, all moneys received by him by virtue of his office, and file the undertaking in the office of the clerk of the city or town in which he resides. Every justice shall also, on or before the fifteenth day of January next succeeding his elec- tion, file with the county clerk a certificate of the clerk of the city or town in which he resides, that he has filed such undertaking, and thereupon take before the county clerk his oath of office; but, if elected or appointed to fill a vacancy, at the time existing or in any new town, he shall file such undertaking and certificate and take the oath of office, and enter upon the duties thereof, within fifteen days after notice of his election or appointment. No justice of the peace shall take his oath of office until he shall have filed such certificate with the county clerk. [Town Law, § 58.] See posi, p. 52, for provisions of Public Officers Law, relative to undertak- ings. FORM NO. 7. Justice's Undertakino. Whereas, AB, of the town of county of , was on the . . . .day of 18 , duly elected [or appointed] justice of the peace of the town of in such county. Town Officers; Eligibility, etc. 47 Now, therefore, we, the said A B as principal, and G D, residing at . . . .and E F, residing at , do hereby, pursuant to section S8 of the Town Law, and other statutes made and provided, undertake and acknowl- edge 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 pay over on demand, to the officer, person or persons entitled to the same, all moneys received by him by virtue of his office, that he will well and faithfully discharge the duties of his office, or in default thereof that we will pay all damages, costs and expenses resulting from such default, to the amount specified in this undertaking. Dated this day of 18 A B, Justice of the Peace. ^ ^ I Sureties. [Acknowledgment, justification and approval as in supervisor's undertak- ing (Form No. 6, ante, p. 45), except that the approval is by the super- visor, or town clerk, when the justice is a supervisor,] § 7. 023cial acts legalized vrhen justice of the peace fails to tak« official oath or give undertaking. The ofScial acts heretofore done of every justice of the peace, duly elected or appointed to the office, so far as such official acta may be affected, impaired or questioned, by reason of the failure of any such justice to take and subscribe the official oath, or give an official bond as required by law, are hereby legalized, ratified and confirmed, and any justice of the peace heretofore elected or appointed to the office who has neglected to file an official bond within the time pre- scribed by law, may file an undertaking as herein required, within sixty days from and after the passage of this act, and the same shall have all the force, effect and validity as if the bond had been filed within the time required by law. Nothing herein contained shall affect any action or proceed- ing now pending. [Town Law, § 59.] See, also. Public Officers Law, § 15, which provides that the official acts of a justice of the peace are not invalidated because of failure to file oath or give undertaking. § 8. Undertaking of commissioner of highways. Every commissioner of highways shall, within ten days after notice of his election or appointment, execute an under- taking with two or more sureties, to be approved by the supervisor of his town, to the effect that he will faithfully .48 Town and Oounty Officees' Manual. discharge his duties as such commissioner, and within ten days af tar the expiration of his term of office, pay over to his ■ueoessor all moneys remaining in his hands as such com- miasioner, and render to such successor a true account of all moneys received and paid out by him as such commissioner, which undertaking shall be delivered to the supervisor, and filed by him in the office of the town clerk within ten days thereafter. [Town Law, § 63. J See, also, Fublio OfScers Law, g§ 11, IS, 16, post, pp. 63-04. FORM NO. 8. XTndertakino of Commissioner or Highways. Whereas, AB, of the town of county of , was on the day of ,18 , duly elected for 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 68 of the Town Law, and other statutes made and provided, undertake and aoknowl- •dge ourselves, our heirs, administrators and executors, jointly and severally, firmly bound to and with the said town of in the simi of dollars, that the said A B, will faithfully discharge his duties as such com- missioner of highways, and within ten days after the expiration of his term of ofSce, pay over to his successor all moneys remaining 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 commissioner, in accordance with law, or in default thereof, and that we wUl pay all damages, costs and expenses resulting from such default, not exceeding the sum specified in this under- taking. Dated this day of 18. . . . A B, Commissioner of Highways. ^p4 Sureties. [Acknowledgment, Justification and approval as in supervisor's undertak- ing (Form No. 6, ante, p. 45), except that the approval is by the supervisor.] § 9. Undartaking of oTeraeer of the poor. Every person elected or appointed overseer of the poor in any town shall, within ten days aftei being notified of his •lection or appointment, execute an undertaking with one or more sureties, to be approved by the supervisor of his town, to the eflfeci tbat he will faithfully discharge the duties of his office, and will pay according to law all moneys which shall oome into his hands as such overseer, which undertaking ■hall be delivered to th« svpervisor and filed by him iu the Town Officers; Eligibility, etc. 49 office of the town olerk within ten days thereafter. [Town Law, § 62.] See, also, Public Officers Law, §§ 11, 12, 16, post, pp. 53-54. FORM NO. 9. UNDBRTAKINa OF OVERSEEB OF THE POOB. Whereas, BF, of the town of , in the county of , was on the day of 18 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 63 of the Town 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 shaJl come into his hands as such overseer, or in default thereof that we will pay all damages, costs and expenses resulting from such default. BF, Overseer of the Poor. NO. Dated this day of 18 ... [Acknowledgment, justification'and approval as ia supervisor's undertake ing (Form No. 6, ante, p 43), except that the undertaking is to be approved by the supervisor.] § 10. Collector's undertaking. Every person elected or appointed to the ofiBce of collector, before he enters upon the duties of his ofiBce, and within eight days after he receives notice of the amount of taxes to be collected by him, shall execute an undertaking with two or more sureties, to be approved by the supervisor, to the effect that he will well and faithfully execute his duties as collector, pay over all moneys received by him, 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, and shall deliver such under- taking to the supervisor of the town. [Town Law, § 52,J See Public Officers Law, §§ 11, 12, W.post, pp. 52-54. FORM NO. 10. Town Collector's Undertakino. Whereas, NO, of the town of in the county of , was on the day of 18. . , ., duly elected [or appointed] collector of said town and has received [or will receive] the assessment roll of said town for the year 18. . . ., calling for the collection of dollars. Now, therefore, we, the said N O, principal, and R S and T W, of the town 4 50 Town and County Officers' Manuau of , his sureties, do hereby, pursuant to section 62 of the Town Law, jointly and severally undertake and acknowledge ourselves fimjily 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 collector 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, ihe undersigned, will pay all damages, costs and expenses resulting from such default. Dated this day of , 13.... N O. B S TW. [Acknowledgment, justification and approval as contained in supervisor's nndertaking (Form No. 6, ante, p. 45), except that approval is by supervisor.] § 1 1. Filings of collector's undertaking; ; lien on property ot col- lector and sureties. The supervisor shall, within six days thereafter, file the undertaking, with his approval indorsed thereon, in the oflBce of the county clerk, who shall make an entry thereof, in a book to be provided for the purpose, in the same mannor as judgments are entered of record; and every such under- taking shall be a lien on all the real estate held jointly mr severally by the collector or his sureties within the county, at the time of the filing thereof, and shall continue to Ibe such lien, until its condition, together with all costs and charges which may accrue by the prosecution thereof, shall be fully satisfied. Upon a settlement in full between th ■ county treasurer and collector, a certificate of payment shall be executed in duplicate by the county treasurer, one copy to be delivered to the collector and one copy of such certifi- cate shall be filed by the county treasurer in the oflSce of the county clerk, and said county clerk shall then enter a satis- faction thereof in the book in which the filing of said bond is entered and opposite said entry of filing. [Town Law, § 53, as amended by L. 1897, ch. 323.] Nature of lien. The lien on land of surety is not a lien by mortgage and is more like a lien by judgment. The owner may redeem from the sale as other judgment debtors, and until title is perfected in the purchaser, is entitled to Town Officers; Eligibility, etc. 51 possession and the rents and profits. Uplan v. Paddoek, 13 Hun, 571. An unregistered mortgage has precedence over lien of bond. Wilder v. Butter* field, 50 How. Pr. 385. Effect of extension of time of collection, A surety on a collector's bond b not released by an extension of the time for collection by the legislature. United States v, Kirkpatriek, 9 Wheat. 730; United States v. Van Zandt, 11 id. 184; United States v. Nieholl, 12 id. 509. The ground of the decisions is that the regulations concerning time are merely directory to the officer, and form no part of the contract with the surety. As to the effect of extension of time to collect, on liability of sureties, sea 29 Alb. L. J. 121. § IS. Constable's undertaking. Every person elected or appointed to the office of con- stable shall, before be enters on the duties of his office, and within ten days after he shall be notified of his election or appointment, execute in the presence of the supervisor or town clerk of the town, with at least two sufficient sureties, to be approved by such supervisor or town clerk, an under- taking to the effect that such constable and his sureties will pay to each and every person, who may be entitled thereto, all such sums of money as the constable 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 such constable by virtue of his office. The supervisor or town clerk shall indorse on the undertaking his approval of the sureties therein named, and shall cause the same to be filed in the office of the town clerk within ten days thereafter, [Town Law, § 54.] See Public Officers Law, §§ 11, 12 and 15, post, p. 52. FORM NO. 11. CONSTABLli'S U»DEETAKINa, Whereas, D B, of the town of , in the county of 1 , was on the day of 18..., duly elected (or appointed) constable of said town ; Now, therefore, we, the said D E, principal, and N and R S, of the town ot , his sureties, do hereby, pui-suant 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 62 Town and County Officbes' Manttau he may sustain from or by any aot or thing done by said D £ as suoh con- stable, by virtue of his ofSce. Dated this ...dayo£ • ,18..* DE. NO. RS. [Actnowledge, justify and approve as in form for supervisor's undertaking (Form No. 6, ante, p. 45), except that the approval is by the supeivisor ox town clerk.] i 13. Form of undertaking and liability thereon* Every undertaking of a town officer, as provided by this chapter or otherwise, must be executed by such officer and his sureties and acknowledged or proven and certified in like manner as deeds to be recorded, and the approval indorsed thereon. The parties executing such undertaking shall be jointly and severally liable, regardless of its form in that respect, for the damages to any person or party by reason of a breach of its terms. [Town Law, § 66.] [See Public OfiScers Law, § 11, following, which contains provisions to the same effect.] § 14. Conditions, generally, of official undertakings; lorm and manner of executing; justification. Every official undertaking, when required by or in pur- suance of law to be hereafter executed or filed by any officer, shall bu to the effect that he will faithfully discharge the duties of his office and promptly account for and pay over all moneys or property received by him as such officer, in accordance with law, or in default thereof, that the parties executing such undertaking will pay all damages, costs and expenses resulting from such default, not oxceeding a sum, if any, specified in such undertaking. The undertaking of a state officer shall be approved by the comptroller both as to its form and as to the sufficiency of the sureties, and be filed in the comptroller's office. The undertaking of a muni- cipal officer shall, if not otherwise 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 municipality and be filed with the clerk thereof. The approval by such governing body, may be by resolution, a Town Opficeks; Eligibility, btc. 63 certifiwd copy of which shall be attached to the undertaking The sum specified in an official undertaking shall be the sum for which such undertaking shall be required by or in pur- suance of law to be given. If no sum, or a different sum from that required by or in pursuance of law, be specified in the undertaking, it shall be deemed to be an undertaking for the amount so required. If no sum be required by or in pursuance of law to be so specified, and a sum be specified in the undertaking, the sum so specified shall not limit the liability of the sureties therein. 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 residence and the street number of his resi- dence and place of business if in a city, and a sum which h« 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 amiount specified in the undertaking. The failure to exceute an official undertaking in the form or by the number of sunjties required by or in pursuance of law, or of a surety thei^eto, to make an affidavit required by or in pursuance of law, or in the form so required, or the omission from such an xindertaking of the approval required by or in pursuance of law, shall not affect the liability of the sureties therein. [Public Officers Law, § 11.] An undertaking is equivalent to a bond. Statutory Construction Law, § 16. Acting as a public officer without filing bond wiiea required by statute is a misdemeanor. Penal Code, § 43. § 15. Offlcep not to perform duties until undertaking Is glTen ; property or money not to be delivered ; liability of sureties if of- ficer enters on duties before giving undertaking; duration o undertaking. An officer of whom an official undertaking is required, shall not receive any money or property as such officer, or do any 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 per- 64 Town and County Officbbs' Manuai.. Bon 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 discharge 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 suf- fered 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 under- taking shall be obligatory and in force so long as the officer shall continue to act is 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 of- ficial undertaking is renewed pursuant to law the sureties upon the former undertaking shall not be liable for any of- ficial act done or moneys received after the due execution, approval and filing of the new undertaking. [Public Offi- cers Law, § 12.] Entering upon duties ofofflee tef ore filing undertaking a misdemeanor. A person who executes any of the 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 pre- scribed by law. Penal Code, § 42. § 18. Validation of official acts before filings oath or andertaking. If a public officer, duly chosen, has heretofore entered, or shall hereafter enter on the performance of the duties of his office, without taking or filing an official oath, or executing or filing an offical undertaking, as required by the constitu- tion, or by any general or special law, his acts as such officer, so performed, shall be as valid and of as full force and effect as if such oath had been duly taken and filed, and as if such undertaking had been duly executed and filed, not- withstanding the provisions of any general or special law declaring any such office vacant, or authorizing it to be declared vacant, or to be tilled as incase of vacancy, or impos- Town Officers; Eligibility, etc. 55 ing any other forfeiture or penalty for omission to take or file any sucli oath, or to execute or file any such undertaking; but this section shall not otherwise affect any provision of any general or special law, declaring any such office vacant, or authorizing it to be declared vacant, or to be filled as in case of vacancy, or imposing any other forfeiture or penalty, by reason of the failure to take or file any such oath or to ex- ecute or file any such undertaking; and this section shall not relieve any such ofiicer from the criminal liability imposed by section forty-two of the penal code, for entering on the discbarge of his oflQcial duties without taking or filing such oath or executing or filing such undertaking. [Public Officers Law, § 15, as added by L. 1894, ch. 403.] By section 43 of the Pendl Code it is provided that section 43 of the Penal Code {ante p. 54), is not to 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 maintaining the validity of such acts. § 17. Resignsitionof to^rn ofiScers; notice. Any three justices of the peace of a town may, for suffi- cient cause shown to them, accept the resignation of any town officer of their town; and whenever they shall accept any such resignation, they shall forthwith give notice thereof to the town clerk of the town. [Town Law, § 64.J Resignations, generally, as contained in Publie Officers' Law. — ^By section 21 of the Public Officers Law, it is provided that : " Public officers may resign their offices as follows : 7. Every town officer, to the town clerk. . . , Every resignation shall be in writing, addressed to the officer or body to whom it is made. If addressed to an officer, it shall take eflEect upon delivery to him at his place of business or when it shall be filed in his office. ... A delivery at the office or place of residence or business of the person to whom any such resig- nation may be delivered, shall be a sufficient delivery thereof." The above section of the Town Law is probably in force and resignations may be made to the justices of the peace. FORM NO. 12. Resignation of Town Ofpioebs. ToAB, Taum Clerk {or CD, EF, OH and J K, Justices of fhe Peace) of the Tovm of ; I,MO,of the town of , county of .having been duly elected (or appointed) to the office of in and for 56 Town akd County Officbes' Manual. the said town of on the. day of 18. ., and haTing duly qualified as such officer, do hereby resign such office, to take effect upon the delivery of this resignation. Dated ,18... MO. § 18. Removal of town officers; application to appellate diviaion; notice. Any town or village oflHcer, except a justice of the peace, may be removed from office bj the supreme court for any misconduct, maladministration, malfeasance or malversa- tion in office. An application for such removal may be made by any citizen resident of such town or village and shall be made to the appellate division of the supreme court held within the judicial department embracing such town or village. Such application shall be* made upon notioe to such town officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice. [Public Officers Law, § 25a, as added by L. 1896, ch. 573.] § 19 Vacancies how created. Every office shall be vacant upon the happening of either of the following events before the expiration of the term thereof: 1. The death of the incumbent; 2. His resignation ; 3. His removal from office; 4. His ceasing to be an inhabitant of the state, or if he bo a local officer, of the political subdivision, or municipal cor- poration of which he is required to be a resident when chosen; 5. His conviction of a felony, or a crime involving a vio- lation of his oath of office; 6. The judgment of a court, declaring void his election or appointment, or that his office is forfeited or vacant; 7. His refusal or neglect to file his official oath or under- taking, if one is required, before or within fifteen days after the commencement of the term of office for vhich he ih chosen, if an elective office, or if an appointive office, within Town Ofpicbes; Eligibility, bto. 51 fifteen days after notice of bis appointment, or within fifteen dajs after the commencement of sucb term; or to file a renewal undertaking within the time required by law, or if no time be so specified, within fifteen days after notice to him in pursuance of law, that sucb renewal undertaking is required. When a new oSice or an additional incumbent of an existing office, shall be created, such office shall for the purposes of an appointment or election, be vacant from the date of its creation, until it shall be filled by election oi appointment. [Public Officers Law, § 20.] Forfeitures, An officer asking or receiving bribes, upon conviction, forf eita his office and is disqualified from holding any other office (Penal Code, § 45) ; as also an officer who grants to another for pay or any " reward, consideration or gratuity, " the right to discharge any of the functions of his office (Penal Code, § 54) ; also an officer convicted of falsely auditing and paying claims. (Penal Code, § 166.) Also a constable who allows a prisoner to escape from his lawful custody (Penal Code, § 90); also a person convicted of paying money for votes at an election at which he was elected. (Penal Code, § 41.) § SO. Vacancies, appointment to fill, how made and when filled. When a vacancy shall occur or exist in any town office, the town board or a majority of them may, by an instrument under their hands and seals, appoint a suitable person to fill the vacancy, and the person appointed, except justices of the peace, shall hold the office until the next biennial town meeting. A person so appointed to the office of justice of the peace shall hold the office until the next bieninal town meeting, unless the appointment shall be made to fill the vacancy of an officer whose term will expire on the thirty- first day of December next thereafter, in which case the term of office of the person so appointed shall expire on the thirty-first day of December next succeeding his appoint- ment. The board making the appointment shall cause the same to be forthwith filed in the office of the town clerk, who shall forthwith give notice to the person appointed. A copy of the appointment of a justice of the peace shall also be filed in the office of the county clerk before the person appointed shall be authorized to act. [Town Law, § 65, as amended by L. 1897, cb. 481.] 68 Town and County Officers' Manual. FOEM NO. 18. Appointment to Fill Vacanot in Town Officii. Wliereas, a yacanoy exists in the office of , in the town of. , county of because of the [resignation, or as the case maybe] of M N, who was elected to such office on the day of , 18.., 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 office of ; the said N O shall hold such office until the next 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 ,18... B F, Supervisor. [L. S.] CAdd 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 follovnng the election. FOEM NO. 14. NoTiOB OP Appointment to Town Ofpiob. To NO.! You are hereby notified that you were appointed by the town board of the town of , county of ,.., as in and for the said town to fill the vacancy in that office occasioned by the [resigna- tion 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 , 18. ., as provided by law. Dated 18... C Z, Town Clerk. § SI. Coanty clerk to report omissions of town offieors to district attorney. The clerk of each county shall make a report to the dis- trict attorney of the county, of all omissions by any town officer to make and transmit any returns or certificates, which by law they are required to make to such clerk, and the district attorney shall enforce the penalty, by law imposed upon the delinquent officer. [Town Law, § 67.1 SUPBRVISOB AS A ToWN OfFICBB. CHAPTER IV. The SUPBRVISOB as a town offiobb; gbnbbal dutibs. Bboxion 1. Oeneral duties of supervisor. 3. Town surveys. 8. Fire in woods. i. Powers of supervisors as to forest fires tn counties containing state lands. 6. Bounties for panthers ; duties of supervisors and justioea of tb» peace as to. 6. Supervisors to furnish lists of corporations to state comptroller; forms. 7. Delivery of books and papers by outgoing supervisor, town olerk, commissioner of highways or overseer of tha poor to suooaasor. g 1. General duties of supervisor. The supervisor of each town shall: 1. 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. 2. Prosecute, in the name of his town, for all penalties given by law to such town for its use, and for which no other officer is specially directed to prosecute. 3. Keep a just and true account of the receipt and expend- itures of all moneys which shall come into his hands by virtue of his office, in a book to be provided for that purpose at the expense of the town, and to be delivered to his suc- cessor in office. 4. On the Tuesday preceding the biennial town meeting and on the corresponding date in each alternate year, account with the justices of the peace and town clerk of the town for the disbursement of all moneys received by him. If the biennial town meeting in any town is held at the time of a general election, such account shall be rendered on the third Tuesday of December in each year. [Thus amended by L. 1898, ch. 363.J 5. Receive all accounts against the town, which shall be 60 Town aot) County Officers' Manual. presented to him, and present the same to the town board for audit, except such accounts as he may be required by law to present to the board of supervisors. 6. Attend the annual meeting of the board of supervisors of the county, and every adjourned or special meeting of which he shall have notice, and present to such board the town audits and such other accounts and demands against the town, and such reports and statements as he may be required by law to present to such board. 7. Sell and convey in the name of the town, property owned by it, when directed by a town meeting. [Town Law, sec. 80; sub. 7, added by L. 1900, ch. 377, taking effect April 11, 1900.] See chapter m, ante, p. 41, for eligibility, qualiSoation, oath and uiidertak« Ing of supervisors ; and as to resignations and vacancies. OtTier duties. There are many other duties to be performed by supervisors as town o£Bcers which will be treated under the appropriate heads. Undertaking of supervisors. See Form No. 6, ante, p. 45. Approval of undertakings of town officers. See Town Law, g§ 58, 54, 58, 63, 63, in preceding chapter. As to member of town board, to audit accounts, &o., see chapter XZZII, post, p. 416. Board of health, as member of, see chapter XXaiv, post, p. 450. School moneys, as to apportionment of, see chapter XXXVI, post, p. 465. Support of poor, see chapter XVI, post, p. 209. Sale of personal property under lien, proceeds to be deposited with supe^ visor. Lien Law (L. 1897, ch. 418), § 84. Survey of non-resident lands, supervisor to cause to be made in certain oases. Tax Law, § 30, post, p. 112. Assessmient roll to be delivered to supervisor. Tax Law, § 88, post, p. 123. Collection of taxes, supervisor to apply to county treasurer for extension of time for. Tax Law, § 85^ post, p. 157. Colleetor, supervisor to notify county treasurer of appointment to fill vacancy in office of. Tax Law, § 86, post, p. 159. Equalization of assessments by board of supervisors, supervisor may appeal from. Tax Law, § 174, post, p. 133. Dogs, taxation of in towns, duties of supervisor as to. County Law, gg 118, 114, post, p. 189. Temporary relief of poor persons, supervisor to give order for. Poor Law, § 23, post, p. 212. Overseer of the poor, a\x-perviaoT to present estimate of , if approved by th* town board, to the board of supervisors. Poor Law, g 37, post, p. 220. Accounts audited by the town board to be certified and delivered to super- visor. Town Law, § 182, post, p. 418. Tovm auditor, vacancy in office of to be filled by supervisor. Town Latir* § 176, post, p. 421. Licenses for peddling, See, to be endorsed by supervisor ; fees to be paid to him. Town Law, § 185, post, p. 486. Transient retail business, licenses for to be issued by supervisor ; fees to b| paid to him. L. 1898, ch. 141, § 1, post, p. 488. SCPBBVISOB AS A TOWBT OVTIOSA. 9X HacTea, ahotoa, eoneerta and amuaementa, licenses for, to be isined by super* Tlaor ; fees to be paid to him ; disposition of fees. L. 1890, oh. 833, poat, p. 439. Boad machinea, supervisor and oommissioner of highways may contract for purchase of. Highway Law, § 6, post, p. 272. Highways and bridges, supervisor to sell bonds of town for construction or repair of, when authorized by board of supervisors. County Law, § 70, postt p. 886. Railroad eommisaionera, to perform duties of, when office is abolished. General Municipal Law, § 18, poat. Toum indeibtedneaa, supervisor to report amount of to board of supervison. Town Law, §§ 310, 311, ^osf. Special town meeting, supervisor may make application for. Town Iaw, § S3, ante, p. 38. § S. Town surveys. Whenever the supervisor of any town shall be required by the state enigneer and surveyor to cause a survey to be made of the bounds of his town, such supervisor, within sixty days thereafter, shall cause such survey to be made, and transmit, by mail or otherwise, a map and description thereof to the state engineer and surveyor. The expense of Buch survey and map shall be defrayed by the several towns whose bounds, either wholly or in part, shall be described thereby, such expense to be apportioned by the board of supervisors of the county. If any supervisor shall refuse or neglect to cause such survey to be made, he shall forfeit the sum of fifty dollars to the people of the state. [Town Law» § 81.J § 8. Fires In woods. Whenever the woods in any town shall be on fire, it shall be the duty of the justices of the peace, the supervisor and commissioners of highways of such town, and of each of them, to order such and so many of the inhabitants of such town liable to work on the highways and residing in the vicinity of the fire, as they shall severally deem necessary, *j repair to the place where such fire shall prevail, and there to assist in extinguishing the same, or in stopping its progress. [Town Law, § 81.] 62 Town aot) Cotjuty Ofi'icees' Manual. g 4. Fire wardens and forest fires. Compensation of firewardens and others employed at fires. — ■ Firewardens and district firewardens shall receive two dollars and a half a day for time actually employed at forest fires or in the prevention thereof. Each town board of audit shall, prior to May first, niaeteen hundred, fix the price to be paid per day, not exceeding two dollars, for services of laborers at forest fires in their respective towns, and serve notice thereof on their town fire- wardens and on the forest, fish and game commission. If neces- sary to protect land in the forest preserve the commission may direct the employment of laborers at not exceeding two dollars a day, and such direction shall be binding on the towns. All services rendered at forest fires or in the prevention thereof, shall be a town charge. In towns where firewardens are appointed by the commission, bills for services at fires must be approved by the fire- warden and a diiplicate bill with his approval and a certificate of the board of town auditors showing the bill has been paid, filed with the commission. On approval of the bills filed with the com- mission, the comptroller shall pay one-half the amount so ex- pended in any such a town, to the town. [Forest, Fish and Game Law (L. 1900, ch. 20), sec. 227, as amended by L. 1900, ch. 609.J Railroads in forest lands. — Every railroad company shall on such part of its road as passes through forest lands or lands subject to fires from any cause, cut and remove from its right of way along such lands at least twice a year all grass, brush and other inflam- mable materials ; employ in seasons of drought and before vegeta- tion has revived in the spring, sufficient trackmen to promptly put out fires on its right of way; provide locomotives thereon with steel netting or iron wire on the smoke stacks to prevent the escape of fire and sparks, and adequate devices to prevent the escape of fire from ashpans and furnaces, which shall be used by every engineer and fireman on such part of its road. No railroad com- pany or employee thereof shall deposit fire coals or ashes on its track or right of way near such lands. In case of fire on its own or neighboring lands, the railroad company shall use all practicable ineans to put it out. Engineers, conductors or trainmen discover- ing or knovring of fires in fences or other material along or near SUPEEVXSOE AS A 'XpWJI OyFIGEE. ^ lB3 the right of way of the railroad in such lands, shall report the same at the £rst station to the station agent, and such station agent shall forthwith notify the nearest fire warden or game protector thereof, and use all necessary means to extinguish the same. Any railroad company or employee thereof violating any provision of this section shall be liable to a penalty of one hundred dollars for every such violation. [Forest, Fish and Game Jjaw (L. 1900, eh. 20), sec. 228.] Fires to clear Zand.^Fallows, stumps, logs or fallen timbers shall not be burned in the territory hereinafter described from April first to June tenth, both inclusive, or from September first to November tenth, both inclusive. From June eleventh to August thirty-first, both inclusive, such fires may be set therein if written permission of the fire warden or district fire warden of the town or district in which the fire is set has been first obtained. If in a locality near forest or woodland, the fire warden or district fire warden shall be personally present when the fire is started. Such fires shall not be started during a heavy wind or without sufficient help present to control the same, and the same shall be watched by the person setting the fire until put out. Any person violating any provision of this section is guilty of a misdemeanor, and in addi- tion thereto is liable to a penalty of three hundred dollars. This section applies to Hamilton county ; to the towns of Minerva, New- comb, North Hudson, Schroon, Keene, Jay, Lewis, North Elba, Saint Armand, and Wilmington, Essex county; the towns of Waverly, Harrietstown, Brandon, Santa Clara, Brighton, Bel- mont, Franklin, Duane and Altamont, Franklin county ; the towns of Hopkinton, Colton, Clifton, Fine, Edwards, Pitcairn, Clare, Russell and Parishville of Saint Lawrence County; the towns of Diana, Croghan, Watson, Greig, and Lyonsdale of Lewis county; to the towns of Webb, Wilmurt, Ohio, Salisbury, Eemsen and Eu,ssia, Herkimer county; the town of Forestport, Oneida county; the towns of Stratford, Caroga, Bleecker, and Mayfield, Fulton county ; the towns of Day, Edinburgh, Hadley and Corinth, Sara- toga county ; the towns of Johnsburgh, Thurman and Stony Creek, Warren county; the towns of Putnam, Dresden and Fort Ann, Washington county ; the towns of Altona, Dannemora, EUenburgh, 64 Town ahb County Officees' Manual. Saranac and Black Brook, Clinton county ; the towns of Denning, Hardenburgh, Shandaken, OUve, Eochester, Wawarsing and Woodstock, Ulster county; the towns of Neversink and Eockland, Sullivan county; the towns of Andes, Colchester, Hancock and Middletown, Delaware county ; the towns of Hunter, Jewett, Lex- ington and Windham, Greene county. [Forest, Fish and Game Law (L. 1900, ch. 20), sec. 229.J Forest fires prohibited. — A person who except as permitted by this act wilfully or negligently sets fire to waste or forest lands of the state or of a private person or who suffers a fire on his own lands to extend therefrom to state lands is guilty of a misdemeanor and shall be imprisoned not more than one year and pay a fine of not less than two hundred and fifty dollars or both. He shall also be liable to the state or any person for the damages caused by such wrongful act. [Forest, Fish and Game Law (L. 1900, ch. 20), sec. 230.J Superintendents of forests, and other officials. — The engineer of the commission shall act as superintendent of forests and shall perform the duties pertaining to that office as hereinafter described. The commission shall appoint a chief firewarden, and such clerical assistance as may be actually necessary. The chief firewarden shall give a bond to the commission in the sum of one thousand dollars, said bond to be with two sureties and to be approved by the commission, and conditioned for the faithful performance of his duties. The commission may appoint expert foresters, not exceeding three in number, who shall act as deputy firewardens, and shall be employed in the work of reforesting the burned, bar- ren or denuded lands in the forest preserve, and in such other work as may tend to the improvement and increased value of the state forest. [Forest, Fish and Game Law (L. 1900, ch. 20), sec. 231, as inserted by L. 1900, ch. 607.] Duties of superintendent of forests, and his assistants. — The superintendent of forests, under the direction of the commission, shall have charge of all work connected with the care and custody of the forest preserve, prevention of forest fires, and the general supervision of the forestry interests of the state. He shall report annually to the commission, showing the annual timber product SuPERVisoE AS A TowN Ofeicee. ' 65 of the Adirondack and Catskill forests and, also, the extent of the forest fires and losses therefrom. He shall make such other reports from time to time as may be required hy the commission or may be necessary for their information. [Forest, Fish and Game Law (L. 1900, ch. 20), sec. 232, as inserted by L. 1900, ch. 607.] Duties of the chief firewarden. — The chief firewarden, under the direction of the commission, shall have supervision of the town firewardens, visit each town as often as practicable and fully acquaint each firewarden with his duties, notify the commission of all vacancies on the roll of firewardens as soon as they occur, see that the towns are divided into districts of suitable size and proper location and that district firewardens are appointed as pro- vided by law, have charge of the firewardens' reports, and when the cause of a fire is not reported ascertain its origin; under authority of the commission, institute prosecutions for violations of the law regulating forest fires, and have supervision of all bills, against the state rendered by the various towns for fighting forest fires. [Forest, Fish and Game Law (L. 1900, ch. 20), sec. 233, AS amended by L. 1900, ch. 607.] § 6. SupervisoFB to forward lists of corporations to state comp> troUci'; forms. The supervisors of each town, ward, city or district in this state for which a supervisor is elected shall, on or before the first day of May in each year, make an accurate list of every corporation, joint-stock company and association incorporated by this or any other state or country, located or doing busi- ness in such town, ward, city or district for which such supervisor has been elected, and shall forthwith forward the same to the comptroller of this state, verified by their oath before some magistrate or person authorized to administer oaths, to the effect that such list is full and complete to the best of their knowledge, information and belief. [L. 1881, ch. 166, § 1.] The comptroller of this state shall, on or before the fifteenth day of April in each year, forward to the said supervisors suitable forms for making up the said lists so required to be sent to him. [L. 1881, ch. 166, § 2.] 5 66 Town and Cottntt Offickrs' Manuai* § 7. Delivery oT books a^id papers by outgoing supervisor, town clerk, commissioner of highways or overseer of the poor, to successor. Whenever the term of ofSce of any supervisor, town olerk, commisioner of highways or overseer of the poor shall expire, or when either of such ofBcers shall resign, and another person shall be elected or appointed to the office, the succeeding officer shall, immediately after be shall have entered on the duties of his office, demand of his predecessor all the records, books and papers under his control belong ing to such office. Every person so going out of office, whenever so required, shall deliver upon oath to his suc- cessor all the records, books and papers in his possession or under his control belonging to the office held by him, which oath may be administered by the officer to whom such delivery shall be made, and shall, at the same time pay over to his successor the moneys belonging to the town remaining in his hands. If any such officers shall have died, the successors or successor of such officer shall make such demand of the executors or administrators of such deceased officer, and such executors or administrators shall deliver, upon like oath, all records, books and papers in their pos- session, or under their control, belonging to the office held by their testator or intestate. If any person so going out of office, or his executors or administrators, shall refuse or neglect, when lawfully required, to deliver such records, books or papers, he shall forfeit to the town, for every such refusal or neglect, the sum of two hundred and fifty dollars; and officers entitled to demand such records, books and papers may compel the delivery thereof in the manner pre- scribed by law. [Town Law, § 84.] Proeeedingt to compel delivery of books. The following; section of the Code of Civil Procedure prescribes the procedure for compelling the delivery of books by a publio officer to his successor; § 2471a. A publio officer may demand from any person in whose possession they may be, a delivery to such officer of the books and papers belonging or appertaining to such office. If such demand is refused, such offloer may make complaint thereof to any justice of the supreme court of the district. or to any oounty judge of the county in which the person refusing resides. If ?uch justice or judge be satisfied that such books or papers are withheld, he shall grant an order directing the person cef asini; to show cause before Supervisor as a Town OffICee. 67 him at a time specified therein, why he should not deliver the same. At such time, or at any time to which the matter may be adjourned, on proof o{ the due service of the order, such justice or judge shall proceed to inquire into the circumstances. If the person charged with withholding such books or papers makes affidavit before such justice or judge that he has delivered to the officer all books and papers in his custody which, within his knowledge, or to his belief, belong or appertain thereto, such proceed- ings before such justice or judge shall cease, and such person be discharged. If the person complained against shall not make such oath, and it appears that any such books or papers are withheld by him, such justice or judge shall commit him to the county jail Uutil he delivers such books and papers, or is otherwise discharged according to law. On such commitment, such justice or juci je, if required by the com- plainant, shall also issue his warrant directed to any sheriff or constable, commanding him to search in the daytime, the places designated therein, for such books and papers, and to bring them before such justice or judge. H any such books and papers are brought before him by virtue of such warrant, he shall determine whether they appertain to such office, and if so shall cause them to be delivered to the complainant. In proceedings to com.pel an officer whose term has expired to deliver to his successor the books, papers, etc., appertaining to the office, all that the petitioner is required to establish is his election, and that he has duly quali- fied. Questions as to the validity of the election may not be determined in Buoh a proceeding. Hatter of Bradley, 141 N. Y. 537.] FORM NO. 14. Oath of Supervisor, Town Clbrk, Highway Commissioner and Oveb- SEER OP THE Poor, Going out of Office, on Delivery of Books, Records, bto. COUNTY OP )„.. Town OF , J " I, M N, of the town of , beiug duly sworn, depose 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, and that the amount paid by me to the sail O P, at the time of such delivery, to wit, the sum of dollars and cents, is all the money belonging to Baid town remaining in my hands. Subscribed and sworn to before me, ) this. of ,18... ) RS, CTikle of office.) 3ft Tows AND County Officbbs' Manual CHAPTER V. Duties of town oleek, gbnerallt. SBOaas L Town (derk to have custody of books, records and papers; to deliver certificate of vote on propositions to supervisor; return names of constables. 8. Furniture and blank books for clerk's office. 8. Sign for clerk's office. 4. Filing and discharge of chattel mortgages in town olerk's office; fees of town clerk. 6. Filing and entry of marriage certr&cates ; fees. 6. Town clerk may appoint deputy ; qualifications, oath of office* compensation. 7. Copies of papers filed with town clerk as evidence. 8 1. Tawn clerk to have enstody of books, records and papers ; to deliver certificate of vote on propositions to supervisor ; return names of constables* The town clerk of each town shall have the custody of all the records, books and papers of the town; and he shall dulj file all certificates of oaths and other papers required by law to be filed in his office. He shall transcribe in the books of records of his town the minutes of the proceedings of every town meeting held therein, and shall enter in such book every order or direction and all rules and regulations made by any such town meeting. He shall deliver to the super- visor, before the annual meeting of the board of supervisors of the county in each year, certifiad copies of all entries of votes for raising money made since the last meeting of the board of supervisors, and recorded in the town book. Im- mediately after the qualifying of any constable elected or appointed in his town, he shall return to the clerk of the county the name of such constable. If any town clerk shall wilfully omit to make such return, he shall forfeit the sum of ten dollars, to be recovered by the supervisor in the name of, and for the use of, the town. [Town Law, § 83.] Genbrai. Pbotisions Applicable to Town Cussk. Term of offiae. Town Law, § 13, ante, p. 11. Higibility and quaUficaiion to hold effioet Town Law, J 60, ante, p. 41; Public Officers Law, g 8, ante, p. 12. DuTiBs OF Town Glsbk. 69 Oath of office. Town Law, § 51, ante, p. 43. notice of neglect to file. Public Officers Law, § 18. effect of failure to file, validation of acts before filing. Public Offioen Law, § 15, ante, p. 54. Jtemoval of town clerk. Public Officers Law, § 25a, ante, p. 66. Sesignation. Town Law, § 64, ante, p. 55. Vacancy, hov7 created. Public Officers Law, § 20, ante, p. 60, how filled. Town Law, § 65, ante, p. 57. Selivery of papers by outgoing town clerk. Town Law, § 84, ante, p. 0& Clerk of town meeting. Town Law, § 26, ante, p. 29. Other Duties of Town Clebk. Town hoard, as member of. Chapter XXXII, post, p. 416. SpetAal town meetings, to give notice of. Town Law, § 34, ante, p. 27. Tovm. meetings, to give notice of propositions to be submitted at. Town Law, § 33, ante, p. 30. to prepare ballots, provide stationery, etc. Election Law, § 86 (Jewett's Election Manual, 1898, p. 100). See, also, on subject of town meetings generally, chapter II, ante, p. 7. General elections, to distribute ballots at. Election Law, § 87 (Jewett's Election Manual, 1898, p. 101). compensation for services performed. Election Law, § 18 (Jewett's Election Manual, 1898, p. 37). Justice of the peace, town clerk to certify to election of. Town Law, § 57, ante, p. 16. Undertakings, approval of, by town clerk. Town Law,'§§ 54, 58, ante, p. 51. Strays and beasts doing damage, duties of town clerk as to. Town Law, §§ 130, 121, post, p. 181. notice of lien on account of, to be filed with town clerk. Town Law, § 131, post, p. 183. Floating timber, wrecks, etc., notice of lien on account of to be filed with town clerk. Town Law, § 135. Justice of the peace, books and papers of, to be deposited with town clerk, apon his removal from town, or if removed from office. Code Civ. Pro. g§ 8144-3148. Accounts audited by town board to be certified and filed with town clerk. Town Law, 2 162, post, p. 418. Town poor. Accounts of overseer of the poor to be filed with town clerk. Poor Law, § 26, post, p. 212. (See Cumming The town clerk of any town may, with the consent of the town board of his town, purchase or furnish for the town clerk's office all necessary bound blank books for the enter- ing and keeping of the records of his town, and also necessary book and office cases, tables and other furniture for the use and convenience of the office and the safe-keeping of the books and papers of the town, and the expense thereof shall be a town charge, to be audited and paid as other town charges. [Town Law (L. 1890, oh. 569), §85.] § 8. Sign for clerk's office. There shall also in like manner be furnished and kept for every town clerk's office a sign with the name of the town, followed by the words, "town clerk's office" in plain char- acters thereon, with sufficient board space immediately below for posting thereon the legal notices of the town, which sign and board space shall be placed and kept on or at the outside front door of every town clerk's office, which board shall always be one of the public places upon which any legal notice in the town may be posted. [Town Law (L. 1890, ch. 569), § 86. J § 4. Filing and discharge of chattel mortgages !n town clerk's of- fice ; fees of town clerks. All chattel mortgages in towns are required to be filed in the office of the town clerk, unless there is a county clerk's office in such town, in which case they are to be filed therein. [Lien Law (L. 1897, chap. 418), § 92.] The town clerk shall file every such instrument presented to him for that purpose, and indorse thereon its number and the time of its receipt. He shall enter in a book, provided DcTiBs Off Town Clerz. 71 for that purpose, in separate columns, the names of all th« parties to each mortgage so filed, arranged in alphabetical order, under the head of "mortgagors" and "mortgagees," the number of such mortgage or copy, its date, the amount secured thereby, when due, the date of the filing thereof; and, if the mortgage be upon a craft navigating the canals, and filed in the oflBce of the comptroller, the name of the craft shall also be inserted. [Lien Law (L. 1897, chap. 418), § 93.] The oflScer with whom the mortgage, or a copy thereof ia filed, must, on receipt of the certificate setting forth the pay- ment or satisfaction of such mortgage, file the same in his of- fice, and write the word "discharged" in the book where the mortgage is entered, opposite the entry thereof, and the mortgage is thereby discharged. [Lien Law (L. 1897, chap. 418) § 98.] The several clerks and registers are entitled to receive for services hereunder, the following fees: For filing each in- strument, or copy, six cents; for entering the same as afore- said, six cents; for searching for each paper, six cents; and the like fees for certified copies of such instruments or copies as are allowed by law to clerks of counties for copies and certificates of records kept by them. The comptroller is entitled to receive the following fees for services performed under this article, for the use of the state: For filing each instrument or copy and entering the same, twenty-five cents; for searching for each paper, twenty-five cents; and the like fees for certified copies of such instruments or copies, as are allowed by law to be charged by the comp- troller for copies and certificates of records kept in his office. No officer is required to file or enter any such paper or furnish a copy thereof, until his lawful fees are paid. [Lien Law (L. 1897, chap. 418), § 94.] A chattel mortgage is not filed until it is actually deposited in the town clerk's offloe. Delivery to him, while absent from his office, is not sufficient. Hathaway v. Howells, 64 N. Y. 97, 103. The receipt and indorsement of chattel mortgage by person in office of town clerk, when the office is vacant, is a valid filing. Bishop v. Cook, 13 Barb. 336. A clerk of the town clerk ^nay file a mortgage. Dodge v. Potter. 18 Barb. 193. Clerk nped not file un- :\\ fees are paid. People ex rel. Stevens v. Eoyt, 66 N. Y. 607. Failure to 72 Town and County Officbes' Manual. provide proper books and to properly file on the part of the town olerk will not affect validity of mortgage. Manhattan Co, v. Laimbeer, 108 N. Y. 678, 590. Notice of liens for labor on stone to be filed with town olerk, and same fees chargeable therefor. Lien Law (L. 1897, chap. 418), § 50. Mare and foal, lien on. Xotice to be filed in same manner as chattel mortgage. Lien Law (L. 1897, chap. 418), § 60. Conditional sale, contracts of, to be filed in office of town clerk, in tba eame manner as chattel mortgages. Lien Ldw (L. 1897, ch. 418), § 114. § S. Filing and entry of marriage certificate; fees. On the pressntation of [a marriage] certificate signed by such magistrate or clergyman, within six months after the marriage, to the clerk of the city or town in which the marriage was solemnized, or in which either party resided at the time of the marriage or resides when the certificate is presented, such clerk must file in his ofSce and enter in a book kept by him for that purpose in the alphabetical order of the initial letter of the surname of each party and in the order of time in which the certificate is filed : 1. The names and places of residence of the persons married. 2. The time and place of marriage. 3. The name and official station of the person signing the certificate. 4. The date of filing the certificate. [Domestic Belatioas Law (L. 1896, chap. 272), § 15.J Such certificate or entry, or a copy of either certified by the officer with whom such certificate is filed, is presumptive evidence of the marriage. [Idem, § 16.] Fees for services rendered under this chapter may be collected as follows: For solemnizing a marriage including the certificate thereof, one dollar. For administering an oath and taking an examination as prescribed in section thirteen, fifty cents for each person examined. For filing and entering a certificate, twenty-five cents. For a certified copy of a certificate or entry, ten cents. [Idem, § 17.] DuTiBs 07 Town Clbsk. 73 g 6. Town clerk may appoint deputy; qualifleation« oath of ofBce, compensation. Every person hereafter elected or appointed, to the ofSce of town clerk, in any town in this state, immediately after taking the oath of office, may appoint a deputy town clerk for such town. Such appointment shall be in writing and shall be recorded in the record book of said town. Such deputy must be eligible for election to town office, shall take and subscribe the constitutional oath of office, and in the absence or inability to serve of the town clerk, is hereby authorized to perform any official act devolving upon town clerks, and shall hold office during the pleasure of the town clerk. Said deputy shall be paid for his services by the town clerk, but no charge shall be made against the town for the services of said deputy. Nothing contained in this act shall prevent any town clerk from appointing hia wife or daughter as such deputy. (L. 1892, ch. 658, § 1.) § 7. Copiesof papers filed with town elerk, evideneok A copy of a paper filed, pursuant to law, in the office of a town clerk, or transcript from a record kept therein, pursu> ant to law, certified by the town clerk, is evidence^ with like effect as the original. [Code Civ. Pro. § 934.] 74 Town and Countt Offiobbs' Manual CHAPTER VI. Justices of thb pbaob ; gbnbbal dutibs as town offiobbo. SEonov 1. Constitutional provisions relative to justices of the peao& 2. Provisions generally applicable to justices of the peaos. 8. Duties in common with other town officers. 4. Removal of justice of the peace. 6. Justice of the peace to deposit books with town clerk, if ha removes from town or is removed from office; town clerk to demand books. 6. Buying demands by a justice or constable, for suit before a justice; forfeiture of office. § 1. Constitutional provisions relative to justices of the peace« 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 an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace, and judges 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 aa are or may be prescribed by law. [State Constitution, art. VI, § 17.] 8 2. ProTisions g^enerally applicable to justices of the peace. Election of justices, number elected at each biennial town meeting. Town Law, § 12, ante, p. 10. at town meetings in 1898 and 1899. L. 1897, chap. 481, § 21, ante, p. 12. Number and terms of justices. Town Law, § 14, ante, p. 14. 3aUots for full term and vacancies. Town Law, § 18, ante, p. 14. New towns, justices in. Town Law, § 19, ante, p, 15. when more than four justices may hold office. Town Law, § 20, ante, p. 15. Certificate of election of justices filed with clerk of county. Town Law, g 57, ante, p. 16. Justices op the Peace, General Duties. 75 Town meetings, justices to preside at. Town Law, § 25, ante, p. 98. Powers of. Town Law, § 22, ante, p. 21. [See chapter II, a.Ue, p. 22, as to powers of town meeting, manner of conducting, and other provisions relating thereto.] Special constables, appointment of by justices and supervisor. Town law, §41, ante, p. 39. Eligibility to office of justice. Town Law, § 50, ante, p. 41. Qualifications to hold office of justice. Public Officers Law, § 3, ante, p. 42. Undertalcing of justice. Town Law, § 58, ante, p. 46. Form of and liability thereon. Town Law, § 66, ante, p. 52. Undertaking, etc. Form of justice's undertaking. Form No. 7, ante, p. 46. conditions generally. Public Officers Law, § 11, ante, p, 52. force and effect of. Public Officers Law, § 15, ante, p. 54. Oath of offlee, to be taken before county clerk. Town Law, § 58, ante, p. 46. Acts of justice legalized before filing oath, etc. Town Law, § 59, ante, p. 47; Public Officers Law, § 15, ante, p. 54. Besignation of town office to justice. Town Law, § 64, ante, p. 55. Vaeanoies in offices of justice, how created. Public Officers Law, § 20, ante, p. 56. filling of, by town board. Town Law, § 65, ante, p. 57. Accounts of justice of the peace, how audited; appeal to board of super- visors; fees of justices in criminal actions. Town Law, §§ 163-165, post, p. 428. Fees of justices of the peace. See chapter LI, post. % S. Duties in common with other to'wn o£Bcers. Fires in woods, acts with supervisor and highway commissioners. Town Law, § 82, ante, p. 61. Town l>oard, members of. Town Law, J 160, post, p. 416. powers and duties of. See chapters XXXII, to XXXVI, porf. Bounties for panthers, justice of the peace and supervisor to certify aa to. Fisheries, Game and Forestry Law, §§ 53, 54, ante, p. 65. § 4. Removal of justice of the peace. Justices of the peace, police justices, justices of justice's courts, and their clerks, are removable by the appellate division of the supreme court. [Code of Criminal Procedure, § 132, as amended by L. 1895, ch. 880.J { S. tfustice of the peace to deposit books with town clerk. If he removes from town or is removed from o£Bce; town clerk to demand books. If a justice of the peace, either before or after the expira- tion of his term of office, removes from the town or city 76 Town and County Officbrs' Manual. wherein be was elected, he must forthwith deposit, with the clerk of that town or city, his docket book, and all other papers in his custody, relating to an action or a special pro- ceeding, which has been heard by him, or commenced before him. A justice, who is removed from ofBce, must make a like deposit, within ten days after receiving notice of hii removal, or afterwards, upon the demand of the clerk of the town or city. But the omission of the justice to make th€ deposit, does not affect the validity of any book or paper, so required to be deposited, or of any proceeding to which il relates. [Code Civ. Pro. § 3144.] A justice of the peace must make, in each docket book deposited by him, as prescribed in the last section, a cer- tificate under his hand, to the effect that each judgment oi order, entered therein, was duly rendered or made as therein stated; and that the sum, appearing by the book to be dus thereupon, has not been paid, to his knowledge. [Code Civ. Pro. § 3145.] If a justice of the peace dies, or his office becomes other- wise vacant, the town or city clerk must demand and receive all books and papers, which belonged to the justice in hia official capacity, from any person having them in his posses- eion. [Code Civ. Pro. § 3146.] If any book or paper, required to be deposited with the town or city clerk, as prescribed in this title, is withheld, the like proceedings may be had, at the instance of the town or city clerk, to compel the deposit thereof, as are pre- scribed by law, where an officer refuses or neglects to deliver a book or paper in his custody as such officer, to hia suc- cessor in office. [Code Civ. Pro. § 8147.] § 6. Baying demands by a, justice or constable, for suit before a jnstice ; forfeiture of ofiSce. A justice of the peace or a constable who, directly or indi- rectly, buys or is interested in buying, anything in action, for the purpose of commencing a suit thereon before a jus- tice, is guilty of a misdemeanor. [Penal Code, § 137.J A justice of the peace or oontable who, directly or indi- rectly, gives, or promises to give, any valuable consideration Justices of the Peace, General Duties. 77 to any person as an inducement to bring, or in consideration of having brought, a suit thereon before a justice, is guilty of a misdemeanor. [Penal Code, § 138.] A person convicted of a violation of any of the three pre- ceding sections, in addition to the punishment, by fine and imprisonment, prescribed therefor by this code, forfeits hia office. [Penal Code, § 139. J Nothing in the four preceding sections shall be construed to prohibit the receiving in payment of anything in action for any estate, real or personal, or for any services of an attorney or counselor actually rendered, or for a debt ante- cedently contracted; or the buying or receiving of anything in action for the purpose of remittance, and without any intent to violate the preceding sections, [Penal Code, § 140.] The provisions of sections one hundred thirty-six, one hundred an,d thirty-eight and one hundred and forty, relative to the buying of claims by an attorney, counselor, justice of the peace or constable, with intent to prosecute them, or to the lending or advancing of money by an attorney or coun- selor, in consideration of a claim being delivered for collec- tion, apply to every case of such buying a claim, or lending or advancing money, by any person prosecuting in person an action or legal proceeding. [Penal Code, § 141.J n Town and County Oviticbbs' ManoaLs CHAPTER Vn. Fazablb pbopbbty and PLACB OV TAZATIOS* 1. Definitions. 2. Property liable to taxation. 8. Exemption from taxation. 4. Exemption of the property of hospital oorpoTatloiU. 6. Exemption of cemeteries. 0. Exemption of property belonging to a plank road or tompUn corporation. 7. Exemption of property of soldiers' monument assooiationa. 8. Taxation of lands sold or leased by the state. 0. No deduction allowed for indebtedness fraudulently contracted. 10. When property of non-resident is taxable. 11. Place of taxation of personal property of residents ; state board of tax commissioners may determine place. 13. Place of taxation of real property ; non-resident and unoccupied lands. 18. 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 ofSce is located ; taxation of toll bridges and turnpikes. 15. Taxation of corporate stock of corporation. 16. Stock holders of banks taxable on shares. 17. Place of taxation of indiyidual bank capital. § 1. Definitions. "Tax district" as used in this chapter (the Tax Law), means a political subdivision of the state having a board of assessors authorized to assess property therein for state and county taxes. [Tax Law (L. 1896, ch. 908), § 2, sub. 1.] The terms "land,'' "real estate" and "real property," as used in this chapter, include the land itself above and under water, all buildings and other articles and structures, substructures and superstructures, erected upon, under or above, or affixed to the same; all wharves and piers, includ- ing the value of the right to collect wharfage, cranage or dockage thereon; all bridges, all telegraph lines, wires, poles and appurtenances; all supports and inclosures for Taxable Peopekty ; Place of Taxation. 79 electrical conductors and other appurtenances upon, above and under ground; all surface, under ground or elevated railroads, including the value of all franchises, rights or permission to construct, maintain or operate the same in, under, above, on or through, streets, highways, or public places ; all rail- road structures, substructures and superstructures, tracks and the iron there- on; branches, switches and other fixtures permitted or authorized 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, fsubstanoe or product capable of transportation or conveyance 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, highways, 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 under- wood 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 tangible property of a person, copartner- ship, association or corporation situated in, upon, under or above any street, highway, public place or public waters in connection with the special fran- chise. The tangible property so included shall be taxed as a part of the special franchise. No property of a municipal corporation shall be subject to a special franchise tax. [Tax Law (L. 1896, ch. 908), § 2, sub. 3, as amended by L. 1899, ch. 713, in efiCect October 1 , 1899.] Gas mains are taxable as real property. Equitable Oas-Light Co. v. Barker, 81 Hun, 22 ; rev'd on other grounds in 144 N. Y. 94. So are railroad tracks. People ex rel. Dunkirk, etc. It. R. Co. v. Cassidy, 46 N. Y. 46. -But the fran- chise of a sailroad company is not real property . People ex rel. Panama B. R. Co. V. Comm'rs of Taxes, 104 N. Y. 240. The foundations, columns and superstructures of elevated railroads are taxable as real property. People ex rel. N. Y. Elevated R. E. Co. v. Commissioners, 83 N. Y. 459. The interest of a lessee for 999 years at a nominal rent is taxable as real property. Trustees of Elmira v. Dunn, 23 Barb. 403. Special Franchises. By the amendment to this subdivision all rights which persons or corporations have to use streets, highways and public places, are termed special franchises, and for the purpose of taxation are deemed real property. Chapter 712 of the Laws of 1899 is what is known as the Franchise Tax Law. Besides .amending the above subdivision it adds §§ 42-47 to Article II of the Tax Law. These sections describe the method of assessing special franchises. (See post.) Other necessary amendments to the Tax Law are made by the same act. (See g§ 21, 31, 37, 171, post.-) The tej-ms "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 tp 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 companies liable to taxation on their capital, as shall not be invested in real estate. [Tax Law (L. 1896, oh. 908), § 3, sub. 4.] Corporate franchises are personal property. People ex rel. Panama B, R, Co. V. Comm'rs of Taxes, 104 N. Y. 240. When securities are held in other state. Mortgage securities on lands in 80 Town and County Officers' Manual. another state held permanently by an agent in such state, and subject to taxation therein, were held not to be personal property, before the enactment of the Law of 1883, from which the above subdivision was derived. People ex rel. Jefferson v. Smith, 88 N. Y. 576. See also People ex rel. Hoyt v. Comm'rs of Taxes, 33 N. Y. 224. As the law now reads, debts due to residents of this state, however secured and wherever such securities may be held, are now deemed personal prop- erty and subject to taxation. The statute evidently supersedes the effect of the decisions above cited. A debt has its situs, for the purpose of taxation, at the creditor's residence. Kirkland v. Hotehiss, 100 U. S, 491. Debts owing to persons as trustees where securities are held in another state are not included within the term '-personal property." People ex reL Danow v. Coleman, 119 N. Y. 137. § 2. Property liable to taxation. All real property within this state, and all personal prop- erty situated or owned within this state, is taxable unless exempt from taxation by law. [Tax Law (L. 1896, ch. 908), § 3.J § 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. l.J Rule of construction of exemption laws. An intent to exempt property from taxation is not to be presumed. People ex rel. SSrd St. R. B. Co. v. Comm'rs of Taxes, 95 N. Y. 554. Statutes of exemption are to be strictly construed. Land Co. v. Minnesota, 159 XJ. S. 526. They are not to be ex- tended beyond their exact and express requirements. Yazoo R. R. Co. v. Thomas, 132 U. S. 174. Exemptions must be clearly expressed, and not left to implication or inference. Sahurz v. Cook, 148 U. S. 397 ; Keokuk, <&e. Co. v. Missmiri, 153 U. S. 301. In determining whether a given case is within a clause in a statute ex- empting certain property or interests from taxation, the policy of the law in making the exemption must be considered, and should have great weight. People ex rel. Electric Mfg. Co. v, Wemple, 129 N. Y. 543. An exemption of property from " local taxation " includes taxation for county as well as city purposes. People ex rel. Pratt Innt. v. Board of As- sessors, 141 N. Y. 476. A presumption that the legislatiire intended to surrender its right of taxa- tion in the future by a present exemption therefrom, cannot be entert\ined unless such intention is clearly expressed. People ex rd. Cunningham v. Roper. 35N. Y. 629. An exemption from taxation must be described in clear and unambigaotis Taxable Property; Place of Taxation. 81 language, and be unquestionably within tie intention of the legislature. People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. K74. Powers of assessors as to exempt property. Assessors cannot enter on assessment roll names of persons whose property is exempt. If they impose a tax on such property they are liable for all damages. Prosser v. Secor, 5 Barb. 607 ; Lapolt v. Maltby, 10 Misc. 330. But in Barhyte v. Shepherd, 35 N. Y. 238, it was held that assessors act judicially in determining what prop- erty is exempt, and the assessors are not liable in damages for errors com- mitted in arriving at their conclusion. The weight of authority would seem to be in favor of the latter proposition. Property in this state other than its wild or forest lands in the forest preserve. [Id. § 4, sub. 2.] See Fisheries, Game and Forest Law, § 274, as amended by L. 1895, ch. 395, providing for taxation of state lands in forest preserve. Property of a municipal corporation of the state held for a public use, except a portion of such property not within the corporation, fid. § 4, sub. 3. J The term municipal corporation is defined by the General Corporation Law, § 3, as including a " county, town, school district, village and city and any other territorial division of the state established by law with powers of local government." This subdivision is intended to include the exemptions of the property of municipal corporations made by R. S. pt. I, ch. 13, tit. 1, § 4, subds. 8, 4, which are as follows : " Every school house, court house and jail used for either of such purposes ; and the several lots whereon such buildings are situated and the furniture belonging to each of them, and every poor house, alms house, house of industry, and the real and personal property used for such purposes belonging to or connected with the same." The sub- division is further extended to include all the property of a municipal cor- poration in accordance with the decisions of the court, that such property ia not taxable. See City of Rochester v. Town of Rush, 80 N. Y. 302, holding that municipal water-works are not taxable. See, also, The People ex rel. Murphy v. KeHy, 76 N. Y. 479, 486-89, as to what constitutes a municipal pur- pose generally. The lands in any Indian reservation owned by the Indian nation, tribe or band occupying them. [Id. § 4, sub. 4. J See People ex rel. Erie R. B. Co. v. Beards, 53 Barb. 105; affirmed, 41 N. Y. 919. All property exempt by law from execution other than an exempt homestead. But real property purchased with the proceeds of a pension granted by the United States for military or naval services, and owned and occupied by the pensioner, or by his w-ife or widow, is subject to taxation as 6 82 Town and County Ofpicebs* Manual. herein 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 concern- ing assessments, a verified application for the exemption of such real property from taxation may be presented to them by or on behalf of the owner thereof, which application must show the facts on which the exemption is claimed, includ- ing the amount of pension money used in or toward the pur- chase 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 prop- erty 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 less 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 entered by the assessors, shall be exempt from state, county and general 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 property 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 purpose. The provisions herein, relating to the assessment and exemption of property purchased with a pension apply and shall be enforced in each municipal cor- poration authorized to levy taxes. [Id. § 4, sub. 6, as amended by L. 1897, ch. 347.] Property purchased imth pension money. By the amendment of 1897, an application must be made before property purchased with pension money can be exempted from taxation. FORM NO. 16. Form of Applioation foe Exkmption. To the Assessors of the Town of : The undersigned applicant, a resident oi the town of and Taxable Property; Place op Taxatiok. 83 the owner of real property situated in such town as hereinafter desoribed, 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. S. 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 Law, (Signature.) STATE OF NEW YORK, ) . County of ) being duly sworn, deposes and says that he is the appli- cant for the above specified exemption ; that he has read the foregoing appli- cation 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 matters he believes it to be true. (Signature.) Subscribed and sworn to before me, ) this . . . day of , 18. . ) (Signature of officer.) Exemptions of personal property from execution. The following personal property, when owned by a householder, is exempt from levy and sale by virtue of an execution; 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. 9. 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 aa part of the family library. 3. A seat or pew occupied by the judgment debtor, or the family, is a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured therefrom; one cow; two swine; the necessary food for those animals; all necessary meat, fish, flour 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 siigar-dish; one milk-pot; one tea-pot; one crane and its appendages; one pair of andirons; one coal scuttle; one shovel; one pair of tongs; one lamp, and one candle-stick. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value twenty-five dollars. (Code Civil Pro- cedure, § 139.1.) 84 Town and County Officers' Manual. Additional exemptions from executions. In addition to the exemptions allowed by the last section, necessary household 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 householder, or having a family for which he provides, except where the execution is issued upon a judgment, recovered wholly upon one or more demands, either for work performed in the family as a domestic, or for the purchase money of one or more articles, except as pre oribed in this or the last section. (Code Civil Procedure, § 1391.) Exemptions from execution of property of woman. Where the judgment debtor is a woman, she is entitled to the same exemptions, 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 householder. (Code Civil Procedure, g 1393.) Military pay, bounty and pension exempt from execution. The pay and bounty of a non-commissioned oflScer, musician or private, in the military or naval service of the United States; a land warrant, pension, or other reward, heretofore or hereafter granted by the United States, or by a state, for mili- tary 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 State* or a state; and the uniform, arms and equipments, svhich 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 the collection of taxes or assessments lawfully levied thereon. (Code Civil Procedure, § 1893, as amended by L. 1897, chap. 348.) Right of action for damages exempt. A right of action to recover dam- iges, or damages awarded by a judgment, for taking or injuring personal property, exempt by law from levy and sale, by virtue of an execution, are exempt, for one year after the collection thereof, from levy and sale, by vir- tue of an execution, and from seizure in any other legal proceedings. (Code Civil Procedure, § 1394.) 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 afterwards, any building or structure, except one or more vaults, or other places of deposit for the dead, or mortuary monuments. (Code Civil Pro- cedure, § 1395.) Bonds of this state to be hereafter iasued by the comp- '"oller to carry out the provisions of chapter seventy-nine of the laws of eighteen hundred and ninety-five and bonds of a Taxable Pkopbrty; Place of Taxation. 85 municipal corporation heretofore issued for the purpose of paying up or retiring the bonded indebtedness of such cor- poration. [Id. § 4, sub. 6, as amended by L. 1897, ch. 80.J The bonds authorized by L. 1895, chap. 79, were issued for the construc- tion of canal improvements. The real property of a corporation, or association oragnized exclusively for the moral or mental improvement of men or women, or for religious, bible, tract, charitable, benevo- lent, missionary, hospital, infirmary, educational, scien- tific, literary, library, patriotic, historical or cemetery purposes, or for the enforcement of laws relating to children or animals, or for two or more of such purposes, and used exclusively for carrying out thereupon one or more of such purposes, and the personal property of any such corporation shall be exempt from taxation. But no such corpora- tion or association shall be entitled to any exemption if any officer, member or employe thereof shall receive or may be lawfully entitled 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 of such avowed purposes, be a guise or pretense for directly or indirectly making any other pecuniary profit for such corporation or association, 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 exclu- sively for one or more of such purposes and from which no rents, profits or income are derived, shall be so exempt, though not in actual use therefor by reason of the absence of suitable buildings or improvements thereon, if the con- struction of such buldings or improvements is in progress, or is in good faith contemplated by such corporation or association. The real property of any such corporation not so used exclusively for carrying out thereupon one or more of such purposes, but leased or otherwise used for other pur- 86 Town and County Officbus' MANUAi.. poses, shall not be exempt, but if a portion only of any lot or building of any such corporation or association is used ex- clusively for carrying out thereupon one or more of such purposes of any such corporation or association, then sucli 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 hospital purposes, by a free public hospital, depending for mainten- ance and support upon voluntary charity shall not be taxeo as to a portion thereof leased or otherwise used for the pur- poses of income, when such income is necessary for, and is actually applied to, the maintenance and support of such hospital. Property held by any officer of a religious denom- ination shall be entitled to the same exemptions subject to the same conditions and exceptions, as property held by a relig- ious corporation. [Id. § 4, sub. 7, as amended by L. 1897, eh. 371.] 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 dollars. [Id. § 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 corpora- tion shall not exceed two thousand dollars. Such exemption shall be in addition to that provided by subdivision seven of this section. [Id. § 4, eub. 9. J 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 perform- ance 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 Taxable Pkoperty; Place op Taxation. 87 personal property shall not exceed fifteen hundred dollars. [Id. § 4, sub. li.J 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. Vail v. Owen, 19 Barb. 33 ; Weaver v. Devendorf, 3 Den. 117. A minister who is withdrawn from active duty as such by reason of old age and infirmity, but engaged in no secular occupation, is entitled to the exemption. People ex rel. Mann v. Peterson, 31 Hun, 420. All vessels registered at any port in the state and owned by an American citizen, or association, or by any corporation, incor- porated 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 corpora- tions, all of whose vessels 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, franchises and earnings, until and includ- ing December thirty-first, nineteen hundred and twenty-two. [Id. § 4, sub. 12.] 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 non-resident of this state and con- signed to his agent in this state for sale on commission for the benefit of the owner; moneys of a non-resident 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 invest- ment or otherwise. [Id. § 4, sub. 13. ] Foreign capital sent here for investment is exempted from taxation though the securities received therefor are left here with the agents of the owner for collection. WiUiams v. Supervisors of Wayne Co., 78 N. Y. 561. Debts due non-residents on contracts for the sale of real property situated within the state are personal property and not exempted from taxation under this subdivision. People ex rel. Young v. Willis, 133 N. Y. . 83. The deposits in any bank for savings which are due depos- itors, the accumulations in any domestic life insurance cor- poration, held for the exclusive benefit of the insured, other 88 Town and County Officbks' Manual. than real estate and stocks, now liable for taxation; and tlie accumulations of any incorporated co-operative loan associa- tion upon the shares of such association held by any person, fid. § 4, sub. 14.] Moneys collected in the course of the business of any corporation, association or society during a life or casualty insurance busi- ness or both, upon the co-operative or assessment plan, and which are to be used for the payment of assessments, or for death losses or for benefits to disabled members. [Id. § 4, sub. 15.] The owner 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.] Shares of stock of corporations 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 home states. Negotiable bonds being evidence of a fixed indebtedness are taxablt at their actual value. People ex rel. Trowbridge v. Comm'rs of Taxes, 4 Hun, 595; affirmed, 62 N. Y. 630. A corporation is not subject to taxation upon stock of another corporatioi owned by it and the capital of which is taxable, any more than an iniijvidual stockholder would be. People ex rel. Brooklyn Traction Co. v. Board oj AssQi&ors, 61 N. Y. St. Eepr. 480; 30 N. Y. Supp. 443. 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.J § 4. Exemption of the property of hospital corporations. The property of a hospital corporation, both real and per- sonal, shall be exempt from taxation, to the extent that, and so long as, the same shall be used exclusively for the care, reception, maintenance, medical and surgical advice, aid and treatment of persons needing such medical and surgical advice, aid and treatment, or the care and maintenance of infirm, aged and indigent 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 Taxable Property; Place of Taxation. 89 charge therefor, or care for and maintain infirm, aged and indigent persons without charge. [L. 1889, ch. 95, § 4.] § G. Exemption of cemeteries. The cemetery lands and propety of any association formed pursuant to this act, and any property held in trust by it for any of the furposes mentioned in section 9 of that act, are exempted from all public taxes, rates and assessments, and are not liable to be sold on execution, or bo 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 aa the same shall remain dedicated to the purposes of a ceme- tery, and during that time no street, road, avenue or thoroughfare shall be laid out through such cemetery, or any part of the lands held by such association, or any par* of the lands held by such association for the purposes afore- said, without consent of the trustees of such association, except by special permission of the legislature of the state. [L. .1847, ch. 133, § lO.J Lands within the terms of this section are exempt from the moment of acquisition, although no dead are buried therein and such burial is forbid', den by municipal ordinance. People ex rd. Oak Hill Gemetery v. Pratt, 139 N. Y. 68. The consent of the supervisors is not essential to secure exemption from taxation where the cemetery lands were acquired under special statutes. People ex rel. Trustees of Gathedral v. Davren, 41 N. Y. St. Eepr. 779 ; 18 N. Y. Supp. 794 ; affirmed, 131 N. Y. 601. § 0. 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 sur- plus annual receipts of tolls on its road, over necessary repairs and a suitable reserve fund for repairs or relaying of plank, shall exceed seven per cent, per annum on the firs* COB* of the road. If the assessors of any town, village or city and the corporatien disagree concerning any exemption claim, th« corporation may appeal to the county jugde of 90 Town and County Officeks' Manual. 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 corporation is liable to taxation under this section, and his decision shall be final. [Transportation Corporations Law» (L. 1890, ch. 566), § 140.J § 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 section 5 of that chapter, as amended by chapter 299 of Laws of 1888, from levy and sale on execu- tion, and from all public taxes, rates and assessments. See Tax Law, § 4, subd. 7, ante, p. 85. § 8. Taxation of lands sold or leased by the state. All lands which have been sold by the state, although not conveyed, 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 leasfid, 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 by L. 1897, ch. 443.] § 9. No deduction allcwed for indebtedness fraudulently coop tracted. No deduction shall be allowed in the assessment of per- sonal property by reason of the indebtedness of the owner contracted or incurred in the purchase of non-taxable prop- erty or securities owned by him or held for his benefit, nor for ur 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. [Tax Law (L. 1896, ch. 908), § 6.J Taxablb Property; Place op Taxation. 91 § 10. Where property of non-residents is taxable. Non-residenta of the state doing business in the state, either as principal or partners, shall be taxed on the capital invested in such business, as personal property, at the place where such business is carried on, to the same extent as if they were residents of the state. [Tax Law (L. 1896, ch. 908), § 7.] Intention of statute. This statute waa intended to reach the capital of non- residents employed within this state in continuous 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 manu- factured product for sale, the proceeds being remitted at once, with the se- curities received for sales on credit, to the home oflSce 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. Comm'rs of Taxes, 23 N. T. 242. Place of assessment. A foreign corporation doing business 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 exclu- sive, and embrace all its personal property liable to taxation within this state. Assessment of personal property of a foreign corporation in the pos- session of an agent in a town, other than that of such office by the assessors of that town, is void. People ex rel. Bay State, &o. Co. v. MoLean, 80 N. Y. 234. Assessment, how made. A non-resident cannot be assessed under this sec- tion unless he actually has money invested in a busiaess carried on by him, either as principal or partner. He cannot be assessed if he transacts busi- ness here as the agent of a foreign corporation. MoLean v. Jephson, 133 N.Y. 143. Moneys in the hands of a resident partner, belonging to a firm whose prin- cipal place of business was in a foreign country, but which transacted busi- ness 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. Deductions of debts. This section does not contemplate the deduction of debts from the sums invested in this state by nonresidents. People ex rel. Thurber, Wyland Co. v. Barker, 141 N. Y. 118. A non-resident special partner taxed on his contribution to the firm under this section, not being personally liable for the firm debts, is not entitled to a deduction of the firm obligations although incurred for the purchase of non-taxable property, where the firm is solvent and the special capital un- impaired. People ex rel. Bird v. Barker, 145 N. Y. 339. In determining the sum invested in business in the state by a foreign cor- poration for the purpose of taxation under this section, where it has purchased property here which it has not paid for in full, the amount remaining unpaid should be deducted from the value of such property. People ex rel. Milling Co. ▼. Barker, 147 N, Y. 31. But stock issued by the corporation in payment for property is not a debt which may be so deducted. Idem, 92 Town and County Officers' Manual, § 11. Plan 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 property owned by him, or under his control as agent, trustee, guardian, executor or administrator. Where taxable personal property is in the possession or under the control of two or more agents, trustees, guardians, execu- tors or administrators residing in different tax distircts, each shall be taxed for an equal portion of the value of such prop- erty so held by them. Eents 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 prop- erty 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 dis- tict, and shall have been taxed therein, such residence shall be presumed to continue for the purpose 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 August first in any year, from one tax district to another, and shall make proof to the assessors at or before their last meeting for the correction of the assess- ment roll 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 personal property shall be stricken from the assessment roll of the tax district where he resided on July first. In case of any controversy 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 ^aw (L. 1896, ch. 908), § 8.] AssessTnent, when made. The words " when assessment is made " relate to ■. 'le binding and conclusive act of the assessors which designates the tax- Taxable Property; Place of Taxation. 93 payers and the amount of taxable property held by each. Mygatt v. Wtiah- hum, 15 N. Y. 316. This time must be the first day of July, the assessors being required to complete their preparatory inquiries in May and June. Idem. Residence by an owner of property in a town during June, July and Augub. gives the assessors jurisdiction for the purpose of assessment for taxes. Boyd v. Gray. 34 How. Pr. 323. The plaintiff, during the whole of the year 1864, preceding June 20, resided with his family 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 defendants assessed him in West Seneca upon his personal property, and the tax was collected. After the 'statutory notices no objection was made to the regularity of the assessment, and the defendants were not aware that the plaintiff claimed another resi- dence until the delivery of the assessment-roll to the supervisor. It was held that since the plaintiff resided in West Seneca on July 1, the assessors had jurisdiction to assess him there, and were not liable in damages for so doing. Bell V. Pierce, 51 N. Y. 12 Residence, what constitutes. For the purpose of assessment for personal property, the residence of the taxpayer will be presumed to continue to be where it has previously been shown to be until a change is affirmatively shown. Matter of Nichols, 54 N. Y. 62. Peddlers who are non-residents are liable to taxation in any town where they sell goods. If assessed-in more than one town they may appear and Bwear off the assessment. Sitt v. Crosby, 86 How. Pr. 413. 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, cfcc. of New York, 5 Sandf . 44. See, also, Douglas v. Mayor, etc., of New York, 2 Duer, 110. Where the plaintiff had removed his residence from the town where he still conducted his business, returning there at intervals and staying at a hotel, the assessors of the town were liable in damages for a sale of his property to satisfy a tax assessed by them, though they were not aware of his change of residence. Wade v. Matheson, 4 Lahs. 158. If a person has two residences, the place where his family lives and where he votes is his place of residence for the purpose of taxation. People V. Barker, 44 N. Y. St. Eepr. 695; 17 N. Y. Supp. 788. Where one's principal place of business is in a 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 personalty in the city ward in which he resides. Bour v. Jenkins, 69 Hun, 458. Taxation of agents, trustees, executors, etc. Personal estate in the hands of an agent is properly assessed to him without the addition to his name of his representative character. People ex rel. Hoffman v. Bug, 13 Abb. N. C. 169. The term " trustee " must be limited to a person expressly authorized by statute to hold the legal title to property in trust for some specific purpose. People ex rel. Brodie v. Oox, 14 N. Y. St. Repr. 6:^2. Where the whole of an infant's estate is vested in executors and trustees, 94 Town and CouNtr Officers' Manual. and neither of them reside in the county, and the property is assessed and a tax ia paid in another county, no assessment can be made against the guardian in the former county. Douglass v. 'Bd. Supervisors, 1 N. Y. Supp. 126. This section does not authorize the assessment of a tax upon personal securities belonging to trustees, two of whom reside within this state, while the third, who has possession of the securities, resides without the state and the beneficiaries are also non-residents. People ex rel. Darrow v. Coleman, 119 N. Y. 137. An assessment against the only one of three executors who was a resident, for the whole of testator's estate, consisting of railroad bonds registered in the name of the three, is proper. People ex rel. Neustadt v. Coleman, 42 Hun, 581. The personal estate of a testator whose will was admitted to probate in New York city is taxable there, though one of the executors who has actual possession and control of the property resides in another state, the other executors being residents, though temporarily absent from, New York. People ex rel. Campbell v. Comm'rs of Taxes, 38 Hun, 536. Upon a proceeding against administrators tp 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 indebted- ness. It was held that the assessment was properly made and that it was no defense 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 McMahon, 67 How. Pr. 113; affirmed in 1 How. Pr. (N. S.) 270. § 12. Place of taxation of real property ; non-resident and unoc- cupied 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 property is owned by a resident outside the tax district where it is situated, it shall be assessed as follows: 1. When the property is occupied it must be assessed to the occupant. 2. If the occupant resides out of the tax district or if the land is unoccupied, it shall be assessed as non-resident, as hereinafter provided by article two. [Tax Law (L. 1896, ch. 908), § 9.j Article two of the Tax Law is continued in the following chapter. Where husband is occupant. An assessment in the name of the husband living with his family on property, the title to which was in his wife, is not void, he being an occupant as head of the family. Powell v. Jenkins, 14 Misc. 83. But where the wife is known to be the owner she should be assessed. Taxable Pkopekty; Place of Taxation. 95 Jurisdiction of assessors in assessing real property. The only fact neoessaiy to give assessors jurisdiction as to real estate is that it be situated within the assessors' town or ward. In making an assessment upon suoh land they have jurisdiction 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. 137; affirmed in Seld. Notes, 35. Assessment of railroad lands. The lands of railroad companies are to be assessed tlie sam.e as those of residents in the towns in which they lie, and not as non-resident lands. I'eqple ex rel. Dunkirk, etc., S. B, Co, v. Cassity, 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 properly assessed in personam therefor. People ex rel. Buffalo <& State Line B. B. Co. v. Super- visors of Erie, 48 N. Y. 93. See, also, Bissell v." Michigan 8. & N. I. B. B., 33 N. Y, 385. Assessment roll, what to state. When real estate is assessed to the owner, the name of the owner must be inserted in the roll; when assessed to the occupant, the n.ime of the occupant should appear. Where real estate was assessed in the name of one not the owner, adding the woids "or occupant," held, that the roll was fatally defective, and would not support process against property in the possession of the occupant. Du Bois y. Webster, 7 Hun, 371. Assessment to occupant need not indicate that the lands are non-resident. People ex rel. Hoffman v. Bug, 13 Abb. N. C. 169. Assessment to person who is neither owner or occupant is void. Whitney v. Thomas, 33 N. Y. 381. The assessors are not authorized to name in their rolls the actual or sup- posed non-resident owners of lands. The lands are to be assessed, not the owners. N. Y. & H. B. B. B. Co. v. I/yon, 16 Barb. 651. Assessment of occupant. When lands of a non-resident of the county are occupied by a resident of the town where they are situated they must be assessed to the occupant. An assessment of them as non-resident is void. Stewart v. Crysler, 100 N. Y. 378. Non-residait lands are unoccupied lands not owned by a person residing in the town or ward in which such lauds are situated. Hampton v. Mamaher, 46 Hun, 147. § 13. Taxation of real property divided by line of tax district! when owners may elect in -which district property shall be taxed. If a farm or lot is divided by a line between two or more tax districts, it shall be assessed to the owner in the district in which he resides. If the owner is not a resident of either district, it shall be assessed to the occupant in the district in which he resides. If the land is unccupied and the owner does not reside in either district, 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 96 Town and County Officers' Manuau used for agricultural purpoies, the portions of such land lying in each county shall be separatey assessed therein. If there are several owners of such a farm or lot residing in different districts, each containing a part thereof, a majority of them may elect in which district it shall be assessed by serving a written notice thereof on the assessors of each dis- trict during the month of May, but if such owners do not make such election, the property shall be assessed in the tax district in which it is located. 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 Law (L. 1896, ch. 908), § 10, as amended by L. 1898, ch. 537.] § 14. Corporations; place of taxation; personal property to b« taxed where principal ofBce is located ; taxation of toll bridges and turnpikes. The real estate of all incorporated companies liable to tax- ation, shall be assessed in the tax district in which the same shall lie, in the same manner as the real estate of individ- uals. All the personal 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 com- pany have no principal office, or place for transacting its financial concerns, then in the tax district where the opera- tions 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 com- pany are collected in several tax districts, the company shall Taxable Property; Pi-aCB of Taxation. 97 be assessed in the tax district in which the treasurer or other officer authorized to pay the last preceding dividend resides. [Tax Law (L. 1896, ch. 908), § 11.] Personal property of corporations, when exempt, AM corporations which pay a franchise, or license tax pursuant to article IX of the Tax Law, are exempt from taxation on their personal property for state purposes. See Tax Law, § 302. PriruApal plase of business. The certificate of incorporation naming the place where the principal office of a corporation is located is conclusive as to its location for the purpose of taxation. Western Trans. Co. v. Seheu, 19 N. T. 408. A manufacturing corporation should be assessed in the place designated in its certificate as that where the operations of the company are to be carried on, although the principal office for transacting its financial concerns is in another town. Oswego Starch Factory v. Dolloway, 21 N. Y. 449. See, also, Peter Cooper's Olue Co. v. McMahon, 15 Abb. N. C, 314 ; Cheseborough Mfg. Co. v. Coleman, 44 Hun, 545. A corporation assessed for amount of its capital stock in New Your city filed a statement with the assessors there, naming that city as its principal place of business, and appeared before them and obtained a reduction of its assessment. It was held that it could not claim in proceedings to compel payment out of the tax, that it was a non-resident of the city and the assessors had no jurisdiction. Matter of McLean, 138 N. Y. 168 ; afl'g 66 Hon, 192. § IC 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 or shall be exempt by law, together with its surplus profits or reserve funds exceeding in per centum of its capital, after deducting the assessed value of its real estata, and all shares of stock in other corporations actually owned by such company which are taxable upon their cap- ital stock under the laws of tiiis state, shall be assessed at its actual value. [Tax Law (L. 1896, ch. 908), § 12.J Capital stock of railroad corporation. The capital stock of a railroad cor- poration 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 «r place for transacting the financial concerns of the companji is situated. Uohawlc •■.. Town of Af ton $945 75 1,210 15 City of Binghamton, tenth ward. . . rST". =-. :: Dated this day of 18 ... AB. Mods of Assessmbnt. 117 STATE OF NEW YORK, ) „ , COUHTT OP ) *■" A B, being duly swora, 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 knows the contents thereof, and that the same is a true and accurate statement of such debts. i AB. Subscribed and sworn to before me, ) this . . . . day of ,18.. ) Notary Public. § 16. Completion of assessment-roll; notice of completion; eon-' tents. The assessors shall complete the assessment-roll on or be- fore the first day of August, and make out one copy thereof, to be left with one of their number, and forthwith cause a notice to be conspicuously posted in three or more public places in the tax district, stating that they have completed the assessment-roll, and that a copy thereof has been left with one of their number at a specified place, where it may be seen and examined by any person until the third Tuesday of August next following, and that on that day they will meet at a time and place specified in the notice to review their assessments. In any city the notice shall conform to the requirements of the law regulating the time, place and manner of revising assessments in such city. During the time specified in the notice the assessor with whom the roll is left shall submit it to the inspection of every person ap- plying for that purpose. [Tax Law (L. 1896, chap. 908), §35.j Effect of failure to give notice. Omission to give notice for the time pre- scribed is a jurisdictional defect, and the assessment is void. Wheeler v. Mills, 40 Barb. 644. Failure to publish notice of final completion of assessment-roll will relieve a person seeking to correct it from the limitation prescribed by section 351 Of the Tax Law, for bringing an action to review the assessment. People v. Adams, 125 N. Y. 471. Posting notices. A posting of the notices of assessors of taxes of the com- pletion of the assessment-roll, by a person other than an assessor, under the assessor's direction, is a sufficient compliance with the statute. Supervisors V. Belts, 35 N. Y. St. Bepr. 680. 118' Town and County Officers' Manual. Kvidence of posting notices by assessors, of the completion of the ment-roU and of notice of meeting to hear grievances, coupled with the pre- sumption that obtains in respect to the action of o£SciaIs in the line of their duty, is sufficient to sustain a finding of fact in an action of ejectment under a tax title, that such notices were given. Supervisors v. Betts, 25 N. Y. St. Repr. 660. FOEM NO. 20. NonoB OF Completion of Assessmbnt-boll. Noticeis hereby given that the assessors of the town of (or, of ward of the city of ), have com- pleted their assessment-roll for the current year ; that a copy thereof has been left with the undersigned, A B, at his office (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 imtil 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 hear and examine all complaints in relation to such assessments, on the application of any person conceiving hinoself aggrieved thereby. Dated this day of 18.... A B, C D, E P, Assessors. % 17. Crrievance day ; statement of complaints ; efTeet of failure to testify ; minutes of examination to be filed. The assessors shall meet at the time and place specified in Buch notice, and hear and determine all complaints in rela- tion to such assessments brought before them, and for that purpose they may adjourn from time to time. Such com- plainants shall file with the assessors a statement, under oath, specifying the respect in which the assessment com- plained of is incorrect, which verification must be made by the person assessed or whose property is assessed, or by some person authorized to make such statement, and who has knowledge of the facts stated therein. The assessors may administer oaths, take testimony and hear proofs in regard to any such complaint and the assessment to which it relates. If not satisfied that such assessment is erroneous, they may require the person assessed, or his agent or representative, or any other person, to appear before them and be examined concerning such complaint, and to produce any papers relat- ing to such assessment with respect to his property or bis Mode op Assessment. 119 residence for the purpose of taxation. If any such person^ or his agent or representative, shall wilfully neglect or refuse to attend and be so examined, or to answer any mate- rial question put to him, such person shall not be entitled to any reduction of his assessments. Minutes of the exam- ination of every person examined by the assessors upon the hearing of any such complaint shall be taken and filed in the office of the town or city clerk. The assessors shall, after said examination, fix the value of the property of the com- plainant and for that purpose may increase or diminish the assessment thereof. [Tax Law (L. 3896, ch. 908), § 36. J Affidavit of complainant. The statutory requirements of the aflSdavit must be strictly complied with. People v. Supervisors of Westchester Co., 15 Barb. 807; People y. Ross, 15 How. Pr. 63. The affidavit is not conclusive, but is to be considered by the assessors with such other evidence as they possess. People ex rel. Buff. & State Line R. R. Co. v. Barker, 48 N. Y. 70. "While such affidavit is not conclusive, if it is the only evidence adduced the assessors cannot disregard it. People ex rel. Oswego Canal Co. v. Oswego, 5 Hun, 117; People ex rel. Raplee v. Reddy, 43 Barb. 539. An affidavit by the attorney alone is not sufficient. Matter of Coninn, 64 Hun, 167. The claimant must attend upon the assessors in person, if required, submit to an examination under oath, and subscribe to the answers, and an affidavit taken before a notary public without such attendance is not sufficient. People ex rel. Mercer v. Maynard, 7 Misc. 335. Examination of claimant. If the applicant states that he cannot remember to whom the debts he seeks to have deducted from his assessment are due, nor the several amounts thereof, the assessors should disregard his evidence. Vosey. Willard, 47 Barb. 320. A relator seeking to obtain a reduction of her pe-.sonal as- 'si-ment refused to answer concerning the disposition of personal property formerly owned by her when questioned by the assessors. The inquiry being justifiable to enable them to judge of the present amount of her personalty, a refusal by them to reduce the assessment would not afford ground for review. People ex rel. Green v. Hall, 83 Hun, 375. Assessors should be govei~ned by evidenas. In passing upon an application for a reduction of an assessment for personalty, the assessors act judicially and should be governed by the evidence, though they may exercise their knowl- edge and judgment where the value is to be ascertained upon an assumed basis of estimate. People ex rel. Qreeny. Hall, 83 Hun, 375. The evidence produced by the owner seeking to correct an assessment, if uncontradicted, mu'st control. People ex rel. Amer. Linen Thread Co. v. Howland. 61 Barb. 273. "Where a corporation presents evidence to the taxing officers as to the value of its assets, full and complete as to establish the facts upon which its claim for reduction rests, and it is not contradicted by facts within their kuowl- 120 Town and County Officbrs' Manual. edge, and no good reason exists for questioning its truth, refusal to decide In accordance with such eridence is legal error. People ex rel. German, etc., Co. V. Barker, 75 Hun, 6. The burden of proving over- valuation is upon the taxpayer. People ex r«l Fargo v. Murphy, 32 N. Y. St. Rep. 780; 10 N. Y. Supp. 377. FORM NO. 21. Affidavit on Application to Cobekct Assbbsment. STATE OF NEW YORK, ) „. County of j**' A B, being duly sworn, says that he is assessed on the assessment-roll of the town of , for the year 18. ., 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 prop- erty 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. AB. Subscribed and sworn to before me, ) this day of 18.) CB, Notary Puhlio. § 18. Application to county court for apportionment of taxes and assessment ; notice to assessors ; collector to change assessment- roll upon order of court. When the premisea of one person shall have been wrong- fully assessed and taxed in with the premises of another, the person aggrieved hereby may, upon application to the county court of the county in which the property is situated, on petition duly verified, and on eight days' notice to the assessors of the town in which the premises are situated, and to the party whose premises are included in such wrongful assessment, have such assessment and tax apportioned by such county court. The county court shall take such evi- dence as may be necessary to determine the facts, and shall fix and specify the amount of the assessment and tax prop- erly chargeable to the petitioner's property, and to the other party chargeable therewith. The collector of the town, upon receiving a copy of the order of the county court, shall forth- with change the assessment roll and tax to conform to such order, and shall receive the amount apportioned upon the Mode of Assbssmekt. 121 premises of the petitioner in full for the taxupon such prop- erty. [Tax Law (L. 1896, ch. 908), § 257.] § 19, Oath verifying assessment-poll. When the assessors, or a maiority of them, shall have completed their roll, they shall severally appear before any ofiBcer of their county, authorized by law to administer oaths, and shall severally make and subscribe before such officer an oath in the following form: "We, the undersigned, do severally depose and swear that we have set down in the fore- going assessment-roll all the real estate situated in the tax district in which we are assessors, according to our best information; and that, with the exception of those cases in which the value of the said real estate has been changed by reason of proof produced before us, and with the exception of those cases in which the value of any special franchise has been fixed by the state board of tax commissioners, we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full value thereof; and, also, that the said assessment-roll con- tains a true statement of the aggregate amount of the tax- able personal estate of each and every person named in such roll over and above the amount of debts due from such per- sons, respectively, and excluding such stocks as are other- wise taxable, and such other property as is exempt by law from taxation, at the full value thereof, according to our best judgment and belief," which oath shall be written or printed on said roll, signed by the assessors and certified by the officer. [Tax Law (L. 1896, ch. 908), § 37, as amended by L. 1899, ch. 712.] Correction of ossessmeKt-roll. Assessors to petition board of supervisors ; petitioa to be served on owner. Tax Law, § 63, post, p. 129. Suffleienoy of affidavit. A substantial complianoe is sufficient. Buff. & Stat* Ian* B. R. Co. v. Svperoisor*, 48 N. Y. 93. But a verification that the " foregoing assessment is just and correct to the best of their knowledge and bdief " is fatally defective. Lord v. Cooper, 19 App. Div. S35. See, also, BinekUy v. Cooper, 32 Hun, 253. A failure to affix affidavit is a fatal defect. Johnson t. Elwood, 53 N. Y. 481. Omission of venue is immaterial. Cdkman t. Shattuck, 63 N. Y. 348. If two assessors take oath it is sufficient. Idem. But see BetZingwr t. Oray, SI M. T. 610. Affidavit mad* before the roll had been aotsd upon by the board of super- visors, satisfies ths statute. Borne, Watertoum the board of supervisors at its next meeting, which shall have itha same power to review and correct such assessment as tha assessors have under this, article. If any assessor shall refuse or neiglect to perform any duty or do any act raquired of him by this article,, he shall forfeit to the county the sum of fifty dollars, to be recovered by the district attorney. . J[Tax Law (L. 1896, eh. 908),,§,4Q.] FORM NO. 33. 'CERTOriOATK OF NeQLECT OK OMISSION 07 DlTTY 07 OMS 07 THE JlSBISSOBa. STATE OF'NffW yoke; I „ , COUKTTOF f**" W«, A B »nd C D, two of tiie aMessora of the town of ; ., 124 Town and County Officers' Manual. 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 P, the other assessor of such town, has neglected (or omitted) to verify the fore- going assessment-roll, or (state other omission), the cause of such neglect (or omission) being (state the same). Dated this day of ,18.... AB. C D. § 23. Subdivision of lots may be abandoned; thereafter lots to ba treated as a single tract. Whenever more than ten years shall h'ave elapsed after the subdivision of any tract of land into lots, plots or sites, with or without proposed streets, the owner of such tract, or of any part thereof composed of two or more contiguous lots may, by an instrument in writing, duly executed and acknowledged and describing such land, disclaim and aban- don such subdivision including any streets not opened, accepted or used by the public and which are not necessary for the use of an owner or occupant of any part of said tract; and thereupon such subdivision, as to the lands described in such instrument, shall be deemed abandoned and of no effect; and thereafter the lands described therein shall, for the purpose of taxation, be regarded as a single tract. If a map of such subdivision has been filed in the office of the county clerk or register of deeds, such instrument may be recorded in said office, and a notice of such record shall thereupon be indorsed by the clerk or register upon such map. This section shall not apply to a county embracing a portion of the forest preserve. [Tax Law (L. 1896, eh. 908), § 41.] § 24. Making false statement in reference to taxes. A person who, in making any statement, oral or written, which is required or authorized by law to be made as the basis of imposing any tax or assessment, or of an application to reduce any tax or assessment, wilfully makes, as to any material matter, any statement which he knows to be false, is guilty of a misdemeanor. [Penal Code, § 485.J Mode op Assessment. 124a § 4S. Assessment of special franchises. The state board of tax commissioners shall annually fix and de- termiae the valuation of each special franchise subject to assess- ment in each city, town, or tax district. After the time fixed for hearing complaints the tax commissioners shall finally determine the valuation of the special franchises, and shall file with the clerk of the city or town in which said special franchise is assessed a writ- ten statement duly certified by the secretary of the board of the valuation of each special franchise assessed therein as finally fixed and determined by said board ; such statement of valuation shall be filed with the town clerk of the respective towns within thirty days next preceding the first day of July in each year ; and with the clerks of cities of the state within thirty days before the date set opposite the name of each city in the following schedule. In the city of New York such statement shall be filed with the department of taxes and assessments. Schedule oh Dates poe EiLrcsro of Assessments of Special rEAKTOHISES. Name of city. Date. Name of city. Date. Kochester. April 1st, Jamestown. April 1st. Ithaca. April 1st, Buffalo. April 1st. Gloversville. April 1st. . Auburn. May 1st. N. T. City. May 1st. Schenectady. June 1st. Corning June 1st, HornellsviUe. ■June 1st. Oswego. June 1st. "No. Tonowanda. July 1st.. Glean. July 1st. Syracuse. July 1st, Cohoes, July 1st. Ogdensburgh. July 1st, Dunkirk July 1st. Troy. July 1st. Kome. July 1st. iWatertown. July 1st. Elmira July Ist. Lockport. July 1st. Utica. July 1st. Poughkeepsiff. July 1st. i24B Tovrs AHi> CoTjisrTY Offigbes' Manual. Name of city. Date. Name of city. Date. Little Falls "July 1st. Watervliet. July 1st. Niagara Falls. "July 1st. Kingston. July 1st. Newburgh. July 1st. ' Hudson. July_lst. Amsterdam. July 1st. Binghamton. July 1st. Geneva. July 1st. iMiddletowu. July 1st. Johnstown. July 1st. Yonkers. Oct. 1st. New Eoctelle. Oct. 1st. 'Albany. Oct. 1st. Mt. Vernon. Oct. 1st. Rensselaer, Oct. Ist. Each city or lown clerk shall, within five days after the receipt by him of the statement of assessment of a special franchise by the -state board, deliver a, copy of such statement' certified by; him to the assessors or other officers 'charged with the duty of- making local assessments in each tax district in said city or town and; to the assessors of villages and commissioners of highways .withjn their respective towns and villages. The valuations of every special franchise as so fixed by the state board-shall.be entered by the assessors or other officers in the- proper column of the assess- ment' roll before the final revision and certification of such roll, by them, and become part thereof with the same force and effect, as if such assessment had been originally made by such assessor or other officer. If a. special, franchise assessed m a towr is wholly within a village, the valuation fixed by, the state board for the town shall also be the valuation for the village. If) a part only of such special franchise is in a village, or is in a village situated in more than one tax district, it shall be the .duty of .the village assessors to ascertain and, determine what portion of the valuation of such ' franchise, as the same has been fixed,rby the state board,r shall be placed upon thetax roll for village purposes. The valuation appor- tioned to the town shall be^the assessed valuation for highway pur- •poses,' and in case part of: such special, franchise shall be assessed Mode of Assessment. 3 24c in a village and part thereof in a town outside a village, tlie com- missioners of highways of the town and village shall meet on the third Tuesday in August in each year and apportion the valuation of such special franchises between such town outside the village and such village for highway purposes. In case of disagreement between them the decision of the supervisor of the town shall be final. The town assessors shall make an apportionment among school districts at the time and in the manner required by section thirty-nine of this chapter. The valuation so fixed by the state board shall be the assessed valuation on which all taxes based on such special franchise in the city, town or village for state, munici- pal, school or highway purposes shall be levied during the next ensuing year. It shall not be necessary for the state board of tax commissioners to give notice to any person, co-partnership, associa- tion or corporation of the valuation of a special franchise located in any village for village purposes except in a case where such valua- tion is required to be made for such village purposes by the state board of tax commissioners. The assessors or other taxing officer, or other local officer in any city, town or village, or any state or county officer, shall on demand furnish to the state board of tax commissioners any information required by such board for the purpose of determining the value of a special franchise. [Tax Law, sec. 42, as added by L. 1899, ch. 712, and amended by L. 1900, ch. 254.] Report to state hoard of tax commissioners. — ^Every person, co- partnership, association or corporation subject to taxation on a special franchise, shall, within thirty days after this section takes effect, or within thirty days after such special franchise is acquired, make a written report to the state board of tax commissioners con- taining a full description of every special franchise possessed or enjoyed by such person, copartnership, association or corporation, a copy of the special law, grant, ordinance, or contract under which the same is held, or if possessed or enjoyed under a general law, a reference to such law, a statement of any condition, obliga- tion or burden imposed upon such special franchise, or under which the same is enjoyed, together with any other informa- ]24d Mode of Assessment. tion relating to the value of such special franchise, required by the state board. The state board of tax commissioners may from time to time require a further or supplemental report from any such person, copartnership, association or corporation, containing information and data upon such matters as it may specify. Every report required by this section shall have annexed thereto the affidavit of the presi- dent, vice-president, secretary or treasurer of the association or corporation, or one of the persons or one of the members of the copartnership making the same, to the effect that the statements contained therein are true. Such board may pre- pare blanks to be used in making the reports required by this section. Every person, copartnership, association or corporation failing to make the report required by this sec- tion, or failing to make any special report required by the state board of ta.'c commiasioners within a reasonable time specified by it, shall forfeit to the people of the state the sum of one hundred dollars for every such failure and the addi- tional sum of ten dollars for each day that such failure con- tinues, and shall not be entitled to review the assessment by certiorari, as provided by section forty-five of this chapter. [Tax Law, § 43, as added by L. 1899, ch. 712, in effect October 1, 1899.] Hearing on special franchise assessment. — On making an assessment of a special franchise, the state board of tax com- missioners shall immediately give notice in writing to the person, copartnership, association or corporation affected, stating in substance that such assessment has been made, the total valuation of such special franchise, and the valua- tion thereof in each city, town, village or tax district; and that the board will meet at its office in the city of Albany on a day specified in such notice, which must not be less than twenty nor more than thirty days from the date of the notice, to hear and determine any complaint concerning such assess- ment. Such notice must be served at least ten days before the day fixed for the hearing; and it maybe served on a copartnership, association or coporation, by mailing a copy thereof to it at its principal office or place of business, and on a person, either personally or by mailing it to him at his place of business or last known place of residence. Section thirty-six of this chapter applies so far as practicable to a hearing by the state board of tax commissioners under this section. [Tax Law, § 44, as added by L. 1899, ch, 712, in effect October 1, 1899.] Mode oe Assessment. 124b § 46. Certiorari to revieiv assessment. An assessment of a special franchise by the state board of tax commissioners may be reviewed in the manner prescribed by article eleven of this chapter, and that article applies so far as practicable to such an assessment, in the same manner and with the same force and effect as if the assessment had been made by local assessors; a petition for a writ of certiorari to review the assessment must be presented within fifteen days after the completion and filing of the assessment roU, and the first posting or publication 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 board or officer unless otherwise directed by the court or judge granting the writ. An adjudication made in the proceeding insti- tuted 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 with the city, town or village clerk a statement of the valuation of a special franchise, shall give to the person, co-partnership, association or corporation affected written notice that such statement has been filed, and such notice may be served on a co-partnership, association or corpora- tion by mailing a copy thereof to it at its principal office or place of business, and on a person either personally or by mailing it to iiim at his place of business or last known place of residence. |[Tax Law, sec. 45, as added by L. 1899, ch. 712, and amended by I. 1900, ch. 254. J Deduction from special franchise tax for local purposes — If, when the tax assessed on any special franchise is due and payable imder the provisions of law applicable to the city, town or village in which the tangible property is located, it shall appear that the persoi, copartnership, association or corporation affected has paid to snch city, town or village for its exclusive use within the next pre'jeding 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 iMoney on account of such special franchise, granted to or possessed by such person, copartnership, association, or cor- 124f Mode of Assessment. poration, which payment was in the nature of a tax, all amounts so paid for the exclusive use of such city, town or village except money paid or expended for paving or repair- ing 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 chamberlain 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, co- partnership, association, or corporation is entitled to credit as provided in this section, shall, not less than five nor more than twenty days before a tax on a special franchise is pay- able, make and deliver to the collector or receiver of taxes or other officer authorized to receive taxes for such city, town or village, his certificate showing the several amounts which have been paid during 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, copartnership, association or corporation affected the amount stated in such certificate, on any tax levied against such person, copartnership, associa- tion 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 sucbjpayment 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, in effect October 1, 1899.] Special franchise tax not to affect other tax. — The imposition or payment of a special franchise tax as provided in this chapter shall not relieve any association, copartnership 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 subject 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, in effect October 1, 1899.) Equalization of Assessments; Appeals. 125 CHAPTER IX. Equalization of assessments and lbvt of taxes bt boabbs op supervisoes; appeals. Sboeion 1. Boards of supervisors to examine assessment-roll ; equalization of valuations. 2. Board of supervisors may appoint commissioners of equalization; county judge to appoint in case of disagreement ; terms of office ; compensation. 8. Examination of assessment-rolls by commissioners ; equalization of valuations ; vacancy in office of commissioners. 4. Commissioners' report of equalized valuations. fi. Board of supervisors may change descriptions of non-resident real property. 6. Review of assessment against non-resident owners of rents reserved by board of supervisors. 7. Correction of errors by boards of supervisors ; petition of assessors for corrections ; petition to be served on owners. 8. Board of supervisors may correct manifest errors, and cause monies illegally collected to be refunded. 9. Ee-assessment of property illegally assessed. 10. Levy of taxes by board of supervisors. 11. Supervisor may appeal from equalization of board of super- visors ; consent of town board ; appeal, how brought. 12. Form of petition ; rules of state board ; time and place of hear- ing appeal. 18. Board of tax commissioners, determinations of ; how made and what to contain. 14. Costs on appeal to be fixed by state board ; limitation of amount. 15. Tax-roll; collector's warrant to be attached to; contents of warrant. 16. Statement of taxes upon certain corporations by clerk of super- visors. 17. Statement of equalized valuation to be forwarded to comptroller by clerk of board of supervisors. 18. Clerk of board of supervisors to furnish county treasurer with abstract of tax-rolls. § 1. Board of supervisors to examine assessment-roll ; equaliza- tion of valuations. The board of supervisors of each county in this state, at its annual meeting, shall examine the assessment-rolls of the I'JS Town and County Officers' Manual. several tax districts in the county, for the purpose of aseer- taining 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 aggre- gate valuations 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 relation between all the valuations of real estate in the county; but it shall, ia no instance, change the aggregate valuations of all the tax districts from the agregate valuation thereof as made by tho assessors. [Tax Law (L. 1896, ch. 908), § 50.) § S. Board of supervisors may appoint commissioners of equaliza- tion ; county judge to appoint in case of disa^eement ; terms of office; compensation. The board of supervisors of any county of the state may hy the concurring vote of a majority of all the supervisors elected to such board, resolve to appoint three persons to be commissioners of equalization of such county. They shall thereupon appoint such commissioners, two of whom shall be lesidents of such county and not members of the board of supervisors, and the third commissioner shall not be a resi- dent 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 commis- sioners 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 ctiy or cities shall be named by the supervisors representing such towns. Both such commis- sioners, including the third commissioner appointed from the judicial district outside of such county, shall be con- firmed 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 provided by this section, and such commissioners are not appointed before the Equalization op Assessments; Appeals. 127 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 coraraissioners subject to the provi- sions of this section relating to their places of residence. The term of office of each such commissioners shall be 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 comimssioner so removing shall thereon become vacant. Such appointments 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 gen- eral 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 be filled, for the unexpired term, by the appointment of a person of the same political faith as his predecessor at the time of his appoint- ment. Each commissioner shall be paid by the county for his services, a sum to be fixed by the board of supervisors, not exceeding the rate of four dollars per day, for the time neces- sarily 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 expenses in any one year shall not exceed three hundred dollars. [L. 1896, ch. 820, § l.J §3. Examination of assessment-rolls by commissioners; equaliza- tion of valuations ; vacancy in o£Sce oi* commissioners. Between the first day of September and the time of the annual meeting of the board of supervisors in each year, the commissioners shall examine the assessment-rolls of the several towns in their county and shall visit each town therein for the purpose of ascertaining whether 128 Town and County Opficbes' Manual. the valuations in one town or ward bear a just relation to the valuations in all the towns and wards in the lounty, and they may increase or diminish the aggragata 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 becomo 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 political faith as his predecessor at the time of his appointment. [L. 1896, ch. 820, § 2, as amended by L. 1898, chap. 265.] I 4. Commissioners' report of equalised ▼aluatiens. 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 ol the equalized valuations of real estate, signed by a majority of such commissioners, 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, oh. 820, § 3.J § 5. Board of supervisors may change discriptions of nen-resideni real property. The board of supervisors of each county, at its aunuai meeting, shall examine the assessment-rolls of the several tax districts, and shall make such changes in the descrip- tions of the real property of non-residents as may be neoes- sary to render such descriptions sufficiently definite for the purposes of collection of taxes by sale thereof. If a suffi- ciently definite description cannot be obtained during the session, the board shall cause the same to be obtained foi the next annual session, and the property shall not be taxed until such description is obtained, and shall then be taxe every dollar or b un- less than a dollar of taxes, as your fee for collecting the same. [If l^e ag- gregate 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. 8. To the supervisors of said town, the sum of , f or 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. You will proceed to collect such taxes in the manner provided by article 4 of the Tax Law. If any person named in such assessment-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 chattels 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 ,18.. M F, Chairman. (County seaL) R 8. Olerk. § 16. Statement of taxes upon certain corporations by clerk of ■nperrisors. 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 corpora- tion and telegraph, telephone 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.] This section supersedes in efleot § 53 of the Town Law. 138 'XowN AMD County Officers' Manual. FORM NO. 26. Statement of Taxes Upon Certain Corpoeations. To A B, Treasurer of the County of ; I, O D, clerk of the board of supervisors of the county of t in pursuance of section 57 of the Tax Law, do hereby transmit the following statement : NAME OF CORPOBATION. Districts in wMoh assessed. Valuation of property. Amount of tax. WeBtem Union TeloGrranh Co >■• Town of $8,000 00 7,000 00 6,000 00 6,000 00 8,000 00 $65 IS do City of....... (third ward. 65 IS do 40 09 do City of first ward.. 275 00 Dated this day of . ,18. C D. Clerk of Board of Supervison, § 17. Statement of equalized valuation to be forwarded to th* 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 comp- troller, 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 taxa- tion 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 exempt on account of the payment of state taxes on its capital. In the city o" 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 to furnish the necessary information. [Tax Law (L. 1896, ch. 908), §58.] Eqitalization op Assessments; Appeals. 139 S 18. Clerk of board of supervisors to furnish county treasurer 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 purpose fqr which it is to b,e collected, ^nd 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 collected by him. [Tax Law (L. 1896, ch. 908)), § 59. J FORM NO. 27. Abstract op Tax-Rolls. To A B, Treasurer of the County of ; I, C D, clerk of the board of supervisors of the county of , in pursuance of ^ 59 of the Tax Law, hereby transmit an abstract of the tax- rolls of such county as follows : NAME OF COLLBCTOE. John Smith ... MlohaelHood. District. Town of Town of Amount to be collected. t9,000 00 17,000 00 Fnrpose of taxes. Highways and bridges.$l,000 Support of poor 8,000 Town charges 4,000 State tax 1,000 Highways and bridges. 8.000 &c. &o. &o. To whom to be paid. John Brown, commission- er of high' ways. Abram Moon When to be paid. Feb. 1,18.. 140 Town and County Officers' Manual. CHAPTER X. Collection of taxes. Bbohoii 1. Collector to give notice of receipt of tax-roll and warrant; con- tents of notice ; how posted. 9. 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. 8. Settlement of conflicting claims to surplus of tax sale ; action by claimant to recover amount of surplus. 4. Collection of taxes assessed against stocks in banks and banking associations ; collector may levy on stock. 6. Railroad, telegraph, telephone and electric light corporations may pay tax to county treasurer ; duties of county treasurer. 8. Railroads in towns bonded for the construction thereof, to pay tax to county treasurer; investment of money by county treasurer. 7« Tax against telegraph, .telephone and electric light lines ; col- lectors may levy on instruments ; return of unpaid taxes to county treasurer ; county treasurer may sell lines. 8. Sequestration of property of corporations for failure to pay taxes. 9. Taxes on rents reserved ; coUeotor may levy on personal property of owner found in county ; when tenant may be compelled to pay. 10, Collector to return unpaid taxes on debts owing to non-residents of the United States to county treasurer ; county treasurer to issue warrant to sheriff to collect amount of tax. 11. Sheriff to return warrant for collection of taxes on debts owing to non-residents ; neglect to make return ; proceedings if warrant is returned unsatisfied. IS. 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. 18. Supervisor or county treasurer may institute supplementary pro- ceedings for collection of unpaid taxes. ^ 14. When tax is paid by tenant, he may retain amount from rental. 15. Payment of taxes on part of lot. 16. Payment of taxes on state lands in forest preserve. 17. Fees of collector. 18. Return by collector of unpaid taxes ; contents of return ; form prescribed by tax commissioners. 19. Stay by injunction or otherwise of collection of taxes, to operate as an extension of time for making return of taxes affected. Collection of Taxes. 141 SsonON 20. Payment by collector of taxes collected ; officers to give collector duplicate receipts ; receipts to be filed. 21, Collector failing to make payments ; county court to order sheriff to levy on property of collector ; return of sheriff. 23. County treasurer to make payments to proper officers out of moneys collected. 23 Supervisors to prosecute collectors' undertaking for deficiency. 24. County treasurer may extend time for collection of taxes ; new bond of collector. 25. Filling vacancy in office of collector ; notice of appointment to county treasurer ; warrant to be delivered to new collector. 26. Sheriff to collect taxes in case of collector's failure to execute bond, unless vacancy be filled ; duties of sheriff thereunder. 27. Collector's bond, satisfaction of, by county treasurer ; form of satisfaction ; filing thereof. 28. 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. 29. County treasurer to pay money to creditors of county. 80. County treasurer to be charged with amount of state tax ; when state tax to be paid over ; county treasurer nlay borrow money for payment of state tax ; interest on amount with- held. 81. State comptroller to state accounts with county treasurers ; to institute proceedings against county treasurers for failure to pay over. 82. Losses by default of collector or treasurer, how borne. 33. Collector to give receipts to each person paying a tax ; form of receipts ; to be provided by board of supervisors. 34. Obstructing officers in collecting taxes. § 1. Collector to give notice of receipt of tax-roll and warrant ; contents of notice; how posted. 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, specifjing one or more convenient places in such tax dis- trict, where he will attend from nine o'clock in the forenoon until four o'clock in the afternoon, 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 speci- fied in such notice, for the purpose of receiving the taxes assessed upon such roll. The collector shall attend accord- ingly, and any person may pay his taxes to such collector at the time and place so designated, or at any other time or 142 Town and County Officers' Manual. place. In a city, the notice in addition to being posted shall he publfshe^ 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. 343, in effect April 17, 1899.] Collector's warrant, form and contents of. Tax Law, § 56, ante, p. 136. FORM NO. 28. Notice by Collectok of Receipt op Assessment-roll and Waerant. 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 18. . JOHN BROWN, Collector. % S. Collector to call upon taxpayers after expiration of thirty days ; levy on personal 'property because of failure to pay ; sal* of personal property; disposition of proceeds. After the expiration of such period of thirty days, the col- lector shall call, at least once, on every person taxed upon such roll, whose taxes are unpaid, at his usual place of resi- dence, if he is an actual inhabitant of such tax district, and demand payment of the taxes charged to him on his prop- erty. If any person shall neglect or refuse to pay any tax imposed on him, the collector shall levy upon any personal property in the county belonging to or in the possession of any person who ought to pay the tax, and cause the same to be sold at public auction for the payment of such tax, and the fees and expenses of collection; and no claim of property to be made thereto by any other person shall be available to prevent such sale. Public notice of the time and place of sale of the property to be sold shall be given by posting the same in at least three public places in the tax district where the sale is to be made, at least six days previous thereto. If the proceeds of such sale shall be more than the amount of such tax, the fees of the collection and the expenses of the sale, the surplus shall be paid to the person against whom Collection of TIxes. 145 the tax wag assessed. If any other person shall claim the surplus, on the ground that the property sold belonged to him, and such claim be admitted by the person for the pay- ment of whose tax the sale was made, such surplus shall be paid to such other person. If such claim be contested by the person for the payment of whose tax the property was sold, such surplus shall be paid over by the collector to the supervisor of the town, who shall retain the same until the rights of the parties thereto shall be determined by due course of law, or by agreement in writing made by them and filed with the supervisor. [Tax Law (L. 1896, ch. 908), § 71.] Liability of collector, because of irregularities in tax-roll or warrant. The authority given to 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. 534. The warrant and assessment-roll constitute one process. If it is legal on its face, the collector is protected. Chegaray v. Jenkins. 5 N. Y. 376; Van- Eensselar v. Witbeck, 7 N. Y. 517; Patchin v. P.itter, 27 Barb. 34; Johnson v. Learn, 30 Barb. 616. Where it appears that tax-roll was verified before the 3rd Tuesday in August, the time fixed for its final review and correction, it is a nullity and the collector is not protected. Westfall v. Gere, 49 N. Y. 349. 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 a 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. Niagara Elevating Co. v. McNamara, 50 N. Y. 653. When a copy of the assessment-roll, with the warrant attached, is deliv- ered to the town collector, it is not necessary to attach the afl3.davit of the assessors or a copy of it in order to protect the collector. The warrant and the roll constitute the process. Bradley v. Ward, 58 N. Y. 401. Payment of tax by third persons. Mortgagees may pay tax and add amount to mortgage debt. Sidenberg v. Ely, 90 N. Y. 857. Assignee for benefit of creditors cannot be compelled to pay taxes in real property by mortgagee. Matter of Lewis, &l N. Y. 421. Unpaid taxes upon real estate of a testator must be paid by his executor out of personalty. Smith v. Cor- nell, 111 N. Y, 554. Referee making sale of real property under a judgment rendered in an ac- tion to foreclose a mortgage, for partition or for dower, must pay taxes out of proceeds of sale. Code Civil Procedure, § 1676. Leoy on personal property. The authority to proceed by distress and sale is permissive, not mandatory. U. S. Trust Co. v. Mayor, &c., 77 Hun, 183. Collector cannot levy on personal property of the owner of non-resideat land. N. Y. & Sarlem B. B. Co. v. I^on, 16 Barb. 651. The interest of a tenant in common of personalty may be levied upon. Dine- hart V. Wilson, 15 Barb. 595. 144 Town and County Officers' Manual. Rolling stock of a railroad is liable to seizure and sale to satisfy a tax against the company. Randall v. Ehjnell, 53 N. Y. 521. The statute refers to actual physical possession, and not to mere legal or con- structive possession, and an actual possession by the consent of the owner, though unaccompanied with any ownership in the possessor, is a possession within the meaning of the statue. JSersee v. Porter, 100 N. Y. 403. Seizure and sale of property found in the possession of the tax debtor, though not owned by him, held constitutional. Pauly v. Wahle, 39 Hun, 116. A town collector may seize not only goods and chattels belonging to the person taxed but any goods and chattels in his possession. Sheldon, v. Van Buskkirk, 2 N. Y. 473. A levy by a collector under a proper warrant gives him a special property in goods seized sufficient to sustain an action for their unlawful removal from his possession orfrom that of his agent. Hilliard t. Austin, 17 Barb. 141. FORM NO. 29. Notice of Tax Sale by Collector. 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 18... F. M. A Collector. % 3. Settlement of conflicting claims to surplus of tax sale ; action by claimant to recover amount of surplus. Whenever a surplus from the sale of any property, for unpaid taxes in the hands of the supervisor of a town, shall be claimed by any person, other than the person for whose tax such property was sold, and such claim shall not be settled by a stipulation filed with the supervisor, as provided by this chapter, such claimant may maintain an action against such person, or such person may maintain an action against such claimant, to recover such mouey and, for the purposes of such action, the defendant shall be deemed to be in possession of the surplus in the hands of the supervisor. Upon the production of a certified copy of a final judgment, rendered in favor of either party, the supervisor shall pay such surplus to the party recovering the same. No other cause of action shall be joined, nor any set-oEF or counter- Collection op Taxes. 145 claim be allowed in an action brought pursuant 4o this section, and if an execution issue on a judgment rendered in Buch action, it shall direct that the costs only of such judg- ment be levied thereon. [Tax Law (L. 1896, ch. 908), § 264.] § 4. Collection of taxes assessed against stocks in banks and banking associations ; collector may levy on stock. Every bank or banking association shall retain any divi- dend 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 necessary 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 association 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 assessed shall be and remain a lien on the shares of stock against which it ia 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.J § 5. Railroad, telegraph, telephone and electric light corpora* tions may pay tax to county treasurer ; duties of county treasurer. Any railroad, telegraph, telephone or electric light corn- pany 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 fees, to the county treas- urer, who shall credit the same with such fees to the col- lector of the tax district, unless otherwise required by law. 10 146 Town akd County Officers' Manual. 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.] Highway taxes, payment of, by corporations to highway o£Scers. Highway Law, § 62, post, p. 315 . § 6, 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 con- struction of a railroad therein, so much of all taxes as shall be necessary to take up such bonds, except school district and highway taxes, collected on the assessed valuation of such railroad in such municipal corporation, 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 town, village or city, such bonds, when they can be purchased at or below par, and shall imme- diately cancel them in the presence of the county judge. If such bonds cannot be purchased at or below par, such treas- urer shall invest such money in the bonds of the United States, of 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 pay- ment 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 which such municipal corporation is situated, for an order compelling such treasurer to execute the provisions of thia section. 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 county clerk an undertaking, with not less than two Cof/f/BCTioiJ dp Taxes. 147 sureties', approved by such board or judge, to the effect that he will faithfully perform 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 made by him or his pre- decessors, and the condition of such fund. [General Muni- cipal Law (L. 1892, ch. 685), § 12, as amended by L. 1893, ch. 466.] § 7. Tax against telegraph, telephone and electric light lines ; collectors taa,y 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 BufiBcient personal 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 percentage, in the manner now provided by law for the sale of lands on execution, and upon such sale shall execute to the purchaser a conveyance of such part of said line, and the purchaser shall thereupon become the owner thereof. Nothing herein contained shall be con- strued to prevent collection of such taxes by any procedure now provided by law. [Tax Law (L. 1896, ch. 908), § 74.J § 8. Sequestration of property of corporations Ifor 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 neg- lects to pay the taixes imposed upon it, pursuant to articles one and two of this chapter, to bring an action in the supreme court for the sequestratioU of the property of such corporation, and the court may so sequestrate the property of such corporation for the purpose of satisfying taxes in 148 Town and County Officers' Manual. 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.] § 9. Taxes on rents reserved ; collector may levy on personal property of ofvner found in county ; 'vrhen tenant may be compelled to pay. If any tax upon any such tax-roll uopn rents reserved is not paid, the collector shall collect the same by levy and sale of the personal property of the persons against whgm the tax is levied, which may be found within the county. If no suffi- cient personal property belonging to such person can be found in the county, the collector shall collect such tax of the tenant or lessee in possession 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 thereafter become due thereon, or may maintain an action to recover the same. [Tax Law (L. 1896, ch. 908), § 75,] § 10. Collector to return unpaid taxes on debts o^riag to non- reaidents of the United States to county treasurer; county trea- surer to issue a ^rarrant 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 the United States remains unpaid, the county treasurer shall, after the expiration of twenty days from such return, issue bis warrant to the sheriff of any county in this state where any debtor of any such 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 Collection op Taxes, 149 to return the warrant to the treasurer issuing the same, and to pay over to him the money which shall be collected 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 in- cluded in one warrant. The taxes upon several debts owing to different non-residents may 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 property of the non-residents, respectively, opposite to whose names, respectively, such sums shall be written, with fi.fty 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 effect, and in the same manner, as prescribed 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 manner. [Tax Law (L. 1896, ch. 908), § 76.J § 11. SherifiT to return Trarrant for collection of taxes on debts oaring to non-residents ; neg^lect 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, requir- 150 Town and County Offiobes' Manual. ing such non-resident or any person having pfopeity of such non-resident or indebted to him, to appear and answer con- cerning the property of such non-resident. The same reme- dies and proceedings may be had in the name of such county treasurer or comptrollor before the officer granting such orde;-, and with a like effect, as are provided by law in pro- ceedings against a judgment debtor supplementary to execu- tion against him, returned wholly or in part unsatisfied. The expenses 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, chap. 908), §77.] § 12. 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 removal of the person taxed to any other county of the state, such court shall, upon application of the collector of any tax district or of the county 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 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 Collection op Taxes. 151 levied, to the credit of the town in which it was assessed. This provision shall also apply to taxes levied upon rentj reserved as upon personal property vyhere such taxes remaic unpaid. [Tax Law (L, 1896, ch. 908), § 258.J § 18. Supervisor or county treasurer may institute supplementary 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 proceedings 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 corpor- ation, and the same proceedings may thereupon be had in all respects for the collection of such tax as for the collection of a judgment by proceedings supplementary to execution thereon against a natural person, and the same costs and disbursements may be allowed against the person or corpor- ation examined as in such supplementary proceedings, but none shall be allowed in his or its favor. The tax, if col- lected in such proceeding, shall be paid to the county treas- urer or to the supervisor of the town, and if a village tax, to the treasurer of the village. The costs and disbursements collected shall belong to the party instituting the proceed- ings, and shall be applied to the payment of the expense of such proceeding. The president of a village and a county treasurer shall have no compensation for any such proceed- ing. A supervisor shall have no other compensation except his per diem pay for time necessarily spent in the proceed- ing. [Tax Law (L. 1896, ch. 908), § 259.] Code of Civil Procedure, sections 2432-2463, inclusive, provides for proceed- ings supplementary to execution. Corporations are not subject to its pro- visions " except in those actions or special proceedings l>rought by or against the people of the state." § 2463. 152 Town and County Officees' Manual. Punishment 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 nonpayment, nor shall any person be imprisoned or other- wise punishable on account of nonpayment of any tax, or of any fine imposed for refusal or neglect to pay said tax. (L. 1897, ch. 768, § 1, as amended by L. 1898, ch. 79.) By § 2 of this act, it is provided that such act does not apply to proceedings supplementary to execution upon judgments recovered for taxes. § 14. When tax is paid by tenant he may retain amount from rental. If a tax upon real property shall have been collected of any occupant or tenant, and any other person, by agreement or otherwise, ought to pay such tax, or any part thereof, such occupant of 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 the land so taxed. [Tax Law (L. 1896, ch. 908), § 78.] § 16. Payment of taxes on part of lot. The collector shall receive the tax on part of any lot, piece or pacrel 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 sh6wing the part on which the tax remains unpaid, and if the part on which the tax shall be so paid shall be an undivided share, the person paying the same shall state to the collector who is the owner of such share, and the collector 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.J § 18. 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 credit- ing to the treasurer of the county in which such lands may be situated, such taxes, upon the amount payable by such Collection of Taxes. 153 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.J § 17. Fees of collector. On all taxes paid within thirty days from the date of notice that he has received the roll, the collector shall be entitled to receive, if the aggregate amount shall not exceed two thousand dollars, 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.J § 18. 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 warrant, 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 of such account. In making such return of unpaid taxes, the col- lector shall add thereto five per centum of the amount thereof. In case such tax is uncollected upon lands assessed to a resident he shall also state the reason why the same was not collected. Such return shall be indorsed upon or attached to said roll, and shall be in the form to be pre- scribed 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. [Tax Law (L. 1896, ch. 908), § 82.J :}**••• 154 Town and County Officers' Manual. A return by 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 svuns 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 as- sessed upon non-resident lands, they did not lay a foundation for a sale by the comptroller. Thompson v. Burhans, 61 N. Y. 53. FORM NO. 30. Affidatit to be Attached to ColIjECtor's Return oi" Unpaid Taxes. STATE OF NEW YORK, County of 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 a true account of the taxes remaining unpaid upon the assessment-roll of said town for the year 18...; that the sums mentioned therein remain unpaid, and that he has not, upon diligent inquiry, been able to discover any personal prop- erty, out of which the same might be collected by levy and sale. (If such t,ax is uncollected upon lands assessed to non-residents, also state the reason u'hy the same was not collected.) AB, Collector. Subscribed and sworn to before me, ) this ... .day of IS... f (Signature of Notary.) [Annex statement.] The form of the return is to be prescribed by the state board of tax com- missioners. §19. Stay by injunction or otherwise of collection of tases, to opex'ate as an extension of time for making return of taxes affected. Any stay, lawfully granted by any court of record by injunction or other order or proceeding, of the collection of any tax existing at the expiration of the period for the col- lection 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 holding 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 termin- ated and for the period of thirty days thereafter. As to all other taxes to be collected under any such warrant or process, the collector or officer holding the warrant or process Collection of Taxes. 155 shall make a return thereof within the time prescribed by law. [Tax Law (L. 1896, ch. 908), § 83.J § so. Payment by collector of taxes collected ; ofBcers to give collector duplicate receipts ; receipts to be filed. Every collector shall, within one week after the time pre- scribed in his warrant for the payment of the moneys directed therein to be paid, pay to the oflScers and persons specified therein, the sums required in such warrant to be paid to them respectively. The ofiBcers 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 treaurer. If any greater amount of taxes shall be levied in any town than the town 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.] Section 80 of the Town Law, post, p. , requires the supervisor jof each town 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. §21. 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 afiBdavit, on application of the county treasurer, shall make an order directed to the sheriff of the county, com- manding him to levy such sum as shall remain unpaid by such collector out of his property, personal and real, and pay 156 Town and County Ofpiceks' Manual. the same to the county treasurer, within sixty days from the date of such order. The sheriff shall cause the same to be executed, and pay to the county treasurer the money levied by virtue thereof, deducting for his fees the same compensa- tion that the colllector 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 pros- ecute 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. 3896, ch. 908), § 260. J § 22. 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 warrant 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.] § 23. Supervisors to prosecute collector's undertaking for de- ficiency. 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 forthwith cause the undertaking of the collector to be prosecuted, and shall be entitled to recover thereon the sum due from the collector with costs of the Collection of Taxes. 15 V action. The moneys received shall be applied and paid by the supervisor in the same manner as they should have been by the collector. [Tax Law (L. 1896, ch. 908), § 262.J § S4. County treasurer may extend time for collection of taxes ; ne-w 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 the 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 uncol- lected, 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. Receivers 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 state tax by the county treasurer, as required by this chapter. [Tax Law (L. 1896, ch. 908), § 85. J Provision of County Law, applicable to extensions. The following section of the County Law (§ 149) covers the same ground a^ 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, unless ninety per cent, of such taxes shall have been collected and paid over to .hini." [County Law (L. 1892, chap. 686), § 149.] 158 Town and County Officbrs' Manual. FOEM NO. 81. Application of Supektisor for Extension of Time for Collection of Taxes. 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, 18.., for the collection of taxes in the town of for the reason that (state reason for delay). Dated this day of 18 — AB, Supervisor of the Town of FORM NO. 33. Order of Treasurer Granting Extension. 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 ooTleotion of taxes in such town, and the reason stated in such appli- cation appearing to me sufficient, and proof having 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 non-resident taxes remaining unpaid, and renewed his bond in a penalty twice the amount of the taxes remaining uncollected, 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 such town is hereby extended until the 1st day of March, 18. . . . Dated this day of 18 ED, County Treasurer of the County of § 25. Filling vacancy in office of collector; notice of appointment to county treasurer ; warrant to be delivered to new collector. If a person chosen to the office of collector of a town shall refuse to serve or be disabled from entering upon or complet- ing the duties of his office from any cause, the town board shall forthwith appoint 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 forthwith 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 warrant shall have been issued by the board of supervisors before the appointment of a collector to fill a vacancy or before the appointment of a collector under this section, the Collection of Taxes. 159 original warrant, if obtainable, shall be delivered to the collector so appointed and shall give him the same powers aa if originally issued to him. If such warrant is not obtain- able, a new one shall be issued by the chairman and clerk of the board of supervisors of the county, directed to the col- lector 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 limit 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.] TJnieTtdking of collector. Town Law, §§ 53, 53, ante, p. 49; Public OflScera Law, §§ 11, 13, 13, ante, p. 53. Form of. See Form No. 10, ante, p. 49. § S6. 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 a^pprove and file the same, within the time pre- scribed 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 manner as collectors are authorized by law to do, and with like powers and subject to the same duties and obligations. Every such warrant shall require all payments therein speci- fied to be made by the sheriff within sixty days after the receipt of the warrant by him. The expense of the collec- tion 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, ch. 908), § 87.) 160 Toww AND County Officers' Manual. § 27. Gollector's bond, satisfaction of^ by county treasurer ; form of satisfaction ; filing thereof. Upon the settlement of the account of taxes directed to be collected 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 he was by law to collect, give to such collector or any of his sureties, 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 oi such under- taking which shall thereby be discharged ; except that in counties containing cities of the first class such satisfaction when so entered shall only discharge the lien of said bond or undertaking upon 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, in effect April 17, 1899.] How collector can he 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. Eepr. 169. § 28. Reassessment of unpaid taxes on resident real property ; supervisor to include in tax-roll ; rate of interest on unpaid taxes ; to be regarded as non-resident thereafter. When the tax on any real property, not assessed as non- resident, is returned as unpaid and so remains, the county treasurer shall, during the month of July, furnish to a supervisor of the tax district in which such real property is located, a certified abstract of the tax-roll relating to such unpaid taxes, and such supervisor, before the delivery of the assessment-roll of such tax district to the collector, shall add a description of such real property to the assessment-roll of the then current year in the part thereof relating to non- resident lands, stating that it is a re-assessment of such tax, and shall cl. aige the same therewith. The amount of such tax shall bear interest at the rate of eight per centum per annum from the time it was returned to the county treasurer as unpaid until paid, or until the sale of such property 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 returns of such unpaid tax to the comptroller. There- Collection op Taxes. 161 after it shall be regarded for all purposes of assessment and collection, as a non-resident tax for the year in which such description is added. Such description shall conform to the direction of the state board of tax commissioners. If necessary, the county treasurer may cause proper surveys and maps to be made to enable such lands to be sold by descrip- tion suflBcient to convey title. [Tax Law (L. 1896, ch. 908), § 89.J § 29. 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), § 90.J § 30. County treasurer to be charged ^th amount of state tax ; Mrhen 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 re- taining 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 schools, pay the state tax to the treasurer of the state, as fol- lows: One-third thereof on or before the fifteenth day of February, one-third thereof on, or before the fifteenth day of April, and, unless otherwise provided by law, the balance thereof on or before the fifteenth day of May in each year, and notify the comptroller of such payment. If there are not sufiicient funds in the county treasury standing to the credit of any town to pay the state tax chargeable thereto, the treasurer shall borrow sufiicient money upon the credit of the county and charge the same against such town, with 11 162 Town and County Officers' Manual. interest thereon, until the same is paid. If any county treasurer shall not pay over the state tax as herein directed, the comptroller shall charge on all sums withheld such rate of interest as shall be sufiScient to repay all expenditures incurred 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 Shalt be regarded as funds in the hands of the county treas- urer 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 allowed and paid by the superintendent of public instruction. [Tax Law (L. 1896, chap. 908), § 91, as amended by L. 1898, chap. 361.] § 31. State comptroller to state accounts 'with county treasurer | to institute proceedings against county treasurer for failure to pay over. The comptroller shall state annually on June first, the account of each county 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 tbat the treasurer has not received such balance, and has used due diligence in collecting the same, forthwith de- liver 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 inter- est as provided by the last preceding section. The comp- troller may also, in his discretion, direct the board of super- visors of the county to institute the necessary proceedinga on the undertaking of such county treasurer and sureties. The comptroller shall also transmit to the board of super- visors on or before October tenth, a statement of account between his office and the county treasurer. [Tax Law (L. 1896, ch. 908), § 92.] COLtEGtiO^ OS" 'TAite*. 163 § 32. IiOBses b^ deifattlt oJf colliector or tf6a.siijrer« how bonie. 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 -whicti he is eollectot. If occasioned by the default bf the treasurer of any county iO the discharge of his official duties, such losses shall be chargeable to siich county. Any judgment against such treasurer fot any such loss or defifi- ieacy on account of the fetate tax upon which an execution shall have been issued and returned unsatisfied shall be con- clusive as to the fact of such loss or deficiency, and the amount of such deficiency shall thereupon become a charge 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. [Tax Law (L. 1896, ch. 908), § 93. J § 33. Collector to give receipts to each person ;^aying 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 shown on the assessment-roll, the name of the person to whom the same is assessed, the amount of such tax, and the date of the delivery to him of the assessment-roll on account of which such 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 correspond- ing stub will remain. The state board of tax commissioners shall prescribe the form of such receipts, stubs and books, and they shall be furnished to the .collector by the board of supervisors, at the expense of the county. At the time of giving such a receipt, the collector shall make the same entries on the corresponding stub as are required to be made on the receipt. Such book shall be subject to public inspec- tion and shall be filed by the collector with his return, together with the aasessment-roll in the office of the county 164 Town and County Oppicer3' ManxjaIi. treasurer. [Tax Law (L. 1896, ch. 908), § 94, as amended by L. 1897, ch. 489.] § 34. Obstructing o£Scer in collecting taxes. A person who wilfully obstructs or hinders a public oflBcer 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 indirectly interested, and which such officer is by law empowered to collect, is guilty of a misdemeanor. [Penal Code, § 475.] Salbs by County Trbasueba 165 CHAPTER XL* Sales by county treasurer for unpaid taxes and redemption op lands sold. Section 1. Assessment-roll to be returned by collector to county treasurer ; county treasurer to transmit accounts, etc., if his county embraces a part of the forest preserve. S. 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. 5. Conveyance by county treasurer, if real property sold be-not redeemed. 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 by the state upon which it has a lien. 9. Provisions relative to comptroller to apply to treasurer. § 1. Assessment-roll to be returned by collector to county treas> arer; county treasurer to transmit account, etc., if his county embraces a part of the forest preserve. The collector shall return the original assessment-roll to the county treasurer and when the treasurer finds an account of unpaid non-resident taxes, or unpaid taxes on corpora- tions, received from a collector to be a true transcript of s.uch original assessment-roll to which the collector's warrant is attached, 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 St. Lawrence, Lewis and Oneida counties, in case his county embraces a portion of the forest preserve, before the first day of April next ensuing, transmit Buch account, afiBdavit and certificate to the comptroller, who may before acting thereon return any such account to • See Green's Tax Laws of New York, published by Matthew Bender, Albany, N. Y., for a more complete statement of the law relating to tax sales by the comptroller and county treasurer. 166 Town and County Opficees' Manual. the county treasurer for correction, who shall make such correction and return to the comptroller in one month there- after, or as the comptroller may otherwise direct. [Tax Law (L. 1896, ch. 908), § 100, as amended by L. 1898, oh. 362.J County treasurer, duties of in respect to non-resident taxes, where his county embraces a portion of the forest preserve. Tax Law, §§ 101-143. The extent of this work will not warrant the insertion of the provisions of the tax law, relating to tax sales by the comptroller. Where counties embrace no part of the forest preserve, the sale of lands for unpaid taxes is conducted by the county treasurer. § 2. Sale of lands by county tneasurer for unpaid taxes in coun> ties embracing no portion of the forest preserve. Whenever any tax charged on non-resident real estate, in the counties of St. Lawrence, Lewis and Oneida or in a county not including a portion of the forest preserve, is re- turned to the county treasurer, he shall not return the same to the 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 from that date, such county treasurer shall advertise and sell such roal estate as herein provided for the payment of such tax and interest and the expense of such sale. The expense of publication of the notice of sale and the list of lands to be sold and the expense of conduct- ing the sale shall be a charge on the land liable to be sold and shall be added to the tax and interest. [Tax Law (L. 1896, chap, 908), § 150, as amended by L. 1898, chap. 362.J § 3. List of property to be sold, and notice of sale to be pub- lished ; sale. The county treasurer shall immediately after the expira- tion of such six months cause to be published at least once in each week for 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 Sales by County Tbeasureb, 167 such notice, and the succeeding days, be sold at public auc- tion at the court-house in the county where the same ia situated, to discharge the taxes, interest and expenses that may be due thereon at the time of such sale. On the day mentioned in such notice the county treasurer shall begin the sale of said real estate and continue the same from day to day. The charge of publishing such notice shall be seventy-five cents per folio for the first Insertion, and fifty cents per folio for each subse- quent insertion. The counties of Saint Lawrence, Lewis 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 has expired, the county treasurer of each of the counties of Saint Lawrence, Lewis and Oneida shall file with the comp- troller a certified statement of all tracts or parcels of land situated in the forests 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 comptroller shall designate within six months after such statement is filed, upon the payment of the taxes, interests and expenses due thereon at the time of the sale and also all taxes assessed thereon since such sale, and the comptroller 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 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 supervisors 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.J J 4. Owner may redeem -within one year. The owner, occupant or any other person having an inter- est in any real estate sold for taxes as aforesaid, may redeem 166 Town and County Officers' Manual. 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 cer- tificate, together 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. [Tax Law (L. 1896, ch. 908), § 152.] § 5. Conveyance by county treasurer, if real property aold be not redeemed. If such real estate, or any portion thereof, be not redeemed as herein provided, the county treasurer shall execute to the purchaser a conveyance of the real estate so sold, a description of which real estate shall include a specific statement of whose title or interest is thereby con- veyed, so far as appears on the record, which conveyance shall vest in the 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 treas- urer shall receive from the purchaser fifty cents for prepar- ing 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 con- veyance, 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 efieet as a conveyance of real estate properly acknowl- edged 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 bad 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.] § 6. Effect of conveyance. A purchaser or his legal representative may, upon receiv- ing a conveyance under and by virtue thereof, possess and Salbs by County Trbasuebb. 169 enjoy for his own use the real estate described in such con- veyance, unless redeemed 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 oflScers 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.] § 7. Purchase money, when to be refunded by boards of super- visors. 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 interest upon the same being presented and audited as other county charges, and such moneys shall be charged over to the tax district where the irregularity arose. [Tax Law (L. 1896, ch. 908), § 155.] § 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. The county treasurer of any county not embracing a por- tion 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 treas- urer conducting such sale shall bid in for the state all lands described in the list transmitted to him by the comptroller, 170 Town and County Offjchbs' Manual. and shall, at the close of such sale, transmit to the comp- troller a verified 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 his warrant on the state treas- urer 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.] § 9. 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, 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.J See Tax Law, art. VI, §§ 120-143. Division Fences. 171 CHAPTER XII. Division fences ; duties op fence viewers. Sbotiow 1. Who are fence viewers, 2. Division fences to be maintained by owners ; lands bordering on navigable lakes and rivers. 8. When lands may lie open; owner may, upon notice, enclose lands lying open. 4. Division fences on change of title ; duties of fence viewers in case of disagreement. 6. Settlement of disputes between owners; proceedings of fence viewers ; decision. 6. Subpoena and examination of witnesses by fence viewers; fees and compensation of fence viewers. 7. Damages for failure to erect or repair division fence, to be ascertained by fence viewers ; appraisal of damages ; one owner may erect or repair a fence at expense of other, 8. Division fence destroyed by accident ; notice to rebuild ; effect of failure to rebuild. 9. Damages done by animals where fence is not maintained as pro- vided by town rules and regulations. 10. Damages when person fails to build or repair a fence ; appraisal by fence viewers. 11. Use of barbed wire in the construction of division fences ; fence viewers to prescribe kind of wire and bow to be built. § 1. Who are fence viewers. The assessors and commissioners of highways elected in every town shall, by virtue of their offices, be fence viewers of their town. [Town Law (L. 1890, ch. 569), § 21, as renumbered by L. 1897, ch. 481. J § 2. Division fences to be maintained by owners; lands bordering on navigable lakes and rivers. Each owner of two adjoining tracts of land, except when they otherwise agree, shall make and maintain a just and equitable portion of the division fence between such lands, unless one of such shall choose to let his lands lie open to the use of all animals which may be lawfully upon the 172 Town and County Officers' Manual. other's lands and does not permit any animals lawfully upon his premises to go upon lands so lying open. When the adjoining lands shall border upon any of the navigable lakes, streams or rivers of the state, the owners of the lands shall make and maintain the division fence between them down to the line of low water mark, in such lakes, streams or rivers, except those lands which overflow annualy so as to be so submerged with water that no permanent fence can be kept thereon, and known as low flat lauds; and when adjoining lands shall be bounded by a line between the banks of streams of water not navigable, and the owners or occupants thereof can not agree upon the manner in which the division fence between them shall be maintained, the fence viewers of the town shall direct upon which bank of the stream, and where the division fence shall be loca'oed, and the portion to be kept and maintained by each adjoining owner. [Town Law (L. 1890, ch. 569), § lOO.J § 3. When lands may lie open ; owner may, upon notice, enclose lands, lying open. When the owner of any lands shall choose to let them lie open, he shall serve upon the owners of the adjoining lands a written notice to that effect, and thereafter the owners of such adjoining lands shall not be liable in any action or pro- ceedings for any damages done by animals lawfully upon their premises going upon the lands so lying open or upon any other lands of the owner thereof through such lands so lying open. The owner of any lands so lying open, may have the same inclosed, by giving written notice to that effect to the owners or occupants of the adjoining lands, and shall refund to such owners or occupants a just proportion of the value of any division fence made and maintained by them, or if no fence has been so made or maintained upon the line or any part of it, he shall build and maintain hia proportion of such division fence. [Town Law (L. 1890, ch. 569), § lOl.J UlVISION JiKNCES. 173 § 4. Division fences on change of title ; duties of fence vievrers in case of disagreement. Whenever a subdivision, or new apportionment of any divi- sion fence shall become necessary by reason of transfer of the title of either of the adjoining owners, to the whole, or any portion of the adjoining lands, by conveyance, devise (X descent, such subdivision or new apportionment shall thereupon be made by the adjoining owners affected thereby; and either adjoining owner shall refund to the other a just proportion of the value at the time of such transfer of title, of any division fence that shall theretofore have been made and maintained by such other adjoining owner, or the person from whom he derived his title, or he shall build his pro- portion of such division fence. The value of any fence, and the proportion thereof to be paid by any person, and the proportion to be built by him, shall be determined by any two of the fence viewers of the town, in case of disagreemen*. [Town Law (L. 180, ch. 569), § 102.J FORM NO. 33. Decision of Fence Viewers When Transfeb ov Tirua! has Been Made. COUNT? OF ,) Town of ) " 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) ; New, therefore, we, the undersigned fence viewers of said town, having been duly chosen by the said owners to hear and determine the matter, pur- suant to sections 103 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 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 $ la witness whereof, we have hereto set our hands on this.. ..day of 18.. NO, P R, Fence Viewers. 174 Town and County Officers' Manual. § 5. Settlement of disputes between owners ; proceedings of fence viewers; decision. If disputes arise between the owners of adjoining lands, concerning the liability of either party to make or maintain any division fence, or the proportion or ^articular part of the fence to be made or maintained Dy either of them, such dispute shall be settled by any two of the fence viewers of the town, one of whom shall be chosen by each party; and if either neglect, after eight days' notice, to make such choice, the other party may select both. The fence viewers, in all matters heard by them, shall see that all interested parties have had reasonable notice thereof, and shall examine the premises and hear the allegations of the parties. If they cannot agree, they shall select another fence viewer to act with them, and the decision of any two shall bo reduced to writing, and contain a description of the fence, and the pro- portion to be maintained by each, and shall be forthwith filed in the office of the town clerk, and shall be final upon the parties to such dispute, and all parties holding under them. [Town Law (L. 1890, ch. 569), § 103.J FORM NO. 34. Notice to Choose Fence Vieweb. ToDB, Esq.: Pursuant to section 103 of the Town Law, you are hereby required to ohoose, within eight days after service of this notice, a fence viewer to act with N O, a fence viewer I have chosen, in determining the dispute which has arisen between us concerning the division fence between our lands; and if you fail BO to do, I shall choose both of said fence viewers, as authorized by law. Dated this day of 18.. TW. FORM NO. 35. Certifioatb of Appobtionment of DrvisioN Fenob. COUNTY OF ( ,,. Town OB ) " Whereas, a dispute has arisen between D B and T "W, adjoining owners of land in said town, concerning the apportionment of the expense of maintain- ing (or erecting) the division fence between said lands; Now, therefore, we, the undersigned fence viewers of said town, duly chostn to hear and determine the dispute, pursuant to section 103 of the Town Law, after giving due notice to said owners of the time and place of this meet- ing, and having viewed the premises, heard the parties and the evidence produced, do hereby determine that the said O B shall erect, maintain and Division Fences. 175 keep in repair all that portion of the fence (here describe it), and that T W shall erect maintain and keep in repair all that portion of the fence (here describe it), 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 set our hands hereto on this. ....... day of 18.. NO. BS, Fence Viewera, § 6. Subpoena and examination of iTitnesses by fence viewers | fees and compensation offence vie'wers. Witnessea may be examined by the fence viewers on all questions submitted to them; and either of such fence viewers may issue subpoenas for witnesses, who shall receive the same fees as witnesses in a justice's court. Each fence viewer thus employed shall be entitled to one dollar and fifty cents per diem. The party refusing or neglecting to pay the fence viewers or either of them, shall be liable to an action for the same with costs. [Town Law (L. 1890, ch. 569), § 104.] FORM NO. 86. Subpoena bt Fenoe Viewes. >ss.j STATE OF NEW YOBK, County op Town of The People of the State of New York toLL and O 0: We, the undersigned, fence-viewers of the town of , county of....... command you and each of you, business and excuses being laid aside, to appear before us, fence viewers of the said town, at (insert the place) on th« day of ,18.., at .... o'clock in the M., to be ex- amined as a witness in regard to the matter in difference between D B and T W. aa to a division fence between property owned by them, and all matters pertaining thereto; and for a failure to attend you will be deemed guilty of contempt, and will be proceeded against as provided by law. Dated this day of 18.. _ NO, R S, Fence Viewers. § 7. Damag^es for failure to erect or repair division fence, to be ascertained by fence viewers ; appraisal of damages ; one owner may erect or repair fence at expense of other. If any person who is liable to contribute to the erection or repair of a division fence, shall neglect or refuse to make 176 Town and County Officers' Manual and maintain bis proportion of such fence, or shall permit the same to be out of repair, be shall be liable to pay the party injured all such damages as shall accrue thereby, to be asertained and appraised by any two fence viewers of the town, and to be recovered with costs. The appraisement shall be reduced to writng, and signed by the fence viewers making it. If such neglect or refusal shall be continued for the period of one month after request in writing to make or repair the fence, the party injured may make or repair the same, at the expense of the patry so neglecting or refusing, to be recovered from him with costs. [Town Law (L. 1890, oh. 569), § 105.J For notice to choose fence -viewer, see Form No. 34, ante, p. 174. FORM NO. 37. Appraisement of Damages by Fence Viewers foh Neqleot to Bniu> or Repair Division Fence. STATE OF NEW YORK, County of ,...., Toum of , Whereas, D B and T W are owners of adjoining lands in said town, and each liable to make and maintain a just proportion of the division fence be- tween said lands, which said fence has been apportioned and divided between them ; and Whereas, D B has neglected (or refused) to maintain and keep In repair his portion of said fence, by reason of which refusal or neglect his cattle (or as the case may be), entered the premises of said T W on the.... day of 18. . . ., and damaged the property of said T W ; Now, therefore, we, the undersigned, fence viewers of said town, duly chosen by said parties to appraise such damages, due notice of the time and plaoe of this meeting having been given, and after viewing the premises and hearing the parties and evidence produced, do, pursuant to section 105 (or 108) of the Town Law, hereby appraise the damage sustained by T W by reason of the refusal (or neglect) of said D B to maintain or repair his por- tion of said division fence, at $ to be paid by D B with the costs and ex- penses of this proceeding, which are $. . . . In witness whereof, we have hereunto set our hands op this. . . .day of 18.... N O, R S, Fence Vteioera, FORM NO. 88. Notice to Build or Repair Division Fence. lb D S, Esq.: You are hereby notified and required, pursuant to section 105 of the Town Law, to build and maintain (or repair) your portion of the division fence be- Division Fences. 177 tween your Tands and the lands of the undersigned, beginning [state where fence is to be built or repaired], within one month after receiving this no- tice, in default of which I shall cause the same to be buUt (or repaired) at your expense. Dated this. . . .day of ,18 TW. § 8. Division fence destroyed by accident ; notice to rebuild ; effect of failure to rebuild. Whenever a division fence shall bo injured or destroyed by floods, or other casualty, the person bound to make and repair such fence, or any part thereof, shall make or repair the same, or his just proportion thereof, within ten days after he shall be so required by any person interested therein. Such requisition shall be in writing, and signed by the party making it. If the person so notified shall refuse or neglect to make or repair his proportion of such fence, for the space of ten days after such request, the party injured may make or repair the same at the expense of the party so refusing or neglecting, to be recovered from him with costs. [Town Law (L. 1890, ch. 569), § 106.J FORM NO. 39, Notice to Bvusd Fence Destroyed by AoomENT. To D B, E^q.: Tou are hereby notified and required, pursuant to section 106 of the Town Law, to build (or repair) your proportion of the following fence, to wit; [here describe the fence] injured (or destroyed) by (state how) within ten days after receiving this notice;, in default of which I shall cause the same to be built (or repaired) at your expense. Dated this day of , 18... TW. g 0. Damages done by animals where fence is not maintained a* provided by town rules and regulations. Whenever the electors of any town shall have made any rule or regulation, prescribing what shall be deemed a suffi- cient division fence in such town, any person who shall thereafter neglect to keep a fence according to such rule or regulation shall be precluded from recovering compensation for damages done by any beast lawfully kept upon the adjoining lands that may enter therefrom on any lands of Buoh person, not fenced in conformity to the said rule or 178 Town and County Officers' Manual. regulation, through any such defective fence. When the sufficiency of a fence shall come in question in any action, it shall be presumed to have been sufficient until the con- trary be established. [Town Law (L. 1890, ch. 569), § 107.] § 10. Damages Trhen person fails to build or pepalr fence; ap- praisal by fence vie'werB. If any person liable to contribute to the erection or repair of a division fence shall neglect or refuse to make and main- tain his proportion of such fence, or shall permit the same to be out of repair, he shall not be allowed to have and maintain any action for damages incurred by beasts coming thereon from adjoining lands where such beasts are lawfully kept, by reason of such defective fence, but shall be liable to pay to the party injured all damages that shall accrue to his lands, and the crops, fruic trees and shrubbery thereon, and fixtures connected with the land, to be ascertained and appraised by any two fence viewers of the town, and to be recovered, with costs; which appraisement shall be reduced to writing and signed by the fence viewers making the same, but shall be only prima facie evidence of the amount of such damages. [Town Law (L. 1890, ch. 569, § 108. J For form of appraisal of damages, see Form No. 37, ante, p. 178. § 11. Use of barbed wire in the construction of division fences) fiance vievrers to prescribe kind of wire and ho-nr to be built. Barbed wire may be used in the construction of any divi- sion fence, provided, however, that the person or corpora- tion desiring to use such material shall first obtain from the owner of the adjoining property his written consent that it may be so used. If the owner of the adjoining property refuses to consent to the building of such a fence, it may nevertheless be built in the following manner: The fence shall be of four strands of wire with a sufficient bar of wood at the top; and the size of such top bars and of the posts and supports of such fence, and their distances apart, shall be such as the fence viewers of the town may prescribe. Wben« ever such fence shall become so out of repair as to be unsafe. Division Fbncbs. 179 it shall be the duty of the owner or owners to immediately repair the same. But any person building such a fence ■without the written consent of the owner of the adjoining property, shall be liable to all damages that may be occa- sioned by reason of such fence. But this section shall not be so construed as to permit railroad corporations to use barbed, wire in the construction of fences along their lines contrary to the provisions of section thirty-two of the rail- road law. [Town Law (L. 1890, ch. 669), § 109, as added by L. 1896, ch. 624.] 180 Town and Goonty Offcibbs' Manual CHAPTER XIII. StBATED animals doing damage ; duties of FENCB VIBWBB3. Section 1. Lien upon strayed animals doing damage. 3. Notice of lien to be filed with town clerk ; fees for recording. 8. Impounding strayed animals ; if not impounded to be properly cared for. 4. Owner or occupant of the lands to notify the owner of animals of the impovmding of such animals. 6. Charges for notice ; fence viewers to determine damages in case of disagreement. 6. Fence viewers' fees. 7. Foreclosure of lien ; effect of failure to establish lien. 8. Sale of animals by fence viewers ; notice of sale. 9. Disposition of proceeds of sale. 10. Notice of fence viewers' meeting for assessment of damages to be given to owner of animals. 11. Fence viewers to view premises damaged ; subpoenas ; examina- tion of witnesses. 12. Foreclosure of lien by action. 13. Duties and fees of pound-masters. 14. Surplus money arising from sale of animals, if unclaimed, to be paid to overseers of the poor. 15. Villages and cities deemed towns for purposes of assessing damages for stray animals. 16. Assessment of damages occasioned by inanimate goods or chattels. § 1. Lien upon strayed animals doing damage. Whenever any person shall have any strayed horses, cattle, sheep, swine or other beasts upon his inclosed land, or shall find any such beast on land owned or occupied by him doing damage, and such beast shall not have come upon Buch lands from adjoining lands, where they are lawfully kept, by reason of his refusal or neglect to make or maintain a division fence required of him by law, such person may have a lien upon such beasts for the damage sustained by reason of their so coming upon his lands and doing damage, for his reasonable charges for keeping them, and all fees and costs made thereon, and he may keep such beasts until such Strayed Animals Doing Damage. 181 damages, charges, fees and costs are paid, or such lien is foreclosed, upon complying with the provisions of this article relating thereto. [Town Law (L. 1890, ch. 569), § 120.] § 3. Notice of lien to be filed with town clerk ; fees for recording. If such beasts are not redeemed within five days after coming upon such lands, the person entitled to such lien, shall deliver to the town clerk of the town, within which such .lands or some part thereof shall be, a written notice sub- scribed by him, containing his residence, and a description of the beasfis so strayed or coming upon his lands, as near aa may be, and that he claims a lien on such beasts for such damages, charges, fees and costs. The town clerk shall record the notice in a book to be kept by him for that pur- pose, for whch he shall receive ten cents for each beast, to be paid by the person delivering the notice. Such book shall always be kept open for inspection, and no fees shall be taken by the clerk therefor, [Town Law (L. 1890, ch. 569), § 121. J FOEM NO. 40. Notice of Strays, for Town Clerk. To all Persons Whom it may Concern : You are hereby notified, pursuant to section 121 of the town law, that the undersigned, a resident of the town of in the county of N. Y., has taken and now has in his possession a strayed horse (or other animal, as the case may be,) and the following is a descrip- tion of the said horse (or as the case may be, giving age, color, etc., as near as may be) ; that such horse (or other animal} was found on premises belong- ing to the undersigned more than five days since, doing damage thereon (or having strayed thereon) ; that such horse (or other animal) did not come upon such premises because of the refusal or neglect of the undersigned to make or maintain a division fence as required by law ; and that he claims a lien on such horse (or other animal) for his damage, charges and costs occasioned thereby, Dated this day of 18.... DB. § 8. Impounding strayed animals ; if not impounded to be properly cared for. Within six days after such beasts shall have come upon Buch lands, such owner or occupant may cause them to be 182 Town and County Officers' Manual. put in the nearest pound in the same town, if there be one, there to remain until they are redeemed, sold or reclaimed according to law. If there be no such pound, or he elect to keep such beasts, he shall cause them to be properly fed and cared for until they are redeemed, sold or reclaimed accord- ing to law. [Town Law (L. 1890, ch, 569), § 122.J § 4. Owner or occapast of the lands to notify the OTrner of the animals of the impounding of such animals. Within thirty days after any such beasts may hare come or been found upon any lands, the owner or occupant of the lands shall serve a written notice, either personally or by mail, upon the owner of the beasts, if known, that they are upon his lands, or in pound, as the case may be, and are held by him as strays or beasts doing damage, as the case maybe; and if such owner is not known, he shall publish such notice, within such time, in the nearest newspaper of the county for at least two successive weeks. [Town Law (L. 1890, ch. 569), § 123.] FORM NO. 41. KonCB TO OWNEBS OF STBAYS. To T W, Esq.: You are hereby notified, pursuant to section 123 of the town law, that the undersigned, a resident of the town of , in the county of of , has in his possession upon his inclosed lands (or in pound, aa the case may be), the following animals belonging to you (here describe them) and that the same are being held as strays (or beasts doing damage, as the case may be). Dated this day of ,18.... DB. § S. Charges for notice ; fence viewers to determine damages in case of disagreement. The person delivering the notice to the town clerk shall be entitled to receive therefor, in addition to the fees paid the town clerk, fifteen cents each for all horses, mules, cattle and swine, and five cents for each other beast described in the notice. If the charges, damages, costs and fees are not agreed upon between the person deliverng the notice and the owner of the beasts, they shall be determined by two fence Stbayed Animals Doing Damagb. 183 viewers of the town, one of whom shall be selected by the person claiming the lien, the other by the fence viewer so selected. If such fence viewers cannot agree, they shall select another to act with them, and the decision of any two of them shall be final. [Town Law (L. 1890, oh. 669), «5 124.] § 6. Fence viewers' fees. Each fence viewer shall be entitled to receive ten cents for every mile he shall be obliged to travel from his residence to the place where the beasts are kept, and seventy-five cents for certificate of the charges as ascertained by them. [Town Law (L. 1890, ch. 569), § 125.J § 7. Foreclosure of lien; e£Fect of failure to establish lien. If the owner of such beasts shall not redeem the same within three months after delivery of the notice to the town clerk, the person delivering the notice may foreclose his lien by action, or by a sale of the beasts, as herein provided. When a person claiming a lien, as herein provided, shall fail to establish the same, he shall not be entitled to receive anything for damages, charges, fees or costs, but shall be liable to pay all fees, costs and expenses incurred by reason of his keeping such beasts and the proceedings thereon. [Town Law (L. 1890, ch. 669), § 126.J § 8. Sale of animals by fence viewers; notice of sale. After such three months, a fence viewer of the town, on application of the person delivering the notice, shall give at least ten days' previous notice of the time and place of the sale of such beasts, by advertisement posted up in at least five public places in the town where such beasts may have been kept, one of which shall be at or near the outside door of the town clerk's office. At the time and place mentioned, such fence viewers shall sell such beasts to the highest bidder, unless redeemed by the owner. [Town Law (L. 1890, ch. 569), § 127. J 184 Town and County Officbbs' Manual. FORM NO. 48. Notice of Sale by Fence Viewebs. Whereas, a notice of lien was duly delivered to the town clerk of the town of on the day of 18 by J F, tho owner of land in such town, upon certain animals belonging to A B, of the same town, described as follows . [Describe animals] , which animals were found by the said J F doing damage upon his lauds (or strayed upon his enclosed land) ; And whereas, the said A B has not redeemed such animals within three months from the delivery of such notice as provided by J 126 of the Town Law; And whereas, application has been duly made to me, the undersigned, a fence viewer of such town for the sale of such animals, as provided by § 137 of the Town Law, Notice is hereby given, pursuant to such section of the Town Law, that such animals will be sold to the highest bidder, unless redeemed by the owner at [name place of sale], in said town of , on the day of ,18 at noon. Dated this day of 18. . . . LM, Fence Viewer. § 9. Disposition of proceeds of sale. Out of the proceeds from such sale, the fence viewer shall retain and pay the sums charged for such notices, fees and costs, together with the sums specified in the certificate for keeping the beasts and damages done by them; and the like charges for the sale, as are allowed on sales under executions issued out of justices' courts, and he shall pay the residue to the owner of the beasts, if he shall appear and demand the' same. [Town Law (L. 1890, ch. 669), § 128. j § 10. Notice of fence vietrers' meeting for assessment of damages to be given to opener of animals. When the owner of such beasts is known and resides in the same town where such beasts are kept, five days' notice of the time and place of the meetings of the fence viewers to determine the damages done by such beasts, and the charges for keeping them, shall be personally served on him, if he resides in the same town ; if he resides elsewhere, and his post-office address is known, such notice shall be served by mail or personally. [Town Law /L. 1890, ch. 569), § 129.] Strayed Animals Doing Damaqb. 185 FORM NO. 43. Notice to Owners of Fence Viewees' Meeting. To i W, Esq.: You are hereby notified, pursuant to section 139 of the Town Law, that the fence viewers of the town of in the county of will meet at my residence, in said town, on the . . . .day of , 18. ., for the purpose of assessing the damages done by your beasts on my inclosed lands in said town, and the charges and expenses for keeping the same. Dated this .... day of ,18.. DS. § 11. Fence \rieyrera to view premises damaged; subposnas; examination of witnesses. The fence viewers shall view the premises where damages are claimed to have been done, and they may issue sub- poenas, examine witnesses and take any competent evidence of the facts and circumstances necessary to enable them to determine the matter submitted to them, and shall determine any dispute that may arise touching the sufiSciency of any division fence around the premises where such damage was done, and from where and how the beasts came upon the lands of the person claiming such damages and charges; if they determine that for any cause the claimant's lien is not enforceable, they shall so certify, and the owner of the beasts shall thereupon be entitled to them without paying any charges thereon. [Town . Law (L. 1890, cb. 569), § 130.] FOEM NO. 44. Determination bt Fence Viewers. STATE OF NEW YOEK, ) County op [ ss.: Town of ) Whereas, on the .... day of , 18 . . , 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 viowers 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 meet- ing 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 186 Town and County Officers' Manual. that the damages sustained by D B are $. . . ., and that the charges for keep- ing said beasts are $ and the costs and expenses of this proceeding ara $. . .. (or that the claimant's lien is not enforceable by reason of; state the reasons). Dated this. .. .day of IS.. NO, BS, Fence Viewers. § IS. Foreclosure of lien by action. When such lien is foreclosed by action, all questions relat- ing to damages, charges, sufficiency of fence, and from where and how such beasts came upon the lands of the per- son claiming such damages and charges, shall be proven upon the trial of such action, and no certificate of fence viewers upon such questions shall then be necessary. [Town Law (L. 1890, oh. 569), § 131.] § 13. Duty and fees of pound-masters. Every pound-master shall receive and keep all beasts delivered to him as herein provided, until they shall be redeemed, sold or reclaimed, for which he shall be entitled to a reasonable compensation, not exceeding fifty cents per day for a horse or mule, twenty-five cents per day for each head of cattle, and fifteen cents per day for all other beasts, to be determined by the fence viewer making the sale, or the court before whom the action is tried, besides his fees for taking and discharging the beasts, to be paid by the owner of the beasts, if the lien is established, otherwise by the per- son claiming a lien thereon. [Town Law (L. 1890, ch. 569), § 132.] g 14. Surplus money arising from sale of animals, if unclaimed, to be paid to overseers of the poor. If the owner of the beasts shall not appear and demand the residue of such moneys within one year after the sale, he shall be thereafter precluded from recovering any part thereof, and the same shall be paid by the officer making the sale to the overseers of the poor of the town, or, in cities, to the officers having their powers, for the use of the poor thereof, and their receipt shall be a legal discharge to the Strayed Animals Doing Damagb. 187 keeper of such beasts and the officer selling the same. If the officer who shall have sold such beasts shall not, within thirty days after the expiration of the year, pay such moneys to the overseers of the poor of the town, or, in cities, to officers having their powers, he shall forfeit to the town or city double the sura so remaining in his hands, together with the amount of such moneys. [Town Law .(li. 1890; ch. 569), § 133.] § 15. Villn,ges and cities deemed towns, for purposes of assessing damages for stray animals. The villages and cities of this state shall be considered towns for the purposes of this article; and the trustees of the village and the alderman of the city shall be fence viewers therein for the purposes of this article. [Town Law (L. 1890, ch. 569), § 134.J § 16. Assessment of damages occasioned by inanimate goods or chattels. When any person shall be authorized to distrain inanimate goods or chatties doing damage, or whenever any logs, tim- bers, boards or plank, in rafts or otherwise, or other per- sonal property shall have drifted upon his lands, he shall be entitled to the same remedies, and shall proceed therein in the same manner and with the same powers as hej'ein pro- vided with respect to beasts found doing damage, so far as such provisions are applicable. He may at any time deliver his notice of lien to the town clerk, describing the property, and he shall keep the same in some convenient place without removal to a pound, until the property is sold or reclaimed. The same officers shall conduct 'proceedings thereinVa» in proceedii^gs where beasts are found doing damage, and all proceeds of sale shall be in like manner, paid ovei* arnd applied; subject to the same penalties and liabilities, and with the same force and effect. [Town Law (L. 1890,) cb. 669), § 136.] ' . 188 Town and County Officers' Manuai- CHAPTER XIV. DOQS, DDTIBS OP TOWN AND COUNTY OFFICBB3 RELATIVE TO. ■eoiion 1. Board of supervisors may impose tax on dogs. 2. Rate of tax on dogs when not fixed by the board of supervisors. 8. Owner to deliver description of dog upon request of assessor. 4. Assessor to annex to assessment-roll name of persons liable to pay tax on dogs ; dog to be killed if tax is not paid. 6. Collector to pay to supervisor amount of dog tax to be applied to payment of damages for sheep killed by dogp ; to be appro- priated for highway purposes after one year. 6. Collectors' fees. 7. Whan payment of tax to be proved. 8. IJiability of owners of dogs for injury to sheep. 0. Fence viewers, upon application of owners of sheep killed or injured, to inquire and certify as to amount of damages. 10. Certificate to be evidence. 11. Town board to audit certificate; order on supervisor to pay amount of damages. 13. Amount ordered paid in excess of dog fond to be added to town accounts. 13. Owner of sheep to refund to supervisor amount received if ha recovers from owner of dog. 14. Dog chasing sheep to be killed. 16. Owner to kill dog after receiving notice of his dog having chased sheep ; penalty for neglect. 15. Justice of the peace may order vicious dog to be killed ; penalty for neglect to kill. 17. Who deemed owner of dog. 18. Penalties to be oolleoted by supervisor ; application of penalties. § 1. Board of supervisors may impose a tax on dogs. Each board of supervisors, except in counties having a population of eight hundred thousand or over, may fix and impose a tax on dogs within the several cities and towns in ita county. Such taxes shall be assessed, collected and applied in the manner provided by sections one hundred and thirteen and one hundred and fourteen of this chapter [The County Law]. If they do not exercise the powers herein conferred, the followng provisions, so far as they relate to the taxation of dogs and the manner of collecting the same, Duties op Officers Relative to Dogs. 189 shall apply to such county and the towns therein. [County Law (L. 1892, ch, 686), § 110, as amended by L. 1896, ch. 332.] g S. Rate of tax on dogs when not fixed ,by the board of super* ▼isors. Except in the city of Albany, the county of King*, the county of Westchester and the city of Buffalo, there shall be annually levied and collected the following tax on dogs over four months old: Upon every bitch owned or harbored by any one or more persons, or by any family, three dollars; upon every additional bitch owned or harbored by the same person or persons or family, five dollars; upon every dog other than a bitch owned or harbored by one or more per- sons, or by any family, fifty cents; and upon every addi- tional dog, other than a bitch, owned or harbored by the same person or persons or family, two dollars. [County Law (L. 1892, ch. 686), § 111.] What constitutes harboring a dog. Affording shelter or protection to a dog, temporarily or permanently, is "harboring" within the meaning of this section. Robinson v. Rowland, 26 Hun, 501. In an action for damages occasioned by the bite of a dog, it appeared that the dog was owned by a coachman in the employ of the defendant's mother, was kept on his mother's premises, which were in no way under his control ; It was held that the defendant did not harbor the dog. I^/nt t. Moore, S App. Div. 487. § 3. O-wner to deliver description of dog upon request of assessor* The owner and possessor of every dog liable to such tax, shall, whenever required by any assessor, deliver to him a written description of every such dog owned or possessed by him. For every neglect or refusal so to do, and for every false statement made in any description so furnished, he shall forfeit five dollars, to be recovered by the supervisor of the town. [County Law (L. 1892, ch. 686), § 112.] § 4. Assessors to annex to assessment-roll name of persons liable 1o pay tax on dogs ; dog to be killed if tax is not paid. The assessors of every town, city or ward, shall annex to the assessment-roll of real and personal estate therein, made 190 Town and County Opficeks' Manual. by them anaually, the name of each and every perso* liable to the tax imposed thereby, together with the number of bitches and dogs for which such person is assessed, and return the same to the supervisors of their respective towns, cities or wards, to be laid by each supervisor before the board of supervisors, to be assessed and collected in the same manner as other state, county and town taxes are collected; and if any person duly assessed, shall refuse or neglect to pay the tax so assessed, within 6ve days after demand thereof, it shall be lawful for any person and it shall ba the duty of the collector to kill the dog so taxed. [County Law (li. 1892 ch. 686), § 113.] § 6. Collector to pay amoant of do^ tax to supervisor | to be applied to payment of damages for sheep killed by dogs t to be appropriated for Itighway purposes after one year. The collector of each town shall pay over the taxes so collected to the supervisor of the town, and the moneys so collected and paid over shall, in each town, constitute a town fund for paying the damages arising in such town, from dogs killing or injuring sheep; and such moneys, or the balance thereof, which shall remain in the hands of the supervisor of any town for the period of one year, may, by a vote of the town board of any town, he appropriated for the purpose of build- ing and repairing highways and bridges, or for the payment of the contingent expenses of such town. [County Law (L. 1892,,ch. 6S6)i sec. 114, as amended by L. 1900, ch. 560.] S 6. Collector's Fees. Each collector shall he allowed to retain a commission of ten dollars on every hundred dollars collected, and at that rate upon hU sums collected by him pursuant to this article, and upon filing his affidavit of the fact with the supervisor, be entitled to retain, as a further compensation for the moneys collected by him, the sum of one dollar for every dog or bitch killed by him under the provisions of this article. [County Law (L.. 1892, cL 686), sec. 115.J DtrriBS 07 Officers Bblativb 10 Dogs. 19]. § 7. When payment of tax to be proved. In any action brought for the killing of any dog, it shall be incumbent on the plaintiff in such action to prove that the tax imposed upon such dog, if any, by the provisions of this article has been paid. [County Law (L. 1892, ch. 686), § 116.] § 8. Ijiability of owners of dogs for injuries to sheep. The owner or possessor of any dog that shall kill or wound any sheep or lambs shall be liable for the value of such sheep or lambs to the owner thereof, without proving notice to the owner or possessor of such dog, or knowledge by him that his dog was mischievous or disposed to kill sheep. [County Law (L. 1892, ch. 686), § 117.J § 9. Fence vietrers, upon application of owner of sheep hilled or Injuired, to inquire and certify as to amount of damages. The owner of any sheep or lambs Ihat may be killed or injured by dogs, may apply to any two fence viewers of the town, village or city, where such sheep or lambs were killed or injured, who shall inquire into the matter, and examine witnesses in relation thereto, and if they shall be satisfied that the same were killed by dogs, and in no other way, they shall certify such fact, the number of sheep killed, and the number injured, the value of the aheep killed or injured immediately previous to such killing or injury, the value of the sheep after being so killed or injured, together with the amount of their fees. [County Law (L. 1892, ch. 686), § 118.J FORM NO. 45. jLppuoation to Fbnob VlKWEatS. ToAB arid O D, Fence Viewers of the tenon (village or eity) of ; Whereas, on the day of ,18 sheep and Iambs 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 , 18.... AB. 192 TowK AKD County Officbrs' ManuaIn FORM NO. 48. CESTIFICA.TB. COUNTY OF ) ., . Town of !•"■• We, the undersigned, fence viewers of the town of npon the application of A B, residing in such town, to inquire into the killing and injury of certain sheep and lambs owned by him, 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 such 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 , 18.... f CD, E F, Fence Vieioers. % 10. Certificate to be evidence. Such certificate shall be presumptive evidence of the facts therein contained, in any civil action or proceeding. [County Law (L. 1892, ch. 686), § H9.J § 1 1. Town board to audit certificate ; order on supervisor to pay aoionnt of damages. Such certicfiate shall be presented to the town board at its second annual meeting for audit, and if such board shall be satisfied by the oath of the person claiming such damages that he has not been able to discover the owner or possessor of the dog or dogs, by which such damage was done, or that he has failed to recover his damages of such owner or pos- sessor, it shall give an order on the supervisor of the town for the amount which it shall allow, who shall pay such order out of the funds arising from the provisions of this article. [County Law (L. 1892, ch. 686), § 120.J § 12. Amount ordered paid in excess of dog fund to be added to towu accounts. Whenever the amount of the orders for damages, given by the town board to the owners of sheep killed or injured by dogs, shall exceed the amount of the dog fund in the hands DtJTIBS OF 0FPICEK8 ReLATIVB TO DoQS. 193 of the supervisor of such town, the town board may, in its discretion, add to the accounts of such town, the amount of such orders then due and unpaid, but the amount so added shall not exceed the sum of three hundred dollars in any onu year. [County Law (L. 1892, ch. 686), § 121, as amended by L. 1897, ch. 171.] § 18. Owner of sheep to refund to supervisor amount received if he recovers from owner of dog. If, after receiving the amount of such damages from the supervisor, the owner of the sheep so killed or injured shall receive or recover the value or any part thereof, from the owner or possessor of the dog or dogs doing the damage, he ahall repay to the supervisor the sum so recovered. In case of his refusal or neglect, the supervisor shall bring an action therefor against him in the name of the town, which sum, when received, shall be returned to the dog fund of the town. [County Law (L. 1892, ch. 686), § 122.] § 14. Tiog chasing sheep to be hilled. Any person may kill any dog which he shall see wrong- fully chasing, worrying or wounding any Sheep. [Town Law (L. 1892, ch. 686), § 123.] § IB. Owner to hill dog after receiving notice of his dog having chased sheep ; penalty for neglect. The owner or possessor of every dog, to whom notice ahall be given of any injury done by hia dog to any sheep, or of his dog having chased or worried any sheep, ahall, within forty-eight hours after auch notice, cause such dog to be killed; for every neglect ao to do, he shall forfeit two dollars and fifty centa, and the further aum of one dollar and twenty-five centa for every forty-eight hours thereafter, until his dog shall be killed, unless it shall satisfatorily appear to the court before which an action shall be brought for the recovery of the said penalties, that it was not in the power of such owner or possessor to kill such dog. [County Law (L. 1892, ch. 686), §124.] 13 194 Town and County Officbks' Manual. jj 16.; Justice of the peace may order vicious dog to be killed | penftlty for neglect to kilL If any dog shall attack any person peaceably traveling on any highway, or his horse or team, and complaint thereof be made to a justice of the peace, such justice shall inquire into the complaint, and if satisfied of its truth, and that such dog is dangerous, he shall order the owner or possessor of such dog to kill him immediately. The owner or possessor of any dog, who shall refuse or neglect to kill, him within forty-eight hours after having received such order, shall for- feit the sum of two dollars and fifty cents, and the further sum of one dolllar and twenty-five cents for every forty-eight hours thereafter, until such dog is killed. [County Law (L. 1892, ch. 686), § 125.J § 17. Who deemed o^vner of dog. Every person in possession of any dog, or who shall suSfer any dog to remain about his house for the space of twenty days, previous to the assessment of a tax, or previous to any injury, chasing or worrying of sheep, or any such attack made by a dog, shall be deemed the owner of the dog, fox all the purposes of this article. [County Law (L. 1892, ch. 686), § 126.J S IS. Penalties to be collected by supervisor ; application of ' ?nalties. The penalties imposed by this article for failure to kill dogs as prescribed therein shall be collected by the super- visor of the town where they are incurred, upon complaint being 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 in such town. [County Law (L. 1892, ch. 686), § 127, as added by L. 1896, ch. 680.J Psndlties, supervisor to coUect. Town Law, § 80, ante, p. 59. Bbubf of Poob; Sufbbintkndbnts. 195 OHAPTEE XV. Bbubf of poob; supkbintendent of the poob; alms- houses. SionON 1. Election, appointment, qualifications and terms of office of superintendent of the poor. 2. Undertaking, how executed and approved ; contents. 5. Powers and duties of county superintendents of the poor. 4. One of superintendents of the poor may be appointed as keeper of alms-house : compensation. 6. 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 alms-house ; 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. 18. Alms-house register; what to contain; officers to furnish information. 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 tha poor, how punished. § 1. Election, appointment, qualifications and terms of ofBce of ■nperintendent of the poor. There shall continue to be elected or appointed in each of the counties one or more superintendents of the poor as here- tofore; but no supervisor of a town, or county treasurer, shall be elected or appointtid to such oBBce. The board of supervisors of any county having, or entitled to have three or more superintendents 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 □o superintendent of the poor shall be elected or appointed in such couniy until the general election next preceding the 196 Town and County Officers' Manual. expiration of the terms of the superintendents in oSBce, or the office shall be vacant. The term of any superintendent in office, or of any person duly elected thereto on the passage of such resolution, shall not be afifected thereby. Such board may also, in counties having and entitled to have bui one superintendent 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 e£fect until the next calendar year succeeding its adoption. There shall continue, 1. To be elected annually in each of the counties so having and being entitled to three county superintendents one county superintendent of the poor, who shall bold his office for three years from and including the first day of January succeeding his election, and until hia successor ia duly elected and qualifies; 2. To be appointed by the board of supervisors, if in ses- sion, 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 includ- ing 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; 6. To be appointed by the board of supervisors, if in ses- Eeliep of Pook; Supebintendents. 197 Bion, 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 ofiSce until and including the last day of December succeeding his appoint- ment, and until his successor shall be elected and qualifies; 6. To be elected in the succeeding year after the board of supervisors of a county having but one superintendent of the poor, shall 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 respectively 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 year, there shall be elected two superintend- ents of the poor for such county, for such terms, to be so designated upon the ballots of the electors voting for such officers, as will make the terms of one of the three superin- tendents expire with each succeeding year, and one superin-! tendent of the poor shall hereafter be annually elected. Such persons so elected shall hold the office from and includ- ing the first day of January succeeding his election, and until and including the last day of December of the year in which his term shall so expire, and until his successor is duly elected and qualifies. When ballots are voted without designating the term, the first named on the ballot shall be deemed as intended for the full or longer term of the officer voted for; the second name for the next longer term, and the third name for the shorter term. [County Law (L. 1892, ch. 686), § 210.] Powers of a majority of hoard of superintendents. By the Statutory Con- struction Law, § 19, a majority of a board of three or more oflSoers can per- form and exercise any power, authority or duty imposed by statute or othei> wise upon such board. The powers of a majority of superintendents to transact business waa considered in the case of Johnson v. Dodd, 56 N. T. 76. It was there decided that the majority could exercise the power of the board .irrespective of and ■ivithout consultation with the minority. This decision seems to control the power of the majority und r section 19 of the Statutory Construction Law, 198 Town and Countt Officers' Manual. (See Cummirig & Oilberfa Poor, State C!harities and Insanity Iaws, 1898^ P- 9.) § S. Undertaking', bow executed and approved ; contents. Every person elected or appointed to the office of superin- tendent of the poor shall, before he enters upon the duties of his office, and if appointed, within fifteen days after notice thereof, execute and deliver to the clerk of his countyt to be filed in his office, his undertaking to the county, with two or more sufficient sureties, with the approval of the board of supervisors, if in session, indorsed thereon by the clerk; otherwise by the county judge of his county, or a justice of the supreme court of his judicial district, to the efifect that he will faithfully discharge the duties of his office as such super- intendent of the poor, and pay according to law all moneys that shall come into his hands as such superintendent, and render a just and true account thereof to the board of sup- ervisors of his county. [County Law (L. 1892, ch. 686), § 211.] As to other statutory requirements of official undertakings, see Publio Officers Law, §§11 and 13, ante, p. 53. The requirements of this section are coifr trolling in so far as they are inconsistent with the general provisions of the Public Officers Law, but the other, provisions of those sections are applicable« § 3. Powers and duties of county superintendents of the poor. The county superintendents of the poor shall: 1. Have the general superintendence and care of poor per- sons who may be in their respective counties. 2. Provide and keep in repair suitable alms-houses when directed by the board of supervisors of their county. 3. Establish rules and by-laws for the government and good order of such alms-houses, and for the employment, relief, management and government of the poor therein; but such rules and regulations shall not be valid until approved by the county judge of the county, in writing. 4. Unless a keeper be appointed by the board of super- visors, to employ suitable persona to be keepers of such houses, and physicians, matrons and all other necessary officers and servants, and vest such powers in them for the government of such houses, and the poor therein, as shaU Eblibp op Pooe; Superintbndbnts. 199 be necessary, reserving to such poor persons who may be placed under the care of such keepers, matrons, oflBcers or servants, the right of appeal to the superintendents. 5. Purchase all necessary furniture, implements, food and materials for the maintenance of the poor in such houses, and for their employment in labor, and use, sell and dispose of the proceeds of such labor as they shall deem expedient. 6. Prescribe the rate of allowance to be made for bring- ing poor persons to the county alms-house, subject to such alterations as the board of supervisors may by general reso- lution make. 7. 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 county superintendents of the poor. 8. Summarily decide any dispute that shall arise concern- ing the settlement of any poor person, upon a hearing of the parties, and for that purpose may issue subpoenas to compel the attendance 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 wjio 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 county; and in case of the neglect of any such overseer, to commence and conduct such suits, without the authority of such overseer, in the name of such superintendents. 10. Draw on the county treasurer for all necessary expenses incurred in the disch,arge 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. 11. Audit and settle all accounts of overseers of the poor. 200 Town and County Officers' Manual. justices 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 who can be properly provided for else- where than at the county alms-house at an expense not exceeding that of their support at such alms-house. 13. Render 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, within fifteen days after the expiration of their terms of office, to the county treasurer, or to their successors. 15. Administer oaths and take affidavits in all matters pertaining to their office, and elicit, by examination under oath, statements of facts from applicants for relief. Expen- ditures by the superinendent of the poor in the administra- tion of his department are subject to the following limita- tions: The board of supervisors, at its annual meeting, may fix the maximum sum which may be expended by the super- intendent, 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 appoval of the chairman of the board of supervisors, or of a committee of the board, composed of not exceeding three members. If such limita- tion 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 accom- panied with the written approval of such chairman or com- mittee. [Poor Law (L. 1896, ch. 225), § 3, as amended by L. 1897, ch. 507.] General powers. By subdivision 1 supsrjntendeiits are now given the gen- eral superintendence of all matters relating to the poor. Under the old law they only had control of county poor persons, and a general supervisory Rblibp op Poor; Superintendents. 20i jurisdiction over all questions relating to the settlement of the poor and of the respective liabilities of the towns and counties ; and all the powers con- ferred upon the county superintendents to support and maintain the county poor, were required to be exercised at the county poor houses, or at such other places as might have been provided for that purpose by the direction of the board of supervisors. People v. Commissioners of Emigration, 27 Barb. 563. Audit of aooounts by superintendents. 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 questions relating to their own conduct and their own corporate liabil- ity. Neary v. Robinson, 98 N. Y. 84. Superintendents of the poor are not bound to audit the accounts of physic- ians and others for services rendered to county paupers by request of over- seers of the poor of the several towns, although the services were rendered 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 general account. Ex parte Cfreen & Broion, 4 Hill, 558. If a superintendent refuse to audit and settle the accounts specified in this subdivision the proper remedy is by a writ of certiorari. It follows then that the proceedings to determine such accounts are judicial in their nature. Veeder-7. Superintendents of Schenectady Co., 5 Den. 564. County poor. The county poor are defined in section 3 of the Poor Law as such persons as are required by law to be supported at the expense of the county. If the distinction between town and county poor is abolished all the poor of a county are county poor. See Poor Law, § 134, post, p. 340. If a poor person has not gained a settlement in a town or city, he is » county poor person and maintainable at the expense of the coimty. Poor Law, § 43, subd. 3, post, p. 328. § 4. One ot superintendents of the poor may be appointed aa keeper of alms-house; compensensation. The board of supervisors of any county may, by resolution, appoint as keeper of its county alms-house one of the super- intendents 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 deter- mine that he shall no longer act in such capacity. The board of supervisors may fix the compensation such superintendent shall receive for acting as such keeper, and such compensation shall be a county charge. While a reso- lution of the board of supervisors directing such superintend- ent to act as keeper of the county alms-house ia in force, 202 Town and Countt Officbes' Manoai.. the superintendents shall not employ a keeper thereof. [Poor Law (L. 1896, ch. 225), § 4.] The boards of supervisors are authorized to fix the compensation of super- intendents of the poor by the County Law (L. 1892, chap. 6861, § 12, subd. 6, post, p. 486. If the superintendent of the poor is also keeper of the alms- house the compensation so fixed may be made to include bis compensation as such keeper. § S. County superintendent nuty 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 alms house 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 sudh regulations as they shall prescribe; 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 such manner as they shall deem expedient. [Poor Law (L. 1896, ch. 225), § 5.] § 6. Superintendents to provide for support of idiots and lunatics. The superintendents of the poor shall provide for the sup- port 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 Buch poor persons. [Poor Law (L, 1896, ch. 225), § 6.] Insane. By the Insanity Law (Ii. 1896, ch. 545, § 65), the poor and indigent Insane of a county are to be committed to state hospitals for the insane and there maintained at a state expense. Lunatics cannot now be maintained at an alms-house. All pauper insane must be transferred to a state hospital. The superintendents of the poor are bound to see thait all such insane are so transferred. The bills for the ex- pense of removal are to be audited by the state commission in lunacy and paid Ttty the state comptroller. A superintendent would not be justified in refus- ing to obey an order of the state commission upon the ground that he had not in his possession sufSoient funds to prepay the expense of such remoVal. People ex rrf. State Commiationers in iMnaey v. Superintenderita, etc., 47N. Y. St.Eep. 367. ' >(,...,,.,..,,, „,, Eblibp of Pook; Superintendents. 203 If an applicant for relief is, in t]ie opinion of the superintendent, insane, it would be his duty to investigate the facts and take proceedings under the Insanity Law, § 60, et seq., for his commitment to a state hospital for the in- sane. If an inmate of an alms-house becomes insane, the superintendent should take the necessary steps to secure his transfer to a state hospital. See Cfumm- ing & Gilbert's Poor, Insanity and State Charities Law, pp. 172-195. Idiots wlio are poor may be committed to the several state institutions for idiots. There are three such state institutions, the Syracuse State Institution for "■ ^eble-Minded Children (State Charities Law, § 60); State Custodial A ,..11 for Feeble-Minded Women, at Newark (State Charities Law, §80); Hume State Custodial Asylum (State Charities Law, § tO). Sje Gumming (& QilberVs Poor, Insanity and State Charities Laws, pp. 278-289. Epileptics. All epileptics which are supported at a public expense must be placed in the Craig colony for epileptics. It is the duty of the county super- intendent to provide for their commitment thereto. Application may he made to the superintendent of the poor of a county for placing a child in such colony, and upon compliance with the terms of the statute it is the duty of th3 superintendent to place such child therein. State Charities Law (L. 1896, ch. 546), § 109. See Gumming & Gilbert's Poor, Insanity and State Charities Laws, p. 296. § 7. Pestilence in alms-house ; inmates to be removed. Whenever any pestilence of infectious or contagious dis- ease shall exist in any county alms-house or in its vicinity, and the physician thereof shall certify that such pestilence or disease is likly to endanger the health of the persons sup- ported thereat, the superintendents of the poor of auch county shall cause the persons supported at such alms-housa 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 alma- 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. [Poor Law (L. 1896, ch. 225), § 7.J § 8, County treasurer to keep accounts with towns for moneys paid in account of poor ; superintendent to furnish statement. In counties where there are town poor, the county treas- urer 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 officers, and shall be charged with the mon^y^s paid for the support of its p'oor. If 204 Town and County Officers' Manual. there be a county alms-house in such county, the superintend- ents of the poor shall, each year, before the annual meeting of the board of supervisors, furnish to the county treasurer a statement of the sums charged 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.] Tovms chargeable for what expense. The money to be credited to the towns is the money which is received from the county or its officers. The towns are not to be charged with money received on account of liquor tax receipts or any other purpose. The People v. Harris, 16 How. Pr. 256. The amount to be charged to the towns on account of their poor main- tained at the county alms-house is to be determined by the amount actually expended by the county for such maintenance. The statute contemplates that the benefits resulting from the alms-house and the property therewith shall be common to the county and towns, in respect to the poor supported at such alms-house, without regard to the general obligation of the towns to support their own poor. The towns cannot be charged with the products of the alms-house farm, the labor of the poor in carrying on the business of the alms-house and the occupancy of the property by the town poor. They are only chargeable with their pro rata share of the defloienoy. City of Roches' ter V. Supervisors of Monroe Co., 22 How. Pr. 248. § 9. Saperlntendents to make annual apportionment to toTvus 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 super- visors, make out a statement of all the expenses incurred by them the preceding year for the support of the town, poor, and of the moneys received therefor, exhibiting the defici- ency, if any, in the funds provided 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 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 treaurer. [Poor Law (L. 1896, ch. 225), § 9.] Relief of Poor; Superintendents. 205 § 10. Amount chargeable to toTrns to be added to tax levy. At the annual meeting of the board of supervisors, the county treasurer shall lay before thera 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 collected upon such town, with the other contingent expenses thereof, together 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 col- lected, shall be paid to the county treasurer. [Poor Law (L. 1896, oh. 225), § lO.J § 1 1. Superintendent's estimate for expense of maintaining county poor ; supervisors to cause su£Scient amount to be raised. The superintendents of the poor shall annually pre- sent to the board of supervisors, at their annual meeting, an estimate of the sum which, in their oij.nion, will be nec- essary during the ensuing year for the support 6f the county poor; and such board of supervisors 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.] § IS. Superintendent to make report to state board of charities! 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 covering the year ending September thirtieth, to the state board of charities in such form as the board shall direct, showing the number of the town poor and of the county poor that have been relieved 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 made to superin* 206 Town and County Officers' Manual. tendents, overseera, justices, keepers, matrons, oflScers 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 thsL' labor; the sex and native country of every such poor person, with the causes, either direct or indirect, which have operated to render such persons poor, so far as the same can be ascertained; and shall include in such reports a state- ment of the name and age, and the name and residence of the parents of, every poor child who has been placed by them in a family during the year, with the 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, oh. 225), § 12.] Form of report to be prescribed by the state board of charities. § 13. Alms-house register; what to contain; officers to furnish 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, birth of parents, education, habits, occua- pation, condition of ancestors and family relations, and cause of dependence of each person at the time of admission, with such other facts and particulars in relation thereto as may be required by the state board of charities, upon forms pre- scribed 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 inforraatiou^ascertainod at the time of the admission of such person, on the forms so fur- nished. All such records shall be preserved ia 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, Relief op Poor; Superintendents. 207 and immediately forward such copies to the state board of charities. [Poor Law (L. 1896, ch. 225), § 138.] § 14. Board of supervisors or town board may make rules and regulations as to furnishing temporary relief. The 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 a^iy such rules and regulations, the town board of any town may make such rules and rgulations as it may deem proper in regard to fur- nishing temporary or out door relief to the poor in their respective towns, by the overseer or the overseers of the poor thereof, and also in regard to the amount such overeer or overseers of the poor may expend 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 necessary 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, unless 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 New York and Kings. [Poor Law (L. 1896, ch. 225), § 13, as amended by L. 1897, ch. 48. J §16. Failure of ofiScer required to make statement or report as to the poor, how punished. Any superintendent of the poor or other officer or person having been an officer, who shall neglect or refuse to render any account, statement or report required by this chapter, or shall wilfully make any false report, or shall neglect to pay over any money within the time required by law, shall for- feit 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 208 Town and County Officers' Manual. 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 annum from the time the same should have been paid over. The state board of charities shall give notice to the district attorney of the county of every neglect to make the report required to be made to that board, and every officer or board to whom any such 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; apd 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 overeer 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.] The section applies to all ofScers required under the Poor Law to make any account, statement or report. The statements, accounts and reports of superintendents are required by § 3, subds. 13 and 14 {ante, p. 300), § 8 (ante, p. 203 ), § 9 (ante, p. 204), § H (ante, p. 205), § 12 (ante, p. 205), of the Poor Law. Those of overseers of the poor are prescribed in g 25 (post, p. 216), § 26 (post, p. 217), § 27 (post, p. 219), of the Poor Law. By this section the penalty is made uniform and applies to all violations of such sections. The penalty is to be recovered by the district attorney and applied to the support of the pooTa Eelibf op Pook; Ovbrsbbbs of thb Poob. 209 CHAPTER XVI.* Bblibf of poor; overseer of thb poor. SBOnOR 1. Election, qualifications, undertakings, oath of ofSce of overseer of the poor. 2. When poor persons to be relieved in county alms-house ; duties of overseer of the poor in respect thereto. 8. Care of poor persons not to be put up at auction. 4. Expense of removal and temporary relief prior to removal to be paid to overseer by county treasurer. 6. Person removed to county alms-house, how supported and when discharged. 6. Temporary relief of poor persons who cannot be removed to alms-houses ; order of supervisor. 7. Belief of poor persons in counties having no alms-house. 8. Overseer to examine monthly the needs of the poor supported in his town ; settlement of accounts ; form of accounts and verification. 9. Books to be kept by overseers of the poor ; overseers to present books to town board ; duties of town board ; overseer to have books of account present at town meeting. 10. Statement of accounts and estimate of overseer of the poor to be made to town board ; approval of estimate by town board ; if approved to be presented to board of supervisors. 11. Accounts of town officers. 12. Supervisor to report to clerk of board of supervisors abstract of accounts of overseers of the poor. 18. Persons bitten by mad dogs to be sent to Pasteur institute. g 1. Election, qualifications, undertakings, oath of office of overseer of the poor. There may be one or two overseers of the poor in each town. As to deter- mination of number, see Town Law, § 16, ante, p. 17. They may be elected or appointed. Town Law, § 16, ante, p. 17. Compensation of an over- seer appointed to be fixed by the town board. Town Law, § 16. Under' taking of overseer of the poor. Town Law, § 83, ante, p. 48. Form of undertaking, and liabilities of sureties. Town Law, § 66, ante, p. 52. Vaoaneies in office of overseer to be filled by town board. Town Law, § 65, * The laws of the state relating to the care and support of the poor, and of Idiots, lunatics and epileptics, with references to the oases decided in the courts relating thereto, and full and complete explanatory notes, are con- tained in Gumming db Cfilbert's Poor, State Charities and Insanity Laws, pub- lished by Matthew Bender, Albany, N. Y. 14 210 Town and Coukty Officers' Manual. ante, p. 57. Creation of vacancies. Public OflBcers Law, § 30, ante, p. 56. Resignation of overseer of the poor. Town Law, § 64, ante, p. 55; Public OflScers Law, § 31, ante, p. 55. Overseer required to take constitutional oath of office. Public Officers Law, § 10. Failure to take oath forfeits office. Public Officers Law, §§ 13, 30, ante, p. 56. Compensation of overseer, two dollars per day. Town Law, § 178. Strayed animals, surplus moneys arising from sale of, if unclaimed, to be paid to overseer of poor. Town Law, § 133, ante, p. 186. § S. When poor persons to be relieved in county alms-house ; duties of overseer of the poor in respect thereto. When any person shall apply for relief to an overseer of the poor, in a county having an alms-house, such overseer shall inquire into the state and circumstances of the appli- cant; and if it shall appear that he is a poor person, and requires permanent relief and support, and can be safely removed, the overseer shall, by written order, cause such poor person to be removed to the county alms-house, or to be relieved and provided for, as the necessities of the applicant may require. If the county be one where the respective towns are required to support their own poor, the overseer shall designate in such order of removal, whether such per- son be chargeable to the county or not; and if no such desig- nation be made, such person shall be deemed to belong to the town whose overseer made such order. [Poor Law (L. 1896, ch. 225), § 20.] Poor persons, who are. A poor person is one unable to maintain himself, and such person shall be maintained by the town, city, eounty or state, according to the provisions of this chapter. Poor Law, § 2. Poor persons, how relieved. The law, as it existed prior to the revision of 1896, provided that a poor person requiring permanent relief in a county having an alms-house, should be removed to such alms-house and there "be relieved and provided for as the necessities of the applicant may require." By this section it is provided that such poor person may be removed to the alms-house or be relieved and provided for as his necessities may require. It was held under the old law that unless the poor person was an idiot or lunatic, the proper place for his maintenance was at the county alms-house. City of Rochester v. Supervisors of Monroe County, 33 Barb. 353 ; Nuns of the Order of St. Dominick v. Long Island City, 48 Hun, 306 ; Robbins v. Wolcott, 66 Barb. 63. The change made by inserting the word •' or " authorizes the permanent support of a poor person at a place other than the county alms-house, but the statute does not contemplate permanent relief at any other place. Foor Law, § 33, post, p. 312. Eelibf of Pook; Oversbbrs of the Poor. 211 Duties of overseers of the poor as to persons requiring relief. The overseers are authorized by section 25 (post, p. 215) to examine into the condition and necessities of poor persons supported out of county almshouses. The overseer is directed by this section to investigate the state and circum- stances of a person requiring permanent relief. The circumstances which control the exercise of the power to grant relief to poor persons are so various in the oases of different persons, and are so incapable of being defined by Btrict rules that much must be left to the judgment and discretion of the offlcess. The possession of some property by a person does not always and necessarily preclude such person from a just claim for relief. City of Albany v. Mo- Namara, 117 N. Y. 168. The public benefit conferred by the poor laws is personal to the individjiial. It is contemplated that he shall apply for the relief afforded thereby. It is no part of the duty of the overseer to seek him out and press these benefits upon him. He Is not the chooser of the place and manner of his support, and must take what is to be had in the way the law confers it. Smith v. Williams, 13 Misc. 761. FORM NO. 47. Obdbb op thb Ovebsbebs op a Town to remove a Pooe Person to thb County Poor Hoxjse. 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 ,18... AB, C D, Overseers of the Poor. I 3. Care of poor persons not to be put up at auction. No officer or persons whose duty it may be to provide for the maintenance, care or support of poor persons at public expense, shall put up at auction or sale, the keeping, care or maintenance of any such poor person to the lowest bidder, and every contract which may be entered into in violation of this provision shall be void. [Pooriaw (L. 1896, ch. 225), § 139.] 212 Town and County Officers' Manual. § 4. Expense of removal and temporary relief prior to removal to be paid to overseer by county treasurer. Unless such poor person is properly chargeable to the town, the overseer, in addition to the expense of such removal, shall be allowed such sum as may have been neces- sarily paid out, or contracted to be paid, for the relief or support of such poor person, previous to such removal and as the superintendent shall judge was reasonably expended while it was improper or ineonvenient to r^^move such poor person, which sum shall be paid by the county treasurer, on the order of the superintendent. [Poor Law (L. 1896, ch. 225), §21.J FORM NO. 48. Superintendents' Ordeb to Pat Expenses Inoubbed by Ovebsbebs Pee- vious TO THE Removal of a Poor Person. 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 P, 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 pauoer , to the town of in said county). Given under our hands at , this day of ,18... ' >Suj)erintendent» of the Poor, § 6. Person removed to county alms-bouaet how supported and when discharged. The person so removed shall be received by the superin- tendents, or their agents, and be supported and relieved in a county alms-house until it shall appear to them that such person is able to maintain himself, or, if a minor, until he is bound out or otherwise cared for, as hereinafter provided, when they may, in their discretion, discharge him. [Poor Law (L. 1896, ch. 225), § 22.J § 6. Temporary relief of poor persona -who cannot be removed to alms-houses ; order of supervisor. If it shall appear that the person so applying requires only temporary relief, or is sick, lame or otherwise disabled so Eelibp op Poor; Ovbrseees op the Poob. 213 that be cannot be conveniently removed to the county alms- bouse, or that he is a person who should be relieved and cared for at his home under article five of this chapter, the overseers shall apply to the supervisor of the town, who shall examine into the facts and circumstances, and shall, in writing, order such sum to be expended for the temporary relief of such poor person, as the circumstances of the case shall require, which order shall entitle the overseer to receive any sum be may have paid out or contracted to pay, within the amount therein specified, from the county treasurer, to be by him charged to the county, if such person be a county charge, if not, to be charged to the town where such relief was afforded; but no greater sum than ten dollars shalJ be expended or paid for the relief of any one poor person, or one family, without the sanction, in writing, of one of the super- intendents of the poor of the county, which shall be pre- sented to the county treasurer, with the order of the supervisor, except when the board of supervisors has made rules and regulations as prescribed in section thirteen of this chapter. [Poor Law (L. 1896, ch. 225), § 23.J If such rules and regulations are made as prescribed by § 13 of the Poor Law, ante, p. 307, the limitation of the amount to be expended contained in this section does not apply. The question of the propriety of granting relief is in the sound discretion of the overseer, and if the relief is granted upon application, it is to be presumed they have made such investigations as they deemed necessary, and have de- termined the question as to the right of the party examined to relief. City of Albany v. McNamara, 117 N. Y. 168. An action will not lie against overseers of the poor for omitting or refusing to apply to the supervisor for an order to provide for a pauper, in favor of one who, from motives of humanity, supplies a poor person with the sustenance he absolutely needs. MinJclaer v. Bookfeller, 6 Cow. 276. The order of a justice of the peace (under the old law, now the supervisor), authorizing an allowance for the relief of a poor person for a certain time, is BuflSoient authority for an overseer to contract for the support of such poor person. A formal adjudication of the settlement of the poor person in such case is not necessary. Palmer v. Vandenburgh et al., 3 Wend. 193. An action does not lie against an overseer of the poor under the Taxpayers Act of 1881, for expending more than ten dollars in the relief of a poor person or family without a written order from the supervisor (justice of the peace, under old law), where no fraud has been shown and no injury has actually resulted to the taxpayer. Cobb v. Bamsdell, 37 N. Y. St. Rep. 457. 214 Town and County Officers' Manual. FORM NO. 49. Sxjpeevisoe's Ordie fob a Poor Person who Requires Tkmporaet Belief. 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 applying to them for relief, and having examined into the facts and circumstances, 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 cannot be conveniently renoved 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, AB. Given in said town, the day of 18... CD, Supervisor. FORM NO. 50. Sanction of Countt Supbrintbndent for the Expenditure of a Qeeateb Sum than Ten Dollars. County of , ss.: The undersigned, one of the superintendents of the poor of the county of , having been applied to by 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 super- visor's order hereunto annexed, and having inquired into the facts of the case,' and being satisfied that the said A B cannot be properly removed 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 hand, at , this day of 18. . . D, Superintendent of the Poor. § 7. Relief of poor persons in counties haring no aJms-house. If application for relief be made in any county where there is no county alms-houae, the overseer of the poor of the town where such application is made shall inquire into the facta and circumstances of the case, and with the written approval of the supervisor of such town, make an order in writing for such allowance, weekly or otherwise, 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 Relief of Poor; Oveksebrs of the Poor. 215 town in the same county, the overseer shall apply the moneys so allowed to the relief and support of such poor person. The money so paid by him, or contracted to be paid, when the poor person had no legal settlement in the town, and charged to the town in which he had a legal set- tlement, 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 overseer shall, within ten days after granting to him any relief, give notice thereof, and that such person has no legal settlement in such county, to one of the county superintendents, and until the county superintendents shall 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 such notice shall be paid to such overseer by the county treasurer, on the production of such order and of proof by affidavit of the time of the giving of such notice, and shall be by him charged to the county. [Poor Law (L. 1896, ch. 225), § 24.J § 8. Overseer to examine monthly the needs of the poor ijapported in his toTm ; settlement of accounts ; form of accounts and verifica- tion. The overeer 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 county alms-house, and provide within the provisions of this chapter for such allowances, weekly or otherwise as the circum- stances may in his judgment require. All accounts for care, support, supplies or attendance, connected with the main- tenance of such poor person or family, shall be settled, once in three months, and paid if there be funds for that purpose. No bill, claim or account for care, support, supplies or attendance, funished to poor persons, by order of the over- seer of the poor, or otherwise, shall be audited or allowed by the overseer, unless such bill, claim, or account be verified by the claimant, to the efiPect that such care, support, sup- plies or attendance have been actually furnished for such poor persons, that such poor persons have actually received the same, and that the prices charged therefor are reasona- 216 Town and County Officers' Manual. ble and not above the usual market rates. [Poor Law (L. 1896, ch. 225), § 25.J The poor persons entitled to relief and to whom allowances may be made under this section, are those who, under section 20, ante, p. 210, are relieved and provided for outside of an alms-house ; those requiring temporary relief, under section 23, ante, p. 312, those supported by the town in counties having no alms-houses, as provided in section 24, ante, p. 214, and poor soldiers and Bailors, supported as provided in section 80, post, p. 259. Powers of overseers to contract. Overseers may contract for the support of such poor persons. So long as they contract within the scope of their author- ity, their contracts are valid and obligatory upon them in their official capa- city and upon their successors ; but if they transcend their authority, though they may be individually responsible, their successors are not. Palmer v. Vandenhergh, 3 Wend. 193. If an overseer exceeds his authority and contracts with a person for the relief of a poor person, without the order or approval of the supervisor, or other authority granted by the statute, he may be held personally liable on such contract. King v. Butler, 15 Johns. 281. But the case of Olney v. Wickes, 18 Johns. 122, seems to hold a contrary doctrine. In that case it was held that, where the overseer contracts iu his official capacity, and expressly intends, in such capacity, to bind the town, he is not personally responsible, and an action will not lie against him per- Bonally. In the case of Holmes v. Brown, 13 Barb. 599, it was said that " the cases where an action has been held to lie against an overseer of the poor for the support of paupers, are placed upon the ground that the credit was given to the person individually in his private capacity, and not as the officer or agent of the town." FORM NO. 61. Obdbb fob Supplibs to Pooe Persons and Vebipioation of Accounts FOE Audit. Afton, N. Y. ,18.... To .* Please furnish to , the articles named in the following Bohedule, 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. Schedule. lbs. of tea $ lbs of sugar lbs. of flour etc., eto. Verification, County of being duly sworn, deposes and says that puisnant to the order of the overseer of the poor of the town of Relief of Poor; Overseers of the Poor. 217 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 ,18... ! § 9. Books to be kept by overseers of the poor; overseers to pre- sent books to the town board ; duties of the town board ; overseer to have books of accounts present at totrn meeting. Overseers of the poor, who receive and expend money for the relief and support of the poor in tlieir respective towns and cities, shall keep books to be procured at town or city expense, in which they shall enter the name, age, sex and native country of every poor person who shall be relieved or supported by them, together with a statement of the causes, either direct or indirect, which shall have operated to render such relief necessary, so far as the same can be ascertained. They shall also enter upon such books a statement of the name and age, and of the names and residences of the parents of every child who is placed by them in a family, with the name and address of the family with whom every such child is placed, and the occupation of the head of the family. They shall also enter upon books so procured, a statement of all moneys received by them, when and from whom, and on what account received, and of all moneys paid out by them, when and to whom paid and on what authority, and whether to town, city or county poor; also a statement of all debts contracted by them as such overseers, the names of the per- sons with whom such debts were contracted, the amount and consideration of each item, the names of the persons for whose benefit the debts wore contracted, and if the same have been paid, the time and manner of such payment. The overseer shall lay such books before the board of town auditors or the common council of the city, at its first annual meeting in each year and, upon being given ten days' notice thereof, at any adjourned or special meeting of such board or council, together with a just, true and verified itemized account, of all moneys received and expended by them for the use of the poor since the last preceding annual 218 Town and County Officers' Manual. meeting of said board, and a verified statement of debt con- tracted by them as such overseers and remaining unpaid. The board or council shall compare said account with the entries in the book and shall examine the vouchers in support thereof, and may examine the overseers of the poor, under oath, with reference to such account. They shall thereupon audit and settle the same, and state the balance due to or from the overseer, as the case may be. Such account shall be filed wiih the town or city clerk, and at every annual town meeting, the town clerk shall produce such town account for the next preceding year, and read the same, if it be required by the meeting. The overseers of the town shall have such books present each year at the annual town meeting, subject to the inspection of the voters of the town, and the entries thereon for the preceding year shall there be read publicly at the time reports of other town oflBcers are presented, if required by a resolution of such meeting. No credit shall be allowed to any overseers for moneys piaid, unless it shall appear that such payments were made neces- sarily or pursuant to a legal order. [Poor Law (L. 1869, oh. 225), § 26, as amended by L. 1897, ch. 222.J Penalty for failure to render accounts as provided by law. Poor Law, § 14, ante, p. 208. FORM NO. 52. FOBH OF Ovekseeb's Book Showing Statistics Beiatino to Pooe Pebsons Beuevid. [Note. — Section 38 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. TJnited States.. Intemperance . . 1 Bblibf of Foob; Overseeb of thb Poob. 219 too gg 1 He la ft |3 Hgl ?>g if 1 1 Por temporary relief Prom the sale of the pei^ gonal property of Q H, who bad absconded.... o 1 s s if 1 June IS, 18.. Sept. 18.. .1 i s guperrlBor. Pursuant to section 135 of the Poop Law. i a u 1 s n o I*- 8 o O O a 220 Town and County Opficeks' Manuai.. FORM NO. 54. Aacx>TniTS or Otebshebs of thb Poob to bk Benobrkd to Town Boabds OB Common Cottncil. Toth* Town Board of the To^on of ; Aooonnt of overseer of the town of Afton, for amonnti received and expended for the support and relief of the poor during the year ending .........<••.•••) 18. ... June 10. From county treasurer $10 00 Sept. IB. From George L. Church, for sale of property of John Smith, who had absconded 12 60 Eaipenditures. June 16. To Bichard Brown, for groceries 10 00 Sept. IS. To county treasurer, pursuant to Poor Law, § 135 12 50 Chenango County, sa.: overseer of the i)oor 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 18 and that the amount stated to have been expended were actually and necessarily expended by him for the purposes ■peoifled, during such time. Subscribed and sworn to before me, ] this . . . . day of ,18.. j Overseer of the Poor, Notary Publie. % 10. Statement of aeconnta and estimate of overseer of the poor to be made to town board ; approval of estimate by town board ; if approved to be presented to board of supervisors. Such overseers shall make to the town board, at its second annual meeting in each year, a written report, stat- ing their account as provided in the last section, continued to that date, and any deficiency that may then exist in the town poor fund, with their estimate of the sum which they shall deem necessary for the temporary and out door relief and support of the poor in their town for the ensuing year, and in counties where therois 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 estimate so made or any part thereof, they shall so cer- Bblibf of Poob; Ovbbsbebs of the Foob. 221 tify in duplicate, one of which certificates shall be filed in the office of the town clerk, and the other shall be laid by the supervisor 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 deficiency, and for the maintenance and support of the poor, for whose relief such estimates were made. The town board shall also, on or before the first day of December, annually certify to the county superintendents, the name, age, sex, and native country, of every poor per- son relieved and supported by such overseers during the pre- ceding year, with the causes which shall have operated to render them such poor persons, the amount expended for the use of each person, as allowed by the board, and the amount allowed to each overseer for services rendered in relation to temporary or town relief. The town board shall include in such annual statement to the county superintend- ents, and the county superintendents shall include in their own report to the state board of charities, a statement 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, an J the occu- pation of the head of the family. [Poor Law (L. 1896 ch. 225) § 27.J In the case of Osterhoudt v. Rigney, 98 N. Y. 337, it was said that the sta- tute providing for estimates for the support of the poor contemplates that expenditures may be made and liabilities incurred by overseers of the poor, beyond the sum estimated and raised in advance for that purpose, for the estimate is to embrace not only the sum which the board of audit shall deem necessary for the support of the poor during the ensuing year, but also such sum as shall be required to supply any deficiency in the preceding year. 222 Town and County Officbbs' Manuai- FORM NO. 55. Kbport of Ovbbsbers of the Poor. [Notb. — The report is to oontaia the account prescribed in Form No. 54, 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 , f or the year beginning , 18. . Such estimate is based upon the following facta. (Here state items for which it will be necessary to raise money.) "^ Dated , 18.... CD, Overseer of the Poor. We hereby at>proTe the foregoing account and estimate of the sum required for the support and relief of the poor of the town of for the year beg^inning 18.... Dated 18.... D E, Supervisor. F Or, Justice of the Peace. HI, ' JK, " " •' LM, " " " N 0, Tmon Clerk. $11. Aeeonats of town offleera. The accouDts 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 town. But no allowance for time or services shall be made to any officer for attending any board solely for the purpose of having his account audited or paid. [Poor Law (L. 1896, ch. 225), § 28.J All such accounts are to be audited at the second meeting of the town board, held on the Thursday preceding the annual meeting of the board of superrisors. See the Town Iaw (L. 1890, chap. 569), §§ 160, 162, poa, p. 416. § 18. SaperrisoF to report to clerk of board of ■nperviaors* abstract of ii«coiinta 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 Rblibp of Poor; Ovbrsbbrs of Poob, 223 board of supervisors, within fifteen days after the accounts of the overseers of the poor have been settled by the towa 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, specifying the number of county poor, and town poor, the whole expense of such support, the allowance made to overseers, justices, constables or other oflBcers, which shall not comprise any part of the actual expenses of maintaining the poor. fPoor Law (L. 1896, ch. 225), § 137. J FOEM NO. 56. Report op Supervisob of Town to Clerk oi" Board of Supervisors ni Towns Where all the Poor are not a County Charge. 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 ,18 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 other 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 , f or the year ending the day of , as the same have been settled by the board of town auditors. Dated this day of , 18 ... AB, Supei-visor. § 13. Persons tiitten by mad dogs to be sent to Pasteur institute. Overseers of the poor or other officers having charge of the dispensation of public charity in the several counties of this 224 Town and County Officebs' Manual. state shall hereafter send to the Pasteur institute in the city of New York all persona duly certified by regular physicians to have been bitten by rabid animals, or otherwise put in danger of infection with rabies. The transportation of such persons, with necessary attend- ant 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 per- sons, for the time adjudged necessary, shall be provided by the Pasteur institute of the city of New York. £L. 1895, oh. 770, §§ 1, 2.] Sbxtlbment of Poob Pbbsons. 225 CHAPTER XVII. Sbttlembnt and placb of bblibf of poob pbbsons. [OR 1. Settlement of poor persons, how gained ; separate settlement of minor. [Repealed, L. 1900, ch. 345.] 2. Settlement, how lost. 8. Settlement of toarried women ; when determined by that of parents. 4. Poor person not to be removed, but supported in the town where he may be. 5. Proceedings to determine settlement ; notice to appear before county superintendents. 8. Hearing before superintendents ; decision. 7. Effect of failure of overseer to provide for poor person, when liotifled by overseer of other town ; board of supervisors to charge support of poor person to proper town. 8. Superintendent to determine who are county poor ; proceedings for such determination. 9. Support of covmty poor in counties having no alms-houses ; pro- ceedings to determine who are county poor. 10. All decisions of superintendents of the poor to be entered in books ; copy to be filed with county clerk. 11. Appeals to county court from decisions of county superintendents of the poor; decision on appeal. 12. Unlawfully removing or enticing a poor person from one town to another, a misdemeanor. IS. Proceedings where a person has been enticed or has come from one town or county to another. 14. Upon receipt of notice superintendent or overseer to take poor person or serve denial of removal. 15. In case of neglect to deny removal, support of poor person to be a charge upon the town or county from which removed ; actions to recover. 16. Actions to recover, to be brought within three months from service of denial. 17. Penalty for bringing foreign poor mto state ; action to recover penalty ; person found guilty to transport poor person out of state. 18. Poor children not to be committed to alms-house as vagrants, truants or disorderly persons; support of poor children in families or charitable institutions. '" 10. Boards of supervisors may abolish or revive distinction between town and county poor. j26 Town and County Officers' Manuai- SO. Overseers to pay town poor moneys to county treasurer, within three months after notice of abolition of distinction between town and county poor. 81. Town poor money, invested, to be under control of overseer ; inay be applied to town expenses when distinction between town and county poor is abolished. § 1. 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 mem- bers of his family who shall not have gained a separate settlement, shall be deemed settled in such town or city, and shall so remain until he shall have gained a like settle- ment in some other town or city in this state, or shall remove from this state and remain therefrom one 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 sep- arately from the family of his father or mother. 2. If a female, by being married and having lived with her husband; in which case the husband's settlement shall be deemed that of the wife. 3. By being bound as an apprentice 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, oh. 225), ^ 40. J Settlement of married women. Under the old law, it was held that a woman having a settlement, who marries a man who has none in this state, retains her maiden settlement, and, with her children, may be removed to it if her husband fail to provide for her. Overseers of Otsego v. Overseers of '^mithfield, 6 Cow. 760. And where a woman has a husband resident in this state, and is able to maintain her, any settlement which she may have had pre- ^'ious to her marriage is suspended, and she cannot be removed to the place of her former settlement, but only to the place of her husband's settlement or residence. Overseers of Sherburne v. Overseers of Norwich, 16 Johns. 186. Sittlement of dhildren. The place of birth of an infant pauper is, i>rima faete, his place of settlement, but it may ba removed to the last legal settle- ment of the parents when discovered. Overseers of Vernon t. Overseers of SmithvUle, 17 Johns. 89 ; and see, also, Ddavergne r. Noxon, U Johns. 333 ; Overseer* of Berne v. Overseers of Knox, 6 Cow. 433. Sbttlbmbnt op Poor Pbesons. 227 The settlement of a child follows that of the father, if he have any ; if not, the settlement of the mother. Overseers of Niskayuna v. Overseers of Albany, 3 Cow. 537. Nb act of a father of a minor son can divest the son of his derivative settle- ment. Adams v. Foster, 20 Johns. 452. Until a poor person aoqiiires 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. Stillwell v. Kennedy, 51 Hun, 114. Italian laborers, temporarily employed in constructing a railroad, do not, by their presence in a town gain a settlement therein. In re Toton of Hector, 34 N. Y. Supp. 475. § S. Settlement, hoTr loit. [Eepealed by L. 1900, ch. 345.] § 3. Settlement of married ivomen ; when determined by that of parents. A woman of full age, by marrying, shall acquire the set- tlement of her husband. Until a poor person shall have gained a settlement in his or her own right, his or her settle- ment shall be deemed that of the father, if living, if not, then of the mother; but no child born in any alms-house shall gain any settlement merely by reason of the place of such birth; neither shall any child born 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 alms- house, 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 settlement in the town where such actual residence may be. [Poor Law (L. 1896, ch. 225), § 41.j § 4. Poor person not to be removed, but supported in town where he taa,y be. No person 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 228 Town and County Oppicebs' Manual. Bzcept as hereinafter provided; but every poor person, except the state poor, shall be supported in the town or county where he may be, as follows: 1. If be has gained a settlement in any town or city in such county, he shall be maintained by such town or city. 2. If he has not gained a settlement in any town or city in the county in which he shall become poor, sick or infirm, he Hhall be supported and relieved by the superintendents of the poor at the expense of the county, 3. If such person be in a county 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 cases, proceedings for his relief shall 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 set- tlement 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 application for relief, give notice in writing to an overseer of the town to which he shall belong, requiring him to provide for the support and relief of such poor person. [Poor Law (L. 1896, ch. 225), § 42.J FORM NO. 57. KonoB FROM One Town to Anotheb (in a Countt Where the Towns ABE Liable to Support Their Own Poor), TtEQUimNU the OvERSBBRa OF THE Town in Which thb Poor i^-^-'-i-' ij- . ■■ !i!:5ioHxci'', to Pbo- viBB FOR His Support. County of as.: To the Overseers of the Poor of the Town, of in said County: You are hereby notifled that A B, a poor person, who has sained a settle- ment in your town, to which he belongs, is in the town of , in laid oounty, and is supported at the expense of the said town of , for whioh the undersigned are overseers. You are, therefore, required to provide for the relief and support of the said poor person. Oivan under our hands at this day of , 18... EF, C D, Overseersof thsPoorof the Town, of ^his notice should be served on one of the overseers of the poor cf the (own where the poor person belongs.] SfiTTLEMENT OP PoOR PBBSONS. 229 i^ S, Proceedings to determino ssttlement ; notioe to appear before county auperintendents. 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 per- son, 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 such person may be, and from whom he has received the notice specified in the last sec- tion, that he will appear before the county superintend-- ents, 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 settlement. If the county superintends ents fail to appear at the time and place so appointed, they eball, 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 hearing before the superintendent thereof, and an order by them made and filed in the office of the county clerk, fixing the settlement of such poor person. [Poor Law (L. 1896, ch. 225), § 43. J FORM NO. 68. Nonas or Oversebb of thb Poor to Appbab Before Superintendent OF THE Poor ano Contest Alleoed Settleuent of a Poor Person. County of sa.: To the Overseers of the Poor of the Town of in said County : Please taks notice that the undersigned, overseers of the poor of the towa of in said county, will appear before the superintendents of the poor of said oounty, at the poor-house (or, other place, as may be designated), ■m the day of , at ten o'clock in the forenoon, to contest the I Ueged settlement of A B, a poor person, as set forth in your notice of the 18... Dated, , 18.. JH, I J, Overaiers t)f the Poor of the Toumof „ 230 Town and County Officers' Manual. § 6. Hearing before superintendents ; decision. The county superintendents shall convene whenever required by any overseer pursuant to such notice, and shall hear and determine the controversy, and may award costs, not exceeding fifteen dollas, to the prevailing party, which may be recovered in an action in a court of competent juris- diction. Witnesses may be allowed fees as in courts of record. The decision of the superintendent shall be final and conclusive, unless an appeal therefrom shall be taken as provided by this chapter. [Poor Law (L. 1896, ch, 225), § 44.] FORM NO. 59. SxjBPCBNA m Cask of Dispxjte CoNCERNiNa Sktti.bment of Poob Persons. County of ss.: The People of the State of New York to O D, Qreeting : You are hereby required, personally, to appear before the undersigned, superintendents of the poor of the said county, at the poor-house (or, suoh other place as is designated in the notice), on the day of , 18.., 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 «ettlement of A B, a poor person. Dated at , this day of 18.. y Siij)erintendent8 of the Poor. FORM NO. 60. DkOISION op SUPEMNTENDKNTS CojJOSraNINa the HErriiEMENT OF POOB Persons. County of ss.: 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, concerniug the settlement of A B, a poor person ; and upon suoh 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. Qivan under our hands and seals at this.... day of , 18... • •••■••••••••■a • I Ui S.J 1 [l. s.1 > Superintendents of tkePoor, [1-8.]) Sbttlbmbnt of Poor Peksons. 231 § 7. EflFect of failure of overseer to provide for poor person, when notified by overseer of other town ; board of supervisora to charge support of poor person to proper town. The overseers of the poor of the town in which it may be alleged any poor person has gained a settlement, may, at any time after receiving such notice requiring them to pro- vide for such person, take and receive such poor person to their town, and there support him ; if they omit to do so, or shall fail to obtain the decision of the county superintend- ents, so as to exonerate them from the maintenance of such poor person, the charge of giving such notice, and the expense of maintaining such person, after being allowed by the county superintendents, shall be laid before the board of supervisors at their annual meetings from year to year, as long as such expenses shall be incurred, and the supervisora shall 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 town incurring such expense, the interest thereon, from the time of expenditure to the time of repayment, which sum shall be assessed, levied and collected in the same manner as other charges of such town. Such moneys when collected shall be paid to the county treasurer and be by Iiim credited to the account of the town which incurred the expenses. [Poor Law (L. 1896, ch. 225), § 45.] §8. Superintendents to determine who are eonnty poorj pro- ceedings for such determination. The support of any poor parson shall not be charged to the county, without the approval of the superintendents. If a poor person be sent to the county alms-house as a county poor person, the superintendents, in counties where there are town poor, shall immediately inquire into the facts, and if they are of opinion that such person has a legal settlement in any town of the county, they shall, within thirty days after such poor person shall have been received, give notice to the overseers of the poor of the town to which such poor person belongs that the expenses of such support will be charged to such town unless the overseers within such time 232 Town and County Officbes' Manual. 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 superin- tendents shall re-examine the matter and take testimony in relation thereto, and decide the question; which decision shall be conclusive, unless an appeal therefrom shall be taken in the manner provided in this chapter. [Poor Law (L. 1896, ch. 225), § 46.J FORM NO. 61. SUPEKINTBNDHNTS' NOTIOB THAT POOK PERSON WlLI. BK SUPPORTED AT THH ElXFENSB OF A TOWN IN A COUNTY WhBRB THB TOWNS SUPPORT THEIB Own Poor. County of ss.: To the Overseers of the Poor of the Toion of. ..,,,%n 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 4S 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 (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 18... A B, C D, E F, Superintendents. FORM NO. 68. Dboision or Superintendents After Bs-EzAMiNiNa Settlbmknt of Poob Person, on Appuoation of Overseers. County of 8».; 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 setclement in the town of , to which, as such poor person, he belongs (or, has not a legal settlement in said town of ). Given under our hands, at , this day of 18... A B, O D, E F, Superintendents of the Poor. Sbttlbment op Poob Pbrsons. 233 § 9. Support of county poor in counties having no alms-honse | proceedings to determine who are county poor. In counties having no alms-house, no person shall be sup< ported as a county poor person, without the direction of at least one superintendent. In such casea 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 superin^ tendents who shall inquire into the circumstances, and if satisfied that such poor person has not gained a legal settle* ment in any town of the county, and is not a state poor per- son, 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 certificate, or, on giving at least eight days' 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 conclu- sive, unless an appeal therefrom shall be taken in the man- ner provided in this chapter. Such appeal may also be taken from the refusal of one superintendent to grant such certifi- cate when there is but one superintendent in the county. [Poor Law (L. 1896, ch. 225), § 47. J § 10. All decisions of superintendents of the poor to be entered in boohs ; copy to be filed -with county clerk. The decisions of county superintendents in relation to the settlement of poor persons, or to their being a charge upon the county, shall be entered in books to be provided for that purpose, and certified by the signature of such of the super- intendents as make the same; and a duplicate thereof, cer- tified 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."' 25^ Town and County Officeks' Manual. § 11. Appeals to coanty court from decisions of county super- intendents of the poor; decision on appeal. Any or either of the parties interested in a decision of the superintendent of the poor, or in any dispute that shall arise concerning the settlement of any poor person, may appeal from such decision to the county court of the county in which such decision shall be made by serving 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 attor- ney, 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, cb. 225), § 49.] FORM NO. 63. NonoE OF I -cisiON OF Superintendents as to Settlement of Poob Pebsons. To Overseer of the Poor of the Toum 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 ofiSoe of the oounty clerk of county, on the day of ,18.. C D. Superintendent {or, Overseer, at 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 the above section 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 re- quired to limit the time of appeal.] FORM NO. 64. NoTiOB OP Appeal to County Couet from Decision of SuPEKiNTun)- EISTS OF THE PoOB. COUNTY COURT— County of.. In the Matter of the Settlement A B. a Poor Person. !1 Take notice that the undersigned, E F, overseer of the poor of the town ol Sbttlbment op Poor Persons. 235 appeals to the county court of county from the de- cision 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 18..., and demands a new trial of the matters in dispute as to such settlement in the said county court, without a jury. Dated , 18.. E F, Overseer of the Poor of the Tmon of. To O H, Overseer of the Poor of the T&um of {or other party interested therein). § 12. 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 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 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.] The criminal liability is also provided for by the following section of the Penal Code : § 675a. Unlawful removal of poor person. Any person who shall send, remove or entice to remove, or bring, or cause to be seat, 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, chap. 550 ; taking effect September 1, 1896.] When action will lie. The action will not lie against a person removing 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 the gravamen of the eriminal offense. Foster v. Cronkhite, 35 N. Y. 139. The penalty is incurred when any person removes, or entices the pauper to remove, without legal authority, with intent to make the county to which the removal shall be 236 Town and County Officers' Manual. made, chargeable with the pauper's support. Cortland Co. v. Herkimer Co., 44 N. Y. 32. In the latter case it was held that the superintendent might testify di- rectly as to the intent with which he did an act when the intent is a fact material to the issue. § 13. Proceeding's xvhen a poor person has been enticed or has come from one totm or county to another. A poor person so removed, brought or enticed, or who shall of his own accord come or stray from one city, town or county, into any other city, town or county, not legally chargeable with his support, shall be maintained by the county superintendents of the county where he may be. They may give notice to either of the overseers 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 he was brought or enticed or came liable for his support, then to either of the county superin- tendents of the poor of such county, within ten days after acquiring knowledge of such improper removal, informing them of such improper removal, and requiring them forth- with to take charge of such 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.] WTu) is a poor person under this section. 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 has become unable to support himself. Such a man ii many degrees removed from the condition of a pauper. It is only where a poor person, who at thd 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. Simmons, 51 Hun, 325. 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. Brundage, 17 Wkly. 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 Settlement of Poor Peesons. 237 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 benefitting from such illegal removal. Pittstovm v. Plattstmrgh, 15 Johns. 436. FORM NO. 65. Notice of Improper Removal op Poor Person from a Town, City ob County. County of «s.; 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 provisions of section 51 of the Poor Law of the state of New York, required forthwith to take charge of the said poor person. Given at in said county of the day of 18.... J Superintendents of the Poor of the >■ County of (or, Overseers oj ) thePoorofthe Tovmof ) § 14. Upon receipt of notice superintendent or overseer to take poor person or serve denial of removal. The county superintendents, or overseers, or other per- sons 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 city, and there support him, and pay the expense of such notice, and of the support of such per- son; 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 such 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.] Suffloiency of denial. 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.^ Stillwell v. Coons, 122 N. Y. 242. Service of denial. The statute being silent aa to the mode in which the 238 Town akd County Officers' Manual. denial shall be put into the possession of the ofScer serving the notice, it ia sufiSoient to serve the denial by mail. Stillwell v. Kennedy, 51 Hun, 114. FORM NO. 66. NoTiOB OF Denial of Removal of Foob Pebsons. County of ss.: To the Superintendents of the Poor of Connty : 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 18... ) Superintendents of the Poor of t}i« ) County of § 15. 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. If there shall be a neglect to take and remove such poor person, and to serve notice of such denial within the time above prescribed, the county superintendents and overseers, respectively, whose duty it was so to do, their successors, and their respective counties, cities or towns, shall be deemed to have acquiesced in the allegations contained in such first notice, and shall be forever precluded from con- testing the same, and their counties, cities and towns, respectively, shall be liable for the expenses of the support of such poor person, which may be recovered from time to time, by county superintendents 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.] § 16. Actions to recover to be brought within three months from service of denial. Upon service of any such notice of denial, the county superintendents upon whom the same may be served, shall, within three months, commence an action in the name of their county, against the town, city or county so liable for the expenses incurred in the support of such poor person, and prosecute the same to efifect; 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 first notice was directed. [Poor Law (L. 1896, ch. 225), § 54.] Settlement op Poor Persons. 239 § 17. Penalty for bringing foreign poor into state; action to recover penalty; person found guilty, to transport poor person •ut of state. Any person who shall knowingly bring or remove, or cause to be brought or removed, any poor person from any place without this state, into any county, city or 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 recovered by an action in a court of competent jurisdiction in the county, and in the name of the county, city or town into which such poor person shall be brought, and shall be 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 person satisfactory security that he will within a reasonable time, to be named by the court or magis- trate, 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 court or magistrate shall commit him to the common jail of the county for a term not exceeding three months. [Poor Law (L. 1896, ch. 225), §55.] § 18. Poor children not to be committed to alms-honse as vagrants, truants or disorderly persons ; support of poor children in families or charitable institutions. No justice of the peace, board of charities, police justice, or other magistrate, or court, shall commit any child under sixteen years of age, as a vagrant, truant or disorderly per- son, to any jail or county alms-house, but to some reforma- tory, or other institution, 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 240 Town and County Offickrs' Manual. in which the commitment was made, giving the name and age of the person committed, to what institution, and the time for which committed; nor shall any county superin- tendents, overseers of the poor, board of charity, or other ofiBcer, 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 pro- vide 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 alms-house, but not longer than until it is two years of age. The boards of supervisors of the several counties, and board of estimate and apportion- ment 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 maybe necessary to carry out the provisions ol this section. When any such child is committed to an orphan asylum or reformatory, it shall, when practicable, be committed to an asylum or reformatory that is governed or controlled by persons of the same religious faith as the parents of such child. [Poor Law (L. 1896, ch. 225), § 56.] § 19. Boards of supervisors may abolish or revive distinction betTreen town and county poor. The board of supervisors of any county may, at an annual meeting 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 aboli- tion or revival, such county, or the towns therein, 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 Sbttlbmbnt of Poor Persons. 241 the board, in the ofiBce of the county clerk, the poor of the county ahall thereafter be maintained, and the expense thereof defrayed, by the county; and all costs and charges attending the examinations, conveyance, support and neces- sary expenses of poor persona 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 collected the same as other county charges. [Poor Law (L. 1896, ch. 225), § 134.] § 20. Overseers to pay town poor moneys to county treasurer, 'within three months after notice of abolition of distinction between 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 over- seers for the use of their town, after discharging all demands against them, to the county treasurer, to be applied by him toward the future taxes of such town; and all moneys there- after received by them, as such overseers, for the use of the 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 town 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 them to the overseers of the poor of any such town, for the use of the poor thereof, pursuant to any law or obligation requiring the same to be paid to such overseers, and credited 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.J 16 242 Town and County Officers' Manual. § SI. VCo\m poor money, invested, to be under control of over* Beer; may be applied to to'wn expenses when distinction bettreen toMrn and county poor is abolished. When any town shall have any money raised for the sup- port of the poor, invested in the name of the overseers of the poor of such town, such overoers shall continue to have the control thereof, and shall apply the interest arising there- from to the support of the poor of their town, so long as such town shall be liable to support 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 inhabit- ants thereof shall at an annual town meeting, or a special town meeting called for that purpose, determine. [Poor Law (L. 1896, ch. 225), § 136.J SuppoBT OP Bastabds. 243 CHAPTER XVIII. Support of bastards. Bvonatt 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 mother from one town or county to another. 5. 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. 8. 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 or 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. § 1. Penalty for removal of mother of bastard; support of mother. If the mother of any bastard, or of any child likely to be born 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, city or town from which she shall have been brought or enticed to remove, the same penalties shall be imposed on every such person so bi'inging, removing or enticing such mother to remove, as are provided in the case of the fraudulent removal of a poor person. Such mother, if unable to support herself, shall be supported during her confinement and recovery therefrom, 244 Town and County Officers' Manual. and her child shall be supported, by the county superintend- ents of the poor of the county where she shall be, if no pro- vision be mads by the father of such child. [Poor Law (L. 1896, ch. 225), § 60.] For penalties for improper removal of poor persons, see § 50 of the Poor Law, and § 675a of the Penal Code, ante, p. 235. In all cases relating to bastardy, the mother and child are to be deemed poor persons, from the fact that the mother or child are likely to become chargeable to the county as poor persons. Neary v. Robinson, 27 Hun, 145. § Z. Definition of bastard. A bastard is a child who is begotten and born, 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, pursuant to a judgment of a competent court, [Code of Criminal Procedure, § 838.J g 3. Who liable for support of bastard. The father and mother of a bastard are liable for its sup- port. In case of their neglect or inability, it must be supported by the county, city or town in which it is born, IS provided by special statutes. [Code Criminal Procedure, ^ 839.J Proceedings to compel support of bastard by father. Title V. of the Code nl Criminal Procedure (g§ 838-886) prescribe a method of compelling a puta» tive father of a bastard to support the mother during her confinement and the bastard after birth. It is made the duty of the superintendent 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 chargeable to the county or town to apply to a justice of the peace to inquire into the facts. (Code Crim. Pro. § 840.) For procedure in such cases and decisions relative thereto, see Cumming & Gilbert's Poor, Insanity and State Charities Laws, pp. 61-88. § 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 Support of Bastards. 245 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 the same manner for said expenses and for all expenses properly incurred in appre- hending 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.] Proceedings to compel support of mother and child by proper county or town. Poor Law, §§ 51-54, ante, p. 237. § 6. Mother and bastard to be supported as other poor persons. The mother of every bastard, who shall be unable to sup- port 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 pro- visions 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. [Poor Law (L. 1896, ch. 225), § 62.] § 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 what- ever, unless voluntarily 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.J § 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 born, which child or 246 Town and County Officers' Manual. 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 superintend- ents, or one of them. [Poor Law (L. 1896, ch. 225), § 64.J § 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.] Neglect of duty. The neglect of the superintendent to provide for the sup- port of a bastard and its mother is a misdemeanor. The following section of the Penal Code provides the punishment : § 117b. Neglect 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 mis- demeanor, and shall, on conviction, be liable to a fine of two hundred and fifty dollars, or to imprisonment not exceeding one year, or by both such fine and imprisonment. [Thus added by L. 1896, chap. 550.] § 9. Until taken charge of by superintendents, to be supported by overseers. Until the county superintendents take charge of and pro- vide 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.] § 10. Overseers of towns to support bastard and mother, whether chargeable or not. Where a woman shall be pregnant of a child likely to be born a bastard, or to become chargeable to a city or town, or where a bastard shall be born chargeable, or likely to become chargeable, to a city or town, the over- seers of the poor of the city or town where such bastard shall be born, or likely to be born, whether the mother Support of Bastards. 247 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 support the poor of their city or town. [Poor Law (L. 1896, ch. 225), § 67.] The neglect of an overseer of the poor to provide for the support of a bastard and its mother is a misdemeanor. See Penal Code, § 117b, as added by L. 1896, chap. 550. See note to section 8, ante. § 11. Moneys received by overseers from parents of bastard, hoTT 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 directly, in tbe support of such child, and the susten- ance 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 same time that other town or city officers 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 hands. [Poor Law (L. 1896, ch. 225), § 68. J For manner of rendering accounts of overseers of the poor, see Poor Law. § 26, ante, p. 215, and for penalties for failure to account, see Poor Law, § 14, ante, p. 207. FORM NO. 67. Accounts op Overseers of the Poor for Moneys Received from Putative Fathers and Paid Out for the Support of Bastards. To the Town Board of the Town of ; The following is an account of moneys received and paid out by me on accoimt of bastards during the year ending ,18 ... Receipts. Jan. 10. EVom JN, putative father of R O, bastard $ Jan. 12. From J A, putative father of K L, bastard Expenditures. Jan. 15. To O, for professional attendance and medicine to M O, mother of R R, bastard > ^ 248 Town and County Officers' Manual. Jan. 18. To J H, for groceries and fuel to M O, mother of E O, bastard - Dated ,18.... A B, Overseer of the Poor of tJie 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 , 18. . . . That the amounts therein stated to have been received by him were all the amounts actually received, and that the amounts therein stated to have been expended were actually and necessarily expended by him for the purposes therein specified. Overseer of the Poor of the Town of Subscribed and sworn to before me, ) this day of ,18.. ) § 12. When moneys received on account of bastard chargeable to county ; how to be disposed of. All moneys which shall be ordered to be paid by the putative father, or by the mother of a bastard chargeable to any county, shall be collected for the benefit of such county; and all overseers of the poor, superintendents, sheritfa, and other officers, shall within fifteen days after the receipt of any such moneys, pay the same into the county treasury. Any officer neglecting to make such payment shall bo liable to an action by and in the name of the county, for all moneys so received and withheld, with interest from the time of receipt, at the rate of ten per centum; and shall forfeit a sum equal to that so withheld, to be sued for and recovered by and in the name of the county. [Poor Law (L. 1896, ch. 225), § 69.] Proceedings to compel an accounting or report of a poor ofiScer. Poor Law, § 14, ante, p. 207. § 13. Disputes concerning settlement of bastard ; how deter- mined. When a dispute shall arise concerning the legal settle- ment of the mother of a bastard, or of a child born or likely to be born a bastard, in any city or town, the same shall be Support of Bastards. 249 determined by the county superintendents of the poor, upon a hearing of the parties interested, in the same manner and with the same effect as they are authorized to determine the settlement of a poor person under this chapter. [Poor Law (L. 1896, ch. 225), g 70.J Settlements, disputes as to, proceedings relating to. Poor Law, §§ 43-45, ante, p. 229. § 14. Proceedinss wken bastard is chargeable to another town. When a bastard shall be born, or be likely to be born in a town or city, when the legal settlement of the mother is in another town or city of the same county, which is required by law to support its own poor, the overseers of the poor of the town or city where such bastard shall be born, or be likely to be born, shall give the like notice to the overseers of the town or city where the mother's settlement may be, as is required in the case of a person becoming a poor per- son, under the like circumstances, and the same proceedings shall be had, in all respects, to determine the liability of such town or city as in the case of poor persons. The overseers of the town or city to which the mother of such bastard belongs may, before the confinement of such mother, or at any time after the expiration of two months after her delivery, if her situation will permit it, take and support such mother and her child. If they omit to do so, and fail to obtain the determination of the county superintendents in their favor on the question of settlemeht, the town or city to which the mother belongs shall be liable to pay all the expenses of the support of such bastard, and of its mother during her confinement and recov- ery therefrom ; which expenses, after being allowed by the county superintendents, shall be assessed, together with the lawful interest on the moneys^ expended, on the town or city to which such mother belongs, and shall be collected in the same manner as provided for poor persons supported under the same circumstances, and the moneys so collected shall be paid to the county treasurer, for the benefit of, and to be 250 Town and County Officbes' Manual, credited to, the town which incurred such expenses. [Poor Law (L. 1896, ch. 225), § 71.J Compelling support of poor person by another town. Poor Law, §§ 43, sub. 4, 43-45, ante, p. 228. Forms Nos. 59, 60. § 15. Mode of ascertaining sum to be allowed for support of bastard. When any town is required to support a bastard, and its mother, whether the mother have a settlement in such town or not, and no moneys shall be received from the putative father or from the mother, to defray the expense of such support, the overseers of the poor shall apply to the super- visor of the town, and obtain an order for the support of such bastard, and the sustenance of its mother during her confinement and recovery therefrom, and the sum to be allowed therefor, in the same manner as is required in the case of poor persons, and the moneys paid or contracted to be paid by the overseers, pursuant to such order, shall bu paid by the county treasurer in the same manner as for poor persons, and be charged to the town to whose officers such payment shall be made. [Poor Law (L. 1896, ch. 225), § 72.J Order of supervisor for temporary relief of poor persons. Poor Law, § 23, ante, p. 212. Form No. 49. § 16. When mother and child to be removed to county alms-house. If there be a county alms-house in any county where the towns are required to support their own poor, the overseers of the poor of a town where a bastard shall be born, or shall be likely to be born, may, with the approval of the county superintendents or any two of them, and when the situation of the mother will allow it, remove the mother of such bas- tard, with her child, to such alms-bouse, in the same manner as poor persons maybe removed; the expenses of which removal shall be defrayed in like manner, and such mother and her child shall be considered as poor of the town so liable for their support, and the expense shall in like manner be estimated and paid. [Poor Law (L. 1896, ch. 12^), § 73.] Support op Basxaeds. 251 JRemoval of poor person to alms-house; expense, hew defrayed. Poor law, 8 20, ante, p. 210. 2 17. Superintendents and overseers may compromise witb father of bastard; when mother may receive money. Superintendents and overseers of the poor may make such compromise and arrangements with the putative father of any bastard child within their jurisdiction, relative to the- support of such child, as they shall deem equitable and just, and thereupon discharge such putative father from all further liability for the support of such bastard. Whenever a compromise is made with the putative father of a bastard child, the mother of such child, on giving security for the support of the child, and to indemnify the city and county or the town and county, from the mainten- ance of the child, to the satisfaction of the officers making the compromise, shall be entitled to receive the moneys paid by such putative father as the consideration of such com- promise. If the mother of such child shall be unable to give the security, but shall be able and willing to nurse and take care of the child, she shall be paid the same weekly allow- ance for nursing and taking care of the child, out of the moneys paid by the father on such compromise, as he shall have been liable to pay by the order of filiation; such weekly sum to be paid the mother, may be prescribed, regulated or reduced, as in the case of an order of filiation. [Poor Law (L. 1896, ch. 225), § 74.J FORM NO. 68. AaEEEMENT IJPON COMPEOMISB WITH PtJIATIVE FATHER OF BASTABS. Know all men by these presents, that whereas, complaint was made on the day of ,18 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 bom, will be a bastard, and likely to become (or, the father of a bastard child, of which the said was on the day of ,18 — , 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 peaceof said county, and the father of said child (of which the said is now pregnant) (or, so bom a bastard), as aforesaid : 252 Town and County Officers' Manual. Now, therefore, of the poor of said county, for and in con- sidenition of the sum of dollars, to paid, as such Buperintendent (or overseer), and hj virtue of the statute in such case made and provided, do hereby compromise the said charge, and release and dia> 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 (oi bastard) child. Oiven under hand and seal this day of ••,18.... Bi^ed, delivered and duly acknowledged t la th»preseno« of aad befor« , f JtuHeeqffUFinm SuPFOBT 07 Poor Persons bt Bbi.atives. 253 CHAPTER XIX. SUPPOKT OP POOB PERSONS BY RELATIVES; ABSCONDING PARENTS OR HUSBAND. SsonON 1. Who may be compelled to support poor relatives. S. Overseers to apply to court for order compelling support of poor persons by relatives. 3. Absconding parents or husband, seizure ot property of, for sup- port of children and wife ; application for warrant. 4. Overseer may seize property ; sale or transfer void ; inventory of property seized. 5. Warrant and seizure, when confirmed or discharged, 6. Warrant to be discharged upon return of parent or husband, or upon security. 7. Sale of property seized, and application of proceeds. 8. When superintendent of poor has power of overseer. 9. Superintendent or overseer may redeem real property of abscond* ing father or husband, sold at sherifi's sale. 10. How superintendent or overseer may acquire title. 11. Money used for redemption, how repaid. 13. When warrant of seizure may be discharged. § Is Who may be compelled to support poor relatives The father, mother and children, if of sufficient ability, of a poor person 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 by the overseers of the poor of the town where he is, or in the city of New York, by the com- missioners of public charities. If such poor person be insane, he shall be mainatined in the manner prescribed 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 maintenance of such insane person from tbe time of his reception in such institution. [Code Criminal Procedure, § 914t as amended by L. 1898, ch. 399.] 254 Town and Covsxy Officbbs' Manual. § S. 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 he poor of the town where he is, or in the city of New York, the commissioners of public charities may apply to any court of record or to a judge thereof where the relative dwells, for an order to compel such relief, upon at least ten days' written notice, served personally, or by leaving it at the last place of residence of the person to whom it is directed, in case of his absence, with a person of suitable age and dis- cretion. 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 section for an order directing the relatives liable therefor to make such payment. [Code Criminal Procedure, § 916, as amended by L. 1898, ch. 399.] Practice. The proceedings in court for the determination of the liability of persons to support their poor relations are contained in §g 915-920 of the Code of Criminal Procedure. See Cfumming and QUbert's Poor, Insanity and Stata Charities Laws, pp. 127-131. § 3. Absconding parents or husband, seizure of property of, for support of children or wife ; application for \earrant. 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 become chargeable upon the public, the officers mentioned in section 914 may apply to any iwo jusitces 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 magistrate must issue his warrant, auth- orizing the officers so applying to take and seize the property of the person so absconding. Whenever any child shall be committed to an inatitutioa, pursuant to any provision of SuppoE* OF PooK Persons by Relatives. 255 the Penal Code^ any 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 such father is able to contribute toward the support of the child, then the magistrate shall, by order, require the weekly payment by such father of such sum, and in such manner as such magistrate shall, in said order, direct, toward 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 there« from on account of the maintenance of the child. [Code Criminal Procedure, § 921.] See, also, in oonnectioa with this, section L. 187S, chap. 304, which is now probably obsolete. Who may maintain proceedings. One of two overseers of the poor is authorized to instituted and carry on proceedings for the reizure of property 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 presumed. Doioning 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. Bead v. Triangle, 23 Barb. 336. Sums paid to institution to he credited to tovm, etc. In cases of commitment of a child to an institution, the above section authorizes a magistrate to order the father to pay a sum for the child's support which is to ba oredited by the institution to the city, town or cqunty against any sum due for maintenanoe. People V. Dickson, 57 Hun, 3i6. § 4. Overseer may seize property ; sale or transfer void ; iitveii> tory 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 with all the right and title thereto, which the person absconding then had. The sale or transfer of any personal property, left in the county from which he absconded, made after issuing the warrant, whether in payment of an ante- cedent 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 neit court of sessions of the county where 256 Town and County Officers' Manual. they reside, there to be filed. [Code Criminal Procedure, § 922.J § 5. Warrant and sei»ire« when eonflrmed or discharged by court. The court, upon inquiring into the circumstances 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 personal property must be sold, and how much of the proceeds of the sale, 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 persons abscond- ing. [Code Criminal Procedure, § 923.J § 6. Warrant to be discharged apon return of parent or husband, or upon security. If the party against whom the warrant issued, return and support the wife and children so absconded, 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 commissioners of charities and corrections, that the wife or children so abandoned shall not be chargeable to the town or county, then the warrant must be discharged by an order of the magistrates, and the property taken by virtue thereof restored to the party. [Code Criminal Procedure, § 924.] g 7. 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 own poor, the officers charged therewith must apply the same to the support of the wife or children so abandoned; and for that purpose must draw on the county treasurer, or in the city of New York, upon the comptroller, for the proceeds as directed by special statutes. They must also account to the court of sessions of the county, for all money so received by them, and for the application thereof, from time to time, SuppoBT OP Poor Pkrsons by Bblativbs. 257 and may be compelled by that court to render that accouug at any time. [Code Criminal Procedure, § 925.] § 8. When saperintendent 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 vested with the same powers, as are given by this title to the overseers of the poor of the town, in respect to compelling relatives to maintain poor persons, and in respect to the seizure of the property of a parent absconding and abandoning his 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.] § 9. Superintendent or overseer may redeem real property ol absconding father or husband, sold at sheriff's sale. County superintendents and overseers of the poor may redeem real property, which amy have been seized by them pursuant to sections 921 to 926 of the Code of Criminal Pro- cedure, the same as judgment creditors under sections 1430^ to 1478 of the Code of Civil Procedure. No such redemp- tion shall be made, unless at the time of such redemption, tha 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 such redemption, be held by the superintendents or overseers, under and by virtue of such seizure. [Poor Law (L. 1896, ch. 225), § 130.] § 10. How superintendent or overseer may acquire title. To entitle such superintendents or overseers to acquire tha title of the original purchaser, or to be substituted as pur- chaser, from any other creditor, they shall present to and leave with such purchaser or creditor, or the ofScer who made the sale, the following evidence of their right: 1. A copy of the order of the county court, confirming the 17 258 Town and County Ofpicbes' Manual. warrant and seizure of such property, duly verified by the clerk of the court. 2. Any aflBdavit 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 Law (L. 1896, ch. 225), § 131.J § 11. IXoney used for redemption ; hoTT repaid. The superintendents or overseers of the poor may, for the purpose 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 with the interest thereon, out of the first moneys which may be received by them from the rent or sale of the premises ao redeemed. [Pdor Law (L. 1896, ch. 225), § 132.] § IS. When warrant of seizure may be discharged. If such redemption shall be made, and the person against whom the warrant was issued and seizure made shall apply to have the warrant discharged, be shall, before such war- rant 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 Procedure, pay to such super- intendents 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, oh. 225), § 13.] Belief of Veteran Soldiers, etc. 259 CHAPTER XX. Relief of veteran soldiers, sailors and marines. Section 1. Belief to veteran soldiers, sailors and marines ; not to be sent to alms-houses ; duty of Grand Army of Republic. 8. 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 bm^l of soldiers, sailors or marines ; where burial made. 5. Headstones to be provided for soldiers' graves at expense of county ; board of supervisors to audit cost thereof. § 1. Relief to veteran soldiers, sailors and marines; not to be sent to alms-houses ; duties of grand army of republic. No poor or indigeDt soldiar, sailor, or marine who has served in the military or naval service of the United States, nor his family uor the families of any who may be deceased, shall be sent to any alms-house, but shall be relieved and pro- vided for at their homes in the city or town where they may reside, so far as practicable, 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 or in those counties where the poor are a county charge, the superintendent, if but one, or superintendents 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 com- mander and quartermaster of any post of the Grand Army of the Republic of the city or town, made upon the written recommenda- tion 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 conmiander and quartermaster and recommendation of the relief committee of a Grand Army 260 Town and County Officebs' Manual. post located in the nearest town or city, to the town or city, requested to so furnish relief, and such written request and recom- mendation shall be sufficient authority for the expenditures so made. [Poor Law (L. 1896, ch. 225), sec. 80, as amended by L. 1899, ch. 83, and L. 1900, ch. 475.J § 2. Grand army post commander to file notice and undertaking. The commander of any such post which shall undertake to supervise 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 con- tain the names of the relief committee, commander and other officers of the post; and also an undertaking to such city, town or county, with sufficient and satisfactory sureties for the faithful and honest discharge of bis duties under this article; such undertaking to be approved by the treasurer of the city or county, or the supervisor of the town, 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 o" 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 statement in each case from the relief committee upon whose recom- mendation the relief was requested, provided, however that in cities of the first class said notice and said detailed state- ment 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 boroughs, a duplicate of such notice and of such detailed statement shall be filed with the commissioner of charities for the borough in which the head- quarters of such post is situated, and it shall be the duty of such commissioner to annually include in his estimate of the Relief of Vetekan Soldiers, etc. 261 amounts necessary for the support of his department such sum 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 reim- bursed quarterly to such post by the comptroller on vouchers duly verified by the commander and quartermaster of said post, showing the date and amount of each payment, the certificate of the post relief committee, 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 obtained. Such vouchers shall be made in duplicate on blanks to be supplied by the comptroller and shall be presented to the commissioner of charities for the borough in which the headquarters of the post is situated, and if such commissioner is satisfied that such 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 postfe have organized or may organize a memorial and executive committee, the latter shall be regarded as a post of the Grand Army of the Republic. And the chairman, 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.] Within thirty days after the passage of this act, any memorial and executive committee in any city, county or borough may file with the proper officers the notice mentioned in the preceding section, and such officers are hereby empowered and it is hereby made their duty to ^estimate for, provide and raise, in the same manner as other local expenditures are estimated for, provided and raised, such sum or sums of money as may be necessary to carry into effect the provisions of this act during the year eighteen hundred and ninety-nine, and sxuAx bureau of relief or relief committee shall be reimbursed for moneys expended by it upon compliance with the terms of this act. [L. 1899, oh. 462, § 2 ; taking effect April 27, 1899.] FORM NO. 69. Notice of CJommander of Post of Grand Army of the Republic, as to Relief of Poor Soldiers, etc. 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 , 262 Town and County Officers' Manual. do undertake the superT AB, Commander of Post, G. A. B. BO, 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 doUars per week. Dated 18.... C D, D E, E F, Bdief Committee of Post, Q.A.R. § 8. Poor or indigent soldiers, et cetera, without famUies to be •ent to soldiers' home. Poor or indigent soldiers, sailors or marines provided for in this article, who are not insane, and who have no families EbLIBP of VErBRAN SoLDIBES, ETC. 263 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 recommendation of the commander and relief committee of such post of the Grand Army o± the Eepublic, within the jurisdiction of which the case may occur, be sent to the proper state hospital for the insane. [Poor Law (L. 1896, ch. 225), § 83.J § 4. Board of supervisors to designate persons to conduct burial of soldiers, sailors or marines ; vrhere 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, who shall here- after die v^ithout leaving means sufficient to defray his funsral expenses, but such expenses shall in no case exceed thirty-five dol- lars. 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 he paid by the county treasurer upon due proof of the claim, and of the death and burial of the 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 poor persons deceased. [Poor Law (L. 1896, ch. 225), sec. 83, as amended by L. 1900, ch. 24.J ___ § 6. 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 containing the name of the deceased, and, if possible, the organization to which he be- longed, or in which 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 super- 264 Town and County Officers' Manual. visors, and the espflnse of such burial and headstone as pro- vided 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 manner 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 at public expense therein, the expense of such burials and headstones shall be a charge upon the county of his legal reaideuce. [Poor Law (L. 1896, ch. 226), § 84.] Highway CoMMissiojsBiis and OvERssBKat '65 CHAPTER XXL* Highway commissioners and overseers of the highway. SaonoN 1. When more than one highway commissioner, one to be desig- nated as treasurer. 2. Powers of one conuuissioner. 9- Division of town into highway commissioner districts ; notice to be published. 4. Duties of commissioners when town is divided into highwav commissioner districts. 6. 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 ol taxpayers of highway district to purchase road machine ; tax for payment of machines ; list of taxpayers chargeable, to be returned by commissioner ; custody of machines. 0. When commissioner and town board may purchase stone crusher t 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. 13. Commissioner may cause vote to be taken as to raising additional tax for highway purposes. 18. Commissioner may, in certain cases, expend more than sum raised, in repair of highways and bridges. 14> Extraordinary repairs, special session of town board to audit claims on account of. 15. Highway accounts ; commissioner's certificate to be attached. 16. Upon complaint, commissioner to examine toll bridge ; notice to owners to repair ; repairs to be made immediately ; penalty for neglect. 17. Commissioners may consent to laying drainage, sewer and water pipes in highways ; application therefor ; contents of consent. 18. Commissioners may maintain actions on account of injuries to highways. 19. Liability of towns for defective highways. 80. Action by town against commissioner if defect was caused by his negligence. •See Greene's Highway Laws of New York for a full exposition of the Statutes and decisions of this state relating to highways. Published by Matthew Bander, Albany, N. Y. 266 Town and County Officers' Manual. Bkotion 21. Town board to audit claim for damages caused by defectiva highway or bridge ; audit of unpaid judgment. 82. Commissioners to report to town board; contents of report; statement of improvements and estimated cost thereof. 28. Expenditures of money voted at town meeting for wire fencing to prevent snow blockade ; duties of commissioners of high- ways. 24. Overseers of highways, general duties of; weeds to be out down ; stones to be removed. 86. Opening of highways obstructed by snow or otherwise, when highway labor has been worked ; overseer may call out persons ; penalty for failure to respond. 26. Penalties for failure of overseer to perform duties, 27. Commissioner to prosecute overseer for penalties; costs and expenses a town charge ; penalty for failure of oommissionez to prosecute. 28. Compensation of overseers, § 1, When more than one highway commissioner, one to be desig* nated as treasurer. When there is more than one commissioner 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 otBce 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 undertaking, to be approved by the supervisor, to the effect that he will faithfully account and pay over to any oflScer or person entitled thereto, any money that may come into his hands as such treasurer. [Highway Law (L. 1890, ch. 568), § 2.J Undertaking, form of. See Form No. 8, ante, p, 48. § 8. Powers of one commissioner. When any town has but one commissioner of highways, the term, commissioners of highways, when used in this chapter, shall mean such one commissioner. [Highway Law (L. 1890, ch. 568), § 3.] Town Law, { 15, ante, p. 16, ia to a similar effect. Number of eommisiioners determined by electors at a town meeting. Town Law, § 16, ante, p. 16. 2Vrm of office of commissioners. Town Law, § 18, ante, p. 11. Fence viewers, commissioner to act as. Town Law, § 21, atlte, p. ITL Powers and duties of. Town Law, §§ 100-103, ante, p. ITl. Highway Oommissioneks and Ovbeseers. 267 Eligibility of commissjoijpr. Town Law, J 50. ante, p. 41. Oath of office, form of, when and how to be taken. Town Law, § 51 ; PubUo Ofllcers Law, § 10, ante, p. 42. Effect of failure to take. Public Officers Law, § 13, ante, p. 43. Form of. Form No. u, ante, p. 43. Undertaking of commissioner of highways, to be executed. Town Law^ § 63, ante, p. 47; Form No. 8, ante, p. 48. Liability of ' sureties. Town Law, § 6S. ante, p. 53. Effect of undertaking. Public Officers Law, § 18, ante, p. 53. Failure to execute. Pablic Officers Law, g 13, ante, p. 43. Rssignpiion of commissioner. Town Law, § 64, ante, p. 55. To whom made. Public OiBcers Law, § 21, ante, p. 55. Vaaamcies. how created. Public Officers Law, § 20, ante, p. 56. How filjed. Town Law, § 65, ante, p. 57. Removal of, by appellate division. Public Officers Law. § 25a, ante, p. 66. Delivery of boohs and papers by outgoing commissioner. Town Law, § 84, ante, p. 66. Proceedings to compel delivery. Code Civ. Pro. § 2471a, ante, p. 66. g 3. Division of tcwn into highway commissioner districts ; notice to be published. ■VVheo a toy?,n ha^ deterrained upou having three commis- sioners of highways, the town board may at a regular or special meeting thereof divide the town into three highway commissioner districts, and assign one of such districts to each commissioner of highways. Notice of such division, containing a brief and accurate description of the boundaries of each district and the name of the commissioner assigned thereto, shall be published once a wee^ for two successive weeks in a newspaper published in such town, or if no news- paper be published therein, such notice shall be posted in at least six conspicuous places in such town. After a town is divided, the commissioner shall be elected or appointed, so that at all times one commissioner shall reside in each dis- tric,t. [Highway Law (L. 1890, ch. 568), § 25, as added by L. 1898, ch. 127.] g 4. Duties of commissioners when town is divided into highway commissioner districts. When a town is so divided, the commissioners shall appor- tion to each district the moneys raised and collected from the town at large for highway purposes and the commissioner assigned to or residing in a district shall expend the money so apportioned to his district upon the highways and bridges situated in or upon the borders thereof. Each com- 233 Town and County Opficebs' Manual. missioner shall cause the highways and bridges in bis dis- trict to be kept in repair, and shall perform all the duties relating thereto, which the commissioners of highways of the town, except for such division, would perform. His powers and duties as to the supervision, repair, construction and improvements of the highways and bridges within bia district shall be exclusive. As to all other powers and duties he shall act in conjunction with the other commissioners. [Highway Law (L. 1890, ch. 568), § 26, as added by L. 1898, ch. 127.J FORM NO. 71. Notice op Division op Town into Highway Distbiots. Notice is hereby g^ven that the undersigned members of the town board of the town of oounty of at a special (or regular) meeting of such board held on [the day of , 18 , have divided such town into three highway commissioner districts, pursuant to § 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 eommissioner, is assigned to district No. 2 ; E F, highway commissioner, ii assigned to district No. 3. Dated 18.... R F, Supervisor. LM,-1 J K, [Justicea of the K R, f Peace. soj § 5. General powers and duties of highway eommissioner. The commissioners of highways in the several towns, shall have the care and superintendence of the highways and bridges therein, except as otherwise specially provided in relation to incorporated villages, cities and other localities; and they shall 1. Repairs. Cause such highways and bridges to be kept in repair, and give the necessary directions therefor; 2. Description of highways. Cause such highways as shall have been laid out, but not sufficiently described, and such as shall have been used for twenty years, but not recorded, Highway Commissioners and Oversbers. 269 to be ascertained, described and entered of record in the town clerk's office; 3. Highway districts. From time to time, not oftener than once a year, divide the town into so many highway districts as they shall judge convenient, by writing, under their hands, to be filed with the town clerk, and by him to be entered in the town book, at least ten days before an annual town meeting. A territory not exceeding one square mile, containing a population of not less than one hundred and fifty, and not including a part of a city or village, may be established as a separate highway district in the following manner: A verified petition of two-thirds of the electors of such territory representing two-thirds of the taxable prop- erty therein and describing the territory, may be presented to the highway commissioner at least twenty days before the annual town meeting. The petition shall state the popula- tion of the proposed district, and the taxable persons and property as appears by the last preceding assessment roll of the town. A farm or lot shall not be divided in the forma- tion of such district. Within ten days after the presentation of such a petition, the highway commissioner shall establish the district in the manner above required for other highway districts. The highway district so established shall not be abolished, except upon the petition or written consent of two-thirds of the electors representing two-thirds of the tax- able property of the district. The highway commissioner may extend the highway district, so established, not more than half a mile in any direction, and if it is so extended an order shall be entered accordingly. [Thus amended by L. 1897, ch. 782.] 4. Taxable inhabitants. Assign to each of the'highway dis- tricts such of the inhabitants and corporations liable to work on highways, as they shall think proper, having regard to proximity of residence as much as may be; lasts of taxable inhabitants and corporations, how furnished to commii- sioners. Highway Law, § 31, post, p. 294. Method of assessment of labor on highways. Highway Law, § 33, post, p. 395. 270. Town and CouifTT Officees' Manual. 6. Appointment of overseer. On the fifteenth day of AprU of each year, make and file with the town clerk a written appointment of a resident of each district to be overseer of highways therein. The town clerk shall notify each overseer of his appointment within ten days after the filing thereof; and the person so appointed and notified shall thereupon become and be the overseer of highways within his district for one year and until his successor shall be appointed. If any person so appointed overseer, shall refuse to serve, or his office shall become vacant, the commissioners shall in like manner appoint some other person to be overseer. [Amended by L. 1900, ch. 399.] Refusal of overseer to serve, penalty for. Town Law, § 55, post, p. 390. 6. Overseers to warn taxpayers. Require overseers of high- ways to warn all persons and corporations assessed to work on highways, to come and work thereon, with such teams and implements, and at such times as the said commis- sioners, or any one of them shall direct; Overseers giving warning. Highway Law, §>) 60, 61, post, p. 312. 7. Moneys, how expended. Expend all moneys raised and collected from the town at large for highway purposes, upon the highways and bridges situated in, or upon the borders of the town, or highway districts assigned to the town in which such moneys were raised and collected, in such proportion as they may deem just and proper; 8. Entry upon adjoining lands; assessment of damages. Have power to enter upon the lands of any person adjoining any of the rivers, streams or creeks of the state, drive spiles, throw up embankments, and perform such other labor as may be necessary upon the banks of such rivers, streams or creeks for the purpose of keeping them or any of them within their proper channels and preventing their encroachment upon any of the highways of the state; also to enter upon any lands adjoining any highway and which lands during the spring freshets or any time of high water, are subject to overflow from such rivers, streams or creeks, and to remove or change the position of any fence or other obstruction which prevents the free flow of water under or through any highway, bridge or culvert whenever the same may be neces- sary for the protection of any highway, and to protect such highways and the property of the town from damages by reason of such rivers, stream or creeks washing away their embankments, or changing the locatioa of the channels, and to agree with the owner of any such lands upon the amount of damages, if Highway Commissionees and Ovbeseees. 271 any, sustained by him in consequence of such entry upon his lands and the performance of the work herein authorized, and the amount of the damages so agreed upon shall be a town charge, and shall be audited and paid in the same manner as other town charges. If the commissioners are unable to agree with such owner upon the amount of damages thus sustained, the amount thereof shall be ascer- tained and determined and paid in the same manner as damages for the laying out and opening of highways are required by law to be ascertained, determined and paid, where the commissioners and land owner are unable to agree upon the amount thereof. [Highway Law (L. 1890, ch. 568), § 4, as amended by L. 1899, ch. 344.] Laying out and opening highways, damages, how ascertained. Highway Law, §§ 83-89, post, p. 333. § 6. Commissioners to cause mile-stones and guide-boards to be erected ; giude-boards, what to designate. Commissioners of highways may cause mile-boards or Etones to be erected upon the highways in their town as they think proper; they shall also cause guide-posts, with proper inscriptions and devices, to be erected at the intersectiugs of such highways therein, as they may deem necessary, which shall be kept in repair at the expense of the town, by the overseers of the highways of the districts in which they are respectively located. Upon the written application of five resident taxpayers of any town or twenty resident taxpayers of the county in which any such town is located to the com- missioners of highways, requesting the erection of one or more guide-boards at the intersection of highways in such town, the commissioner of highways shall cause to be erected at the interections mentioned in such applica- tion such guide-boards, indicating the direction, distances and names of the towns, villages or cities to or through which such intersecting highways run. Such application shall designate the highway intersections at which such guide-boards are requested to be erected and may contain suggestions as to the inscriptions and devices to be placed upon such boards. The cost of the erection and mainten- ance of such boards shall be a town charge. If the commis- 272 Town and County Officers' Manual. sioner of highways refuses or neglects for a period of sixty days after receiving within application to comply with the request contained in such application, he shall for such neg- lect or refusal forfeit to the town the sum of twenty-five dollars to be recovered by the supervisor in the name of the town, and the amount so recovered shall be set apart for the erection of such guide-boards. [Highway Law (L. 1890, ch. 568), § 5, as amended ^by L. 1895, ch. 330.J Injuring mile stones or guide boards, penalty. Highway Law, § 153, post, p. 358. § 7. Turnpike companies to erect mile-stones and guide-posts. 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 dis- tance shall in like manner be inscribed. A guide-post shall also be erected at the intersection of every pubic road lead- ing 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 up any hoist gate 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 dollars for every offense, in addition to the damages resulting from the act. [Transportation Corporations Law (L. 1890, ch. 566), § 136.] § 8. Commissioners may purchase scraper and plo^r; npon petition of taxpayers of Iiigh-way district to purchase road machine ; tax for payment of machine ; list of taxpayers chargeable to be re- turned by commissioner ; custody of machines. Commissioners of highways may, upon the request of one or more overseers of the highway districts of their town, Highway Commissioners and Ovkrskbbs. 273 contract for and purchase for such district or districts, upon credit or otherwise, a good and sufficient scraper and plow, or either of them, and if a majority of the taxpayers of one or more highway districts in any town, representing more than one-half of the taxable property in such district or in each of such districts, to be ascertained by the last preceding assessment roll and certified to as such by the town clerk of the towii, petition the commissioner or commissioners of highways of such town therefor, such commissionors may together with the supervisor and overseer or overseers of such district or districts, contract for and purchase upon credit or otherwise, a road machine for the use of such dis- trict or districts, which implements shall be used, cared for and owned by such district or districts jointly. Such imple- ments shall be paid for out of the highway tax of the district or districts for which they are purchased, and may be paid for in annual installments, not exceeding five. If purchased for more than one district the amount paid by each shall be in proportion to the amount of highway tax; a copy of the note or contract issued upon the purchase of such imple- ments, shall be filed in the office of the town clerk of the town in which such town or road district is situated, and it shall be the duty of said town clerk to present a statement of the sum due thereon to the town board at each annual meet- ing thereafter for the audit of town charges, and the town board shall audit such sum and certify the same to the board of supervisors of the county. Not more than one-half of the highway tax of any district shall be applied in payment therefor, in any one year. The portion of such tax ao applied, shall be required to be paid in money, and be assessed and levied upon the property of such district or dis- tricts, and collected in the same manner as other town 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 certified by the town board, to be levied upon the taxable property of such highway district. Such com- missioner of highways shall with the assistance of the over- 18 274 Town and County Officers' Manual. seera of highways, in any road district which is to be charged with the payment for such niachiue after the com- pletion of the assessment roll, and ten days before the meet- ing of the board of supervisors of the county, make and deliver to the supervisor of such town a list of the persons in such district or districts who are named in the last assess- ment roll of the town and chargeable with the payment of a tax for such machine. The commissioner or commissioners of highways may, also, with the approval of the town board, purchase and hold for the use of the town at large, one or more road machines, and pay for the same with money appropriated and set apart for highway purposes. It shall be the duty of the commissioner or commissioners of high- ways of each town to keep the road machines belonging to such town, or any road district or districts in such town in repair, if such repairs are reasonable, and pay the expenses thereof out of the general highway funds of the town, and also to provide suitable place for housing and storage of all tools, implements and machinery that are owned by the town or by the several highway districts and cause these tools and implements and machinery to be stored therein when not in use. When such repairs upon any road machine belonging to any road district or districts shall exceed the sum of eight dollars in any one year, such expense shall be assessed and levied upon the property of such districts in the same manner as above pro- vided for the collection of the purchase money of said machines, and when collected shall be paid to the commis- ■ioner or commissioners of highways of said town. [High- way Law (L. 1890, ch. 568), § 6, as amended by L. 1898, oh. 155.J § 9. When commissioner and town board may parcbase stone crasher ; purchase of material. The town board and commissioner or commissioners of highways of any town may, when authorized by a majority vote of the electors voting thereon, by ballot, at the annual or at a special town meeting, purchase a machine for crualv- ing stone, to be used, under the direction of the commis- Highway Commissioners and Overseers. 27S sioQef or commissioners of highways of said town, for the improvement of the highways thereof, and the Commis- sioners of highways of any such town may, in any year, ■when authorized by a majority vote of the electors voting thereon, by ballot, at the annual or at a special town meet- ing expend in said year a sum not exceeding two thousand dollars, for the purpose of purchasing stone, and quarrying, breaking, crushing and placing the same on the highways, in such road district or districts as the town board may direct and defraying the expenses of operating such machine, and shall present the account and vouchers for said purchases and expenses to the town board for audit, and the amount audited, together with the cost of such stone crushing machine, when not before included, shall be levied and collected as other town audits. [Highway Law (L. 1890, ch. 668), § 7, as amended by L. 1895, ch. 411.] § 10. Stone crashers, custody of. Such machine, when purchased, shall be under the care and custody of the comimssioners of highways of the town; and where there is an incorporated village constituting a separate highway district, in any town, they may, by an agreement with the trustees of the village, permit an equit- able use of the machine to such separate village district. [Highway Law (L. 1890, ch. 568), § 8. J § 11. Overseer of highways, with consent of commissioner and approval of town board, may acquire gravel beds ; acquisition of| by condemnation ; payment of expenses ; termination ef right. The overseers of highways of any road district of the state, with the consent of the commissioners of highways of the town, and the approval of the town board, shall have power to purchase of the owner of any gavel bed or pit within the town, gravel for the purpose of grading, repairing or other- wise improving the highways of the town at a price percubio yard approved by said commissioners and town board. If such overseer can not agree with any such owner for the pur- chase of such gravel, the overseer, with the consent of such commissioners and the approval of such town board, shall 276 Town and County Offickbs' Manttal. have power to acquire bj condemnation the right to take and use such gravel, provided, no gravel shall be so condemned within one thousand feet of any house or barn, or taken from any lawn, orchard or vineyard, and to remove the same from such bed or pit for the purpose of grading, repairing or otherwise improving such highways, together with the right of way to and from such bed or pit to be used for the purpose of such removal. The right to use such gravel or to take the same from any such bed or pit may be acquired under this section for two or more or all of the road districts of the town, in common ; and if acquired for two or more or all of the districts, the commissioners of highways, with the approval of the town board, must make the purchase or acquire such right by condemnation. The amount agreed to be paid upon any such purchase, and the amount adjudged to be paid upon any such condemnation shall be paid by the districts in which such gravel shall be used, but the costs and expenses of the proceedings for the condemnation incurred by the overseer, shall be a charge upon the town, and shall be audited by the town board, and paid the same as other town charges. If the town shall abandon for the period of three years any right so acquired to use any gravel bed or pit or to take gravel therefrom, or if the overseer of highways of any such district wherein any such right shall have been so acquired, or the commissioners of highways of the town shall cease to use the same for the purposes for which it was acquired, the right of the town and of such overseer and commissioners thereto shall cease, and the ownership thereof shall revert to and become vested in the owner of such bed or pit at the time such right was acquired, or his heirs or assigns. [L. 1891, oh. 309, §§ 1, 2.] § IS. Commissioner may cause vote to be taken as to raising additional tax for highway purposes. Whenever the commissioners of highways of any town shall determine, that the sum of five hundred dollars will be insufficient to pay the expenses actually necessary for the Highway Commissionees and Ovekseees. 277 improvement of highways and bridges, they may cause a vote to be taken by ballot at any town meeting, to be duly called, authorizing such additional sum to be raised as they may deem necessary for such purpose, not exceeding one- third of ^one per centum upon the taxable property of the town, as shown by the last assessment roll thereof. [High- way Law (L. 1890, ch, 568), § 9. J Proposition, submission of to vote at town meeting. Town: Law, §§ 31, 32, ante, p. 30. § IS.^Commissioner may, in certain cases, expend more thaii sum raised, in repair of highways and bridges. If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise or become unsafe, the commissioner of highways of the town in which such highway or bridge may be, may cause the same to be immediately repaired or rebuilt if consented to by the town board, but if the expense thereof exceed five hundred dollars, it shall be done under a written contract therefor, which must be approved by the town board and the commissioners, of highways shall present the proper vouchers for the expense thereof to the town board, at their next annual meeting, and the same shall be audited by them and collected in the same manner as amounts voted at town meetings. [Highway Law (L. 1890, ch. 568), § 10, as amended by L. 1895, ch. 606, and L. 1899, ch. 84, i n effect March 14, 1899.J A commissioner of highways cannot bind a town by contract or otherwise except as provided by statute. Mather v. Crawford, 36 Barb. 665. He can- not contract debts by borrowing money except within the scope of hia statutory authority. People ex rel. Everett v. Board of Supervisors, 93 N. Y. 897. But with the consent of the town board, under the ciroumstances specified in the above section the commissioner may contract and bind hi* town. Boots V. Washburn, 79 N. Y. 207. FORM NO. 72. Consent or Town BoabOi COUNTY OF ) „. Town OP j'*" At a special meeting of the town board of the town of •....*...., ealled by the supervisor (or town clerk) thereof, held ou this , . . day of 18. . . ., the following preamble and resolution was adopted : Whereas, The highway (or bridge) known as (here dascribs It) was destroyed by (describe how) on , 18...., (or has become 278 Town akd County Officers' Manual. damaged), and >here not being sufficient moneys in the hands of the com- missioners 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 im- mediately rebuilt (or repaired) according to law. (Town board sign here.) Town Clerk's Certificate to Transcript. TOWN OF ) go . Office of Town Clerk. J " 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 18...., 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 18.... OP. Town Clerk. § 14. Extraordinary repairs, special 9«asiOB of the town board to audit claims on account of. The town board may be conv«ned in special sessions by the supervisor, or in his abseafie, by the town clerk, upon the written request of any coaamissioners of highways, and the bills and expenses incurred in the erection or repairs of any such highways or bridges, may then be presented to, and audited by the town board; and the supervisor and town clerk shall issue a certificate, to be subscribed by them, setting forth the amount so audited and allowed, and in whose favor, and Jhe nature of the work done and material furnished, and sach certificate shall bear interest from its date, and the amount thereof, with interest, shall be levied and collected in the same manner as other town expenses. [Highway Law (L. 1890, ch. 568), § 11.] Audit of claims. The town board must audit a claim arising on aooount of the building of a bridge consented to by the board. People v. Smith, 83 Hun, 433; People t. Toum Board, 92 Hun, 683. FORM NO. 73. Request for Special Session of Town Board to Audit Expenses. Tothe Supervisor (or Town Clerk) of the Town of ,in th» 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) Highway Commissioners and Ovbrseers. 279 of the highway (or bridge) under consent given by said board on the day of ,18.... Dated this day of , 18.... AB, CD, E F, Commissioners of Highwaya, FOEM NO. 74. Cbbtificatb of Supebtisor jlmd Town Clerk. COUNTY OF ) „. Town op j **■• The undersigned, supervisor and town olerk of the town of , do hereby certify that at a special sassion 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 , 18.. ...the following billa 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 ,18.. BS, OP, Tovm Clerk. § 15. Highway accounts; commissioner's certificate to be at- tached. No account for services rendered, or material furnished according to the provisions of this chapter, shall be allowed by such board unless the same shall be verified in the same manner as town accounts are required by law to be verified, nor unless the commissioners of highways shall certify that the service has been actually performed, and the material was actually furnished, and that the same was so performed 280 Town and County Officers' Manual. or furnished by the request of such commissioners; and the town board may require and take such other proof as they may deem proper, to establish any claim for such labor and material, and the value thereof. [Highway Law (L. 1890, ch. 568), § 12.1 Verification of town accounts. Town Law, § 167, post, p. 428. FORM NO. 75. AC(X)UNT AND CeKTIFICATE OP COMMISSIONERS OP HlOErWATS. The Town op ToL M, Dr. January, 18.., to (days' labor on) $ January, 18.., to (feet of plank) Total I L M. [Verification as in Form No. 138, post, p. 423.] COUNTY OF Town op 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 so performed and furnished at our request. Dated this .... day of , 18. . . . AB, C D, E F. Commissioners of Highways. § 16. Upon complaint, commissioner to examine toll-bridg^e ; notice to owners to repair; repairs to be made immediately; penalty for neglect. Whenever complaint in writing, on oath, shall be made to the commissioners of highways of any town in which shall be, in whole or in part, any toll-bridge belonging to any person or corporation, representing that such toll-bridge has from any cause become, and is unsafe for the public use, such commissioners of highways shall forthwith make a careful and thorough examination of such toll-bridge, and if upon the examination thereof, they shall be of the opinion that the same has from any cause become dangerous or unsafe for public use, they shall thereupon give immediate notice to the owners of such toll-bridge, or to any agent of such owners, acting as such agent, in respect to euch Highway Commissioners and Oversehrs. 281 bridge, that they have on complaint made, carefully and thoroughly examined the bridge, and found it to be unsafe for the public use. Such owners shall thereupon immediately commence repairing the same, and cause such repairs to be made within one week from the day of such notice given, or Buch reasonable time thereafter as may be necessary to thoroughly repair the bridge, so as to make it in all respects, safe and convenient for public use; and for neglect to take prompt and effective measures so to repair the bridge, its owners shall forfeit twenty-five dollars; and shall not demand or receive any toll for using the bridge, until the same shall be fully repaired; and the commissioners of high- ways shall cause such repairs to be made, and the owners of the bridge shall be liable for the expense thereof, and for the services of the commissioners at two dollars per day; and upon the neglect or refusal to pay the same upon presenta- tion of an account thereof, the commissioners of highways may recover the same by action, in the name of the town. [Highway Law (L. 1890, ch, 568), § 13.J FORM NO. 76. COMPLAIMT THAT TOLL-BRIDQE IS UNSAFB. COUNTY OF j. Town OF ) " L M, being duly sworn, complains on oath to the commissioners of high- ways of the town , in the county of , that he belieTes 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). LM. Subscribed and sworn to before me, > this . . . . day of ,18.. f G H, Juntice of the Peace, FORM NO. 77. ... , loe to Owners of Toll-bridge. To (jmoners or agent of the owners, ousting as agent in respiHst to mush bridge, as the ease may be) : You are hereby notified that the commissioners of highways of the town of in the county of have, on complaint made, oare- fully and thoroughly examined the toll-bridge situated on the , ^82 Town and County Oiticees' Manual. at (desoribe the situation), and found it to be unsafe for public use and traveli (State briefly wherein it is unsafe.) Dated this dar of , 18. . . . AB. C D, E P, Commissioners of Bighwayt, § IT. CommissionerB may consent to laying drainage, sewer and water pipes in highways; application therefor; contents of oo» sent. The commissioners of highways may upon written appli- cation of any resident of their town, grant permission to lay and maintain drainage, sewer and water pipes and hydrants under ground, within the portion therein described, of any highway within the town, but not under the traveled part of the highway, except to cross the same, for the purposes of sewerage, draining swamps or other lands, and supplying premises with water, upon condition that such pipes and hydrants shall be so laid as not to interrupt or interfere with public travel upon the highway. The consent of the com- missioner shall be executed in duplicate, signed by him and indorsed with the written approval of the supervisor and the acceptance of the applicant, and one of such duplicates shall be delivered to the applicant and the other filed with the town clerk. The consent shall also contain a provision to the effect that it is granted on the condition that the appli- cant will replace all earth removed, and leave the highway in all respects in as good condition as before the laying of said pipes; that the applicant will keep such pipes and iiydrant in repair and save the town harmless from all dam- ages which may accrue by reason of their location in the highway; that upon notice by the commissioner, the appli- cant will make any repairs required for the protection or preservation of the highway; that upon his default such repairs may be made by the commissioner at the expense of the applicant, and that such expense shall be a lien prior to any other lien upon the land benefited by the use of the high- way for such pipes or hydrants; and that the commissioner may also, upon the applicant's default, revoke the permia- Highway Commissioners and Overseers. 283 sion for the use of the highway, and remove therefrom such pipes or hydrants, • [Highway Law (L. 1890, ch. 668), § 14, as amended by L. 1897, ch. 204.1 FORM NO. 78. Applioation to Lay Water Pipes in the Highway. To the Commissioners of Highways in the Town of in tht 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 th« 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 thia .... day o£ , 18. . . . LM. FORM NO. 79. Consent to Lay and Maintain Wateh-pipes in Highway. 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, how- ever, 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 he 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- way ; that upon notice by the commissioners., the applicant will make any repairs required for the protection and preservation of the highway ; that upon his default, such repairs may be m^de by the commissioners at tha 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 thia consent and remove therefrom such pipes or hydrants. Dated this .... day of , 18. . . . A B, C D, EF, Commissioners of Highwaya, I, the undersigned, supervisor of the said town of do hereby approve of the foregoing oousent to L M. OH, Supervisor. I, the undersigned, applicant above mentioned, do hereby consent to con- ditions contained in the foregoing consent. LM. 284 Town and County Ofpickes* Manual. § 18. Comnussioners may maintain actions on account of ii^uries to high'ways. The commissioners of highways may bring an action, in the name of the town, against any person or corporation, to sustain the rights of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto, and to recover any damages sustained or sutfered or expenses incurred by such town, in consequence of any act or omis- sion of any such person or corporation, in volation of any law or contract in relation to such highway. [Highway Law (L. 1890, ch. 568), § 15.J Injuries to highways, penalties therefor. Highway Law, § 153, post, p. 358. Recovery of penalty by commissioner. Highway Law, § 164, post, p. 364. See Greene's Highway Laws of New York, p. 10, for extensive note and decisions under this section. § 19. Iiiability of towns for defective high-ways. Every town shall be liable for all damages to person or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commis- sioner of highways of such town. No action shall be main- tained against any town to recover such damages, unless a verified statement of the cause of action shall have been pre- sented to the supervisor of the town, within six months after the cause of action accrued; and no such action shall be commenced until fifteen days after the service of such state- ment. [Highway Law (L. 1890, ch. 568), § 16.J Many cases have arisen under this section. It is not within the scope of this work to insert references to these cases and discuss the law as laid down by the courts relating to actions against municipalities on account of defective highways. See Greene's Highway Laws of New York, p. 20, for exhaustive note on this subject. g 20. Action by to-wn against commissioner if defect -was cansed by Ilia negligence. If a judgment shall be recovered against a town for dam- ages to person or property, sustained by reason of any defect in its highways or bridges, existing because of the neglect of any commissioner of highways, such commissioner shall be Highway Commissioners and Oveksbbrs. 285 liable to the town for the amount of the judgment, and interest (hereon; but such judgment shall not be evidence of the negligence of the commissioners in the action against him. [Highway Law (L. 1890, ch. 568), § 17.J g 21. Totrn board to audit claim for damages caused by defec- tive hightray or bridge; audit of unpaid judgment. The town board of any town may audit as a town charge, ia the same manner as other town charges are audited, any one claim not exceeding five hundred dollars, for damages to person or property, heretofore or hereafter sustained by reason of defective highways or bridges in the town, if in their judgment it be for the interest of the town so to do; but no claim shall be so audited, unless it shall have been presented to the supervisor of the town, within six months after it accrued, nor if an action thereon shall be barred by the statute of limitations. The town board may also audit any unpaid judgment heretofore or hereafter recovered against a commissioner of highways for any such damages, if such town board shall be satisfied that he acted in good faith, and the defect causing such damage did not exist because of the negligence or misconduct of the commissioner, against whom such judgment shall have been recovered. [Highway Law (L. 1890, ch. 568), § 18.] Audit of town charges. Town Law, §§ 162-170, post, p. 418. § Z2. Commissioners to report to toTrn board ; contents of report statement of improvements and estimated cost thereof. The commissioners of highways of each town shall make to the town board, at its first meeting in each year, a written report stating, 1. The labor assessed and performed. 2. The sum received by them for penalties, commutations and all other sources, and an itemized account of all moneys paid out during the year, with receipts in full by the respec- tive parties to whom such money was paid; 3. The improvements which have been made on the high- 286 Town and County Officebs' Manual. ways and bridges, during the year immediately preceding such report, and the state of such highways and bridges; they shall also make at the second meeting of said board in each year, a statement of the improvements necessary to be made on such highways and bridges, and an estimate of the probable expense thereof, beyond what the labor to be assessed in that year will accomplish; a duplicate of which shall be delivered by the commissioners to the supervisor of the town, who shall present such duplicate statement to the board of supervisors, who shall cause the amount so esti- mated, not exceeding five hundred dollars in any one year, to be aiisessed, levied and collected, in such town, in the same manner as other town charges. [Highway Law (L. 1890, ch. 568), § 19.] Meetings of town board. Town Law, §§ 161, 163, post, p. 418, FORM NO. 80. Commissioners' Report to First Meeting of Town Board. The undersigned, oommissioners of highways of the town of , In the county of , hereby render to the town board of said town, in pursuance of § 19 of the Highway Law, the following report : 1. The highway labor assessed in said town for the year ending on 18 was .... days ; and the highway labor performed in Baid town during the said year was .... days, as appears by the reports rendered to us by the several overseers of highways in said town. 2. The said commissioners have received during the said year the following Bums of money for fines and commutations, and from other sources : Date. FROM WHOM RECEIVED. On what account. Amount. Highway Commissioners and Oveeseeks. 287 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. 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 , 18.... AB, C D, E F, Commissioners of Highwaya. FORM NO. 81. COMMISSIONBES' RePOUT TO SECOND MEETING OF ToWN BoABD. The undersigned, commissioners of highways of the town of , in the county of , hereby render to the town board of aaid town 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.) 3. 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 , 18.... A B, C D, E F, Commissioners of Highwajft, § 23. Expenditure of money voted at town meeting for wire feno ing to prevent snow blockade ; duties of commissioners of high- ivays. Vote at town meeting; application by commissioners. It shall be lawful for the commissioner of highways of any town in this state to apply in open town meeting for a vote auth- orizing such sum, not to exceed three hundred dollars in any 288 Town and County Officers' Manual. one year, to be raised, in addition to the sums now allowed by law, as they may deem necessary for the purpose specified in the third section of this act. The same notice shall be given by the commissioners of their intention to apply for the raising of such additional sum as is now required by law for the raising of money for roads and bridges, above the amount of two hundred and fifty dollars. [L. 1890, ch. 291, § l.J Amount, how raised. If the town meeting shall, by their votes, determine that a sum shall be raised for the purpose specified in this act, the proceedings for certifying and levy- ing, collecting and paying the same shall be in all respects the same as how provided by law for the raising and paying over of money for roads and bridges, above the amount of two hundred and fifty dollars. [Idem, § 2.] Expenditure of money raised by commissioners. The commis- sioners of highways shall expend the mooey raised under the provisions of this act in the purchase of fence wire, in the same manner as other supplies for highway purposes are by law required to be purchased, and no part of such money shall be expended, except for the purchase of fence wire as aforesaid; and the said commissioners are hereby authorized to contract with the owners of the lands lying along the highways of their respective towns, at such points as are liable to snow blockade, for the removal of the fences now standing along the boundaries of such highways, and the replacing of such fences with wire fences. And they may contract to deliver to said land owners, fence wire to be used in the construction of such fences, without charge to said land owners, at the place of purchase, but they shall not agree to pay any part of the cost of the removal or coiistruo- tion called for by said contracts, or to make any payment to said land owners aa a compensation for the construction of fences. [Idem, § 3.] Fences, how built. The fences to be built under the provi- sions of this act, shall be of four strands of wire with a sub- stantial bar of wood at the top; and the construction of said fences, and the size of said top bars and of the posts and Highway Commissionees and Oveeseees. 289 supports of said fences, and their distance apart shall be such as said commissioners shall prescribe. Whenever such fence or fences shall become so out of repair as to be danger- ous to animals passing along the highways, it shall be the duty of the owner or owners of said fence or fences to imme- diately repair or remove the same. [Idem, § 4.] Commissioners to file in office of town clerk description of high- way affected. Whenever the commissioner of highways of any town shall contract for the removal of any fence, under the provisions of this act, they shall file in the office of the town clerk of said town, a description of that portion of the high- way to which said contract shall apply, and thereafter, it shall not be lawful for any person to replace the fence so con- tracted to be removed, with any fence liable to cause the drifting of snow. [Idem, § 5.] § 24. Overseers of highways, general duties of; weeds to be eat do'wn ; stones to be removed. Each overseer of highways in every town, shall 1. Repair and keep in order the highways within his dis- trict. 2. Warn all persons and corporations assessed to work on the highways in his district, to come and work thereon. 3. Cause the noxious weeds within the bounds of the high- way within his district, to be cut down or destroyed twice in each year, once before the first day of July, and again before the first day of September; and the requisite labor therefor shall be considered highway work. 4. Collect all fines and commutation money, and execute all lawful orders of the commissioners. 5. Cause all loose stone lying in the beaten track of every highway within his district, to be removed once in every month, from the first day of April until the first day of December, in each year. Stones so removed shall not be thrown into the gutter, nor into the grass adjoining such highways, but they shall be conveyed to some place, from which they will not work back or be brought back into the 19 290 Town and County Officers' Manual. track by the use of road machines or other implements used in repairing such highwaya. [Thus amended by L. 1898, ch. 352.] 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.J Appointment of overseers. Highway Law, § 4, sub. 5, ante, p. 270. Oath of office of overseers. Public Officers Law, § 10, ante, p. 42. Penalty for refusal to serve. If any person chosen or appointed to the office of overseer of highways or pound-master shall refuse to serve, he shall forfeit to the town the sum of ten dollars. Town Law, § 55. Warning by overseers to nerson assessed. Highway Law, §§ 60, 61, post, p. 313. Nosaious weeds, town meeting to provide for removal of. Town Law,"§ 22, sub. 6, ante, p. 22. Noxious weeds in highways, how removed. Highway Law, §§ 70, 71, post, p. 323. Bridges. Overseers have no duties in connection with the construction and repair of bridges. Bartlett v. Crazier, 17 Johns. 439 ; Day v. Day, 94 N. Y. 159. Duty of overseers. Overseers are not dependent upon the direction of tho commissioner in making repairs upon highways, they are charged by statute with such duty. Forman v. Toion of Ellington, 46 Hun, 41 ; 10 N. Y. St. Eep. 840. Commissioners are charged with the general duty of supervision. Day V.Day, 94 N. Y. 159; Smith v. Wright, 27 Barb. 621. Overseers have jurisdiction over every part of the highway, including sidewalks and shade trees. Anda-sonv. Van Tassel, 53 N. Y. 631. g 86. Opening of highways obstructed by snow or otherwise, \rhen highivay labor has been veorked ; 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, and the high- ways are obstructed by snow, or otherwise, and notice has been given to the overseer, in writing, by any two or more inhabitants of the town, liable to payment of highway tax, requesting the removal of such obstruction, the overseer of highways in such district, shall immediately call upon all persons and corporations liable to highway tax therein, to assist In removing such obstructions; and such labor, so called for by the overseer, shall be assessed upon those liable to perform the same, in proportion to their original assess- ments. And all persons so called out and failing to appear Highway Commissionbjis and Ovbbsekrs. : 291 at the place designated by the overseer, or to commute at a dollar a day, within twenty-four hours after due notice, shall be liable to a fine at the rate pf one dollar and fifty cents a day, for each day's labor they may be required to perform, which fine shall be collectible by the overseer, aa such, by action in justice's court, and shall be applied to the purposes specified in this section. The overseer shall be liable to a penalty of five dollars per day, for every day he neglects, without good and suificient reason, to have such highway opened without delay after receiving such written notice, the penalty to be collected in justice's court, by the person first suing for the same, and the penalty shall be paid over to the commissioners of highways, for the use of the town. [Highway Law (L. 1890, ch. 568), § 21.] Abatement of tax for removal of fence to prevent snow drifting. Highvray Law, §73, pos*, p. 325. § 26. 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 highways, when he shall have been required so to do, by the commissioners or either of them, 2. To collect the moneys that may arise from fines or com- mutations, 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. [Highway Law (L. 1890, ch. 568), § 22.J § 37. Conunissioner to prosecute overseers for penalties ; costs and expenses » town charge ; penalty for failure of commissioner to prosecuteil The comnaissioners of highways shall prosecute, in the name of the town, every overseer of highways, for any penalties known to the commissioners to have been incurred by the overseer. They shall also upon the complaint of any resident of the town, that any such penalty has been in- 292 Town AND CotJNTT Offickrs' ManuaIi. curred, prosecute 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 shall have been made, the complainant may prosecute therefor in the name of the town, upon indemnifying the town for the 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 recov- ered by action, in the name of the town, brought by the supervisor, or by any taxpayer of the town who may indem- nify the town, for the costs and expenses of the action, in such manner as the supervisor may approve. [Highway Law (L. 1890, ch. 568), § 23.] i^ 28. Compensation of overseers. If any overseer shall be employed more days in execut- ing the several duties enjoined upon him by this chapter, than he is assessed to work on the highways, 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 permitted 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 by L. 1899, ch. 78.] ASSBSSMBMT 07 HIGHWAY LaBOB. 293 CHAPTER XXII. Assessment of highway labob. Section 1. Meetings of commissioners. 2. Overseers of highways to deliver to town clerk list of taxabla inhabitants of his district. 3. Commissioners to make out list of non-resident lands. 4. Commissioners to assess highway labor ; assessment, how made. 5. Town clerk to copy lists and transmit to overseers ; acceptance by overseers is acceptance of office. 6. Overseers may add names of persons omitted, and new in- habitants. 7. Non-residents may appeal to county court from assessment of highway labor. 8. Commissioners may credit on assessment of persons living on private road. 9. Assessment of lands not owned by occupant ; owner not to be assessed twice. 10. Tenant may deduct assessment from rent due. 11. Commissioners may reassess number of days not worked. 13. Commissioners may assess persons or property omitted by town ). assessors. 13. Overseers may make new assessment when labor assessed is insufficient. 14. Commissioners may authorize owners of property to plant trees and construct sidewalks along highways. 15. Abatement of tax for planting shade trees along highways to be allowed by overseers of highways. 16. Commissioners of highways to authorize expenditure of labor or money upon sidewalks. 17. Certificate of anticipation on account of labor on sidewalks to be issued by overseer of highways. 18. Certificate of anticipation may be transferred. 19. Commissioners to abate tax on account of watering trough, 20. Systems of highway taxation defined. 21. Town may change its system. 22. Application for a vote to change system ; who shall sign applica- tion and vote thereon. 23. Levy of tax under money system ; property in villages exempt •from taxation for highways; state to pay for benefit of towns raising money for highway purposes, twenty-flve pel cent, of amount raised. 294 Town and County Officers' Manual. § 1. 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 as they shall think proper. [Highway Law (L. 1890, ch. 568), § 30.J § S. Overseers of highways to deliver to town clerk list of tax- able inhabitants of his district. Each of the overseers of highways shall deliver to the clerk of the town, within sixteen days after his appointment, a list subscribed by him, of the names of all the inhabitants in his highway district, who are liable to work on the high- ways; and the town clerk shall deliver such lists to the com- missioners of highways. [Highway Law (L. 1890, ch. 568), § 31.J § 3. Commissioners to make out lists of non-resident lands. The commissioners of highways in each town, before mak- ing the assesment of highway labor, shall make out a list and statement, of the contents of all unoccupied lots, pieces or parcels of land within the town, owned by non-residents; every lot so designated, shall be described in the same man- ner as is required from assessors, and its value shall be sot down opposite to the discription; such value shall bo the same as was affixed to the lot in the last assessment-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. [Highway Law (L. 1890, ch. 568), § 32.] FORM NO. 83. Coioiissioneb's List of Nos-kbsidbs^t Lanos. The following is a list and statement of the contents of all lots, pieces or of land within the town of .,in the county of , Assessment of Highway Labor. 295 owned by non-residents therein, made by the undersigned, commissioners of highways of said town : NAME OF TRACT OR PATENT. aa a a Township Valua- tion. Dated this day of . ,18. AB, C D, E F CommissUmers of Highways, % 4. Commissioners to assess highway labor; assessmenti how made. The commiasioners of highways shall, at their first or some subsequent meeting, ascertain, assess and apportion the highway labor to be performed 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 inhab- itants in the town. 2. Persons assessed; exemptions. Every male inhabitant being above the age of twenty-one years (excepting all hon- orably discharged soldiers and sailors, who lost an arm or a leg in the service of the United States, during the late war, 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, clergymen and priests of every denomination, paupers, idiots and lunatics), shall be assessed at least one day. [As amended by L. 1898, ch. 353.J 296 Town and County Officers' Manual. 3. Residue to be asaessed against property. The residue of such days work, shall be apportioned and assessed upon the estate, real and personal, of every inhabitant of the town, including corporations liable to taxation therein, as the same shall appear by the last assessment-roll of the town, and upon each 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 inhabitant 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 property 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 property within an incorporated village or city, exempted from the jurisdiction of the commissioners of high- ways of the town, and personal property of an inhabitant thereof, shall not be assessed for highway labor by the com- missioners of highways of the town. Whenever the assessors of any town shall have omitted to assess any inhabitant, cor- poration or property therein, the commissioners of high- ways shall assess the same, and apportion the highway labor as above provided. 4. Assessment roll, 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 tract shall bo assessed for high- way labor, as herein directed, and the commissioners shall subscribe such lists, and file them with the town clerk. 5. New highway, when may be worked independently. If the commissioners of highways shall neglect for one year, after any highway shall have been laid out, and title thereto acquired, to open or work 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 Assessment op Highway Labor. 297 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 coraraissionera shall assign such inhabit- ants 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 commissioners 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 to the town shall more than one-half of its annual labor be taxed and applied to any highway not embraced in such district. ["Highway Law (L. 1890, ch. 568), § 33.] § 6. Totm clerk to copy list and transmit to overseers ; accept- ance 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 highways 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 office of overseer. [Highway Law (L. 1890, ch. 568), § 34.] § 6. Overseers may add names of persons omitted, and netr 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 personal estate to work on the highways as others assessed by the commis- 298 Town and County Officers' Manual. sioners on such lists, subject to an appeal to the commis- Bioners of highways. [Highway Law (L. 1890, ch. 568), § B5.J New inhabitants are new inhabitants of the town, not of the highway dis- trict. Rinehart v. Young, 2 Lans. 354. § 7. Non-residents may appeal to county court from assessment of highway labor. Whenever any non-resident owner of unoccupied lands shall conceive himself aggrieved by any assessment of any c( mmissioner 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 com- missioners of highways of the time of the hearing before the judge, and his decision thereupon shall be final and con- clusive. [Higwhay Law (L. 1890, ch. 568), § 36.] FORM NO. 83. Appeal by NoN-EEsmENT. COUNTY COURT— County 01- Albany. )■ In the Matter of the Assessment of highway labor of L M, a non-resident owner of im- oocupied lands in the town of L M, a non-resident owner of unoccupied lands in the town of , county of considering (or T W, agent of L M, a non-resident 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 oi said commissioners to the county judge of said county. Dated this day of , 18. . . . LM. FORM NO. 84. Notice by the Owneb or His Aqbnt, to the Comuissionebs, of the Appsal. To A B, C D, E F, Commissioners of Highways of the Town of ; You are hereby notified that, considering myself aggrieved by your aasess- ment for highway labor of the land owned by me in said town, I have this Assessment of Highway Labob. 299 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 deoide oniaid appeal. Dated this day of ,18.... LM. § 8. Commissioners may credit on assessment of persons livings on private road. The commiasioners of highways of each town shall credit to such persona as live on private roads and work the same, so much on account of their assessments as the commis- sioners may deem necessary to work such private road, or shall annex the private roads to some of the highway dis- tricts. [Highway Law (L. 1890, ch. 668), § 37. J § 9. Assessment of lands not owned by occupant ; owner not to be assessed twice. Whenever the commissioners of highways shall assess the occupant, for any land not owned by such occupant, they shall distinguish in their assessment lists, the amount charged upon such land, from the personal tax, if any, of the occupant thereof; but when any such land shall foe assessed in the name of the occupant, the owner 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. 668), § 38.J g 10. Tenant may deduct assessment from rent due. Whenever any tenant of any land for a less term than twenty-five years, shall be assessed to work on the high- ways for such land, and shall actually perform such work, or commute therefor, he shall be entitled to a deduction from tho rent due, or to become due from him for such land, equal to the full amount of such assessment, estimating the same at the rate of one dollar per day, unless otherwise pro- vided for by agreement between the tenant and his landlord. fHigwhay Law (L. 1890, ch. 568), § 39.] 300 Town and County Opficees' Manual. § 11< Conuuissioners may re-assess nmuber of days not T^orbed. If it shall appear from the annual return of any overseer of highways, that 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 high- ways from any penalty which he may have incurred under the provisions of this chapter. [Highway Law (L. 1890, ch. 568), § 40.J § 12. Commissioaers may asjass persons or property omitted by to'wn assessors. Whenever the assessors of any town shall have omitted to assess any inhabitant or property in their town, the com- missioners of highways shall assess the persons and property so omitted, and shall apportion 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.J § 13. Overseer may make new assessment when labor assessed is insu£Bcient. When the quantity of labor assessed on the inhabitants of any district by the commissioners of highways, shall be deemed insufficient 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 assessed in the same year by the commissioners, on the inhabitants of the district; and the labor so assessed by an overseer, shall be performed or com- muted for in like manner, as if the same had been assessed by commissioners of highways. [Highway Law (L. 1890, ch. 568), § 42. J Assessment of Highway Labob. SOI FORM NO. 85. Nbw Assessment by Oveesekb op Highwats. The amount of labor assessed on the i nh-ibitants of highway distriotNo. . . ., town of , being deemed by me, the undersigned overseer of highways in said district, insufficient to keep the highways therein in repair, I do therefore, pursuant to section 42 of the highway law, make a further assessment as follows : NAMES. Days. NAMES. Days. JD. BS. TW. BB. 0. ... LM, Overseer of Highways, District N §14. Commissioners may authorize owners of property to plant trees and construct sidevralks along high.\rays. The commissioners of highways may, by an order in writ- ing duly certified by a majority of them, authorize the owners of property adjoining the highways, at their own expense, to locate and plant trees, and locate and construct sidewalks along the highways in conformity with the topo- grahy 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 oflSce 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. 668), § 43.J Rights of abutting owners. 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, inter- feres with growing trees, prevents 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 conseqiuence to what uses the pole and wire are to be put after they are erected. Palmer t. Larchmont Electrie Co., 6 App. Div. 12. 302 To\5rN AND County Officbrs' Manual. FOBM NO. se. ObDEB of COMMISSIONBBS PEEJnTTINa PLANTDia OF TBKBS OB CONSTBUO- TioN OF Sidewalks. qOUNTY OF ) ,, . Town of J**" We, the undersigned, commissioners 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 , 18. . . . A B,- C D, E F, Commissioners of Highways, Map OB DiAOBAU Showino LooATioir of Sidewalk and Tbee Flantinq. (Here make a diagram showing location of sidewalk to be laid and tree§ to be planted.) Dated this . . • . day of •...•••i 18..a» AB, C D, E F, Commissioners of Highwaya, g 1,6. Abatement of tax for planting shade trees along highwaya %Q be allowed by overseers of highways. Any inhabitant liable to highway tax, who shall hereafter, pursuant to such an order, transplant by the side of the high-> way adjoining his premises, any forest shade trees, fruit ti<^s, or any nut bearing trees, suitable for shade treesp ^hall be allowed by the overseers of the highways, or other pfiBcer having charge of the highway, in abatement of his highway tax, one dollar for every four trees set out; but all treas must have be^n get out the year previous to such allow* ance, and be living and well protected from animals at the time qi the allowance, and not further than eight feet from the outside Una of any highway three rods wide, and not more than one additional foot further therefrom, for each 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 aide of the highway, in place of trees which have died, shall be allowed for in th same manner. Such abatemeut of high- Assessment op Highway Labob. 303 way tax to any person, shall not exceed one-quarter of hia annual highway tax in any one year; but such abatement shall be allowed by the overseers of highways, or other ofBoers having charge of the highway, annually, until it shall have equalled the whule number of trees set out, at the rate herein specified. [Highway Law (L. 1890, ch. 568), § 44.J § 16. Commissioners of highways to authorize expenditure of labor or money upon sidewalks. The commiaaioners of highways of any town, may, upon the written application 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 con^t'-'uction, repairs and improvement of any sidewalks within the limits 3f 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 repair- iQg any such sidewalk; and thereupon any person or cor- l^)oration, assessed for highway labor in the district, may, for such purpose, anticipate his or its assessment for high- way 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. [Highway Law (U 1890, ch. 668), § 45.] FORM NO. 87. Application to Expend Highway Tax fob Sidewalks. To the Commissioners of Sighviays of the Town of ,in the County of ; We, the undersigned, a majority of the inhabitants of highway district No, ...,,in said town of , subject to assessment for highway labor therein, hereby make application and request that you authorize the expenditure of (not more than one-quarter) of the highway labor or com- mutation monsy of said district to the ooustruotion, improvement and repairs 364 'Tows AND County Officers' Manual. of the sidewalks in said district for the term of (not exceeding thres) yeanS: pursuant to section 45 of the highway law. Dated this day of ,18.... LM. TW. FOEM NO. 88. AUTHOBITT TO EXPKND HiaHWAT XaZ FOB SiDBWALES. CONNTYOF )„„. TOWNOP f®®" We, the undersigned commissioners of highways of said town, hereby authorize the overseer of highway district No , in said town, to antici- pate and expend (not exceeding one-quarter) of the highway labor commuta- tion money received therefor, in said district, for the term of (not exceeding three) years, in the construction, improvement and repair of the sidewalli within the limits of said district, pursuant to sections 45 and 46 of the high- way law. Dated this day of 18.... AB, CD, E F, CommissUmerg of HighwayB. § 17. Certificate of anticipation on account of labor on sidewalks to be issued by overseer of highirays. The overseer shall give to such person or corporation, upon the performance 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 ; and in each succeeding year, upon presenta- tion of such certificate, the person or corporation shall be credited and allowed by the overseer of highways, with the performance of the number of days labor assessed for such year, until the credit shall equal the number 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, cb. 668), § 46.] FORM NO. 89. Certificate of ANTicrPATioii. COTTNTT OF ) „ Town of j"- I, the undersigned, overseer of highway district No. . . .In the said town of hereby certify that B S has anticipated and worked (or commuted Assessment of HianwAY Labob. 305 for) . . . .days, by constructing, improving and repairing the sidewalk within the limits of said district, pursuant to section 45 of the highway law. Dated this. day of 18... LM, Overseer of Highway District No, . • . § 18. 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 high- way labor is assessable, and if such real property is trans- ferred otherwise than by voluntary grant, it shall be deenaed 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), chap. 568, § 47.J FORM NO. 90. ASSIGNMENT TO BE EnDOBSED ON THE BaCE OF CEBTIFICATB JS CaSB OF Tbansfes. For value received, I hereby assigh and transfer all my right and interest in and to the within certificate of anticipation to J B, grantee of the real property upon which such highway labor is assessable. Dated this day of ,18.... BS. § 19. Commissioners to abate tax on account of \ratering troug^h. The commissioners of highways shall annually abate three dollars 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 allowed, a certificate specifying the amount thereof. [Highway Law (L. 1890, ch. 568), § 48, as amended by L. 1897, ch. 227.] 20 d06 Town and County Offickbs' Manual. FORM NO. 91. CEBTIFIOATE of ABATHMBirS. COUNTY OF I . Town OF j This is to certif7 that J D, residing in highway district No. , in tha town of has oonstructed and maintained on his own land ia suoh district a watering trough, in accordance with section 48 of the high- way law, and that because thereof he is entitled to an abatement of hi* highway taxes in such district in the sum of three (S) dollars, which amount should be deducted from the amount to be paid by him on account of his assessment for highways in the year 18 In witness whereof we have this day of , 18...., set our hands. (Signed) A B, CD, EF, Commistioners of Highwayt. § 80. Systems of higliway taxation defined. Thtt system of taxation for working and repairing bigh> ways, aa hereinbefore provided, shall be known as "The Labor System of Taxation," and the system hereinafter pro> vided, shall be known as the "Money System of Taxation." [Highway Law (L. 1890, oh. 568), § 49.J § SI. Town may change its system. Any town may change its system of taxation for working and repairing its highways, by complying with the following provisions relating thereto. [Highway Law (L. 1890, ch. 568), § 50.j § SS. 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 highway; but no person residing in an incorporated village or city, exempted from the jurisdiction of commissioners of highways of the town, shall sign such request, or vote upon such question. [Highway Law (L. 1890, ch. 568), sec. 51, as amended by L. 1895, ch. 386, and L. 1900, ch. 25.J "Vote at town meeting, how taken. Town Law, see. 32, omte, p. 30. AppUcation to be filed with town clerk twenty days before town meeting. Town Law, sec. 32, ante, p. 30. Assessment of Higbwat Laboiu 807 rORM NO. 93. AppuoATioir FOK Gbanob of Systeu of Taxation. We, the undersigned, taxpayers of the town of hereby request that a vote by ballot be taken at the next biennial town meeting in said town by the electors thereof entitled to vote thereon, on the question of changing the system of taxation for working the highways in said town, from the system of taxation to the system of taxation, pursuant to sec- tions 50, 51, S3 and 53 of the Highway Law. Dated this day of , 18... (Taxpayers sign here.) § 28a. When change to take effect. When a town shall have voted to change the system of working and repairing the highways, as herein provided, such change shall not take effect until the next annual meet- ing of the board of supervisors, after the town meeting at which it was decided to make the change; and until such annual meeting of the board of supervisors the former system of repairing highways shall remain in force in such town. In each town of Westchester county such change shall be for a term not less than five years. [Highway Law (L. 1890, ch. 568), § 52, as amended by L. 1895, ch. 386.] § 33. Levy of tax under money system; property in Tillages 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 annally 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 commutation rates, of the highway labor which should be assessable under the labor system; but in any town in which there may be an incorporated 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 collec- tion 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 incorpo- rated village, in a column separate from that containing a 808 Tows AiTD County Officees' Manual. list of the 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 lesidents of such village, 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 erecting or repairing any bridge in such town. The amount of such tax shall be determined by the commis- sioners of highways and the town board, who shall certify the same to the board of supervisors, the same as any other town charge. The clerk of the board of supervisors 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, stating the name of each town so voting, and the amount of money tax levied therein for the repair of high- ways 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 twenty-five per centum of the amount so levied in each town. The county treasurer shall pay out the amount so paid to him on account of the money tax levied in any such town upon the order of the highway commissioner thereof, to be used by him, for the repair and permanent improvement of such highways therein, and in such manner as the commissioner of highways and town board may determine. The sum paid by the state to any town 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. [Highway Law (L. 1890, eh. 568), sec. 63, as amended by L. 1898, ch. 351.] § 24. Duty of highway commissionerB in certain towns. In towns where the money system of taxation has been adopted for working highways, it shall be the duty of each owner of lands situated along a high- way to cut the noxious weeds and brush growing along the sides of the high- way fronting his lands, at least twice in each year, once before the first day of July, and again before the first day of September. If the owner fails to cut such weeds or brush as provided in this section, the commissioner of high- ways of the town in which such owner resides shall cause the same to be done, and shall give such owner notice in writing stating that 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 preceding the annual meeting of the board of supervisors, stating the name of each owner, and the amount assessed against bim. 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 next ensuing year. [Added by L. 1900, ch. 516.] County Eoad System. 809 CHAPTER XXIII. County boad system. SKcmoir 1. Board of supervisors may adopt county road system ; deslgiiatlon and map to be filed with county clerk. 2. County engineer to be appointed by board of supervisors. 8. Expense of constructing and maintaining county roads a ootmty 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 ia towns in county adopting ooun^ roads system. " 6. Application of proceeds of sale of bonds. § 1. Board of superviaora may adopt county road syatemt deslg* nation and map to be filed with county clerk. The board of supervisors of any county may, by a vote of a majority of the members thereof, by resolution, adopt the county road system, and shall as soon as practicable after the adoption of such resolution, cause to be designated as county roads, such portions of the public highways in such county as they shall deem advisable, 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 o£Sce of such county; the roads so designated shall, so far aa practicable, be leading market roads in such county. [High- way Law (L. 1890, ch. 568), § 54, as added by L. 1893, eh. 333, and amended by L. 1895, ch. 375.J g 2. County engineer to be appointed by board of auperviaora. There shall be a "county engineer in every such eounty, who shall be appointed by the board of supervisors thereof, and be removable at its pleasure. The term of office of each county engineer shall be three years, unless sooner removed, and bis salary shall be fixed by the board of supervisors and 310 Town and Cjunty Officers' Manual. be a county charge. [Highway Law (L. 1890, ch 66), S 65, as added by L. 1893, ch, 833.J Oath of office. Publio Offioers Law, § 10, ante, p. 43. Vaeanciea, how created. Public Officers Law, § 20, ante, p. 60. Beaignation, to whom made. Public Officers Law, § 21 § 3. Expense of eonstmcting and maintaining conntjr roads • county charge ; money therefor, how raised. The expense of improTing, 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 6ve hundred thousand dollars for macadamizing purposes, the expense of con* Btructing, improving, maintaining and repairing such county roads, shall be annually apportioned by the board of super- visors of the county, upon the various towns and cities within the county, as the said board may deem just. The money necessary to improve, repair 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 super- visors shall designate the amount of money to be expended upon each county road, and may make rules and regula- tions for the government of the county engineer and regulat- ing the expenditure of such money. [Highway Law (L. 1890, ch. 568), § 56, as added by L. 1893, ch. 333, and amended by L. 1895, ch. 375.] § 4. Bonds may be issued for combination of county roads. The board of supervisors of such county may borrow money from time to time for the construction, maintenance and repair of the county roads in such county, and may issue the bonds or other evidences of indebtedness of tha county therefor; but such bonds or other evidences of indebt- edness shall not bear a rate of interest exceeding five per centum per annum, and shall not be for a longer term than twenty years, and shall not be sold for less than par. County Eoad Systbm. 311 [Highway Law (L. 1890, ch. 568), § 67, as added by L. 1893, ch. 333.] § 5. County roads exempt from jurisdiction of town highway officers ; money system in towns or county adopting county road system. The Qoqnty roads in any county shall be exclugively under the juriadiction of the hoard of aupervisorg and the county engineer of the county, and exempt from the juriadiction of the highway officers or officers performing the duty of high- way commissioners of the several towns and villages in which such county roads are located. The system of taxa- tion 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 special act shall be continued. [High- way Law (L. 1890, Qh. 668), § 58, aa added by L. 1893, ch. 333, and amended by L. 1895, ch. 375.] g 6. Application of proceeds of bonds* If the proceeds of any county bonds issued for the construo- tion of certain specified highways shall exceed the amount necessary for the construction 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 road for the construction of which •aid bonda ware issued; or to the payment of interest or principal, or both, of said bonds. [Highway Law (L, 1890, ch. 668), § 69a, as added by L. 1898. ch. 641.] 312 Town and County Officbbs' Manual. CHAPTER XXIV. PkB^OBMANOB of highway labor; DUTIB3 OF 0VKB3BBB; ABATEMBNT OF TAX. Seotiob 1. Overseers to give residents notice to work ; notice to oorporv tions, how served. 2. Overseers to give notice to agents of non-residents ; when notice to be filed in office of town clerk. 8. Commutation at rate of one dollar per day ; corporations to pay commutation money to highway commissioner. 4. Teams and implements, overseer may require credit therefor. 6. Person assessed may furnish substitute ; days 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. Overseers to render account to commissioners ; contents ; pay- ment of unexpended moneys ; penalty for failure. 11. Noxious weeds, briars and brush in highways ; penalties. 13. Overseers to notify occupants to remove weeds, brush and briars; effect of failure; commissioners to certify statement of amount expended to supervisors. 18. Highways on the division lines of a town and village or city, allotment of portion to be worked by each. 14. Highway tax may be abated for removal of fence to prevent snow drifts. 15. Overseer may allow abatemeut of highway tax for erection and maintainance of street lamps. 16. Bebate of tax for using wagon tires of the width of four inchea} affidavit. § 1. Overaeers to give residents notice to work ; notioe to corpor»> tlonsi how served. Every overseer of highways shall give at least twenty- four hours' notice to all residents of his district, and corporations assessed to work upon the highways therein, of Peeformancb op Highway Labor. 313 the time and place at which they are to appear for that pur* pose, and with what teams and implements, and that they will be allowed at the rate of one day for every eight hours of work on the highway, between seven o'clock in the fore- noon and six o'clock in the afternoon. The notice to cor- porations shall be served personally on an agent thereof residing in the town, if any, or if none, by filing the notice in the oflBce of the town clerk, at least five days before the labor shall be required; and any number of days not e:iceed- ing fifty, may be required to be performed by any such cor- poration in any one day. [Highway Law (L. 1890, oh. 68), § 60. j Notice to individual residents need not be in writing. Assessment lists to be delivered by highway commissioner to each overseer. Highway law, § 34, ante, p. 295. Warning to work, commissioner of highways to require owners to giTe« Highway Law, § 4, sub. 6, ante, p. 270. FORM NO. 93. KonCE TO COBFOKA.TION TO BE SERVED ON AOENT OB FiLKD IN OFFIOB OW Town Clerk. ToTW,a Corporation (or R S, Agent of T W): Take notice that you (or T W) are assessed days' labor in highway district Ko , in the town of , county of , and that said labor is required to be performed on the highway (state where) in said district, on the day of next, and the days fol- lowing, and you are required to furnish (state what utensils, if any), and to perform days' labor in a day, and wiU be allowed one day for every person working on said highway between seven o'clock in the A. M. and 9 o'clock in the P. u. Dated this day of ,18.... LM, Ove/rseer of Highway District No. .... g S. Overseers to give notice to agents of non-residents ; when notice to be filed in office of toiivn clerk. Every overseer of highways shall give at least five days' notice to every resident agent .of every non-resident land- holder, whose lands are assessed, of the number of days such non-resident is assessed, and the time and place at which the labor is to be performed. If the overseer cannot ascer- tain that such non-resident has an agent within the town, he shall file a written notice in the office of the town clerk, 314 Town and County Opficbes' Manual. at least twenty days before the time appointed for perfoii.. ing such labor, containing the names of aucb non-residents, when known, and a description of the lands assessed, with the number of days' labor on each tract, and the time and place at which the labor is to be performed. [Highway Law (L. 1890, ch. 668), § 61.J FORM NO. 94. NOTICH TO AGiaJT or NON-EBSIDENT. To B S, Agent of T W, a Non^etfident Owner of Lands in the Town qf , in the County of : Take notice that T W, a non-resident of the said town, is assessed day's labor in highway district No in said town, and that said labor la required to be performed on the highway (state where) in said district on tha day of next, and the days following. Dated this day of 18.... LM, Overseer of Highway District No. .... FORM NO. 95. NOTIOE TO NON-EESIDENTS TO BE FiLKD IN THE OFFICE OF TOWN CLEBK. Notice is hereby given that the highway labor assessed on the following described parcels of land in the town of county of , owned by non-residents whose agents cannot be ascertained within such town, is required to be performed from the day of to the day of next, in highway district No in said town, on the highway (state where). OWNER'S NAME. Days assessed. Dated this day of . .,18. LM, Overseer of ESgbteay District No, .... Peepobmance of Highway Laboe. 315 ^ 3. Commutation at rate oi one dollar per day; corporations to pay commutation money to highway commissioiiers. Every person and corporation shall work the whole nnmher of days for which he or it shall have been assessed, except such days as shall he commuted for, at the rate of one dollar per day, and such commutation money shall be paid to the overseers of highways of the district in which the labor shall be assessed, within at least twenty-four hours before the time when the person or corporation is required to appear and work on the highways; but any corporation must pay its commutation money to the commissioners of highways of the town, who shall pay the same to the overseers of the districts respectively, in which the labor commuted for was assessed, except in the counties of Rensselaer, Chemung, Onondaga, Columbia, Otsego, Chautauqua, Chenango, MadisoHj Wayne, Erie, Franklin, Sullivan, Tioga, Saratoga, Broome, Orange, Ontario, Genesee, Essex, Schenectady, Livingston, Schuyler, Monroe, Oneida, Niagara, Orleans and Jefferson, where such commutation money shall be paid on or before the first day of June of each year to the commissioner or commissioners of highways of the town in which the labor shall be assessed, and such commutation money shall be expended by the commissioner or com- missioners of highways upon the roads and bridges of the town as may be directed by the town board. [Highway Law (L. 1890, ch. 568), sec. 62, as amended by L. 1897, ch. 334, L. 1899, ch. 345, and L. 1900, ch. 153.] Corporations, commutations by. See, also, Highway Law, § 33, sub. 3, ante, p. 296. § 4. Teams and Implements overseer may reqaires credit therefor. Every overseer of highways mav require a team, or a oart, 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 bis assessment; and the person furnishing the same upon such requisition, shall be entitled to a credit of three days for each days' service therewith. [Highway Law, L. 1890, ch. 568), § 63.] i 6. Person assessed may fiirnish substitute ; day's labor. Every person or corporation assessed to work on the high' 816 Town and County Officers' Manual. ways, and warned, who does not commute therefor, may appear in person 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.J § 6. Penalties for neglect or failTiFe to work or comnrate ; 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 notified, 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 foi each days' omission, and for omitting to furnish either a cart, wagon, plow, team or man to manage the team, he shall 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 binder others from working, he shall be liable to a penalty at the rate of one dollar and fifty cents a day for each hour. The penalties herein imposed, may be recov- ered by action by the overseer of highways as such, and when collected, shall be expended or disposed of by the overseer 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 high- ways 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. fHighway Law (L. 1890, ch. 568), § 65.] Pbrformanck op HiaHWAY Labor. 817 § T> OveFBeer to return list of persons who have not worked ov commuted for high'way taxes; commissioner to present lists to town board ; town board to certify unperformed labor to board a£ supervisors. Every overseer of highways shall between the fifteenth day of September and the first day of October of each year, make out and deliver to the commissioner 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 a day; and also a list of all the lands of non-residents and persons unknown, which were assessed on his warrant by the commissioner of highways, or added by him, on which the labor assessed has not been performed or commuted for, and the number of days' labor unpaid by each, charging for the same at the rate of one dollar and fifty cents per day, which list shall be accompanied by the atfidavit of the overseer, that he has given the notice required, to appear and work, and that the labor specified in the list returned, has not been performed or commuted, and it shall be the duty of the commissioner of highways to col- lect and present such lists to the town board of his town at the meeting held on the Thursday next preceding the annual meeting of the board of superisvors. The town board shall certify the amount of unpaid taxes so returned to them by the commissioner of highways to the board of supervisors. [Highway Law (L. 1890, ch. 568), § 66, as amended by L. 1898, ch. 350.] FORM NO. 96. Overseers' Return to Highway Commissioners. To AB, CD and E F, Commissioners of Highways of the Town of , County of : The following is a list of all the resident landholders residing in highway district No , in the said town of , who have not worked out their highway assessments, or commuted for the same, with the number of days not worked or commuted for by each, at one dollar and fifty cents per day ; and also a list of all the lands of non-residents and of persons unknown, which are assessed on my warrant by the commissioners of highways (oi 318 Town and County Officers' Manual. added by me according to law), on which the labor assessed has not been per- formed or commuted for, and the number of days' labor unpaid by each, charging for each at the rate of one dollar and fifty cents per day. List of Besidents. OWNER'S NAME. Description of land. Assessed value. Number of days. Amount. List of Non-besident Lands. OWNEE'S NAME. Description of land. value. Number of days. Amount. LM, Overseer of Highway District No, STATE OF NEW YORK, ) . County OF J^" L M, being duly sworn, says he is the overseer of highway district No. . . ., in the town of , in the county of . , , and that he has given the notices to appear and work, required by sections 60 and 61 of the highway law, and that the labor for which such residents and suoh land is returned, has not been performed or commuted for. LM, Overseer of Highway District No. .... Sttbsoribed and sworn to before me, ) thu....dayof ,18.. ) G H, Justice of the Peace, Pbbpoemancb of Highway Labor. 319 § 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 directed, he shall for every such offense, forfeit the sum of ten dollars and the amount of taxes for labor remain- ing unpaid, at the rate of one dollar for each day assessed. The commissioner of highways shall, in case of such refusal or neglect, 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.] § 9. Board of supervisors to levy arrearages for highway labor t collection thereof. Each board of supervisors, at its annual meeting in each year, shall cause the amount of such arrearages for highway labor returned 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 collected, and shall order the same, when collected, to be paid over to the com- missioners 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 the labor was originally assessed. [High- way Law (L. 1890, ch. 568), § 68.J § 10. Overseer to render account to commissioners; contents; payment of unexpended moneys ; penalty for failure. . — ' -^ Every overseer of highways shall, on the second Tuesdaj' next preceding the time of holding the annual town meeting in his town, within the year for whch 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 high- ways in the district of which he is overseer. 320 Town and County Officers' Manuah 2. The names of all those who have actually workaA on the highways, with the number of days they have so worked. 3. The names of all those from whom penalties have been collected, and the amounts thereof. 4. The names of all those who have commuted, and the manner in which the moneys arising from penalties and commutations have been expended by him. 4. A list of all persons whose names he has returned to th« supervisor as having neglected or refused to work out tlieir highway assessments, with the number of days and the amount of tax so returned for each person, and a list of all the lands which he has returned to the supervisor for non- payment of taxes, and the amount of tax on each tract of land so returned; and he shall then and there pay to the commissioners of highways, all money remaining in his hands unexpended, to be applied by them in making and improving the highways and bridges of the town, in such manner 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 shall for every such offense, forfeit the sum of ten dollars. [Highway Law (L. 1890, cb. 568, §69.] FORM NO. 97. Annxtal Eutuen of Overseers of Highways. To tht Commisgicmers of Highways of the Town of , in tht County of : Tha undersigned, overseer of highway district No , in said town, hereby renders the following aooount pursuant to section 69 of the highway law: 1. The names of all persons assessed to work on the highways in said dia- triat are as follows : NAMES. Days assessed. Pbepormance of Highway Labob. 821 2. The names of all persons who have actually worlced on the highways, with the number of days they have worked, are as follows : NAMES. Days Assessed. 8, The names of all those who have been fined, and the sums in which they have been fined, are as follows ; NAMES. Amount. 4. The names of those who have commuted, and the amount of the com- mutations, are as follows : NAMES. Amount. 6. The moneys arising from penalties and commutations have been expended as follows : (State how.) 6. Names returned to the commissioners of highways of persons who have neglected or refused to work out their highway assessments, with the num- ber of days and amount of tax so returned, are as 'follows : NAMES. Amount of tax. 21 222 Town and County Ofpiceks' Manual. 7. The following is a list of lands retamed to the commissioners of high- ways for non-payment of taxes : NAMES OF OWNERS. Description. Assessed ! Number value. I days. Amount. Dated day ,18.... LM, Overseer of Sighieay District No, . . . COUNTY OP ) -, . Town or ("'•• Ij M, being duly sworn, says he is overseer of highway district No , in the town of and that the foregoing account subscribed b; him is true to the best of his knowledge and belief. LM, Overseer of Highway District No. . . . Subscribed and sworn to before me, ) this day of 18.. f GH, Justice of the Peace. § 1 1. Nozioas weeds, briers and brush in highways ; penalties. Every person or corporation, owning or occupying, under a lease for one or more years, any cultivated or inclosed lands, abutting upon any highway, shall cause all noxious weeds, briers, and brush growing upon such lands within the bounds of the highway, to be cut or destroyed between the fifteenth day of June and the first day of July, and between the fifteenth day of August and the first daj-i of Sep- tember, in each and every year; but boards of supervisors may fix a different period or periods, for such cutting or destruction 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. 1890, oh. 568), § 70.] Pekfokmanob of Highway Labor. 323 ^ 12. Overseers to notify occupants to remove weeds, brush and briers ; effect of failure ; conunissioners to certify statement of amount expended to supervisors. The overseers of every highway district, or if there is no such overseers, the connnissioner of highways shall give written notice to any owner or occupant of the premises to cut all weeds, briers and brush growing witbin the bounds of the highways. If the owner of such lands is a non-resi- dent, such notice shall be served personally upon the agent of such non-resident owner residing in the town, or if there is 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 oflSce 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 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 supervisor shall certify these statements to the board of supervisors at its next annual meeting, and such board shall include 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 parites entitled thereto. [Highway Law (L. 1890, ch. 568), § 71, as amended by L. 1899, ch. 681.] FORM NO. 98. Notice to OcctJpanT to Cut Weeds, Brush and Briers. To R 8, Occupant of (briefly describe the premises), Abutting on the Highway in Eighway District No in the Town of County of N.Y.: The undersigned, overseer [or commissioner] of highways of said district, hereby notifies and requires you to out all weeds, briers and brush grow- ing upon the above described lands within the bounds of said highway within ten days after the receipt of this notice ; and if you fail to do so, I shall cause the same to be cut and make a report thereof pursuant to section 71 of the Highway Law. Dated day of , 18 L M, Overseer of Highway District No [or Commissioner of highways for town of ] FORM NO. 99. Overseer's Rbport to Commissioners of Amount Expended Cutting Weeds. To the Commissioners of Highways of the Town of , in the County of ; The undersigned, overseer of highway district No , in said town, in S24 Town and County Officers' Manuau accordance with section 71 of the Highway Law, hereby renders the following report : The amount of money expended by me for cutting weeds, briers and brush within the bounds of the highway in said district, and the names of the Owners and occupants of the several pieces or parcels of land against which said labor was performed, with a brief description of the same, are as follows i NAME OP OWNEB. Name of occupant. Description of premises. Amount, expended. And in each case default was made by the occupant, after due notice had been given. Dated this day of • 18 LM, Ova-seer of Highway District No. ... COUNTY OF ) ,. Town OF f*"" L M, being duly sworn, says the foregoing report subscribed by him is trua. Subscribed and sworn to before me, ) this . . . . day of 18. ( GH. Jtistice of the Peace. LM. FORM NO. 100. COMMISSIONEHS' CkbTIFIOATB TO THE SUPERVISOB. Jb B B, Supervisor of the Town of '. in the Cow^y of The undersigned, commissioners of highways of said town, hereby certify that the annexed reports have been made by the overseers of highways whose names are thereto subscribed, pursuant to section 71 of the Highway Law ; lud that the several amounts therein specified have been expended by the overseers in removing weeds, brush and briers from the highways in front of the lands described therein. Dated this day of 18. . AB, CD, EF, Commissioners of Highwayt. § 13. Highways on the division lines of a town or villag^e or oltyt allotment of portion to be worked by each. Whenever a highway, street or road shall be on the line Pbbfokmancb op Highway Labob. 325 between a city, town or village, or between either of them, the oflBcers authorized and required to repair and keep in order the highways, streets and roads in auch city, town and village, shall meet together at the mayor's ofiBce 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, § l.J 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, fidem, § 2.] The statement of the division made pursuant to the pro- visions of the first or second section of this act shall be reduced to writing and properly authenticated by the officers making the same, and shall be filed within ten days after such division is made in th^ 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.] § 14. Highway tax may be abated for removal of fence to prevent sncw drifts. Any inhabitant liable to a highway tax, who shall remove from lands owned or occupied by him, the fence along any public highway, for the purpose of preventing the drifting of snow into auch highway, shall be allowed by the overseer of dghways, in abatement of his highway tax, the time 326 Town and County Officers' Manual, actually expended in removing such fence, and in replacing the same, pursuant to the directions of the overseer of high- ways. [Highway Law (L. 1890, ch. 568), § 72.J § 15. Overseer may allow abatement of highway tax for erection 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 villages, 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 and kept burning during such hours of each night as the overseer of highways may direct, shall be allowed by the overseer of highways, in abatement of such highway tax, six dollars annually, or such portion of six dollars as the annual highway taxes upon such real estate or other property may be. [Highway Law (L. 1890, ch. 568), § 73,J § 16. Rebate of tax for using wagon tires of the width of four inches; a£Sdavit. 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 exceeeding, however, in any one year the sum of four dollars for four day's labor. 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 showing 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 affi- davit may be taken before any overseer of highways who is Pbkformancb of Highway Labob. 327 hereby authorized to administer such oath. [Highway Law (L. 1890, ch. 568), § 74, as added by L. 1893, ch. 468.] FORM NO. 100. Atfisxvit of Usb of Wide Tibbs. county of ) State of New York, j **" J L, being duly sworn, deposes and says that he resides in highway dis- trict No...... town of , county of ; that he is assessed for days of highway labor in such district ; that during the year ending June 1, 18. ., he has only used upon the highways of this state wagons or vehicles drawn by two or more horses, the wheels of which are three or more inches in width, except buggies, carriages or platform spring waggons, carrying a weight of not more than one thousand pounds ; and that because of such use ha is entitled to a credit upon such highway tax, as provided by § 74 of the Highway Law. Subscribed and sworn to before me ) L II> this.. ..day of ,18.. ) LM, Overaetr qf Bighwayt DitMet No. •••■•> 328 Town and Govntt Officbbs' Manual. CHAPTER XXV. Laying out, altebino ob discontinuinq highways; ooic* missionebs; pbocedubs; pbivatb b0ad3. BiCfnOH 1. Commissioners of highways may order laying out highways; application therefor; release of damages; consent of town board. S. Commissioners to cause survey to be made ; survey to be in- corporated in order. 8. Application for alteration, discontinuance or laying out highway. 4. Application to county court for appointment of commissioners ; undertaking. 5. Appointment of commissioners ; oath of o£Sce ; duties. 6. Notice of meeting ; posting and service of notice. 7. Decision of commissioners in favor of laying out, altering or dl» continuing highway. 8. Damages in certam cases, how estimated. 9. Decision of commissioners denying application. 10. Motion to confirm, vacate or modify ; if deoision 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. 13. Laying out highways through burying grounda 13. Costs, by whom paid ; compensation of commissioners. 14. Damages and costs to be audited as town charges. IB. Proceedings when officers of different towns disagree about highways ; appointment of commissioners to hear and deter- mine by county court. 10. Proceedings when highway commissioners disagree as to im- provements upon highways. IT. 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 proceedings to ba filed in office of town clerk ; enforcement of determination. 30. When highways deemed abandoned ; written description of abandoned highways to be filed and recorded. SI. Lands used as highways for twenty years to become highways by use. 28. Application for private road. 23, Jury to determine necessity and assess damages. M. Copy of application and notice to be delivered to applicant. Laying Out, Altering, etc., HiGHWATa, 829 SlOiiON 25. Serviceof copy of application and notice of hearing upon ownet% 26. List of jurors. 87. Names of jurors struck from list ; jury how made up. S8. Place of meeting. 29. Jury to meet and determine damages. 80. Verdict of jury. 81. Deduction by jury on account of discontinuance or alteratloa ot highway. 83. Verdict and certificate of commissioners to be filed in ofSos of town clerk. 83. Damages to be paid before opening the road. 34. Fees of o£Scers to b« paid by applicant. 85. Motion for county court to confirm, vacate or modify. 86. Cost of new hearing. 87. For what purpose private road to be used. 88. Damages for building additional fences where highways or private roads run along division lines. 89. Adjournments of proceedings to lay out^ alter or discontinue highways. 40. Papers relating to laying out, altering or discontinuing higb* way to be filed with town clerk. 41. Failure of commissioners to act. 43. Costs on motion to confirm, vacate or modify report of com* missioners. S !• CoBuntssioners of highways may order laying* ont of high* ways; application therefor; release of damages; consent of town board. "Whenever land is dedicated to a town for highway pur- poses therein, the commissioners of highways in such towo may, either with or without a written application therefor, and without expenses to the town, make an order laying out iuch highway, upon filing and recording in the town clerk's office with such order a release of the land from the owner thereof. A highway so laid out must not be less than two rods in width. Section ninety of this chapter does not apply to a highway by dedication. Such commissioners of high* ways may also, upon written application and with the written consent of the town board, make an order laying out or altering a highway in their town, upon filing and record- ing in the town clerk's office, with such application, consent and order, a release from all damages from the owners ol the lands taken or affected thereby, when the consideration for iuoh release, as agreed upon between auch commifBsioneri 830 Town and County Officers' Manual. and owners, shall not in any one case, from any one claimant exceed one hundred dollars, and from all claimants five hun> dred dollars. An order of the commissioners as herein pro- vided shall be final. [Highway Law (L. 1890, ch. 568), § 80, as amended by L. 1897, ch. 204. J Dedication, what constitutes. 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 acceptance ; (4) by dedication through offer and actual acceptance. Cohoes v. D. <& H. O, Co., 134 N. Y. 397, and authorities cited; Toum of Coming v. Head, 86 Hun, 12. Land may be dedicated to the use of the public for a highway without any writing. Cook v. Harris, 61 N. Y. 448. Oral consent of the owner of lands to the laying out of a highway is valid unless revoked before the laying out. Marble v. Whitney, 88 N. Y. 297. Acceptance necessary. Lands dedicated by the owner to public use as streets do not become public highways until accepted by commissioners. Ostoefifo V. Canal Co., 6 N. Y. 257 ; Cohoes v. D. & H. C. Co., 134 N. Y. 897. To constitute a public highway by dedication there must not only be an absolute dedication, but an acceptance and formal opening by the proper authorities or by user. People v. Underhill, 144 N, Y. 816 ; contra, Clements V. West Troy, 10 How. Pr. 199. Acceptance may be proved by long public use or by the acts and conduct of the public authorities recognizing and adopting the highway. People v. Loehfelm, 120 N. Y. 1 ; Cook v. Harris, 61 N. Y. 448 ; Holdane r. Cold Spnng, 21 N. Y. 474 ; McMannis v. Butler, 51 Barb. 438 ; Denning v. Rome, 6 Wend, 661 ; Hunter v. Trustees, 6 Hill, 407 ; Abbott v. Cottage City, 143 Mass. 521, and authorities cited ; MoCurmack v. City of Amsterdam, 43 St. Bep. 601 ; People V. Underhill, 144 N. Y. 316. A dedication once made and accepted cannot be revoked. Cook v. Harris, 61 N. Y. 448 ; Cohoes v. D. & H. C. Co., 134 N. Y. 397. The use of a private way by the public does not make it a public highway without proof of dedication and acceptance. Palmer v. Palmer, 150 N. Y. 189. Where a highway has been altered by consent of the owner of the land and has been used by the public for twenty-six y*?ar8, it is a public highway although its boundaries have not been determined by the highway com- missioners, and will be assumed to be of the same width as the original road. Wakeman v. Wilbur, 147 N. Y. 657. For decisions relating to laying out and altering highway, see Oreene't Highway Laws of New York, pp. 66-71. Order. The order laying out the highway must either be signed by all the commissioners or must show that they were all notified to participate. Fitch T. Commissioners, 22 Wend. 132 ; People v. Hynds, 30 N. Y. 470 ; a. c. %1 Barb. 94 ; Ptople v. Williams, 86 N. Y. 441 ; Simmons v. Sines, 4 Abb. Dec, 846; Matter of Summit Street, 3 How. Pr. 26 ; Matter of Church Street, 4» Barb. 455 ; Christy v. Newton, 60 Barb. 332 ; Chapman v. Sa>3.n, 65 Barb. 310 { JVatt ▼. PeopU, 13 Hun, 664 ; Stewart r. Wallis, 30 Barb. 844. . Laying OtJT, Altering, etc., Highways. 331 One eommissioijer may- not authorize another to sign his name to the order. Todd v. Todd, 3 Hun, 298. FORM NO. 103. Order Laying Out or Altering a Highway With the Consent of Town Board. At a meeting of the commissioners of highways of the town of , in the county of , on the .... day of , 18 for the purpose of deliberating on the propriety of laying out (or altering) a highway in said town, and upon the written application of L M, a person liable to be assessed for highway labor in said town, and the written consent of the town board of said town having been given as prescribed by law, and releases from damages having been executed by the owners pf the land thrpugh which tha proposed highway is to be opened, copies of which are hereto annexed, tha consideration paid to any one claimant for such damages, not exceeding $100, and of all the claimants not exceeding $500 ; It is hereby ordered and determined that a highway shall be, and the same is hereby laid out in said town as follows : (Here insert survey hill.) And the line of survey shall be the center of the highway, which shall be rods in width. Dated this day of ,18.... AB, C D, EF, Commissioners of Highways, FORM NO. 103. Eelease of Damages by Owners of the Land. Know all men by 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), hei-eby 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 , 18 ..., 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 ,18.... B S. FORM NO. 104. Order Laying Out Highway on Release from Owners. At a meeting of the commissioners of highways of the town of , in the county of on the day of 18 , for the purpose of deliberating on the propriety of laying out a highway in eaid 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 332 Town and County Officers' Manuai,. from the owners of the land through which the highway is proposed to be opened, having been given, It is hereby ordered and determined that a highway shall be, and the sama 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 „ 18. . . . A B, C D, E F, Commissioners of Highways. ropar xn. m,-). Dedication of Land and Release of Dauaoes. KnowaUmenby these presents, that I, B S, of the town of « in the county of , N. Y., for value received, hereby dedidate 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 describe premises 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 set my hand and seal, this [seal] day of ,18.... T> Q STATE OF NEW YOEK, ) County OF , ) On this day of ..., 18...., before me, the subscriber, personally appeared R S, to me known to be the person described in, and who executed the foregoing agreement. GH, Justice of the Peace. FORM NO. 106. Consent of Town Board to Lay Out or Alter a Hightt ay. 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 ..... a. ...... *t lOa... J B. Supervisor, OB, Toum Clerk, GH, MA, TW, A, Justice of the Peace, Laying Out, Altering, etc., Highways. 333 § S. 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 be made, and shall incorporate the survey 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 the same. [Highway Law (L. 1890, ch. 568), § 81.j Board of supervisors may direct commissioners of highways to make surveys of highways. County Law, § 73, post. Survey. The survey should be made a part of the order mentioned in the foregoing section. Pratt v. People, 13 Hun, 664. It need not specify the. width. People v. Commissioners, 1 Con. 23, although it seems proper that it Bhould be contained in the order. § 3. Application for altera-tion, discontinuance or laying out highway. Any person or corporation assessable for highway labor, may make written application to the commissioners of high- ways of the town in which he or it shall reside, or is assess- able, to alter or discontinue a highway, or to lay out a new highway. [Highway Law (L. 1890, ch. 568), § 82.] Who may make application. To give commissioners of highways juris- diction of proceedings to lay out a highway, an application must be made in writing by a person liable to be asseessed for highway labor. Harrington v. People, 6 Barb. 60?. Commissioners of highways, as such, may not make application to lay out a highway. People v. Supervisors, 82 Hun, 398. Any person assessable for highway labor may make the application. People V. Eggleston, 13 How. Pr. 12^. 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 v. Keek, 90 Hun, 499. 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 t. Meserole, 10 Wend. 123. FORM NO. 107. Application to Lay Out a Highway. To the Commissioners of Highways of the Town of .,€» tha 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- 334 Town and County Officers' Manual. way in said town, commencing (describe the proposed highway), which pro- posed highway will pass through the lands of K S and T W (who consent t* to the laying out of the highway, or as the case may be). Dated this day of , 18. . . . LM. FORM NO. 108. APPIJOATION to AliTRR A HIGHWAY. To the Commissioners of Highways of the Tovm of in fht County of ; The undersigned, an inhabitant of said town of liable to be assessed for highway labor therein, hereby applies to you to alter the highway leading from to in said town as fol- lows ; (Insert particular description of the proposed alteration by courses and distances.) The proposed alteration passes through the lands of B S and T W (who consent to the proposed alteration, or as the case may be). Dated this .... day of , 18. . . . LM. FORM NO. 100. Applications to Discontinue a Highwat. To the Commissioners of Highways of the Town 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 discontinue the old highway beginning (insert description), on the ground that said highway has been abandoned. Dated this day of 18 ... LM. § 4. Application to county court for appointment of conunis- aioners ; undertaking^. Wenever the land is not dedicated to the town for highway purposes and not released as herein provided, the applicant shall, within thirty days after presenting the application to the commissioners of highway, and after at least five days' notice to said commissioners of the time and place of the applica- tion to the county court, 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 county judge require, oo such notice to such parties interested as he shall direct, apply to *h9 county court of the county where such highway shall be, io» Layino Oi!t, Altering, etC^ Highways. 3S5 ilie appointment of three commissionera to determine upon the necesaity of such highway proposed to be laid out or altered^ or to the uselessness of the highway proposed to be discontinued and to assess the damages by reason of the lay- ing out, opening, altering or discontinuing of such highway. Such application to the county court shall be accompanied by the written undertaking of the applicant executed by one or more sureties, approved by the county judge, to the effect that if the commissioners appointed determine that the pro- posed highway or alteration is not necessary or that the highway proposed to be discontinued ia 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 expenses necessarily incurred in the performance of their duties, which amount shall not exceed the sum of fifty dollars.. [Highway Law (L. 1890, oh. 568), § 83, as amended by L. 1897, ch. 344, § l.J FORM NO. ItO. Application rott Commissionebs. COUNTY COURT-^CouNTY of » .... » 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 pstitioner is a person liable to be assessed for highway labor in the town of said county ; that on the day of , 18. . . ., 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. Wherefore, youi- 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 dis- continuing) such highway. Dated this day of , l8.... 336 Town and County Officbbs' Manual. state of new yoek, ( . County of ( " L M, being duly sworn, says he has read the foregoing petition by him sub- scribed, and that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. LM. Subscribed and sworn to before me, > this day of 18.. ) GH, Justice of the Peace. §5. Appointment of commissioners ; oath of office; daties« Upon the presentation of such pptU'nn, the county court shall appoint three disinterested freeholders, who shall not ba named by any person interested in tUt; proceedings, who shall be residents of the county, but not of the town wherein the highway is located, as commissioners to determine the ques- tions mentioned in the last section. They shall take the constitutional oath of ofBce, and appoint a time and place at which they shall all meet to hear the commissioners of high- ways of the town where such highway i= situated, and others interested therein. They shall personally examine the high- way described in the application, hear any reasons that may be offered for or against the laying out, altering or discon- tinuing of the highway, and assess all damages by reason thereof. They may adjourn the proceedings before them from time to time, issue subpoenas and administer oaths in such proceedings, and they shall keep minutes of their pro- ceedings, 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 high- way is located. [Highway Law (L. 1890, oh. 568), § 84.] FORM NO. 111. Order Appointing Commissioners. At a k.... term of the County Court of the county of held at in the •.... in and for said county. Present, Hon. E E, county judge. Laying Out, Altering, etc., Highways. 337 (Title as in Form No. 110.) On reading and filing the petition of L M, of the town of , in eaid county, dated the day of ,18...., 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 (alteiing or discontinu- ing) a highway beginning (insert the description) and to assess the datnages by reason of laying out (altering or discontinuing) such highway. It is hereby ordered that S S, G G and JJ, of the town of said county, be, and they are hereby appointed as such commissioners. FORM NO. 113. Notice to Commissioners of Their Appointment. ToSS, Q a and 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 persona interested in the highway mentioned in the said order. Dated this day of , 18.... L M. § 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 proposed to be laid out, altered or discon- tinued, the tracts or parcels of land through which it runs, and the time and place of the meeting of the commissioners appointed by the county court to examine the highway as mentioned 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 such notice shall be mailed to such owner and occu- pant, if their post-office address is known to the applicant or ascertainable by him upon reasonable inquiry, [Highway Law (L. 1890, ch. 568), § 85. J FORM NO. 113. Notice of Meeting of Commissioners. 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 22 338 Town and County OffkJees' Manual. said town, oommencirig (here insert description as in application)) which pro- posed (or altered) highway Will pass through the lands of (describe who), and by an order of the county court dated the day of j 18. . . ., 8 S, G G and J J were appointed commissioners to examine as to the neces- sity of said proposed highway (alteration or discontinuance), and to assess the damages by reason of the laying out and opening (alteration or discon- tinuance) of such highway ; and that said commissioners will all meet at , in said town, on the day of 18...., at .... o'clock in the noon, to examine the proposed highway (or the high- way) and hear the commissioners of highways and all others interested therein, and to assess the damages if such highway be determined to be necessary (or is altered or discontinued). Dated this day of ,18.... LM. FORM NO. 114. Affidavit of Posting and Sebvic!e of Notice. STATE OF NEW YORK, ) , County of J • 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 . .i ,i three public places in the town of i...., said county, on the day of 18 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 ,18 , 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 for the meeting of said commissioners. LM; Subscribed and sworn to before me, ) ihiii day of.... 18.. ) GH, Justice of the Peace. ^ 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 iiighway proposed to be discon- tinued is useless, they shall assess all damages which may be required to be assessed by reason thereof and make duplicate certificates to that effect. [Highway Law (L. 1890, eh. 568), % 86.J Latino Oyfi At¥riRtitd, e*c., Hi&MWays. 339 roBit NO. lis. Certibioatb (of CoitottssloiJEiis in Favor of Applicant. (Title as in foriti No. lit); Ante, p. 335.) The undersigned, by an order of the county court of county, dated the day of ; 18 ..,on the application of L M, having been appointed commissioners to determine as to the necessity of layihg 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:...... ...... 18. ., pursuant to such notice, and having taken the constitutional oath of oflSce, and on proof of the service and posting of the iibtioes 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 &hd opened (altered or discontinued) and having heard the com- missioners of highways and the parties interested therein, and the evidence of all the witniesses produced. Now, the/ref&re, 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 ..;.;;. i ...., 18. . i and we have assessed the da,inage& required to be assessed by reason of laying out and opening (altering or discohtinuing) such high- way as follows : The damages of N N at $ ; the damages of WW at $ Dated this. . . .day of i . . . ., 18. i SS, GO, J J, CommissumeTB. % 8. Damages in certain cases, how estimated. The owner of land within the bounda of a highway dis- continued may inclose the same and have the exclusive Use thereof, and the benefits resulting therefrom irlay be deducted in the assessment of damage caused by the laying out of a highway through his other lands in place of the dis- continued highway. [Highway Law (L. 1890, ch. 568), § 87.J § 9. Decision of commissioners denying application. If Sk iaajOSfity of the dOmfnisSioners Appointed fey county CbUirt shall deterdiitie that the Jiroposed highway or altera- tion is Bdt h^QeHisMj, Or that thd highway proposed to be 340 Town and County Oiticbrs' Manual. discoDtinued is not useless, they shall make duplicate cer- tificates to that effect. The costs and expenses necessarily Incurred by such commissioners in the proceedings shall be indorsed upon such duplicate certificates, and upon a con- fimation of such decision and of the amount of such costs and expenses by the county court, such costs and expenses not exceeding fifty dollars shall be payable by the applicants. [Highway Law (L. 1890, ch. 668), § 88, as amended by L. 1894, ch. 334.J FORM NO. 116. Certificate DENYiNa Appijcatoin. (Title as in form No. 110, ante, p. 335.) The undersigned, by an order of the county court of county, dated the . .day of > 18. ., on the application of L M, having been appointed commissioners to certify as to the necessity of laying out and opening (altei-ing or discontinuing) a highway in the town of in said county, beginning (describe highway as in the application) wmch pro- posed highway (or highways) crosses the lands ©f (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 , 18 , 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 pro- posed 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 ; 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 auch highway should not be discontinued). Dated this day 18.... SS, GG, J J, Commissioners. § 10. Kotion to eonflrm, 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 oflSce any party interested in the proceeding may apply to the court if in Laying Out, Altering, btc, Highways. 341 session or to the county judge appointing the commissioners for an order confirming, vacating or modifying their deci- sion, and such court or judge may confirm, vacate or modify such decision. If the decision be vacated the court or judge may order another hearing of the matter before the same or other commissioners. If no such motion is made, the deci- sion 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 pend- ing therein; and the decision of the county court or judge shall be final, excepting that a new hearing may be ordered as herein provided. If the final decision shall be adverse to the applicant, no other application for laying out, altering or discontinuing the same highway shall be made within two years. [Highway Law (L. 1890, ch. 568), § 89, as amended by L. 1895, ch. 716.J Notice of appeal must be served on each commissioner and each land- owner. Commissioners v. Claw, 15 Johns. 537 ; People v. Osborn, 20 Wend. 186 ; People v. Lawrence, 54 Barb. 589 ; Metoalf v. Garlinghouse, 40 How. Pr. 50.) Appeal from decision of county court. An appeal may be taken from the decision of the county'court as to questions affecting the power and jurisdic- tion of the court. People ex rel. D. & H. C. Co. v. County Court, 152 N. Y. 214. But otherwise as to question relating to the subject matter. People ex rel. D., L.& W. B. R. Co. v. County Court, 4 App. Div. 542 ; Matter of Taylor & Allen, 8 App. Div. 395. FORM NO. 117. Notice of Motion. (Title as in Form No. HO.) To NM and W W: Take notice that an application will be made to this court at a term thereof, to be held at the , in the of on the day of 18. . . ., for an order confirming (vacating or modifying, stating in what particulars) the decision of the com- missioners in the above entitled matter, which decision is dated the day of , IS and for such other and further relief as to the court may seem proper ; that said application will be made upon said decision and upon the afSdavits and papers, with copies of which you are herewith served. Dated this day of 18.... LM. 842 Town and Oountt Ofpicerb' Manttal. FORM NO. 118. Obdeb Confirming DECisio{r of Commissioners. At a term of the County Court, held at the m In the of , on the day of .^ , 18...> Present — Hon. E E, county judge. (Title as in Form No. .) On reading and filing the decision of the commissioners, S S, G G and J J, in the above entitled matter, dated the day of , 18. ...i by which it appears (state substance of decision) , with proof of due service upon N N and W W of notice of this anplication and (state other papers), and on motion of A D, counsel for L M, after hearing B B, counsel for N N and W W, opposed, and on reading (name the papers) ; It is hereby ordered that the said decision be and the same is hereby con- firmed (or vacated, or modified or corrected as follows : State how), with costs amounting to $...... in lavor of and against E E, County Judge, § 1 1. Limitations upon laying out hightrays ; highways through OFchat'dS) gardens or grapie vineyards ; order of county court lay- ing out such highways ; procedure of high-way commissioners. 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 fix* tures or erections for the purposes 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 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 com- missioners appointed by the court have certified that it ia necessary; a copy of the certificate, 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 occHpaats; the county eourt upon such certificates, and the proofs and other proceedings therein, may order the highway to be laid out and opened, Laying Out, Altering, etc., Highways. 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 situ- ated, upon the usual notice of motion, served upon the owner or occupant, or the attorney who appeared for them in the county court. If such general term of the supreme court shall confirm the order of the county court, the com- missioners 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, fixtures, erections, yards or inclosures, made or placed op such lan^ after an application for the laying out and opening the high- way 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 por- tion, exceed half a mile in length, the commissioners may Jay out such extension or continuation, 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 commissioners 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 con- tinuation or extension. [Highway Law (L. 1890, ch. 568), § 90, as amended by L. 1895, ch, 508.J FORM NO. 119. Commissioners Certificate to the County Court to Lay Out a Hiqh- WAY Through an Obchakd. (Title as in Form No. 110.) The undersigned, cominissioners of highways of the town of , in said county, hereby certify that on the day of ....' , 18...., L M, who is liable to be assessed for highway labor in said town, made a written application to us as such commissioners to lay out a highway in said town, passing through an orchard of T W, of the growth of four years or more, pursuant to section 90 of the highway law, as follows ; (Insert a copy of the application). And that the said T W does not consent thereto ; that the following proceedings were had upon such application : (Insert a history of the proceedings up to and including the decision of the commissioners ap' 344 Town and County Officees' Manual. pointed by the courts.) We further certify that the public interest will be greatly promoted by the laying out and opening of such highway through said orchard ; and commissioners appointed by this court have certified that such highway is necessary and proper, and have assessed the damages of T W by reason thereof, at $ Dated this .... day of , 18. . . . A B, C D, E F, Commissionera of Highwaya. FORM NO. 120. Obdes of County Court to Lay Out Highway. At a term of the county court, held at fat the of on the day of 18.... Present — Hon. E E, county judge. (Title as in Form No. 110.) Upon reading and filing the certificate of A B, C D and E F, commissionera of highways of the town of , in the county of , dated the day of , 18. . . ., stating (here state the sub- stance of the facts in the certificate) with proof of due service of notice of this motion, and upon reading the (state what papers), and after hearing A D, of counsel for the applicant, and B B, of counsel for T W, opposed ; It is hereby ordered that said highway be laid out and opened pursuant to section 90 of the Highway Law, with ten dollars costs of this motion. - - E E, County Judge. FORM NO. 121. Order op the Appellate Division. In the Appellate Division of the Supreme Court, in the depart- ment, held at the court house in the city of on the day of 18.... Present — Hon. H R, P. J.; Hon. B D, Hon. C B, Justices of the Supreme Court. (Title as in Form No. 110.) A B, C D and E F, as commissioners of highways of the town of , in the county of having presented to us the order of the county court of county, dated the day of , 18. . . ., that a highway be laid out in said town, passing through the orchard of T W, of the growth of four years or more, pursuant to section 90 of the Highway Law, the, said T W, not consenting thereto, with the certificate and proofs upon which the said order was granted, duly certified by such court , with proof of due service of notice of this motion on the said T W, and after hear- ing B B, of counsel for the applicant, on the motion, and X B, of counsel for T W, opposed ; It is hereby ordered that the said order of such county court be, and the same is hereby confirmed, with $ costs of this motion. Laying Out, Altering, etc., Highways. 345 § 12. laaying out high^rays through burying grounds. No 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.J § 13. Costs, by -whom paid; compensation of commissioners. In all cases of assessments of damages by commissioners appointed by the court, the costs thereof shall be paid by the town except when reassessment of damages shall be bad on the application of the party for whom the damages were assessed, and such damages shall not be increased 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 persons who may be liable for costs under this section shall be liable in proportion to the amount of damages respec- tively 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, § 2.J "Costs" as referred to in this section are costs which maybe allowed to one of the parties under the provisions of section 152. People ex rel Bevins V. Supervisors, 82 Hun, 298. The term "costs" cannot be deemed to apply to a bill for legal services rendered by an attorney employed by the highway commissioner. A high- way commissioner cannot bind the town except under a power expressly con- ferred by statute, and so would be personally liable for suoh a bill. People ex rel. Bevins v. Supervisors, 82 Hun, 398. When the commissioners report in favor of a proposed highway and assess the damages but the proceeding fails because of the absence of the necessary consent of the owner or 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 ; see § 83 of Highway Law, ante. 346 Town and County Officers" Manual. Fees of commissioners are not a charge upon the town when the prooeed- ing to lay out a highway fails. Matter of Miller, 9 App, Div. 206. § 14. Damages and costs to be audited as town charges. All damages to ba agreed upon, or which may be finally assessed, 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, jus- tices, surveyors or other persons or officers employed in making the assessment, and for whose services the town 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 commiasionera of highways of such town, who shall pay to the owner the sum assessed to him, and appro- priate the residue to satisfy the charges aforesaid. [High- way Law (L. 1890, ch. 56), § 93, as amended by L. 1898, oh. 106.J § 15. Proceedings -when officers of different towns disagree about high^ray ; appointment of commissioners to hear and determine^ by county court. When the commissioners of highways of any town, or officers of any village or city having the powers of commis- sioners of highways, shall dififer with the commissioners of highways of any other town, or with the officers of such a village or city having the powers of commissioners of high- ways in the same county, relating to the laying out of a new highway or altering an old highway extending into both towns, or a town and a village or city, or when commis- sioners 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 high- ways, 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, the commissioners of highways of both towns, or the officers of the village or city having such powers, shall meet on five days' written notice, specifying Laying Out, Altering, etc., Highways. 347 the time and place, within some one of such towns, villages or cities, given by either of such commissioners or officers having powers of commissioners of highways, to make their determination in writing, upon the subject of their differ, ences. If they cannot agree, they or either of them may certify the fact of their disagreement to the county court of the county, if the proposed highway is all in one county, or if in different counties, or if the county judge is disqualified or unable to act, to the supreme court; such court shall there- upon apppoint 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 constitu- tional oath of ofiBce, and upon due notice to all persons inter- ested, view the proposed highway, or proposed alteration of a highway, administer all necessary oaths, and take such evidence aa they shall deem proper, and shall decide (sub. ject to the approval of the court, aa hereinafter provided) 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 relat. ing thereto; and if they decide to open or alter such high- way, they shall ascertain and appraise the damages, if any, to the individual owners and occupants of the land through which such new or altered highway is proposed to pass, and shall report such evidence and decision to such court, with their assessment 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 office of each county where the highway is located, and shall be duly recorded therein. [Highway Law (L. 1890, ch. 568), § 94.J § 16. Proceedings irhen bighTray o£Bcers disagree as to improve* ments upon highways. When the commissioners of highways of a town, or the 348 Town and County Officers' Manual. oflScers of a village or city having the powers of commis- sionera of highways therein, shall desire 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 such bounds, but cannot agree in regard to the same, upon written application of either of the commissioners or officers, and notice to all parties inter- ested, such court shall make an equitable adjustment of the matters, and may direct, that in consideration of the pay. ment of such portion of the additional expense by the town, village or city that desires the improved and better highway, shall be equitable, its officers, contractors, servants and agents may go into such town, village or city, and make the grade and road-bed, and do whatever may be necessary and proper for the completion of such better highway, advanc- ing the money to do it; the amount of damages to each owner or occupant, shall be ascertained and determined by commissioners, who shall be appointed, and whose proceed-, ings shall be conducted in the manner provided by the last preceding section; and upon the coming in of their report of damages, and of the expenses paid, such court shall, on notice to all parties interested, direct that the amount of damages assessed to each owner or occupant, if any, and all such expenses be paid by each, any or all of such towns, villages or cities as shall be just and equitable, and the dam- ages and expenses assessed and allowed, as in this and the last preceding sections, shall be paid and collected as if fixed by the commissioners of highways of the towns, or the officers of such villages or cities having the powers of such commissioners. Every commissioner appointed as herein provided, shall be paid six dollars for each day actually and necessarily employed in such service and necessary expenses. [Highway Law (L. 1890, ch. 568), § 95.] § 17. When highway is in two or more towns, application to be made to commissioners of each toven. When application is made to lay out, alter or discontinue Laying Out, Altering, etc.. Highways. 349 a highway located in two or more towns, all notices or pro- ceedings required to be served upon the comraisisioners of highways, shall be served upon the commissioners of highways of each town; and the commissioners appointed by the court, shall determine the amount of damages to be paid by each town, and when the towns are in different counties, the application for the appointment of commissioners shall be made to a special term of the supreme court held in the dis- trict where the highway or some part of it is located; and the same proceedings shall thereafter be had in the supreme court of such district as are authorized by this chapter to be had in the county court. [Highway Law (L. 1890, ch. 568), § 96.J § 18. Laying; out, dividing and maintaining high-vrajr upon to'vrn line. An application to lay out a highway upon the line between two or more towns shall be made to the commissioners of highways of each town, who shall act together in the matter; and, upon laying out any such highway, they shall divide into two or more highway districts, in such manner that the labor and expense of opening, working and keeping the same in repair through each of such districts may be equal, as near as may be, and to allot an equal number of the districts to each of the towns; each district shall be con- sidered as wholly belonging to the town to which it shall be allotted, for the purpose of opening and improving the high- way and for keeping it in repair; and the commissioners of highways shall cause the highway and the partition and allotment thereof to be recorded in the office of the town clerk in each of the respective towns. If such highway be upon a line between one or more towns and a city or incorporated village, such application shall also be made to the officers of such city or village having the powers of commissioners of highways, and such officers may agree with the highway commissioners of such towns as to the division of the labor and expense of opening, working and maintaining such highway. Whenever such oflBcera shall disagree as to such division, application may be made for the appointment of 350 Town and County Officers' Manual. commissioners, and the same procedure shall be had as is prescribed in this article for the settlement of disagreements between the highway officers of different towns. All high- ways heretofore laid out upon the line between any two towns or between a town and a city or an incorporated village shall be divided and allotted or re-divided and re-allotted, recorded and kept in repair, in the manner above directed. [Highway Law (L. 1890, ch. 568), § 97, as amended by L. 1895, ch. 181.] § 19. Final determination of commissioners and all papers In proceedings to be filed in ofBce of town clerk; enforcement of determination. The final determination of commissioners appointed by any court, relating to the laying out, altering or discontinu- ing a highway, and all orders and other papers filed or entered in the proceedings, or certified copies thereof from the court where such determination, order and papers are filed and entered, shall be forthwith filed and recorded in the town clerk's office of the town where the highway is located; and every such decision shall be carried out by the commissioners of highways of the town, the same as if they had made an order to that effect. [Highway Law (L. 1890, ch. 568), § 98.J g 20. When Iiighways deemed abandoned; written description of abandoned higliway to be filed and recorded. Every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public, or laid out, shall cease to be a highway; but the period during which any action or proceeding shall have been, or shall be pending in regard to any such highway, shall form no part of such six years; and every highway that shall not have been traveled or used as a highway for six years, shall cease to be a highway, and every public right of way that shall not have been used for said period shall be ^^deemed abandoned as a right of way. The commissioners of highways shall file, and cause to be recorded in the town clerk's office of the town, written description, signed by them, of each highway and public right of way so abandoned, and the same shall thereupon be discontinued. [Highway Law (L. 1890, ch. 568), § 99, as amended by L. 1899, ch. 622.1 Laying Out, AltdbinOi etc,, Highways. 351 and the same shall thereupon be discontinued. [Highway Law (L. 1890, ch. 568), § 99.] FORM NO. 123. Description ov Highway Abandoned. We, the undersigned, commississioners of highways of the town of , in the county of , hereby certify that the highway (here describe it), has been abandoned by the public, and is no longer used aa a public highway ; and pursuant to section 99 of the Highway Law, the same is discontinued. Dated this .... day of , 18.... - ' A B, C D, E F, Commissioners of Sighwaya. § 81. Lands used as highways for twenty years become highways by use. All lands which shall have been used by the public as a highway for the period of twenty years or more, shall be a highway, with the same force and efifect as if it had been duly laid out and recorded as a highway, and the commis- sioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods. [Highway Law (L. 1890, ch. 568), § lOO.J What are highways. For cases decided in the courts of this state upon what constitutes a highway, see Greene's Highway Laws of New York, pp. 101-113. Highways by use. Premises used as highways by the public for twenty years, even without dedication, become public highways. Town of Corning V. Head, 86 Hun, 12 ; City of Cohoes v. Railroad Co., 134 N. Y. 397 ; James v. Sammis, 132 N, Y. 239; Oity of Oohoesr. D. & H. C. Co., 134 N. Y. 397; Snyder v. Plass, 28 N. Y. 465 ; Porter v. Village of Attica, 33 Hun, 605 ; Galatian v. Gardner, 7 Johns. 106 ; Devenpeck v. Lambert, 44 Barb. 596 ; Chapman v. Swan, 65 Barb. 810 ; Matter of Shawangunk Kill Bridge, 100 N. Y. 642 ; Wiggins v. Tallmadge, 11 Barb. 457 ; Miller v. Garlook, 8 Barb. 153 ; People V. Fowler, 43 N. Y. 8t. Eep. 415 ; Kdsey v. Burgess, 35 N. Y. St. Eep. 369 ; Post V. Ry. Go., 84 N. Y. St. Rep, 487. The user must be like that of highways generally. The road must not only be traveled upon, but it must be kept in repair or taken in charge of and adopted by the public authorities. Speir v. New Utrecht, 121 N. Y. 420 ; People V. Osborn, 81 Hun, 441 ; Flack v. Green Island, 122 N. Y. 107 ; Matter of Hand Street, 52 Hun, 206 ; People v. Loehfelm, 102 N. Y. 1 ; Vandermark v. Porter, 40 Hun, 897 ; Harriman v. Howe, 78 Hun, 280. 352 Town and County Ofpicbkb' Manual. § 23. Application for private road. An application for a private road shall be made in writing to the commissioners of highways of the town in which it is to be located, specifying its width and location, courses and distances, and the names of the owners and occupants of the land through which it is proposed* be laid out. [Highway Law (L. 1890, ch. 568), § 106.] FORM NO. 133. Application for a Private Boad. To the Commissioners of Highways of the Town of ,intlio County of ; The undersigned, an inhabitant of said town and liable to be assessed for highway labor therein, hereby makes application to you to lay out a private road for his use and benefit, beginning (insert description, giving its width and location, courses and distance) and said proposed road will run through the land of T W, occupied by R S. Dated this day of ,18.... LM. § S3. Jury to determine necessity and assess damages. One or more of the commissioners to whom the application shall be made, shall appoint as early a day as the conveni- ence of the parties interested will allow, when, at a place designated in the town, a jui-y wUl be selected for the pur- pose of determining upon the necessity of such road, and to assess the damages by reason of the opening thereof. [Highway Law (L. 1890, ch. 568), § 107.] § 24. Copy of application and notice delivered to applicant. Such commissioners shall deliver to the applicant a copy of the application to which shall be added a notice of the time and place appointed for the selection of the jury, addressed to the owners and occupants of the land. [High- way Law (L. 1890, ch. 568), § 108.] § 25. Service of copy of application and notice of hearing upon oirners. The applicant on receiving the copy and notice shall, on the same day, or the next day thereafter, excluding Sunday *So in originaL Laying Out, Altering, etc., Highways. 353 and holidays, cause such copy and notice to be served upon the persons to whom it is addressed, by delivering to each of them who reside in the same town a copy thereof, or in case of his absence, by leaving the same at his residence, and upon such aa reside elsewhere, by depositing in the post- office a copy thereof to each, properly inclosed in an envelope, addressed to them respectively at their post-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.J § 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 eighteen resident freeholders of the town, in no wise of kin to the applicant, owner or occupant, or either of them, and not interested in such lands. [Highway Law (L. 1890, ch. 568), § 110. J § 37. Names of jurors struck from list ; jury, hoTV made up. The owners or occupants of the land, may strike from the list not more than sis names, and the applicant a like num- ber; and of the number which remain, the six names stand- ing first upon the list shall be the jury. [Highway Law (L. 1890, ch. 568), § 111.] %ZS. 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.J § S9. Jury to meet and determine damages. At least one commissioner and all the persons named and summoned on such jury, shall meet at the time and place ap- pointed; but if one or more of the six jurors shall not appear, the commissioner or commissioners present shall summon 23 354 Town and CouKTr Officers' Manual. 80 many qualified to serve as such jurors as will be sufficieut to make the number present six, to forthwith appear and act as such; and when six 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. [Highway Law (L. 1890, ch. 568), § 113.] § 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.J §31. Deduction by jury on account of discontinuance or altera- tion of high-way. 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 consideration 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.J § 3S. Verdict and certificate of commissioners to be filed in ofDce of toT7n clerk. The commissioners shall annex to such verdict the applica- tion, and their certificate that the road is laid out, and the same shall be filed and recorded in the town clerk's office. [Highway Law (L. 1890, ch. 568), § 116.] § 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 Laying Out, Altering, btc, Highways. 355 is opened or ased; but if the jury sball certify that the necessity of auch private road was occasioned by the altera- tion or discontinuance of a public highway, such damages shall be paid by the town, and refunded to the applicant. [Highway Law (L. 1890, ch. 568), § 117.] § 34. Fees of officers to be paid by applicant. Every juror, in proceedings for a private road, shall be entitled to receive for his services one dollar and fifty cents; and commissioners, of highways, their per diem compensa- tion, to be paid by the applicant. [Highway Law (L. 1890, ch. 568), § 118.] § 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 oflice, the owner or occupant may apply to the county court of the county wherein such private roadis 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 motion 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 county court shall be fiual, except that a new hearing may be had, as herein provided. If the final decision sball 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,] § 36. Costs of new hearing. If, Upon a new hearing, the damages assessed are incr -ased, the applicant shall pay the costs and expenses 356 Town and Codnty Officers' Manoal. thereof, otherwise the owner shall pay the same. [High- way Law (L. 1890, ch. 568), § 120.J § 37. For what purpose private road to be used. Every such 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 otlier use or purpose than that of a road; nor shall the occupant or owner of the laud through which said road shall be laid out, be permitted to use the sanae 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 assessed. [Highway Law (L. 1890, ch. 568), § 121. J § 38, Damages where highvrays or private roads run along divi. sion lines, for building additional fences. Whenever a highway or private road shall be laid along the division line between lands of two or more persons, and wholly upon one side of the line, and the land upon botl; sides is cultivated or improved, the persons owning or occu- pying the lauds adjoining such highway or road, shall be paid for building and maintaining such additional fence at they may be required to build or maintain, by reason of tho laying out and opening such highway or road; which dam- ages shall be ascertained and determined in the same manne'' that other damages are ascertained and determined in the laying out of highways or private roads. [Highway Law (L. 1890, ch. 568), § 122.] § 39. Adjournments of Droceedings to lay out, alter or discon- tinue highw^ays. If any accident shall prevent any of the proceedings required by this chapter relating to the laying out, altering or discontinuing of a highway, or the laying out a private road, to be done on the day assigned, the proceedings may be adjourned to some other day, and the commissioner shall publicly announce such adjouromeat. [Highway Law (L. 1890, ch. 568), § 123.] Laying Out, Altejring, btc, Highways. ^Sl § 40. Papers relating to laying out, altering or discontinuing highway to be filed with town clerk. All applications, certificates, appointments and other papers relating to the laying out, altariug or discontinuing of any highway shall be filed by the commissioners of high- ways as soon as a decision shall have been made thereon in the town clerk's ofiice of their town, [Highway Law (L. 1890, ch. 568), § 150.J § 41. Failure of commissioners to act. When any commissioner or other ofBcer 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.J § 4S. Costs on motion to confirm, vacate or modify report of com- missioners. Costs of a motion to confirm, vacate or modify the report of commissioners appointed by the court to lay out, alter or discontinue a highway may be allowed in the discretion of the court not exceeding fifty dollars. 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 dollara. THighway Law (L. 1890, eh. 568), § 152.] 858 Town Lst> County Ofpicbes' Manual. CHAPTER XXVI. InJUBIB«1 1!% USE OP, AND ENCROACHMENTS UPON HIGHWAYS. Beottok \. Injuries to highways and bridges ; treble damages therefor. 2. Penal code provisions relating to highways. 8. Town not liable for bridge breaking bv wagon and load of over four tons. 4. Steam traction engines on highway 5. Trees along highways, to whom they belong. 6. Shade trees along highways, injuries to, by leaving horses or other animals near, or by mutilation; penalty, how recovered. 7. Carriages meeting, to turn to the right. 8. Intemperate diivers 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. Bicycles and tricycles entitled to free and unobstructed use of highways ; commissioners not to pass certain ordinances. 14. Commissioners of highways to recover penalties. 16. Stone and rubbish not to be dumped in highways. 16. When highways are laid out, fences to be removed. 17. Penalty for falling trees into highways. 18. Fallen trees to be removed. 19. Penalty for obstruction or enoroaohment. 20. Commissioners to notify owner or occupant to remove obstruc- tion or encroachment ; penalty for failure to remove. § 1. Injnries 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 high- way, shall for every such offense, forfeit treble damages. [Highway Law (L. 1890, ch. 568), § 153.J § S. Penal Code privlsions relating to highways* "Public nuisance" defined, A public nuisance is a crime against the order and economy of the state, and consists in u I'.iwfully doing an aot, or omitting to perform a duty, which aot or omission ; Injueies, etc., to Highways. 359 5. Unlawfully interferes with, obstructs, or tends to obstruct, or renders dangerous for passage, a lake, or a navigable river, bay, stream, canal or basin, or a public park, square, street or highway. [Penal Code, § 385, sub. 3.] Noisome or unwholesome substances, etc., in highway. A person, who deposits, leaves or keeps, on or near a highway or route of public travel, either 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 misdemeanor, 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.] 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 highway, or any inscription upon the same ; Is punishable by imprisonment for not more than two years. [Penal Code, § 434, subs. 1, 6.] Throwing substance injurious to animals in public place, a misdemeanor, A person who wilfully 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 raetal or other substance which might wound, disable or injure any animal, is guilty of a midemeanor. [Penal Code, § 66 j .] 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 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 misde- meanor, and on conviction be fined not less than five nor more than fifty dollars. [Penal Code, § 654a.] § 3. Tovni not liable for bridge-breaking by Tragon and load of over four tons. No town shall be liable for any damage resulting to person or property by reason of the breaking of any bridge, by trans- portation on the same, of any vehicle and load, together weighing four tons or over; but any owner of suoh vehicle or load, or other person engaged in transporting or driving the same over any bridge, shall be liable for all damages re- Bulting therefrom. [Highway Law (L. 1890, ch. 568), § 154.] 360 Town and County Officers' Manua.l. § 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 street, except upon railway tracks, unless such owners, or their agents or servants, shall send before the same, a per- son of mature age, at least one-eighth of a mile in advance, ■who shall notify, and warn persons traveling or using such highway or street, with horses or other domestic 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. [Highway Law (L. 1890, ch. 568), § 155.J Malicious injury and destruction of property. A person who wilfully, 11. Drives or leads along a public highway a -wild and dangerous 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 Buch animal, vehicle or engine by at least one-eighth of a mile, carrying a red light, if in the night-time, and gives warning to all persons whom he meets traveling such highway, of the approach of such animal, vehicle or engine; Shall be deemed guilty of a misdemeanor. [Penal Code, § 640, sub. 11.] g 6. Trees along the highvrays ; 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 occupant 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.] § 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 school house, church or public building, or along any public highway, or to cut down or Injuries, etc., to Highways. 361 mutilate, in any way, any such ornamental or shade trees; but the right of property owners to cultivate, train and use such shade trees shall not be impaired or abridged hereby. [L. 1875, ch. 215, § 1, as amended by L. 1881, ch. 344.] Any person or persons guilty of violating the provisions of section 1 of this act shall be liable to prosecution by any person, before any justice of the peace in the town where the offense is committed, and punishable by a fine not ex- ceeding ten dollars, nor less than one dollar, besides the costs of action for each offense or for tree cut down or muti- lated in violation of the provisions of this act; and every such penalty, when collected, shall be paid by the justice, one-half to the overseer 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 penal- ties imposed 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.] § 7. Carriages meeting to turn to the right. Whenever any persons traveling with any carriages, shall meet on any turnpike road or highway, the persons so meet- ing shall seasonably turn their carriages to the right of the center of the road, so as to permit such carriages to pass without interference or interruption, under the penalty of five dollars for every neglect or offense, to be recovered by the party injured. [Highway Law (L. 1896, ch. 568), § 157.] It is 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; and even as to them there are many excf'ptions. Mooney v. Trow, die,, Co., 2 Misc. 23S; Newman v. Ernest, 31 N. Y. St. Rep. 1; Sarpell v. Ourtis, 1 E. D. Smith, 78; Pike v. Bosworth, 7 St. Rep. 665; Smith v. Dygert, 12 Barb. 613. Runaway horses should be guided to the right side of the road to avoid a collision. But if the horses are beyond control of the driver and he uses due diligence and the best of his ability as a skillful driver to control them, the 362 Town and County Ofpicbbs' Manual. law of the road doea not apply. Oadieell v. Arnheim, 81 Hun, 89; AflPd. N. Y. 183. The centre of the road means the centre of the worked part of the road; it is immaterial that one side was rougher than the other. Earning v. Lansing, 7 Wend. 185 ; Simmonson \. Stellenmerf, Edm. S. C. 194 ; Pike v. Bosworth, 7 N. Y. St. Rep. 665. And when snow is upon the ground it is sufficient to keep to the centre of the beaten track. Smith v. Dygert, 12 Barb. 613. The rule does not apply to a traveler on horseback meeting another horse- man or a vedicle; reasonable care is all that is required in such case. Dudley V. BoUes, 24 Wend. 465. § 8. Intemperate drivers not to be employed ; penalty. No person owning any carriage for the conveyance of pas- sengers, running or traveling upon any highway or road, shall employ, or continue in employment, any person to drive such carriage, who is addicted to drunkenness, or to the excessive use of spirituous liquor; and if any such owner shall violate the provisions 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 iu his employment. [Highway Law (L. 1890, ch. 568), § 158.J § 9. Intoxicated drivers to be discharged upon notice of pas- sengers. If any driver, while actually employed in driving any such carriage, shall be guilty of intoxication, to such a degree as to eidanger 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 employ- ment after receiving such notice. [Highway Law (L. 1890, ch. 568), § 159.] § 10. Iieaving horses untied by drivers of public conveyances. No driver of any carriage used for the purpose of convey- ing passengers for hire, shall leave the horses attached Injuries, etc., to Highways. 363 thereto, while passengers remain in the same, without first making such horses fast with a sufficient 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 ofifend against the provisions of this section, he shall forfeit the sum of twenty dollars. [Highway La\^? (L. 1890, ch. 568), § 160.J §11. 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 passen- gers, shall be liable jointly and severally, to the party injured, for all injuries and damages done by any person in the employment of such owners, as a driver, while driving Buch carriage, whether the accident occasioning such in- jury or damage be willful or negligent, or otherwise, in the same manner as such driver would be liable. [Highway Law (L. 1890, ch. 568), § 161.] § 12. Term "carriage" defined. The term "carriage," as used in this article, shall be con- strued to include stage-coaches, wagons, carts, sleighs, sleds and every other carriage or vehicle used for the transporta- tion of persons and goods, or either of them, and bicycles, tricycles and all other vehicles propelled by manumotive or pedomotive power. [Highway Law (L. 1890, ch. 568), § 162.] § 13. Bicycles and tricycles entitled to free and unrestricted use of highways ; commissioners not to pass certain ordinances. The commissioners, trustees, or other authorities hav- ing charge or control of any highway, public street, 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 pro- hibited from the free use of any highway, public street, avenue, roadway, driveway, parkway or place, at any time 364 Town and County Officers' Manual. when the same is open to the free use of persons having and using other pleasure carriages; but nothing herein shall prevent the passage, enforcement or maintenance of any regulation, ordinance or rule, regulating the use of bicycles or tricycles in highways, public streets, driveways, parkways and places, in such manner as to limit and determine the proper rate of speed with which such vehicles may be pro- pelled, nor in such manner as to require, direct or prohibit the use of bells, lamps and other appurtenances, nor to pro- hibit the use* any vehicle upon that part of the highway, street or parkway, commonly known as the foot path or sidewak. [Highway Law (L. 1890, ch. 558), § 163.J Driving vehicles, et cetera, on sidewalks and bicycle sidepaths. 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 punish- able by a fine of fifty dollars, or imprisonment in the county jail not ex ceed ing thirty days, or both. 1. A person who wilfully and without authority or necessity drives any- team or vehicle, except a bicycle, upon a side path, or wheelway, constructed 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. [Penal Code, § 653.] § 14. Commissioners of highways to recover penalties. All penalties or forfeitures given in this chapter, and not otherwise specially provided for, shall be recovered by the commissioners of highways, in the name of the town ia which the offence shall be committed; and when recovered, shall be applied by them in improving the highways and bridges in such town. [Highway Law (L. 1890, ch. 568), § 164.J § 15. Stone and rubbish not to be dumped in high^^ays. 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 commissioner or overseer of highways. *So in originaL Injuries, etc., to Highways. 365 [Highway Law (L. 1890, ch. 668), § 165, as added by L. 1898, ch, 352.] § 16. When highways are laid out, fences to be removed. Whenever a highway shall have been laid out through any iuclosed, cultivated or improved lands, in conformity to the provisions 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 commis- sioners shall cause them to be removed, and shall direct the highway to be opened and worked. [Highway Law (L. 1890, ch. 568), § 101.] FORM NO. 134. NoTTCB TO Owner or Occupant to Remove Fences. To TW: Plase take notice that we, the undersigned commissioners of highways of the town of in the county of , having by an order (or certificate), duly made and filed in the office of the town clerk of said town, bearing date the day of , 18. ., laid out a public highway through your inclosed lands, do hereby require you to remove your fences from within the bounds of said highway, within sixty days after the service of this notice. Dated this day of ,18.... A B, C D, E F, Commissioners of Highways. § 17. Penalty for falling trees into highways. If any person shall cut down any tree on land not occu- pied by him, so that it shall fall into any highway, river or stream, unless by the order and consent of the occupant, the person so offending shall forfeit to such 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.] § IS. Fallen trees to be removed. If any tree shall fall, or be fallen by any .person from any 366 Town and County Officers' Manual. inclosed 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 removed within that time, but shall continue in the highway, the occupant of the land shall forfeit the sum of fifty cents for every day thereafter, until the tree shall be removed. [Highway Law (L. 1890, ch. 568), § 103.J § 19. Penalty for obstruction or encroachment. Whoever shall obstruct or encroach upon any highway, or shall unlawfully fill up or place any obstruction in any ditch for draining the water from any highway, shall forfeit for every such offense the sum of five dollars. [Highway Law (L. 1890, ch. 568), §104.J Penalties, recovery of. Highway Law, § 164, post, p. 364. Enaroachment by abutting owner. 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 necessity 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. 354 ; Gallanan v. Gilman, 107 N. Y. 360 ; Flynn v. Taylor, 127 N. y. 596. § 20. Commissioners to notify owner or occupant to remove ob- struction or encroachment ; penalty for failure to remove. The commissioners 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, 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 remove such obstruction or encroachment within such time, he shall for- feit 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 ownei' or occupant; or the said commissioners may bring an action in any court of competent jurisdiction, Injuries, etc., to Highways. 867 to compel such owner or occupant to remove such obstruc- tion or encroachment. Actions by commissioners of high- ways, as in this section provided, shall be in the name oi the town. [Highway Law (L. 1890, ch. 568), § 105.] FORM NO. 125. Notice to Eemove Obsteuotion or Encboachment. To T W: You are hereby notified by the undersigned commissioner^ of highways of the town of , in the county of that the highway in highway district No in said town adjoining the premisfis owned (or occupied) by you (state where) have been encroached upon (or obstructed) to the extent of (state how much) by the erection of a (or as the case may be), and you are hereby directed to remove the same within sixty days after the Bervice of this notice. Dated this day of 18.... AB, CD, E F Commission&rs of Etghwajia, 368 Town akd County Officbbs' Manual. CHAPTER XXVII. Town bkidqes. SBOnoa 1. Bridges to be maintained at expense of town ; joint liability of towns for bridges on boundary line of towns; county to con- tribute when bridge is over county line. 5. County aid to towns for construction and repair of bridges. 8. Commissioners to furnish to supervisors statement of expenses of maintaining free bridge. 4. Statements to be delivered to board of supervisors; board to levy amount thereof. 6. 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. Comaiissioners 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. 13. Costs of proceedings ; appeal to conform to practice of supreme court. 18. 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. § 1. Bridges, to be maintained at expense of towns; Joint liability of towns for bridges over boundary lines of towns ; county to con- tribute when bridge is over county line. The towns of this state, except as otherwise herein pro- vided, shall be liable to pay the expenses for the construc- tion and repair of its public free bridges constructed over streams or other waters within their bounds, and their just and equitable share of 'Such expenses when so constructed Town Bridges. 369 over streams or other waters upon their boundaries, except between the counties of Westchester and New York; and when such bridges are constructed over streams or other waters forming the boundary line of towns, either in the same or adjoining counties, such towns shall be jointly liable to pay such expenses. Each of the counties of this state shall also be liable to pay for the construction, care, mainte- nance, preservation and repair of public bridges, lawfully constructed over streams or other waters forming its bound- ary line, not less than one-sixth part of the expenses of such construction, care, maintenance, preservation and repair. [Highway Law (L. 1890, ch. 568), § 130, as amended by L. 1895, ch. 416.] § 2. County aid to to'^vns for the construction and repair of bridges. If the board of supervisors of any county shall deem any town in the county to be unreasonably burdened by its ex- penses for the construction and repair of its bridges, the board may cause a sum of money, not exceeding two thou- sand dollars in any one year, to be raised by the countv and paid to such town to aid in defraying such expenses. [County Law (L. 1892, ch. 686), § 63.] i 3. Commissioners to furnish to supervisor statement of expenses of maintaining free bridge. The commissioners of highways of every town in which the whole or any part of any free bridge may be, shall make and deliver to the supervisor of the town, on or before the first day of November in each year, a written statement, verified by one of them, containing a description of such bridge, the whole expense in items incurred by the town during the year preceding for its construction or repair. [Highway Law (L. 1890, ch. 568), § 132.J FORM NO. 136. Statement to the Sxtpervisor of the Expenses of Bridges. We, the undersigned, commissioners of highways of the town of , in the eountv of pursuant to section 132 of the Highway Law. 24 370 Town a.kd County Officeks' Manual. hereby render to the supervisor of said town a statement of the expenses incurred by us in the erection and repair of the free public bridges of said town as follows : (Here give an itemized account of the expenses incurred on each of the bridges.) Dated this day of 18.... A "3 C D, E F, Commissioners of Highwaya, STATE OF NEW YORK, ) . County OF , j A B, one of the commissioners of highways of said town, being duly sworn, Bays the foregoing statement, which is subscribed by him, is true. A& Subscribed and swsm to before me, ) this. . . .day of 18... ) GH, Justioe of the Peace. § 4. Statements to be delivered to board of Bupervisorsi board to levy amount thereof. Every supervisor to whom such statement is delivered shall present the same to the board of supervisors of hia county at its next annual session thereafter, and the board of supervisors shall levy upon the taxable property of the county a sum suflBcient to pay its proportion of such expense, and the same when collected shall be paid to the commis- sioners of highways of such town to be applied toward the payment of such expense. [Highway Law (L. 1890, ch. 568), § 133.J § 5. Joint liabilities of towns, and their joint contracts on ac- count of bridges. Whenever any two or more towns shall be liable to make or maintain any bridge or bridges, the same shall be built and maintained at the joint expense of such towns, without reference to town lines. The commissioners of highways of all the towns or of one or more of such towns, the others refusing to act, may enter into a joint contract for making and repairing such bridges. [Highway Law (L. 1890, oh. 568), § 134.J Town Bridgbs. 371 § 6. Refusal of commissioners of one town to rebuild or repair bridge ; action to recover amount expended by one totvn. If the coinmiaaionGra of highways of either of such towns, after notice in writing from the commisaioners of highways of any other of such towns, shall not within twenty 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 commisaioners of highways giving such notice may make or repair such bridge, and then maintain an action in the name of the town, against the town whose com- missioners neglect or refuse to join in such making or repair- ing, and in such action, the plaintififs shall be entitled to recover so much from the defendant, as the town would be liable to contribute to the same, together with costs and in- terest. [Highway Law (L. 1890, ch. 568), § 135.] FORM NO, 127. Notice to Commissioners of Adjoining Towns. To the Commissioners of Highways of the Town of in tha County of ; Whereas, the bridge (here describe it) has become, and is, unsafe for public use and travel (state in what respect), you are hereby notified and required to join with the undersigned commissioners of the town of , inthe county of , in rebuilding (or repairing) said bridge, and to give your consent in writing to the same vrithin twenty days after the ser- vice of this notice, pursuant to section 135 of the Highway Law. Dated this day of 18. . . . AB, C D, EF, Commissioners of Highways of the tovmof FORM NO. 138. Consent to Rebuild or Repair Bridge, To the Commissioners of Highways of the Town of ,in fho County of Pursuant to your notice served on us, dated the day of , 18. ., and to section 135 of the Highway Law, we, the undersigned commis- sioners of highways of the town of in the county of hereby consent to join with you in rebuilding (or repairing) the (designate the bridge) it being the same bridge mentioned in your said notice> Dated this day of , 18.... A A, B B, « . . CO, Commissioners of Highways of the tovm of...,,,.,. 372 Town and County Oppicbrs' Manual. § 7. Application of freeholders to repair or rebuild bridge oxer boundary line ; procedure if commissioners refuse. Whenever any adjoining towns shall be liable to make or maintain any bridge over any streams dividing auch towns, whether in the same or different counties, three freeholders in either of such towns may, by petition signed by them, apply to the commissioners of highways in each of such towns, to build, rebuild or repair such bridge, and if such commissioners refuse to build, rebuild or repair such bridge, within a reasonable time, either for want of funds or any other cause, such freeholders, upon affidavit and notice of motion, a copy of which shall be served on each of the com- missioners, at least eight days before the hearing, may apply to the supreme court 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 commissioners to build, rebuild or repair such bridge, and the court upon such motion may, in doubtful cases, refer the case to some disinterested person to ascertain the requisite facts in rela- tion thereto, and to report the evidence thereof, to the court. Upon the coming in of the report, in case of such reference, or upon or after the hearing 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 require. If the mo- tion 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 shall be raised in each town. [Highway Law (L. 1890, ch. 568), § 136.J FORM NO. 129. Petition op FreehoIiDers to Commissioners op Adjoinino Towns. To A B, C D and E F, Commissioners of Highways of the Toum of , in the County of , and A A, B B and C, Commission's of Highways of the Town of in the County of : We, the undersignod, L M, N O and R 8, do respectfully, pursuant to sec- tion 136 of the Highway Law, petition and apply to you, and show that we are each of us freeholders of the said town of , and that the high- way bridge known as the [here designate the bridge] which crosses the ( lama the stream), a stream forming the boundary line between said towns Town Beidqbs. 873 o' and has become and is out of repair and is unsafe for public use and travel ^state in what respects), that said bridge has been ' repaired and maintained at the joint expense of said towns, and said towns are jointly liable to make and maintain a bridge at said point. And we hereby petition and apply to you, the said commissioners, to rebuild (or repair) the bridge at said point. Dated this day of IB... liM, NO, B & FORM NO. 130. Notice of Moi'ion, SUPREME COURT— County op In the Matter of the Application of L M, N and R S for an order requiring the commis- sioners of highways of the towns of and to rebuild the bridge known as To AB, CD and E F, Commissioners of Highways of the Town of , in the County of , and AA,BB and G, Com,missioner8 of Highways of the Touon of in the County of ; Take notice that an application will be made to this court at a special term thereof, to be held at the court-house, in the of on the day of ,18 at the opening of the court on that day, for an order requiring you, the said commissioners, to rebuild (or repair) the bridge mentioned in the afiBdavit hereto attached, and requiring money to be appropriated or raised therefor, and for such other and further relief as to the court may seem right. The application will be made on affidavit and papers, copies of which are herewith served on you. Dated this day of 18.... LM. NO. BS. FORM NO. 131. Affidavit fob an Order to Build a BBiDas. (Title as In preceding form.) STATE OF NEW YORK, ) . County of ; **•• L M, N O and R S. being severally and duly sworn, say that they are free- holders of the town of , said county, and that said town joins the town of , in the county of , and the (name the stream) forms the boundary line between said towns ; that at (describe where) a free public bridge has been maintained at the joint expense of said towns, and 374 Town and County Officers' Manual. said towns are jointly liable for the building, rebuilding, repairs and main- tenance of such bridge at such point ; that such bridge is (describe the kind of bridge fully) and has become unsafe and unfit for public use and travel (describe fully the condition the bridge is in), and that in our opinion it would be more for the interests of the said towns to rebuild than to repair said bridge (or as the case may be); that on the day of , 18..., the above-named affiants united in a petition to A B, C D and E F, commis- sioners of highways of said town of and A A, B B and C U, commissioners of highways of the said town of , pursuant to section 136 of the Highway Law, which petition was duly served on each of said commissioners, and which requested them to rebuild (or repair) said bridge at said point ; that thereafter and on the. . . .day of 18. ., said commissioners served on us a written refusal as follows : (Here set forth the refusal) that in our opinion an (iron) bridge should be built, and that the expense should be between $ and $ (approximate the expense as nearly as possible and insert anv other facts deemed necessary). LM, NO, BS. Subscribed and sworn to before me ) this day of ,18.. ) GH. FORM NO. 133. Order of Court to Rebuild Brisgb. At a special term of the Supreme Court, held at the court-house in the of , on the ...day of ,18.. Present:— Hon , justice. (Title of case as in Form No. 130.) On reading and filing the affidavit of L M, N O and R S, dated the. . . .day of , 18. ., setting forth that (here set forth the substantial facts ot the affidavit), with proof of due service of a copy of said affidavit and notice of motion upon each of the commissioners of highways of said towns, and after hearing J D, of counsel for said applicants, in favor of said motion, and D B, of counsel (or no one appearing) for the said commissioners in opposition thereto, It is hereby ordered, pursuant to section 137 of the Highway Law, that said commissioners build a (or repair) a (here describe the kind of bridge) at (here describe the place), at the joint expense of said towns, not to exceed dollars, and that one-half of the said expense shall be chargeable to each of said towns, to be assessed, levied and collected thereon, as other town charges are assessed, levied and collected. § 8. Commissioners may institute proceedings to compel com- missioners of adjoining toirn to repair bridge. The commissioners of bigbwajs of any such town, may Town Bridges. 375 institute and prosecute proceedings under this chapter, 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.J § 9. 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 commis- sioners of highways of such adjoining towns respectively, the commissioners of highways of such towns 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 repair- ing such bridge, pledging the credit of each town for the payment of its appropriate share, so far as the same shall be upon credit. [Highway Law (L. 1890, ch. 568), § 138. J § 10. Commissioners to report to town board ; board of super- visors to levy tax for expenses incurred upon appropriate to'wn. The commissioners 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 supreme court, an accurate account under oath, of what has been done in the premises, and deliver the same to the supervisor 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 building, rebuilding or repairing such bridge, after deducting all pay- 376 Town and County Officers' Manual. ments actually made by the commissioners thereon; which tax, including prior payments, shall in no case exceed the amount specified in the order. [Highway Law (L. 1890, eh. 568), § 139.J § 11. 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.J § 12. Costs of proceedings; appeal to conform to practice of supreme court. The special term may grant or refuse costs as upon a motion, including also witnesses' fees, referees' fees and disbursements. The appeal provided for in the last preced- ing section, shall conform to tlie 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), § 141.3 § 13. Refusal to repair bridge over boundary line after notice s cost of repair a totrn charge ; order of supreme court directing amount tliereof 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 down, or been swept away by a freshet or otherwise, if the commissioners of highways of the adjoining towns, after reasonable notice of such condition of the bridge, have neg- lected or refused, or shall neglect or refuse to repair or rebuild it, then whatever funds have been or shall be neces- sarily or reasonably laid out or expended in repairing such bridge, or in rebuilding the same, by any person or corpora- tion, shall be a charge on such adjoining towns, each being liable for its just proportion; and the person or corporation Town Bridges. 377 who has made such expenditure, or shall make such expen- ditures, 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 serv- ing papers upon the commissioners of highways of each of such towns at least eight days; and the court 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 forth- with serve a copy of such order upon the supervisor of each of their towns, who shall present the same to the board of supervisors, at their next annual meeting. The board of supervisors shall raise the amount charged upon each town by the order, and cause the same to be collected and paid to such persons or corporation as incurred the expenditure. The order shall be appealable. [Highway Law (L. 1890, ch. 568), § 142.J § 14. Penalty for driving faster than a walk over bridge; notice. The commissioners of highways may fix and prescribe a penalty, not less than one, nor more than five dollars, for riding or driving faster than a walk on any bridge in their town, 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 notice in large characters, stating each penalty incurred. [Highway Law (L. 1890, ch. 568, § 143.] § IS. 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.J § 16. Certificate of state engineer as to completion of iron bridge according to contract. No town or its oflScers shall be compelled to accept or pay 378 Town and County Officers' Manual. for an iron or steel bridge exceeding two hundred feet in length, or having a span or spans exceeding one hundred feet in length, constructed therein or upon its borders, until the state engineer and surveyor shall certify to the comple- tion of the bridge, pursuant to the contract under which it shall have been constructed, with his approval of the manner of its construction and the material thereof; and all con- tracts made for the construction of any such bridge, shall be subject to the provisions of this section. [Highway Law (L. 1890, ch. 568), § 145.] Boifios 07 Sufebvisobb; Hiohwatb. 879 CHAPTEE XXVIII. Duties of boards of supebvisobs as to highways and BRIDGES. Bionoil 1, When board of supervisors may lay out, open, alter or discon- tinue county highways or construct bridges. 8. Boards of supervisors may authorize the change of location or construction of bridges. 8. Board of supervisors may provide for construction of bridges destroyed by the elements, in certain cases. i. Apportionment of expenses when a bridge is intersected by town or county lines. 6. Coimty'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 repair bridges and highways and to borrow money therefor. 0. 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 highways to cause survey of highways to be made. 13. Board of supervisors may regulate toll rates. J 8. Powers of boards of supervisors as to highways in counties of more than 300,000 acres of unteproved land. 14. Appropriation of certain non-resident highway taxes. 16. Balance of state appropriations. 16. Alteration of state roads. 17. Further powers of board of supervisors as to highways. 18. Board of supervisors may pass laws as to use of wide tires on highways in certain counties. 19. Use of abandoned turnpike, plank or macadamized roads. 20. Definition of "upon its borders." § 1. When board of supervisors may lay out, open, alter or discontinue county highways ov confitruct bridges. A board of supervisors shall, on the application of twenty- five resident taxpayers, when satisfied that it is for the interest of the county, lay out, open, alter, or discoutinue a county highway therein, or cause the same to be doue« and 380 Town and County Offickrs' Manual. sonstruct, repair, or abandon a county bridge therein, or 3ause tbe same to be done, wben the board shall deem the authority conferred on commissioners of highways insuflS- 3ient for that purpose, or that the interests of the county will be promoted thereby. All expenses so incurred shall be a jounty charge. Such powers shall not be exercised unless bhe applicant 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 thereby. [County Law (L. 1892, ch. 686), § 61.J FORM NO. 133. Application. To the Board of Supervisors of the County of ; We, the undersigned, being twenty-five resident taxpayers of the county of .hereby make application, in pursuance of section 61 3f the County Law, for the laying out (opening, alteration or discontinuance) Df a county highway of the width of (or the construction, repair or discontinuance of a bridge), described as follows : (Insert a definite description of the proposed highway, or the location of the proposed bridge.) Dated this day of 18.... AB, CD, &a FORM NO. 134. NOTIOK OF Applicatios, To the Highway Commissioners of the several towns in the County of. . . .» Notice is hereby given that on the.... day of , 18.., the forego. ing application will be presented to the board of supervisors of the county of Dated this .... day of , 18.... AB, O D, &o. FORM NO. 136. PSOOF OF SeBYIOB. STATE OF NEW YORK, ) „ . County OP J 00, being duly sworn, says that he is a resident of IT. 7., and that he served copies of the application and notice annexed hereto, BoAKDS OP Supervisors; Highways. 381 personally, on each of the following commissioners of highways at the times and places set opposite thiir names, respectively : BCat , N. Y., May 9, at .... o'clock, in the noon. CD at , N. Y., May 10, at .... o'clock in the noon. OC. Subscribed and sworn to before me, ) this . . . . day of 18.. ) G H, Notary Pvtblio. FORM NO. 138. Order. At a meeting of the board of supervisors of the county of , held at , on the day of 18. ... Whereas, application has been made for the laying out (altering or discon- tinuing) of a highway (or the construction, repair or discontinuance of a bridge) in said county; and whereas satisfactory proof has been made to us of the service of a copy of such application, together with a notice of intention to make the same, upon a commissioner of highways of each town in said county ; and that it seems to us that there is a necessity for the laying out (alteration or discontinuance) of such highway (or the construction, repair or discontinuance of such bridge) ; Resolved, That a highway of the width of be laid out in accordance with such application, the center of which is to commence at , and run thence (insert survey). [Or, That a bridge be constructed over (state location), to be of the follow- ing description (state kind of bridge), the cost thereof not to exceed the sum of$ J E S, Chairman. C D, Clerk. Adopted. Ayes Noes § S. Board of supervisors may authorize the change of location or coDstruction of bridges. The board may authorize the location, change ot location and construction of any bridge, applied for by any town, or towns, jointly, or by other than a municipal corporation, created under a general law, or by any corporation or indi- vidual for private purposes; and if a public bridge, erected other than by a municipal corporation, establish the rates of toll for crossing such bridge; but if such bridge is to cross a navigable stream, provision shall be made in the resolution or permission authorizing the same, for the erection and maintenance of a suitable draw, to prevent any obstruction 382 To'w^N AND County Qfficsbs' Manual. of the navigation of such stream; and if a private bridge, provision shall be made that the draw shall be kept open aa may be required to permit all vessels to pass without loss ol headway. When such bridge shall be intersected by the line of counties, the action of the 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 oragniaed under the transporta- tion corporations law, provided such corporation shall com- ply with all the provisions of said transportation corpora- tions law applicable thereto; such a corporation, without further proceeding, shall have the right to erect and maiU" tain piers in said river for the purposes of such a bridge. [County Law (L. 1892, oh. 66), § 62, as amended by L, 1895, ch. 225.] § 8. Board of supervisors may provide for construction of brldg^ea 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 ele- ments, and the board of supervisors of the county shall deem that the expenses 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 supervisors 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 cor- poration created under a general law, and the site thereof, and of the approaches thereto, or either, shall be the prop- erty of such corporation, such board of supervisors may purchase the interest of such corporation, or any other per- son, in such site or approaches, if such purchase can be accomplished upon reasonable terms; but if such site or approaches cannot be lawfully acquired by such purchase, or otherwise, upon reasonable terms, such board may acquire Boards ob' JStrfERvisoRs; Sighways. title to pfeinises on either side of sudh site, and provide tot the Cbastruction of a bridge atld approaches thereto, at such place, at the expehse 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 inore than fiv^ rods. Any board of supervisors providing for the construc- tion of any such 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, oh. 686), § 64.] § 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 super- visors of such county shall apportion as it shall deem equit- able, between such towns, their respective shares of the sxpenses of the construction, maintenance and repair of Bucb bridge, and the amount to be received by each town, of the money raised by the county to be paid toward defray- ing the expenses of constructing and repairing such bridge. [County Law (L. 1892, ch. 68 ), § 65.] § 5. County's share of expenses to be raised and paid to the com. missioners of highways of the towns. The board of supervisors shall cause to be raised and col- lected the amount to be paid by the county to any town toward the expenses of a bridge aad when collected the same shall be paid to the commissioners of highways of the town, to be applied by tham toward the payment of such expenses. [County Law (L. 1892, ch. 686), § 66.J § 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 pledg* 384 Town and County Officeks* Manual. 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 continuation of highways leading from such town or county, and deemed necessary for the public convenience. [County Law (L. 1892, ch. 686), § 67.] § 7. maintenance of bridges over county lines. The board shall provide for the care, maintenance, pres- ervation and repair of any draw or other bridge intersecting the bouudary line of counties or towns, and which bridge is by law a joint charge on such counties or towns, or on the towns 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 respective 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 expense among the several towns and cities in their respec- tive 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 town or city not immediately adjacent to such waters, at the points spanned by said bridge shall be liable for a larger pro- portion of such expense than the taxable property of such town or city bears to the whole amount of taxble property of such county. The board of supervisors of such counties or in any city embracing the entire county, and having no board of supervisors, the common council shall have full control of such bridges. No such bridge shall be constructed nnless the board of supervisors in each of such counties, and the common council of the city whose boundaries are the Boards of Supbkvisobb; Highways. 385 Bame as the boundary of the other county adjacent to such waters, shall first by resolution determine that such bridge ia necessary for public convenience, in which case such com- mon council, with the consent of the mayor, may authorize the issue of bonds for the purpose of constructing such bridge, to be issued 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 auth- orities as an obstruction to navigation, and shall be ordered removed, the county and city authorities having charge of euch bridge, if they shall determine that such bridge shall be rebuilt, shall, as soon as practicable after such determina- tion, cause plans to be prepared for the erection of the new bridge and the removal of any bridge so condemned as afore- said, and within a reasonable time after the approval of any such plans by the United States authorities, the proper oJBScers shall proceed with the construction of said new bridge. In case of any unreasonable delay on the part of the ofl&cer or oflBcers charged with the duty of construction of such new bridge, such duty may be enforced by man- damus upon the application of any citizen interested in ita performance. [County Law (L. 1892, ch. 686), § 68, as amended by L. 1896, ch. 995.] § 8. Board of supervisors may authorize towns to construct or repair bridges and highways and to borrow money therefor. The board may, upon the application 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 any such town at an annual town meeting, or special town meet- ing, called for that purpose, or upon the written request of the commissioners of highways and town board of such town or towns, authorize such town or towns to construct, build, repair or discon- 25 386 TowiT AND County Officees' Maniiai,. tinue such highway or bridge, and if such town is within a county adjoining a city of the first class, authorize said town to build, con- struct or repair a public dock or bulkhead within its boundaries and to borrow such sums of money for and on the credit of such town or towns, as may be necessary for said purposes, and to lay out, widen, grade, discontinue or macadamize such highway, or to purchase for public use any plank-road, turnpike, toll-road or toU- bridge in such town or towns, and may authorize the company OAvning the same to sell the same, or any part thereof, or the fran- chises thereof, or to pay any debt incurred in good faith by or in behalf of such town or towns for such purposes. If such high- way or bridge shall be situated in two or more towns in the same county, the board shall apportion the expenses among such towns in such proportion as shall be just. [County Law (L. 1892, ch. 686), sec. 69, as amended by L. 1894, ch. 163, L. 1896, ch. 178, and L. 1900, ch. 12.J § 9. Bonds issued by towns for construction and repair of high* ways and bridges ; sale of bonds by town supervisor ; disposition of proceeds ; bonds, ho'w paid. The board shall, from time to time, impose upon the taz« able property of such towns sufiScient tax to pay such obliga- tions as they shall become due. The supervisor and town clerk shall each keep a record, showing the date and amount of the obligations issued, the time and place of their pay« ment, and the rate of interest thereon. The obligations shall be delivered to the supervisor of the town, who shall dispose of the same for not less than par, and pay the proceeds thereof to the commissioners of highways of the town, or to such other ofSoer aa 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 hundred dollars of such proceeds shall be expended upon any high- way or bridge, except in pursuance of a contract made by a contractor with the commissioners of highways of the town, or other ofScer designated by the board of supervisors, Boards op Supbrvisobs; Highways. 387 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 ehall be necessary for the action of the board of supervisors as herein provided. [County Law (L. 1892, oh. 686, § 70.] § 10. Board of s npervlsors may map oat streets and avenues In tovrns outside of city limits. When any territory in a county containing an incorporated city of one hundred thousand inhabitants, excepting the towns of Flatbush and New Lots in the county of Kings, has been mapped into streets and avenues, pursuant to law, the board of supervisors may authorize the establishment 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 provide for the assessment on property intended to be benefited thereby, and fixing assessment districts 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, constructing and change of line, of such streets or avenues or defraying the expenses 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 a certificate of the town board and commissioners of highways of the town, that the same is, in their judgment, proper and necessary for the public interest. If the streets and avenues, in respect to which such action is proposed 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 commissioners of highways, shall give ten days' notice by publication in one of the daily papers of the county, aod by conspicuously posting in six public places in each of 388 Town and County Officers' Manual. such 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 appear 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 improv- ing the breed of horses, without the consent of such cor- porations. No town oflBcer shall charge anything for hia 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.J § 11. Board of supervisors may authorise commissioners of high- ways to cause surrey of highways to be made. The board may authorize and direct the commissioners of highways of any town, to cause a survey to be made, at the expense of the town, or* any or all of the highways therein, and to make or complete a systematic record thereof, or to revise, collate and rearrange existing records of highways, and correct and verify the same by new surveys and to establish the location of highways by suitable monuments. Such records so made, or revised, corrected 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 atl'ect rights pending ia any judicial proceeding commened before the deposit of such revised records with the town clerk. [County Law (L. 1892, oh. 686), § 1% \ g IS. Board of supervisors may regulate toll-ratea. 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 gravel road, or other toll road within such county, or by any bridge company or ferry within such BoABDS OP Supervisors; Highways. 389 county, or, if within more than one county, then by joint action with the supervisors of such counties, provided such alteration shall be asked for by the directors, trustees 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 newspapers published in such county, once in each week for six successive weeks next before the annual election of super> visors in such county; 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.] § 13. Powers of board of supervisors as to Ughways tn coantlea of more than 800,000 acres of unimproved land. The board may establish separate highway districts in counties containing more than three hundred thousand acres of unimproved unoccupied forest lands, for the purpose of constructing highways through such lands; such highway districts to be established upon the application of the owners of more than one-half of the non-resident lands therein. Any such highway district shall consist of contiguous tracts or parcels of land, and may include parts of one of* more towns; and they may be changed, altered or abolished at any time by the board. Such board may appoint one or more commissioners to lay out and construct such highways in any such district, and prescibe the powers 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 commissioners 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 npart and appropriate the highway taxes upon such lands, 390 TdWK AND CouiiTT Officers' Manual. for a period not exceeding ten years from the time of making such loan. [County Law (L. 1892, ch. 686), § 74.] § 14. Appropriation of certalin non-resident highway taxes. The board, may upon the application of the owners repre- senting a majority in value, as shall be ascertained from the last annual 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 the lands lying along such line, for the improvement of such highways. [County Law (L. 1892, oh. 686), § 75,J § 16. Balance of state appropriations. The board may direct the expenditure of any non-resident highway or bridge tax, set apart by an act of the legislature, in counties wherein such non-resident lands are situated, when the ofScial life of commissioners appointed to receive and expend such taxes has expired. [County Law (L. 1892, ch. 686), § 76.J § 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 therein, which shall have been laid out by the state under the same conditions that would govern their actions in relation to highways that have been laid out by local authorities. [County Law (L. 1890, ch. 686), § 77.] § 17. Farther pothers of board of supervisors as to highTvays. The board may make such other local and private laws and regulations concerning highways, alleys, bridges and ferries within the county, and the assessment and apportion- ment of highway labor or taxes therefor, not inconsistent with law, as it may deem necessary and proper, when the purposes of such laws and regulations cannot be accom- plished under the foregoing provisions, or the general laws of the state. [County Law (L. 1892, ch. 686), § 78. j BOABQS OF SUPEEVISOBS ; HlGpWATS. ^1 § 18. Board of supervisors may pass_lawB as to ase of wide tire on highways. Powers as to tires on vehicles. The board of supervisors may enact local and private laws regulating the width of tires used on vehicles built to carrj a weight of fifteen huD< dred pounds or upwards, and may provide penalties for the violation thereof. [County Law (L. 1892, ch. 686), § 79, as added by L. 1894, ch. 644, and amended by Jj. 1899, 0^,155,] § 19. TTse of abandoned turnpike, plank or macadamized roads. Boards of supervisors shall have power to pi-ovide for the use of abandoned turnpike, plank or macadamized roads within any town as public highways; but jurisdiction in such a case shall not be exercised without the assent of two-thirds of all the membejr^ elected to such board, to be determined by yeas and nays, which shall be entered on its minutes. [County Law (L. 1892, ch. 686), § 80, as added by L. 1895, ch. 756.] § so. Definition of "upon its borders." Wherever the words "upon, its borders" are used in this article in reference to the boundary line between two towns, the same is and was intended and shall be construed to mean "upon," "along," and "across its borders." [County Law, sec. 81, as added by L. 1900, ch. 163.J 392 Town and County Ofpicebs' Manual. CHAPTER XXIX. State aid for highways. SsonOlf 1. Board of supervisors to pass resolution for improTement of high- ways ; petition therefor ; resolution to be transmitted to State engineer. 3. State engineer to make investigation ; disapproval of resolution; upon approval to make maps, plans and specifications. 8. Estimate of cost ; estimate, plana and specifications to be trans- mitted to board of supervisors. 4. Board of supervisors may resolve to construct highway ; right of way. 6. State engineer to accept bids and award contracts; county engineer to have charge of construction. 6. Payment of expense of construction. 7. Town assessors to assess portion of cost ohargeable 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 engineer to notify board of supervisors. 12. State engineer to prepare statistics; consultations with staCe engineer ; co-operation with highway officers ; annual report. 18. Commissioners of highways and town board of towns and boards of supervisors to furnish information to state engineer ; operation of act. § 1. 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 couny of the state may, and upon presentation of a petition as provided in section two hereof, must pass a resolution that public interest demands the improvement of any public highway or section thereof situate within such county, and described in such resolution, but such description shall not include any portion of a highway within the boundaries of any city or incorporated village, and within ten days after the pas- sage of such a resolution shall transmit a certified copy State Aid for Highways. 393 thereof to the state engineer and surveyor. [L. 1898, oh, 115, § 1.] Petition. The owners of a majority of the lineal feet front- ing 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 setting forth that the petitioners are such owners and that they desire that such highway or sec- tion thereof be improved under the provisions of this act. [Idem, § 2.J § 2. State engineer to make inve8tisa>tion ; disapproval of reso- lution; upon approval to make maps, plans and specifications. Such state enigneer upon receipt of such a resolution shall investigate and determine whether the highway or section thereof sought to be improved is of sufficient public impor- tance to come within the purposes of this act, 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 resolution, he shall certify his reasons therefor to such board of supervisors. [L. 1898, ch. 115, § 3.] If he shall approve such resolution, such state engineer shall cause the highway or section thereof therein described to be mapped both in outline and profile. He shall indi- cate how much of such highway or section thereof may be improved by deviation from the existing lines whenever it shall be deemed of advantage to obtain a shorter or more direct road without lessening its usefulness or wherever such deviation is of adavntage by reason of lessened gradients. He shall also cause plans and specifications of such highway or section thereof to be thus improved to be made for telford, macadam or gravel roadway or other suitable con- struction, taking into consideration climate, soil and mate- rials to be had in the vicinity thereof and the extent and nature of the traffic likely to be upon such highway, specify- ing in his judgment the kind of road a wise economy demands. The improved or permanent roadway of all high- 494 Town and County Officees* Manual. ways so improved shall aot be less than eight feet nor more than sixteen feet in width unless for special reasons to be stated by such state engineer it is required that it shall be of greater width. He shall if requested by the resolution include provision for steel plate or other flat rail construc- tion in double track. [Idem, § 4.] § 3. Estimate of cost ; estimate, plana and speciflcations to be transmitted to board of supervisors. Upon the completion of such maps, plans and specifica- tions such state engineer shall cause an estimate to be made of the cost of construction of the same and transmit the same to the board of supervisors from which such resolution proceeded, together with a certified copy of such maps, plans and specifications, and of his certificate of the approval of the highway or section thereof so designated as aforesaid. [L. 1898, ch. 115, § 5.] g 4. Board of supervisors may resolve to construct a highway | right of Mray. After the receipt thereof upon a majority vote of such board of supervisors, it may adopt a resolution that such highway or section thereof so approved shall be constructed 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. [L. 1898, ch. 115, § 6.] In case the boundaries of such proposed highway shall deviate from the existing highway, the board of supervisors must make provision for securing the requisite right of way prior to the actual commencement of the work of improve- ments. [Idem, § 7.J § 6. State engineer to accept bids and award contracts ; county engineers to have charge of construction. Upon receipt of the certified copy of the resolution pro- vided in section six, such state engineer shall advertise for bids for two successive weeks in a newspaper published at the county seat of suoh county, and in such other newspaper as shall be deemed of advantage for the construction of such State Aid for Highways. 395 highway or section thereof, according to such plans and speci- fications, and award such contract to the lowest responsible bidder, except that I^e may in his discretion award the con- tract; to the board of supervisors of the county or the town board or boards of the town or towns in which such highway lies, and 'except that no contract shall be awarded at a greater sum than the estimate provided in section five. But if no bid otherwise acceptable be made within such estimate, such state engineer may ameod his estimate, certify the same to the board of supervisors, and upon the adoption by it of a resolution as provided in section six based on such amended estimate, proceed anew to obtain bids and award the contract as herein provided. Such engineer may reject any or all bids, and before entering into any contract for Buch coTistruction, he shall require a bond with sufficient sureties, conditioned that if the proposal shall be accepted the party thereto will perform the work upon the terms pro- posed and within the time prescribed and in accordance with the plans and specifications; and as a bobd 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. Partial pay- ments may be provided for in the contracts and paid in the manner herein provided when certified to by such state engineer to an amount not to exceed seventy-five per centum of the value of the work done; twenty-five per centum of the contract price shall be retained until the entire work has been accepted. Whenever a county engineer has been appointed in the county in which such highway or section thereof is to be constructed, he shall have general charge and supervision of the work under the direction of such state engineer and shall report to him from time to time the pro- gress of the work and such facts in relation thereto as may be required. If there is no county engineer, such state engineer shall have some competent person to superintend and have engineering supervision of the work. [L. 1898, ch. 115, § 8.J 396 Town and County Officbks' Manual. § 6. Payment of expense of eonatraction. One-half of the expense of the constructioB thereof shall be paid by the state treasurer upon the warrant of the comp- troller, 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 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 apportioned by the board of supervisors, so that if the same has been built upon a resolution of said board without petition, 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, and if the same has been built upon a resolution of said board after petition as provided in section two, thirty five per centum shall be a general county charge and fifteen per centum shall be assessed upon and paid by the owners of the lands benefitted in the proportion of the benefits accruing to said owners as determined by the town assessors in the next section hereof. [L. 1898, ch. 115, § 9.] § 7. To\7n assessors to assess portion of cost cbargeable to abutting o^mers; assessment, how made. The town assessors of any town in which any highway or section thereof has been improved or constructed pursuant to petition as provided in section two of this act, shall have powe,r, and it shall be their duty upon receiving notice from the board of supervisors of the county in which said town is located, of the cost of construction or improvement of such highway or section thereof in such town, to assess an amount equal to fifteen per centum of said total cost upon the lands fronting or abutting on such highway or section thereof. Such assessment shall be apportioned according to the benefits accruing to the owners of the lands so located, according to the best judgment of said assessors, upon at least ten days' notice of the time and place of such apportionment to the persons afifected thereby, and after such persons have had an opportunity to be heard, and the assessments so made when duly attested by the oaths of such assessors shall be collected in the same manner as the general taxes of State Aid for Highways. 397 such town are collected. [L. 1898, ch. 115, § 10, as amended by L. 1899, ch. 92, taking effect March 16, 1899.] § 8. Order of eonstructioa. The construction and improvement of highways and sec- tions thereof, under the provisions of this act, shall be taken up and carried forward in the order in which they are finally designated, as determined by the date of the receipt in each case of the certified copy of the resolution provided in section six by such engineer as hereinbefore provided. [L. 1898, ch. 115, § 11.] § 9. 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, and his acceptance of the same, and after payment has been made, as herein provided, such engineer shall inform the board of supervisors of such county that the highways or sections thereof designated have been con- structed as herein provided and he may serve notice on said board to accept such highway thus constructed, which notice shall be filed in the office of the clerk of said county; and twenty days after the service and filing of said notice, such highway or section thereof shall be deemed accepted by said board of supervisors of such county; and thereafter they shall maintain the same as a county road and apportion the expense as they may be empowered by law, and the commission6(rs of highways of the town or towns respectively^ wherein such improved highways lie shall care for and keep the same in repair Tinder the direction and supervision of the state engineer and sur- veyor and such rules and regulations as he may prescribe. [L. 1898, ch. 115, sec. 12, as amended by L. 1900, ch. 293.] § 10. Bloney tax for hightvay purposes upon abutting owners. All persons owning property abutting on such road so improved, or residing thereon, shall thereafter pay all highway taxes assessed against them in money, in the manner now provided by law. [L. 1898, ch. 115, sec. 13.] § 11. Construction of connecting sections of highways; state engineer to notify board of supervisors. Whenever any county has had aid in building any such 398 Town and County Officers' Manual. highway, and it seems advantageous to such state engineer that a section or sections of highway, not exceeding one mile in length, should 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 file one in the county clerk's office, designating the highways already constructed and the existing termini, and the section or sections, in his opinion, necessay to be constructed and his reasons therefor. And it shall be the duty of the board of supervisors to pro- vide for the construction of such connecting highway or section thereof, within one year after the service and filing of such notice under this act. [L. 1898, ch. 115, § 14.J § IS. State engioeer to prepare statistics; consultations Tvith ■tate engineer ; co-operation -with highway ofiBcers ; annual report. 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 information in regard thereto deemed expedient. He shall investigate and determine upon various methods of road con- struction adapted to different sections of the state, and as to the best methods of construction and maintenance of roads and bridges, and such other information relating thereto as he shall deem appropriate. He may be consulted at all rea- sonable 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 interested in the construction and maintenance of public highways, and shall, at all times, lend bis aid in promoting highway improvement throughout the state. He shall hold 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 State Aid for Highways. 399 improvement of the public highways and bridges. [L. 1898, ch. 115, § 15.] He shall report annually to the legislature concerning all the work performed "by him, together with such recommen- dations upon the subject of highway construction and main- tenance as to him shall seem appropriate. [Idem, § 16.] § 13. To\rn commissioners of high^vays and totru boards of toirna 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^ofiBcers who now have or may hereafter have by law the care and supervision of the public highways and bridges shall, from time to time, upon his written request, furnish him with all available information in connection with the building and maintenance of the public highways and bridges in their respective localities. [L. 1898, cb. 13 5, § 17. J The operation of this act shall not be affected by any spe- cial act, but the highways may be improved under this act or such special act wherever the same may now exist, ridem. § 18.1 399^ loWW AND COTTNTY OfFICEES' MaNTTAL. CHAPTER XXIXa. Use of Bicycles on Hjghwats. SKOnoN 1. Bicycle side path commissioners; appointment; powers. 2. License fees; collection and expenditures. 3. Kegulations as to use of side paths; violations. 4. Ordinances regulating use of bicycles and other vehicles on high- ways and in public places. 5. Arrests for violations of ordinances; bicycles may be left as security. § I. Bicycle side path commiBsioners; appointment; powers. The county judge of any county except Albany, may, upon tHe petition of fifty resident wheelmen of such county, 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 pos- sible in proportion to the probable number of cyclists residing in such localities, each of whom shall be a cyclist, who shall constitute a board of sidepath commissioners for such county. The terms of such commissioners if the number be five, shall be one, 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 which the appointment is made, to be determined by such com- missioners 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 jJsB OS Bicycles on Highways. 399b year in which the appointment is made. A commissioner appointed to fill a vacancy occurring otherwise 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 com- missioner, by expiration of term or otherwise, the chairman or secretary of the board shall immediately file a notice with the county judge, specifying the name of such commissioner, 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 shall 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 constitutional oath of office within ten days after receiving notice of his appointment, or if any member of the board fails to attend three consecutive regular meet- ings 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 make answer to such charges, and may remove such commissioner from office if sufficient cause be shown. Such commissioners shall serve with- out 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 hun- dred and fifty-two of the laws of eighteen hundred and ninety-nine and chapter one hundred and ninety-four of the laws of eighteen hundred and ninety-nine are hereby continued to the ends of the 399o Town and County Officees' Manual. terms of the respective members thereof. [L. 1899, ch. 152, sec. 1, as amended by L. 1900, ch. 640, in effect July 1, 1900.J Such board of sidepath commissioners is hereby authorized and empowered to construct and maintain sidepaths along any public road, or street, or section thereof of the county provided, the said board of sidepath commissioners shall be required to obtain the written approval of the commissioner of highways, or other officer performing similar duties, or the written approval of the super- visor of each town in which said sidepath shall be built, 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 shall be required to secure the approval of the trustees of an incorporated village by a resolution at a meeting thereof, before constructing paths along a,ny street of such vil- lage; and provided, that they shall be required to secure 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 foot paths or portions of the public road which are worn only by travel. The term "sidepath" shall be construed to include any path built or acquired by a sidepath commission. No member or any number of members of a sidepath commission shall begin or in any way authorize the construction of a sidepath, to be built Use of Bicycles on Highways. 399d 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 highway necessary for the purpose of building side- paths, and to expend any of the funds in their possession for this purpose. [Id. sec. 2, as amended by L. 1900, ch. 640, in effect July 1, 1900.] § S. Iiicense fees; collection and expenditures. Such board of sidepath commissioners shall at their first meet- ing, or within a reasonable time thereafter,, and in each succeeding calendar year, adopt a form of license, badge, emblem or ,device suitable to be affixed to a bicycle and to be known as a bicycle side- path license. 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 issued, 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 has been lawfully appointed and such license shall be valid for the use of the person so purchasing till a sidepath commission 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 shall ride a bicycle on any sidepath in any county of this state where a side- path commission has been, or at any time hereafter may be ap- pointed, unless a valid bicycle license is attached or affixed to the left side of the front fork thereof so that the license shall show on 89Sjb Towh ahd County Officebs' Manuai- Wxe left side of such bicycle. No person shall coTinterfeit any such license or make, sell, give away or have on his or her bicycle, & license purporting to be issued by any county in this state, unless regularly issued by the respective boards of sidepath commissioners appointed pursuant to law. No 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. No person shaU have a license 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, sec. 3, as amended by L. 1900, ch. 640, in effect July 1, 1900.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 coimties, 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 drawn in excess of the amount actually on deposit; nor shall any contract or purchase be made exceeding the amount of such funds at the time of mating 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. [Id. sec. 4, as amended by L. 1900, ch. 640, in effect July 1, 1900.] Sec. 5. The said boards of sidepath commissioners ehall devote the moneys so collected to the repairing of existing paths in their respective counties ; to the construction of new paths ; to the plant- Use ok- Bicycles on Highways. 3991? 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- tained; to the maintaining of order on the paths; and the neces- sary and authorized expenses incurred in enforcing this act. [Id. sec. 5, as amended by L. 1900, ch. 640, in effect July 1, 1900.] § 8. Regulations as to use of side path; violations. Sec. 6. !N'o 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, sec. 6, as amended by L. 1900, ch. 640, in effect July 1, 1900.] Sec. 7. 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. sec. 7, as amended by L. 1900, ch. 640, in effect July 1, 1900.] Sec. 8. No person shall ride a bicycle at a greater rate o± speed than ten miles an hour when passing another cyclist or pedestrian on any sidepath in this state. [Id. sec. 8, as amended by L. 1900, ch. 640, in effect July 1, 1900.] Sec. 9. The sidepaths heretofore constructed and hereafter to be constructed in this state are hereby placed under the control and direction of the boards of sidepath commissioners of the various counties in which they are located. [Id. sec. 9, as amended hy L. 1900, ch. 640, in effect July 1, 1900.] Sec. 10. Any board of sidepath commissioners, with the consem of the commissioner of highways or other officer performing simi- lar 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 paths. [Id. sec. 10, as amended by L. 1900, ch. 640, in effect July 1, 1900.] 399g Towi. AND CouwTT Officeks' Mas UAL. Sec. 11. 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 mis^ demeanor, and shall be punishable by a fine of not less than five nor more than twenty-five dollars, and in case of failure to pay any fine that may be imposed, such person may be committed to jail not exceeding one day for each dpllar of such fine. [Id. sec. 11, as amended by L. 1900, ch. 640, in effect July 1, 1900.J Sec. 12. Courts of special sessions having jurisdiction to try misdemeanors as provided by section fifty-six of the code of crim- inal procedure, shall have exclusive 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. sec. 12, as amended by L. 1900, ch. €40, in effect July 1, 1900.J § 4, 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 ordinances, may pass ordinances regulating the use of bicycles, tricycles and similar vehicles on the public highways, streets, avenues, walks, parks and public places within their limits in accordance with the following provi- sions, and not otherwise: 1. To require all bicycles, tricycles and similar vehicles when ridden on such public highways, streets, avenues, walks or public places to have attached thereto, or carried therewith a light of such illuminating power as to be plainly seen two hundred feet ahead, and kept lighted be- tween one hour after sunset and one hour before sunrise- but this section shall not apply to any rider whose light has Use of Biqtcles on Highways. 89'9h become extinguished, or who is necessarily absent from his or her home without a light, when going at a pace not exceeeding 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 liders of all such bicycles, -tricycles or similar vehicles to give an alarm by bell, whistle or otherwise, which may bo 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 spe^d at which it may be lawful to ride such bicycles, tricycles or similar vehicles; provided, however, that cyclists shall not be restricted to a rate of speed slower than is allowed any other kind or class of vehicle. 4. To regulate or prohibit coasting or proceeding by inertia or momentum with the feet off the pedals; the carrying of children under five years of age upon bicycles; the observance by cyclists, of such rules of the road as are established by the highway law; to permit the authorities of such municipality having charge of the public highways, streets, squares or parks, in their discretion, upon any special occasion, to grant permits to any person or persons to ride such machines during a specified time, upon specified portions of the public streets or highways of such city, town or village, at any rate of seed, and annex such other reason- able conditions, to such permits as they shall deem proper; and the said authorities of such municipality may, also, under such conditions as they may deem proper, permit the use of velocipedes and other similar machines by children on any sidewalk in any public way, square, or park in such municipality. 6. To regulate or prohibit the riding of any bicycles,, tri- cycles or similar vehicles upon the sidewalks within the limits of any cityj town or village; except that no city, town or village shall have any power to prohibit the riding of any bicycles upon any sidewalk within the limits of such city, 8991 Town and County Officeks' Manual. town or village when said sidewalk shall have been or shall be hereafter constructed solely at the expense of wheelmen or cyclists, by and with the consent of the officers having jurisdiction therein, unless the road or street in front of said sidewalk is paved with some smooth and permanent pave- ment like asphalt or brick, and maintained in a condition suitable for the use of cycles. 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 the use of pedesrians. 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 authorities, or by the abbutting 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 ofifense, and in case of the non-pay- ment of such fine, by imprisonment in the county jail not exceeding one day for each dollar of such fine, in the dis- cretion of the courtor magistrate. [L. 1899, ch. 634, §1.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 hereafter 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 juris- diction of sidepath commmissioners nor the use of sidepaths. [Idem. §2.J § 5. Arrests for violations of ordinances ; bicycle may be left as security. Any person arrested for the violation of any of the provi- sions 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 Use of Bicycles on Highwats. 399 j V arrest, or at any time before the bearing thereon either five dollars 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 provis- ions 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, aa aforesaid, for his appearance, before the moat convenient court or magistrate, to be specified by said officer at a time to be fixed by him not less 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 magistrate. In case the person arrested shall fail to appear and answer to such charge at the time so specified or at such other time to which the matter shall have been ad- journed, such security shall be forfeited, and if money, shall be disposed of in the same manner as other fines are dis- posed of by such court or magistrate, and, if a bicycle or similar vehicle, it may be sold under the direction of such court or magistrate 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 received upon such sale shall be disposed of in the same manner as other fines collected by such court or magistrate, and the remainder of the money received upon such sale ahall be paid to the owner of such bicycle or other similar vehicle on demand. [L, 1899, ch. 634, § 3.] loo Town and County Officers' Manuau CHAPTER XXX. Turnpike, plank-road and bridge corporations. Bection 1. Supervisor and commissioners to consent to the use of highway by turnpike corporation ; consent of owners. 2. Application to board of supervisors by turnpike or bridge cor- poration ; notice of application ; hearing before board. 8. Board of supervisors to appoint commissioners to lay out road. 4. Route laid out to be route of road, and to be held by corporation. 6. Commissioners of highways to certify as to completion of road ; compensation of commissioners. 6. Gates, rate of toll and exemption. 7. Location of gates ; change of location of gates ; proceedings in court therefor. 8. Commissioners of highways as inspectors of plank-roads and turnpikes ; their powers and duties. 9. Change of route of turnpike or plank-road ; consent of owners and commissioners of highways. 10. Surrender of franchise ; road to revert to town. 11. Encroachment of fences ; duties of commissioners of highways when reported to them. 12. Dissolution of corporations ; effect of failure to exercise cor- porate functions; highways abandoned to become publio highways. 13. Upon dissolution of corporation, towns must pay for lands not originally a highway. 14. Highway labor upon line of plank-road or turnpike. g 1. Supervisor and commissioners to consent to the use of high- way by turnpike corparatian ; consent of owners. The supervisor and coramissioner of highways, or a majority if there be more than oae of any town, may agree in writing with any such (turnpike) corporation for the use of any part of a public highway therein required for the con- struction of any such road, and the compensation to be paid by the corporation for taking and using such highway for such purpose on iirst 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 be Turnpike, etc., Cobporations. 401 made the corporation may acquire the right to take such highway for such purpose by condemnation. The compen- sation therefor shall be paid to the commissioners of high- ways, to be expended by them in improving the highways of the town. [Transportation Corporations Law (L. 1890, ch. 566), § 122.] See Transportation Corporations Law, § 130, for organization of turnpike and bridge corporations. § 2. 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 corpora- tion shall not have been procured by agreement with the supervisor and commissioners of highways of the town in which such highway is situated, the corporation 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 minutes,* and the expenses of the special meeting and of notifying the members of the board thereof shall be paid by the corpora- * So in original. 26 402 Town and County Officers' Manual. tioQ. All persons interested therein or owning real estate io any of the towns through which it is proposed to construct the road may appear and be heard upon the bearing 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 meetings,* authorize the corporation to con- struct such bridge or road and to take the real estate neces- sary for that purpose, and a copy of the order certified by the clerk of the board shall be recorded by the corporation in the office 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 Corporations Law (L. 1890, ch. 566), § 123.J § S. Board of sapervisors to appoint commissionerB to lay oat 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, commis- sioners to lay out the road. They shall take the constitu- tional 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 build- ings and gates, signed and acknowledged by them to be recorded in the clerk's office of the county. If the road is situated in more than one county, such survey and descrip- tion shall be separate as to that portion in each county and filed in the office of the clerk of the county in* which it relates. The corporation shall pay each commissioner three dollars for every day spent by him in the performaooe of his *So in original. TURSPIKB, ETC., CbRPOKATrONS. 403 duties and his necessary expenses. [TransportatioQ Cor- porations Law (L. 1890, ch. 56&), § 124. J § 4. Route laid out to bo route of road, and to be held by cor- poration. 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 survey as necessary for the con- struction of its road, and requisite buildinga 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, [Transportaion Corporations Law (L. 1890, ch. 566), § 125.] § 5. 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 the 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 convenient for the public use, . they shall make a certificate to that effect, which shall be fi.Ied in the olSce of the county clerk. Each commissioner shall he paid, by the corporation two dollars per day for his services and- necessary expenses. [Transportation Corporations Law (L, 1890, ch. 566), § 129.] § 6. Gates, rates of toll, and exemption. Upon filing such certificate such corporation may erecti a toll-gate at such bridge or one or more toll-gates upon thfl: road 80 inspected, and may demand and receive the follow- ing rates of toll, a printed list of which shall be conspicu- ously posted at or over each gate: If a bridge corporation, such sum as shall be from , time to time prescribed by the 404 Town and County Officers' Manual. board of supervisors of the county or counties in whicb 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 pei mile, and for every score of neat cattle, two cents per mile. When diverging roads gtrike any plank-road or turn- pike 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 adjoin or ba near to the road for the toll payable at the nearest gate on each 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 meeting or election at which he is a voter to cast his vote, a military parade which he is required by law to attend, any court which ha shall ba required to attend as a juror or witness, nor when going to or from his. required work upon any public high- way, nor when transporting troops in the actual service of the United States; and no toll from persons living withiu one-half mile of the gate by the moat 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 persons or property shall be exempt from the payment of toll. [Transportation Oorpora- tiona Law (L. 1890, oh. 566), § 136, as amended by L 1893, ch. 538.J Board of aupervison m&y regulate toll rates. County I«w, § 78, anM p. 88S« TUENPIKB, ETC., CORPORATIONS. 405 § 7. Location of gates ; change of location of gates ; proceedings 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, barn 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 ' 80 erected to be removed, and if a majority of the commis- sioners 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, oa 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 thereafter, appeal to the general term of the supreme court from such order, on giving such security as the county judge, making the order, may pre- scribe. Upon such appeal the supreme court, on motion of either party and on due notice, shall appoint three disinter- ested persons who are not residents of any town through or into which such road shall run, or to or from which it is the principal thoroughfare, or any adjoining town, as referee 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 m the supreme court, and report their decision thereon and the reasons therefor, and the evi- dence taken thereon to the supreme court, and such court shall review the report and render judgment thereon as jus- tice and equity shall require, which shall be fiaal and con- clusive. The referees shall be entitled to the same fees aa referees in civil actions in the supreme court, to be paid in the first instance by the party in whose faror tkeir report op dacision shall be, and the supreme court shall award judg- ment therefor, with such costs and expenses as it may deem 406 Town and County Opficbrs' Mani^al. Feasonable, to the successful party on the appeal, which judgment shall be entered with the order affirming or revers- ing the order appealed from, and may be enforced by execu- tion as a judgment of a court of record. If the order of tho county 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 Cor- porations Law (L. 1890i ch. 566), § 33.J § 8. Commissioners of highways as inspectors of plank-roads and turnpikes ; their powers and duties. The commissioners of highways of the several towns and ^e trustees or other officers in the incorporated cities and villages of the state, who perform the duties of commis- sioners 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 whenever written complaint shall be made to any inspector, that any part of such road lying in the town, city or village of such inspector is out of repair he shall, without delay, view 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 notice to the toll-gatherer, or per- son 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 notice, or to appear before the county court of the county in which that part of the road is sitqated, at a tipae 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 TtTRNPIKB, ETC., CoKPORA^lONS. 407 court sball, uptin the return of such notice hear the allega- tions and proofs of the parties, and it shall always be open for that purpose; aud if the court shall find such road to be aut of repair or in bad condition it naay giVe additional time for the repair thereof, or it may 6rder the gate nearest the place out of repair or in bad condition to be immediately upon bhe service of the order, or at a time therein specified, thrown open and to remain optfn until the road shall be fully fepaired at the place directed to be repaired as aforetsaid. Such order shall be served in the manner therein specified upon the keeper of the gate so ordered to be throw'u open. Any inspector within the town, city or village where such poad has been repaired pursuant to notice or order as afore- said, 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 corporatioh Dr person whose road is so inspected, if the gates are ordered to be thrown open, but otherwise to be dharged, audited and paid in the same manner as other fees of commissioners ftf 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 gate 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 bean duly repaired is granted, or hindering or delaying any person in passing, or taking any tolls from any person passing aueb gate during the time it ought to be open, shall forfeit to the party aggrieved the sum of ten dollars for each oflfense, and the corporation or person owning the road, who shall refuse or neglect to obey the requirements of any such order shall forfeit to the people of the state the sum of two hundred dollars for each offense. [Transportation Corporations Law (L. 1890, ch. 566), § 134, as amended by L. 1896, ch. 343.] § 9. CJiange of route of turnpike or plank-road ; consent ol owners and commissioners of highways. Any such corporation may, with the written consent 61 408 Town and County Officers' Manual. the owners of two-thirds of its capital stock and of a majority of the commissioaers of highways of the town or towns, ii» which any change or extension is proposed to be made, con- struct 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 aa for the original or main lino, and may, by any of its officers, agents or servants, enter upon lands for the purpose of mak- ing any examination, survey or map, doing no necessary damage; but before entering upon, taking or using such lands, the corporation shall make a survey and map thereof, designating thereon the lands of each owner or occupant intended to be taken or used, which shall be signed and acknowledged by the engineer 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. [Trans- portation Corporations Law (L. 1890, ch. 566), § 135.] § 10. 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 cor- poration, which surrender shall be by a declaration in writ- ing to that effect, attested by the seal of the corporation and acknowledged by the president and secretary. 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 corpora- tion 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 Turnpike, etc., Corporations. 409 of its road within this state, in the manner ahove provided, or whenever its charter or franchise of such company shall be annulled or revoked, the road of such turnpike or plank- road company shall revert to and belong to the several towns, cities and villges through which such road shall pass. And it shall be the duty of the several towns, cities and villages acquiring any road under this 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 main- tain and work every road acquired under the provisions 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, cb. 656), § 139, as amended by L. 1896, ch. 964.J § 11. lancroacliinent of fences; duties of highway commissioners whes reported to them. Whenever the president or secretary of any turnpike or plank-road corporation shall notify any inspector (commia- uioner of highways) 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 Bet 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 neglect- ing 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 require the removal of any fence, previously erected, between the first day of December and the first day of April. [Transportation Corporations Laiy (L. 1890, ch. 566), § 142.] 410 Town and County Officbbs' Manual. § 12. Dissolution of corporation ; effect of failure to ezereise cor- porate functions ; highways abandoned to become public highways. Every turnpike, plank-road or bridge corporation may be dissolved by the legislature when, by the income arising from tolls, it shall have been compensated for all moneys expended in purchasing, making, repairing and taking care of ita road, and have received in addition thereto an average annual interest at the rate of ten per cent., and on such dis- solution all the rights and property 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 ia destroyed, shall not rebuild the same within five years, or which, for a perod of five consecutive years, shall have neglected or omitted to exercise its corporate functions shall be deemed dissolved. 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 corpora- tion shall have become dissolved, or where the road or any part of a turnpike or plank-road corporation, or the bridge of any bridge corporation, shall have been discon- tinued, such road-bed or right of way, and such discontinued road or bridge, and the road or bridge of any such dissolved corporation, shall thereafter be a public highway, with the same effect as if laid out by the commissioners of highwaya of the town, and be subject to the laws relating to highwaya and the erection, repairing and preseravtion of bridges thereon. [Transportation Gorporationa Law (L. 1890, ch. 666), § 148.] Board of supervisors may provide for use of abandoned ttirnpikes and plank roads. County Law, § 80, ante, p. 891. §13. Upon dissolution of corporation tokens must pay for lands not originally a highvray. When the corporate existence of any plank-road or turn- pike corporation shall have ceased by limitation of time, or TURNPIKK, ETC., CORPORATIONS. 411 where any judgment of ouster or dissolution, or restraining the exercise of its franchise has been rendered in any action against it, such portion 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 publio highway, nor be taken possession or control of by the towo 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 ether legal repxesentatives of the corporation, or its assigns, the ijrincipal 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 papments shall be made within three months after the expiration of the corporate existence of the corporation, op 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 receiv- ing 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. [Transortation Corporations Law (L. 1890, ch. 566), § 149.] § 14. Highway labor upon line of plank-road or turnpike. Every person liable for highway labor living or owning property on the line of any plank-road or turnpike may, on written application to the commissioners of highways of the town, on any day previous to making out the highway war- rant by the commissioners, be assessed for the highway labor upon his property upon the line of such road, in the discretion of the commissioners to be worked out upon the line of such road as a separate road district, and the com- missioners shall make a separate list of the persons and property 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 412 Town and County Officers' Manual. worked out on such road in the same manner that oversees* of highways are required to do, and such directors shall possess the powers and have the authority to compel the performance of such highway labor for the payment of the tax therefor as such oversees* 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. [Transportation Corporations Law (L. 1890, cb. 666), § 150.J * So in originaL Fkbbies. 413 CHAPTER XXXI. Fbkbies. Saonoif 1. Ciounty court to license ferries; notice to owner of adjoining lands ; entry of license. 3. Licensee to give undertaking. 3. Appendages for rope ferries. 4. Superintendent of public works may lease right of passagOi 6. Bates of ferriage to be posted ; penalty for failure. § 1. County court to license ferries; notice to owner of adjoining 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 high- way adjoining to the ferry shall run, unless the owner is not a suitable person or shall neglect to apply after being served with eight 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 mainttiin 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. When the waters over which any ferry may be used, shall divide two counties or cities, or a license obtained in either of the counties or cdties shall be sufficient to authorize transportation of persons, goods, wares and merchandise, to and from either side of such waters. [Highway Law (L. 1890, ch. 668), § 170.J § S. 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 414 Town and CotmTY OffFicKBs' Manual. his undertaking, 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 im,plenients, and so many men to work the same as shall be necessary during the Beveral hours in each day, and at such rates as the court shall direct. [Highway Law (L. 1890, oh. 568), § 171.] § 8. Appendages for rope ferries. Any person licensed to keep a ferry may, with the written consent orf 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. [Higwhay Law (L. 1890, ch. 568), § 172.] § 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 passage for foot passengers across state lands adjoining tide water for a period not exceeding ten years, on such conditions aa be may deem advantageous to the state. [Highway Law (L. 1890, oh. 568), § 173.J § B. Rates of ferriage to be posted ; penalty for failure. Every person licensed to operate or control any ferry in this state, or 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 adja- cent to each entrance to such ferry, and in at least four acces- Bible places, in plain view of the passengers upon each oJ 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 ferriagfl over such ferry. If any such person shall fail to comply Feeeies. 9:15 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), sec. 174, as amended by L. 1900, ch. 313.J 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 inhabi- tants or over, posting a false schedule of ferry rates, or neglecting to post in a conspicuous and accessible place in each of its. ferry-housea, 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 f arrisga mai saob f eny, is guilty of a misdemeanor. Penal CodOi, f 415a. 416 Town and County Officbes' Manuix. CHAPTER XXXII. Town board; ap ditinq op agc opnt3. Seotiok 1. Constitution and regular meetings of the town board; when town meetings are held at time of general elections. 2. Meetings of town board for receiving accounts of town oflBcers. 8. Meeting of town board for auditing accounts ; certifloates of rejection and allowance ; certificates of allowance to be filed ; one to be delivered to supervisor. 4. When town auditors are tp be elected ; application therefor. 6. Number of town auditors ; term of office. 6. Town auditors to audit accounts ; town auditor to hold no other town ofiice. 7. If electors of town vote to elect a board of auditors, town board to make temporary appointment. 8. Compensation of town auditors ; supervisor to fill vacancies in office of town auditor. 9. Town meeting may vote to discontinue board of town auditors. 10. Form of accounts ; verification by afiidavit of claimant ; saving clause. 11. Town charges, what are. 13. Accounts of justices of the peace in criminal matters, what to contain. 13. Fees of officers in criminal proceedings, when town or county charge. 14. Appeals from town board to board of supervisors from audit of accounts of justices of the peace and constables in criminal proceedings. 15. Compensation of town officers. 16. Poundmasters' fees. 17. Traveling fees for subpoenaing witnesses, when to be allowed. 18. Boards of audit to make abstract of names of persons whose accounts have been audited. 19. Town board may borrow money for highway purposes when when tovm meeting has voted to raise more than $600 ; state- ment of indebtedness created to be rendered to board of supervisors. 30. Actions on behalf of and against towns to be brought in name ; Aubiting otf Acgounts. 419 of theiijt and if allowed only id part, they shall state in the certificate! the it^ms or parts of items allowed, and the items or parts of items rejected, and shall cause a duplicate of every certificate allowing an account, wholly or in part to be made. Oae of which duplicates shall be delivered to the town clerk of the town, to b^ kept on file for the inspection of Einy of the inhabitants of the town; and the other shall be delivered to the supervisor of the town, to be by him laid before the board of supervisors of his county at their annual meeting. The bodrd of supervisors shall cause to be levied &nd raised upon the town the amount specified in the cer- tificate, in the same manner as they are directed to levy and raise other town Oharges; [Town Law (L. 1890, ch. 569), § 162, as amended by L. 1897^ cb. 481;] § 4. When town auditors are to be elected ; application therefor. The electors in each of the towns may, on the application of twenty fre^holdets ireSiding therein, at any bianhial town meeting, determine by ballot Whether there shall be elected, ikt the next succeddibg biennial town meeting, held in the town, a board of town auditors, in and for the town, inde- pendent of the town board in the manner, and under the restrictions hereinafter prescribed; [Town Law (L. 1890,i ob. 669), § 172, as amended by L. 1897, ch. 481.] § 6. Number of town auditors ; term of offlcet If a majority of the ballots so cast, shall be in favor o^ eledting a bbard of tbWU auditors there shall be elected at the next sucbe^dihg bieihnial tdwh meeting, and at evei-y biennial tdwn meeting held thereafter, Until otherwise deternlined, three towii JaUditots; Who shall form the board ef town auditors of the town whose term of office shall be two years. [Town Law (L; 189Q, ch* 569), § 173, as amended by L. 1897, efa. 481.] § 6. Town auditors to audit accounts ; town auditor to hold no other town office. Upon the election or appointment and qualification of any suob board of town auditors in any town, the powers of the 420 Town and County Ofpicbes' Manual. town board of that town, with respect to auditing, allowing or rejecting all accounts, charges, claims or demands against the town, and with respect to the examination, 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 conferred, and the duties so imposed, they shall be the town board of the town during their continuance. No person so elected or appointed shall hold any other office in the town during the term for which he is elected or appointed; and if he shall accept an election or appointment to any other office in the town, he shall immediately cease to be a town auditor, and the vacancy in his office shall be supplied in the manner hereinafter provided. [Town Law (L. 1890, ch. 569), § 174, aa amended by L. 1896, cb. 85.] § 7. If electors of town vote to elect a board of auditors, town board to make temporary appointment. The town board of the town in which the electors shall determine to elect a board of town auditors, or a majority of them, shall, within sixty days after the town meeting where it was so determined, 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, three persons having the qualifications herein prescribed, 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, oh. 569), § 175.] Town Boabd; Auditing of Accounts. 421 FORM NO. 137. Appointment op Boabd op Auditoks bt Town Board. We, the undersigned, members of the town board of the town of , ooimty of having duly met at on the day of , 18. . . ., at M., do hereby appoint pursuant to a vc>1% of the electors of such town at a town meeting held therein on the. . . .day of , 18. . . ., 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 18..., E S, Supervisor. [l. s.] T C, Town Clerk. [L. s.] D F, Justice of the Peace, [l. s.] RM, •' " [L. s.] DM, " •• [L.S.] § 8. Compensation of town auditors ; supervisor to fill vacancies in office of town auditors. Each of such town auditors shall be entited to receive for his services three dollars 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 services of the town, in the duties of said office. The super- visor 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. J § 9. 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 determined to establish such board; and thereupon such board shall be abolished. [Town Law ;L. 1890, ch. 569), § 177.] 422 Town and County Officers' Manual. § 10. Form of accounts; verification by affidavit of claimant) saving clause. No account shall be audited by any board of town auditors or supervisors or superintendent of the poor for any services or disbursements unless such account shall be made out in items and accompanied with an aflBdavit attached thereto, and to be filed with such account, made by the person pre- senting or claiming the same, that the items of such account are correct and that the disbursements and services charged therein have been in fact made or rendered or are necessary to be made or rendered at that session of the board, and stating that no part thereof has been paid or satisfied ; and the chairman of the board or either of the superintendents may administer any oath required under this section. [Town Law (L. 1890, ch. 569), § 167.J Nothing in the preceding section shall be construed to prevent any board from disallowing any account, in whole or in part, when so rendered and verified, nor from requir- ing any other or further evidence of the truth and propriety thereof, as such board may think proper. [Town Law (L. 1890, ch. 569), § 168.] Meaning of term "audit." The term "audit" means to hear and examine; it includes both the adjustment or allowance and the disallowance or rejec- tion of an account. People ex rd. Myers v. Barnes, 114 N. Y. 817; People ex rel. Bead v. Tovm Auditors, 85 Hun, 114. Power of majority. A majority of the town board may act. Statutory Construction Law (L. 1892, chap. 677), § 19; Toum of Westchester v. Davis, 7 Hun, 647. Jurisdiction of board. Town boards are limited to the powers conferred upon them by statute, and when these limits are transgressed, their acts are void. Osterhoudt v. Bigney, 98 N. Y. 223. The jurisdiction of a town board is original, and in determining as to the liability of the town it acts judici- ally. All claims against the town must be presented to and audited by the board and none can be collected until audited and allowed by it. People ex rd. Cochrane v. Toum Auditors, 74 Hun, 83. Audit, how made. A claimant is entitled to the judgment of the board upon each item of his claim. People ex rd. Cochrane v. Town Auditors, 74 Hun, 83. An arbitrary deduction from the gross amount of a bill for Various items of services, the compensation for which is regulated by statute, without passing upon and disallowing any specific item, is not an audit. People ex ret. Thurston v. Town Auditors, 82 N. Y. 80. The auditors are not confined to the claimant's estimate of the value of Town Board; Auditing of Accounts. 423 the work, but may act on their own knowledge. People ex rel- Printing Co. V. Pople, 81 Hun, 3S3; People ex rel. Cochrane v. Tovm Auditors, 74 Hun, 83. Verification, effect of. A board of town auditors may disregard the verifi- cation to an assessor's bill for services, ascertain the time necessarily spent by him and reduce the bill accordingly. People ex rel. Bentley v. Whalen, 5 Week Dig. 410. The veriflcation of a claim has no obligatory force and may be disregarded. People ex rel. Cochrane v. Tovm Auditors, 74 Hun, 88. Beview of action of board. The determination of a town board in rejecting a claim which is not an absolute statutory liability cannot be reviewed by mandamus. People ex rel. Read v. Toum Auditors, 85 Hun, 114. The decision of town boards in rejecting claims is conclusive until modi- fied or reversed by a proceeding in another court by certiorari. People ex rel. Myers v. Barnes. 114 N. Y. 317. Where a rule of law has been violated by a board in its refusal to audit a claim at its full amount, the court may, on certiorari, allow the full amount of the claim. People ex rel. Chroton Bridge Co. v. Town Board, 93 Hun, 585. Where the auditing board rejects a claim as not being a town charge, and refuses to consider it on its merits, and the claimant has a clear legal right to have it audited, a mandamus will lie to compel the board to do its duty. Matter of Ryan, 6 Misc. 478. A certiorari to review must be obtained before the abstract of accounts haa been delivered to the board of supervisors, as that is the last act of the board of auditors. People ex rel. Cochrane v. Town Auditors, 74 Hun, 83. The judgment of a town board will not be overruled unless error clearly appears. People ex rel. Printing Co. v. Pople, 81 Hun, 383. Auditing rejected claims. If bills have been rejected by a town board upon their merits, such audit bars a reaudit by a subsequent board. People ex rel. Myers v. Barnes, 114 N. Y. 317. A board has no power to re-adjudge any part of a claim which has been rejected by a prior .board upon its merits. Osterhoudt v. Bigney, 98 N. T. 223; Osterhoudt y. Hyland, 27 Hun, 167. Concurrent Jurisdiction of boards of supervisors. Boards of town auditors and boards of supervisors have concurrent jurisdiction to audit accounts chargeable against towns, unless the statute confers exclusive jurisdiction upon the board of town auditors. MeCrea v. Chahoon, 54 Hun, 577. Certijioate of toum auditors. A certificate of town auditors allowing accounts, regular on its face, is a sufficient authority for the board of super- visors to proceed and cause the amount certified to be levied on the town. People ex rel. Onderdonk v. Board of Supervisors of Queens Co., 1 Hill, 195. Such a certificate precludes the board of supervisors from inquiring as to the merits of particular items allowed. Idem. Unlawful audit or presentation of claims. See Penal Code, §§ 672, 165, 166, postfy, 491. FORM NO. 138. Accounts of Town Officers. John Dooley, highway commissioner (supervisor, overseer of the ipoat) of the town of , in account with said town. 424 Town and County Officees' Manual. Beceipta. 1898. Jan. 28. Received of A B, town collector $275 00 Mar. 6. Received of J K for (state purpose and for what) .. 123 00 Expenditures, 1898. June 4. Paid to L M for 1,000 feet of oak plank, tised in repair cj bridge $25 00 Aug. 9. Paid to I S for labor performed in repairing bridge, 20 days, at $1.30 .d by him as highway commissioner (or other officer) of the town of , are all that he has received as such officer ; that the expenditures statixt 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 valun received; and that the balance of dollars is all the money in mr bands belonging to said town. JOHNDOOLE^. Subscribed and sworn to before me, ) this . . . . day of 18.. ( LM, Justice of the Peace, FORM NO. 189. CBSTin(U.TS OP Examination op Town Oppioers' Accounts. We, the undersigned, members of the town board of the town oi , 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 th< hands of such highway commissioner (or other officer) according to saolr account is dollars. Dated ,18... B E, Supervisor, J M, Justice of the Peace, D O, " " P R, " " F G, Toum Clerk. Town Board; Auditing of Accounts. 425 FORM NO. 140. Atfidatii to be Annexed to Accoitnt Presented to Town Board fob Audit. [Itemized Account.] STATE OF NEW YORK, ) _ . County OF , j " 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 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. AB. Subscribed and sworn to before me, ) this .... day of 18.. f JN, Justioe of the Peace. § 11. Town charges, what are. The following shall be deemed town charges: 1. The compensation of town officers for serviceF rendered for their repsective towns, 2. The contingent expenses necessarily incurred for the use and benefit of the town. 3. The moneys authorized to be raised by the vote of a town meeting for any town purpose. 4. Every sum directed by law to be raised for any town purpose. 5. All judgments duly recovered against a town. 6. All damages recovered against a town officer for any act done pursuant to a direction or resolution, duly adopted by the town board, or at a town meeting duly held; and all damages against any such officer for any act done in good faith, in his official capacity, without any such direction or resolution, may be made a town charge, by a vote of the town, at a town meeting duly held. 7. The coats and expenses, lawfully incurred by any town officer in prosecuting or defending any action or proceeding brought by or against the town or such officer for an official act done, shall be a town charge in all cases where the officer is required by law to so prosecute or defend, or to do 426 Town and County Offickks' Manual. such act, or is instructed to so prosecute or defend, or do Bucl) act, by resolution duly adopted by the town board, or at a town meeting duly held. All town charges specified in this section shall be presented to the town board for audit, and the moneys necessary to defray such charges shall be levied on the taxable property in such town by the board of supervisors. 8. Every sum allowed by the highway commissioners of a town in which the highways are worked and repaired by the money system of taxation in abatement of highway taxes for the maintenance of watering troughs. [Town Law (L. 1890, oh. 569), § 180, as amended by L. 1897, ch. 227.] Tcwm poor, amounts expended for the support of , are town charges. Sea chapter XVI, ante. Highways, laying out, altering and discontinuing, costs and damages in respect to, are town charges. Highway Law, § 93, ante, p, 346. Defect in highways and bridges, damages for injuries sustained by, are town charges. Highway Law, § 18, ante, p. 285. Costs and expenses in actions by commissioners of highways to collect pen> alties of overseers of highways for failure to perform duties, are town charges. Highway Law, § 33, ante, p. 291. Local boards of health, expenses of, are a town charge. Public Health Law, § 30, post, p. 454. Schools, compensation and expenses of town clerk in respect to, are town charges. Consolidated School Law, tit. i, §g 1, 3, post, p 479. § IS. Accounts of justices in criminal matters, what to contain. The accounts rendered by justices of the peace for services in criminal proceedings shall in all cases contain the name and residence of the complainant, the offense charged, the action of the justice on such complaint, the constable or officer to whom any warrant on such complaint was delivered, whether the person charged was or was not arrested, and whether an examination was waived or had, and witnesses sworn thereon; and the account shall also show the final action of the justice in the premises. [Town Law (L. 1890, ch. 669), § 164.] Fee* of justices of the peace in criminal actions. See chapter LI, post. Town Board; Auditing of Accounts. 427 FORM NO. 141. Justice's Account Against Town in Ceiminal Mattbb. TheTawnof to E. F., Justice of the Peace, residing at... ^ in said Toum, Dr. The People v. O 0. January 10, 18... Name of oomplainant, P P, who resides at , In sold town. Offense charged was grand larceny. Upon information taken and filled I issued a warrant for the arrest of dfr fendant. Warrant was delivered to N N, constable of said town, January 12, 18. . Defendant was arrested and brought before me. Defend- ant demanded an examination (or as the case 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 OP NEW YORK, 1 . County of , ) 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, foy audit and allowance and that no part thereof has been paid or satisfied. EF. Subscribed and sworn to before me, ) this ...day of ,18.. f . G H, Jnstice of the Peace. §18. Fees of ofiScers in criminal proeeedtnga> ^rhem town or eounty charge. The fees of magistrates and other officers for services in eriminal proceedings for or on account of ah ofifense which a court of special sessions has not jurisdiction to try shall be a county charge if the maigstraite had jurisdiotion of the pro- ceedings in which the services were rendered. The fees of magistrates and other officers in other criminal proceedings, or in criminal actions tried before a magistrate of the town where the offense is charged to have been committed, shall be a charge against such town. The fees of s^ magistrate or officer in issuing or serving process for an offiense committ^il 428 Town and County Officbrs' Manual. in a town other than that in which such magistrate resides, and of which a court of special sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, and the fees of a magistrate in the trial or exam- ination of a person brought before him by reason of the absence or inability to act of the magistrate before whom he is directed by the warrant to be brought, charged with such an o£fense committed in a town other than that in which the magistrate before whom such person is brought resides, shall, in either case, be a charge against the town in which such offense was committed. Except as provided in this section, no fees shall be allowed, either as a town or county charge, to a magistrate or other ofiQcer, for services in a criminal action or proceeding, before a magistrate of one town for or on account of an offense charged to have been committed in another town, and which a court of special sessions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine. The fees of a magistrate and the fees and mileage of a peace oflBcer in connection with the arrest, examination, conviction and commitment of a tramp, or of a vagrant under subdivi- sions one, five or six of section eight hundred and eighty- seven of the code of criminal procedure, may be fixed by the board of town auditors, if any, and otherwise by the town board of the town, or the board of supervisors of the county to which the same are chargeable, not exceeding the amount DOW allowed by law; and when so fixed, shall supersede as to such town or county any other provision of law fixing fees or mileage in such cases. [Town Law, (L. 1890, ch. 569), § 163, as amended by L. 1898, ch. 667.] § 14. AppeaJs from town board to board of Bupervlaors from audit of accounts of justices of tlie peace aud constables in crim- inal proceedings* If any account of a justice of the peace, or town constable, for fees in criminal proceedings, is audited by a town board of any town, any taxpayer of the town may appeal from the auditing and allowance to the board of supervisors of the Town Board; Auditing of Accounts. 429 county, and the board of supervisors may audit and allow such account. If the account shall be disallowed, or the amount thereof reduced, the party presenting the same shall have the same right of appeal as above provided. The appeal shall be taken within fifteen days after filing the cer- tificate of allowance, or disallowance of an account by the town board, in whole or in part, by the service of a notice of appeal in writing on the town clerk and the clerk of the board of supervisors; and the town clerk shall forthwith thereafter transmit the account to the board of auparvisors of the county, to be audited and allowed by them; and the town board shall have no further jurisdiction over the account after the service of the notice of appeal. Such part of such accounts as the board of supervisors shall allow, shall be assessed and collected the same as other town charges. [Town Law (L. 1890, oh. 569), § 165.J FORM NO 143. Notice of Appeal to Boabd of SupEHVisoRa. ToC D, Town Clerk of the Town of ,m tlie County of .. , , and T W, Clerk of the Board of Supervisors of said County: Take notice that the undersigned, a taxpayer of said town of (or justice of the peace or constable), hereby appeals, pursuant to section 163 of the Town Law, to the board of supervisors of said county, from the auditing and allowing by the town board of said town, the amount claimed by E F, a jus- tice of the peace of said town, for fees (or from the rejection and disallow- ance by the town board of said town, of my claim for fees) in criminal pro- ceedings, as follows: (Here state the claim allowed or disallowed). Dated this. . . .day of 18.. W S. § 16. Compensation of town ofBcers. Town officers shall be entitled to compensation at the fol- lowing rates for each day actually and necessarily devoted by them to the service of the town in the duties of their respective offices, when no fee is allowed by law for the ser- vice, as follows: 1. The supervisor, except when attending the board ol supervisors, town clerks, assessors, commissioners of high- ways, justices of the peace and overseers of the poor, each, tAvo dollars per day, except that in the county of Monroe, assessors shall be entitled to three dollars per day. 430 Town and County Officeks' Manual. 2. If a different rate is not otherwise estatlished as herein pro- vided, each inspector of election, ballot clerk and poll clerk is entitled to two dollars per day; but the board of supervisors may establish in their county a higher rate, not exceeding six dollars per day. [Town Law (L. 1890, ch. 569), sec. 178, as amended by L. 1897, ch. 252, and L. 1900, ch. 292, taking effect April 6, 1900.] 'No town officer shall be allowed any per diem compensation for his services unless expressly provided by law. [Idem, sec. 166. J Payment of eocpenses. Every public officer, who is not allowed any com- pensation for his services, shall be paid his actual expenses, necessarily in- curred in the discharge of his official duties. Public Officers Iiaw, § 43. § 16. Pound-masters' fees. The pound-masters shall be allowed the following fees foi their services, to wit: For taking into the pound and dis- charging therefrom every horse, mule and head of cattle, fifteen cents; for every other beast ten cents. [Town Law (L. 1890, ch. 569), § 179.] § 17. Traveling fees for subpoenaing witnesses, when to be allowed. No traveling fees shall be allowed for traveling to aub- yoena a witness, beyond the limits of the county in which the subpoena was issued, or of an adjoining county, unless ihe board auditing the account, shall be satisfied, by proof, that such witness could not be subpoenaed without addi- tional travel; nor shall any traveling fees for subpoenaing witnesses be allowed, except such as the board auditing the account, shall be satisfied were indispensably necessary. [Town Law (L. 1890, ch. 569), § 169.] § 18. Boards of audit to make abstract of names of persona v^hose accounts Iiave been audited. Boards of town auditors, shall annually make brief abstracts of the names of aU 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 respect, ively, and shall deliver such abstracts to the clerk of the Town Board; Auditing of Accounts. 431 board of supervisors, and the clerk shall cause the same to be printed, with the statements required to be printed by him. [Town Law (L. 1890, oh, 569), § 170.J FORM NO. 143. ASSTBACT OF NAMES OF PERSONS WHO HaYB PBESENTED AOCOUNTS FOB Audit. 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 bf 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 : Dated this day'of ( .,18.. AB, Supervisor, CD, Town Clerk. EP, GH, I J, KL, Justices of the Peace, § 19. "f own board may borrow money for highway purposes when town meeting h&s vbted to raise more than $500; statement of Indebtedness created to be rendered to board of supervisors. Whenever a town meeting shall vote a special appropria- tion of money in the sum of five hundred dollars or more, or an appropriation for highway purposes or for the support of the poor during the current year, to be levied upon the taxable property of the town, the town board shall have power to borrow the sum so iappropriated upon the faith and credit of the town, and to issue therefor a certificate or cer- tificates of indebtedness, bearing interest and payable at su&b date or dates as may be fixed by said board, and the 432 Town and County Opficbes' Manual. proceeds of such loan shall be placed to the credit of tbu public ofiScers charged by law with the expenditure of said moueys. A statement of the amount maturing on such cer- tificate of indebtedness 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 specified 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. 569), § 184, as added by L. 1897, ch. 84.] Additional tax for highway purposes, when to be authorized. Highway Law, § 9, ante, p. 276. Vote upon proposition for additional tax when more than $500 is to be raised, to be by ballot. Town Law, § 31, ante, pp. 30, 31. § SO. Actions on behalf of and against to'wns to be brought in name of to'wn ; contracts in name of town. Any action 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 them, or to recover any penalty or forfeiture given to such officers, or the town rep- resented by them, or to recover 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 contracts are otherwise lawfully made, they shall be deemed the contracts 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.] § SI. Actions for trespass on town lands. Whenever an action is brought by a town to recoyer a Town Board j Auditing ov Accounts. 433 jjQQalty for a trespass committed upon its land, and it shall appear upon the 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. [Town Law (L. 1890, ch. 569), § 183.] 28 434 Town and County Officbbs' MANtrAL. CHAPTER XXXIII. Town board; other powers and duties. BKnom 1. Town board may appoint members of fire companies .ontside ot incorpura.t6d villages ; elecLors of highway district may vote to purchase fire apparatus. 2. Town_boardjaajL.. pr nhi b it-faawking and peddling without a 'lic^ise ; not to apply in certain oases. 8. Licenses to be issug d .. by t o w - n -clarii - a nd enttereed by super- vjspraTeI^t.^Jlioense. 4. PATi^it^_fr j ppf ifiHi n i ftr i i w i M ng without a license ; refusal to jEME-license, sfftmt of. 6. Unlawfulhawkiggjar-peiidliug, urrefusal to produce a license, a:^iadjeiaaeaaw. 6. Transaoting.jetail-biisinfiRa for Ba,1«>-ef-bainkriipt,_or_daipa.ged ' goods without a Ucense^ t»wnboard-to-fixJicensB-te&;-8i^)ei> visor to issue license. 7. Bestnctibha of Tregulationg not to discrim inate against non- - resi dents. 8. Town board maylioense Jbaoks, venders, shows, concerts and public amusements ; Tales'antt feguIaiEions therefor ; penalty for violation. 9. Town board may vote money for decoration _dar expenses y amount to be paid to supervisor and to be distributed under direction of grand army post. 10. ConstfU(Ction-of sewers Tntbwns outside of incorporated villages and^eities; ~~" 11. Water works corporations must furnish water to town ; town board may establish water supply district ; expense charge- able upon district. 18. Purchase of water works by town. 18. 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. 14 Acquisition of lands by town board for soldiers' or other monu- ment or memorial structure. 15. Leases of public buildings to grand army posts. § 1. Town board may appoint members of fire companies outside of incorporated villages ; electors of hightvay district may vote to purchase fire apparatus. The town board of any town may appoint in writing, any number of inhabitants of their town, which thej may deem Town Board; Othek Powers and Duties. 435 necessary, to be a fire company for the extinguishmeut ui fires in their town ; but no such company, as herein pro- vided, shall be formed in any incorporated city or village. Each fire company, thus formed, shall choose a captain and clerk thereof, and may establish such by-laws and regula- tions as may be necessary to enforce the performance, by such firemen, of their duty, and may impose such penalties, not exceeding five dollars for each offense, as may be neces- sary for that purpose. Such penalties may be collected by and in the name of the captains, in any court having cogniz- ance thereof, and, when collected, shall be expended by the companies for the repair and preservation of their engines and apparatus. All vacancies which may, at any time, happen in such companies by death, resignation or other- wise, shall, from time to time, be^ filled by the town board. The electors of any highway district, in which any town fire company shall have their headquarters at a special meeting lawfully called by the town clerk, who is hereby authorized to call such special meeting may vote, by ballot, a sum of money, not exceeding four thousand dollars, for the pur- chase of a fire engine and apparatus, and for the purchase or lease of suitable buildings and grounds for keeping and storing such fire engine and apparatus and other property of said highway district. And whenever said electors shall so vote said money for the purchase of a fire engine and appa- ratus and for the purchase or lease of suitable buildings and grounds for keeping and storing such fire engine and appa- ratus and other property of said highway district, the com- misioners 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, and may contract for and purchase or lease for such district, suitable buildings and grounds for keeping and storing such fire engine and apparatus and other property of said district, at a price not to exceed the sum so voted, which engine and apparatus and buildings and grounds shall be the property of said highway district, but may be used and cared for by such fire company. The purchase price of said fire engine 436 Town and County Officers' Manual. and apparatus and buildings and grounds shall be aasesyed and levied upon the property of said district and collected in the same manner as other town 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 highway district. [Town Law (L. 1890, ch. 569), § 171, as amended by L. 1894, ch. 201.] Fire districts, established by board of supervisors. County Law, § 37, post. § 2. To'wn board may prohibit hatrking 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 peddling 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 barter for merchandise, or so as to require a license from a honorably discharged soldier, sailor or marine of the military or naval service of the United States, who has obtained 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, in efifect April 13, 1899.] § 3. lacenses to be issued by to-wn clerk and endorsed by super- visor ; 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 pay- ment to him of the fee specified therein, the supervisor shall endorse upon the license a receipt of such payment and Town Board ; Otheb Powees and Duties. 437 the date thereof. Such license shall take effect from the date of such pay- ment, 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.] § Sa. Ha'wking and peddling by soldiers, sailors and marines ; license therefor. Every honorably discharged soldier, sailor or marine of the military or naval service of the United States who is a resident of this 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.) 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 certi- fying him to be entitled to the benefits of this act. (Id. § 2, as amended by L. 1899, oh. 659.) § 4. Penality for peddling or hawking without a license; refusal to sho^r license, effect of. Every person hawking or peddling goods or produce in the public streets or places, or vending the same by calls 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 support of the poor of the town. The refusal to produce such a license when demanded by a peace officer shall be presump- tive evidence that such person is hawking, peddling or vending without a license. An action for a penalty imposed by this secton shall not be maintained unless it is brought within sixty days after the commission of the offense charged. [Town Law, § 186, as added by L. 1898, ch. 538.] § 5. Unlawful ha'wking or peddling, or refusal to produce a license a misdeanor. 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 guilly of a misdemeanor, [Town Law, § 187, as added by L. 1898, ch. 538.] 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 hundred and eighty-aix and one hundred and eighty- seven of this chapter. [Town Law, § 188, as added by L. 1899, ch. 230. J 438 Town and County Ofpicbbs' Manual. § 6. Transacting retail business for sale of bankrupt or damaged 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 of the third 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 out a license therefor from the mayor of such city, president of such vil- lage, 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 village by resolution duly passed by the board of trustees of such village; 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. No such license shall be issued for a less period than one mouth 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 su i 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 daya. [L. 1898, ch. 141, §§ 1, 2.J § 7. Restrictions or regulations not to discriminate asainst non- residents. — Any restriction or regulation imposed by the governing board of a municipal corporation upon the inhabitants of Town Boaed; Other Powers and Duties. 439 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 reference to traveling circuses, shows and exhibitions, shall be void. [General Municipal Law (L. 1892, ch. 685), § 27.] This section is operative except as inconsistent with the preceding sec* tions. Sections 184-187 of the Town Law, as added by L. 1898, oh. 538, and L. 1898, chap. 141, supersede in a measure the provisions of this section. § 8. To-wn board may license hacks, venders, sho'vrs, concerts and public amusements; rules and regulations therefor; penalty for violatior. License fees, how fixed, collected and applied. The supervisor, justices 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 incorporated city or village, are hereby authorized and empowered to license and regulate all public hacks, vehicles, vendors, shows, concerts and public amusements in such town, outsid* of an incorporated city or village, and to fix the fee to be paid for the persons so licensed to said ^flScers, which moneys so collected shall be paid over to the super- visor of such town within thirty days after the 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 necessary expenses for carrying out the provisions of this act. [L. 1890, ch. 332, § 1.] Rules and regulations. The said officers shall have power to make and establish such rules, regulations and ordinances not inconsistent with the laws of this state, as they may deem necessary for the proper regulation of such hacks, vehicles, venders, shows, concerts and public amusements. Such rules, regulations and ordinances shall be posted ia at least ten public places in such town. [Idem, § 2.] *8o in originaL 440 Town and County Officers' Manual. Penalties for violation, paid to supervisor. Said officera shall have power to and may prescribe the penalty for a violation of any rule, regulation or ordinance which they may establish, which penalty shall be recovered in the manner hereinafter prescribed, and when recovered shall be paid over to the supervisor of such town within thirty days af( r the receipt of the same, and said supervisor shall pay over such moneys so received to the same parties as the fees received from licenses are hereinbefore provided for. Such penalty shall in no case exceed the sum of twenty-five dol- lars. [Idem, g 3.J Penalties recovered in action before justice of the peace. All persons violating any rule, regulation or ordinance estab- lished by said ofBcers may be proceeded against summarily before any justice of the peace of such town, such proceed- ings to be commenced by warrant upon proper proof and shall be continued and conducted in the same manner as criminal proceedings are now conducted in cases triable before such justices or either of them as a court of special sessions, but all persons charged with such offense shall have the right to waive an examination or to elect to jo before any higher court or tribunal. [Idem, §4.] Justice may impose fine. Such justices shall have authority to fine any person ofifending as aforesaid, a sum equal to the penalty prescribed by the ordinances and may sentence such person, in default of payment, to be confined in the county jail for a period not exceeding ten days and not exceeding the penalty prescribed as aforesaid, and all laws relating to trials by courts of special sessions in the such town not inconsistent herewith in the proceedings hereby authorized, the ofifense shall be deemed to be suflBciently described by stating the ordinance and the section thereof claimed to be violated. [Idem, } 5.j g 0. Town board may vote money for decoration day expenses ; amount to be paid to supervisor and to be disbursed under direc- tion of grand army post. 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 Town Boabd ; Othee Powees and Duties. 441 money not exceeding fifty dollars in any year, or in towns containing a village of over five thousand inhabitant 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 such manner as the town board of such town may direct upon vouchers properly receipted and audited by the town board of such town; except that in any town in which there may be a post of the grand army of the republic, such post may direct the manner and extent of such observance and the supervisor shall pay the expense thereof upon the order or orders of the com- mander or quartermaster of such post, which orders shall be his vouchers for such payment, and in case there may be two or more posts of the grand army of the republic in any such town the commanders and quartermasters of such posts, by concurrent action, shall direct the supervisor of such town what proportion of such money so raised shall be expended by each of such posts, which proportion shall be paid by such supervisor upon the order or orders of the commander and quartermaster of each of such posts. [L. 3890, ch. 223, § 1, as amended by L. 1898, eh. 36, and L. 1899, ch. 679.] § 10. Construction of se'wers in towns outside of incorporated villages and cities. L. 1893, ch, 545, authorizes the submission to the vote of the taxpayers of a portion of a town outside of incorporated villages and cities, of the question whether within the limits prescribed a system of sewerage shall be con- structed. Such act prescribes the manner in which such system shall be constructed in case the vote is favorable. We here insert section 6 of such act as amended by L. 1894, ch. 338, since it relates especially to the powers of the town board in apportioning the amount chargeable to the property benefited by the system. The town board shall consider, and if necessary, modify and correct such apportionment, after notice of the fact of its having been received by such board, and that for a period of not leas than three weeks it will be open for examination by any party interested or affected thereby, at the town clerk's office, shall have been published for not less than 442 Town and County Officers' Manual. three weeks in two newspapers published in the county in which the town is situated, twice in each week, aud shall have been posted in at least five public places in said town, and after the said board shall, at a time and place to be specified in such notice, have heard any and all objections which may be made thereto. The amount which shall be so determined by the town board as being properly charge- able to the respective owners and upon the several pieces of land benefited by such work, shall be reported to the board of supervisors of the county and be included in the tax which shall be next levied and imposed by the board of supervisors of the county upon the property of said town embraced in such apportionment, and shall be raised in the same manner as the other taxes of the town, and when so raised and collected shall be paid over to the supervisor, whose duty it shall be to pay the same to the contractor and superintend- ent employed in the execution of the work, and to any other parties who are entitled to receive compensation for services rendered or materials furnished in the premises. The town board, if it deem it for the best interests of the town, may cause bonds to be issued in payment for such work. Such bonds shall be a town charge and shall be signed by the supervisor and town clerk of the town and may be made payable at such times not exceeding ten years from the issue thereof as the board may deem advisable and shall bear interest at a rate not exceeding five per centum per annum. Such bonds shall be sold by the supervisor at not less than par and the proceeds shall be paid by the supervisor to the persons who are entitled to compensation for services ren- dered or materials furnished pursuant to this act. Where bonds are issued by the town, payment on such work may be made in installments not exceeding three-fourths of the contract price of the work then completed, with the written approval of the superintendent of such work and the super- visor of the town. No bonds shaU be issued in excess of three-fourths of the contract price of the work completed at the time of such issue until the whole work has been com- pleted and an order of the supreme court has been made Town Board; Other Powers and Duties. 443 fixing the sum to be paid as required by this act. Upon the completion of the work and before the issuance of bonds for the balance of the contract price remaining due, the same proceedings shall be had as are provided by section five of this act, except that if the work is not approved by the court the balance remaining due shall not be paid until such approval is obtained. The amount of the principal and interest of such bonds, when due, shall be levied by the board of supervisors of the county on the property benefited by such improvement in the proportion fixed by the asses- sors and approved by the town board pursuant to this act, and shall be collected as other town taxes, and when collected shall be applied by the supervisor of the town in payment of the principal and interest of such bonds. If the persons owning lands in a portion of a town outside of an incorporated village or city have heretofore determined to construct a sewer system in pursuance of this act, or have constructed such system and the expense therefor has not been paid, the town board of such town may cause bonds to be issued to raise the amount of such expense in the manner provided thereby. [L. 1893, ch. 545, § 6, as amended by L. 1894, ch. 328.J § II. 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 district 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 town for the delivery, by a corporation subject to the provisions of this article, of a supply of water for fire, sanitary or other public purposes, to such 444 Town and County Officbes' Manual. districts, and the whole town shall be bound by such con- tract, but the rental or expense thereof shall annually, in the same manner as other expenses of the town are raised, be assesed, levied upon and collected only from the taxable property within such water supply district. Such money, when collected, shall be kept as a separate fund and be paid over to such corporation 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 expense exceeding three mills upon each dollar of the taxable property within such water supply district. [Transportation Corporations Law (L. 1890, ch. 566), § 81, in part, as amended by L. 1896, ch. 678. j § IS. Purchase of water-works by towa. Town may acquire water-works. Any town in this state which has a contract with a water-worijs company for sup- plying such town, or any portion thereof, with water, may acquire the works, franchises and property of such water- works company, in the following manner: [L. 1898, ch. 554, § l.J Petition for submission of question to voters at town meeting. Upon the written petition of not less than one-tenth in num- ber 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 water-works company will accept for its work, franchises and property, and shall sub- mit to the lawful voters of such town at the next town meet- ing the question whether such works, franchises and prop- erty shall be purchased at the price specified as aforesaid. [Idem, § 2.] Notice of submission of question. Notice that such question will be 80 submitted to the voters of the town shall be given by publishing the same once a week, for at least four weeks, immediately 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 Town Board; Other Powers and Duties. 445 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 opportunity to vote either for or against such proposed pur- chase. If a majority of the votes cast on the question shall be for making the proposed purchase, the supervisor of the town shall forthwith make and enter into a contract with such 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 empowered to make such contracts and to do whatever Is necessary to fulfill them. [Idem, § 4.] Company to furnish statement of debts, &c. At the time of making such a contract the water-works company shall make and deliver to said officers of the town a full, true and accurate statement in detail of all its debts, contracts, obli- gations and responsbilities of every sort, and such statement shall be verified by the president or treasurer of said com- pany. The amount of such liabilities shall be carefully estimated by the officers acting on behalf of the town and the gross amount thereof shall be deducted from the pur- chase price named. Should there be any difference between 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.] Town board to raise money for purchase of works. As soon as the amount of the company's liabilities has been thus ascer- tained and deducted and the net amount remaining to be paid for said company's works, property and fra o lises has been thus determined, the town board of the town shaU pro- ceed to raise the money and carry out in behalf of the town the contract so made. [Idem, § 6. J Issv/ance of bonds 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 purchased as agreed on and voted for aa 446 Town and Cottnty Officers' Manual. 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 obliga- tion upon the town, in behalf of which they shall be issued. They may contain such provisions as to payment of a part of those issued at such times, short of the full term for which they might run, as in the judgment of the town board issuing them would be advantageous to the town bound thereby. [Idem, § 7,] Sale of bonds ; 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 water-worka 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 assignment 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 discharge the debts, liabilities and obligations of said water- works company. [Iden», § 8.] 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 ia number and amount of the stockholders; such consent shall be given in writing and duly signed and acknowledged by the stockholders. [Idem, § 9.] Upon sale, debts, &c., 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 the fifth section of this act, shall become a charge upon the town and may be enforced against it. And if the company should be called upon to pay any claim or to do any act on or on Town Board; Other Powers and Duties. 447 account of such debts, liabilities or obligations, it may enforce the same against the town. [Idem, § 10.] Works to be managed by town board. The works, franchises and property thus purchased, shall be' managed and con- trolled for and in behalf of such town by the town board which purchased the same and their respective successors in office. [Idem, § 11.] § 13. Town boards may est.. )liSh street-lightings districts and contract for the lighting of streets therein ; petition therefor ( notice to be published ; amount of contract, ho'w raised. Town boards 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 such 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 establishment 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 corporate limits of any incorporated 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 pay- ment of the expenses thereof. [L. 1892, ch. 255, § 1, as amended by L. 1896, ch. 309.J Petition. — No such contract shall be made unless a peti- tion for such lighting, signed by a majority of the taxpayers of such lamp or lighting district shall be filed with the town clerk of said town thirty days before the contract is made. [Idem, § 2, as amended by L. 1899, ch. 492, in effect May 2, 1899. J 448 Town and County Officees' Manual. Notice of filing petition. The town board, or if such, dis- trict 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 one week in one or more of the newspapers published in such town or towns, or if no newspaper be pub- lished in such town or towns, then by posting said notice in at least six public and conspicuous 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 light- ing district lies in two or more adjoining towns, 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 property in said town or district in the same man- ner, at the same time, and by the same ofiBcers as the town taxes, charges or expenses 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 persona 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 adjoining towns, they shall determine the relative proportion of the expenses of such lighting which shall be borne by each of said towns, and the amount of such expenses 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 corporation, company, person or per- sons furnishing or supplying said light. [Idem, § 4, aa amended by L. 1896, ch. 309. J Town Board; Other Powers and Duties. 44^ g 14. Acquisition of lands by town board for soldiers' oi^ other monument or memorial stmeture. 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 distin- guishing or important 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 therison 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 purpose. [General Municipal Law (L. 1892, ch. 685), § 25.] Cfoveming board in a town is the town board. General Municipal Law, g 9, % 15. Leases of public buildings to grand army posts. A mimicipal corporation may lease, for not exceeding five years, to a post or posts of the grand army of the republic, or other veteran organization of honorably discharged union soldiers, sailors or marines, a public building or part thereof, belonging to such municipal corporation, except school houses 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. 1893, ch. 685), § 26.] § 16. Town board may establish water supply districts. The town board of any town may establish one or more water supply districts in such town outside of an incorporated village therein, by filing a certificate, describ- ing the bounds of any such district, in the oflBce of the town clerk; and may contract in the name of the town for the delivery, by the water commissioners of a village owning a system of water works, of a supply of water through hydrants or otherwise, for fire, sanitary or other public pur- poses, 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 property within such water supply district. Such money when collected, shall be kept as a separate fund and be paid over to such board of water commissioners by the supervisor of the town, according to the terms and condi- tions of any such contract. [Town Law, § 188, as added by L. 1899, ch. 68.] See Trans. Corp. Law, § 81, ante, p. 443. 44:9a laws Aum ComsTr Otttcees' Masxtsl. §^ f 7. OBtaiMisfcmeBt of irateF ffistricts in toinis> Section 1. Town board may establish water district; petition. — Tlie town board on the petition of a majority of the resident own- era of taxable real pzopertj: in a proposed di^iict, representing, a majority of. the taixable real pioperty thjeieim, aa appeaocs by tke last pureeeddmg eompleliBdi asBesamen^^roM, may establish a watear district outsidte any iireorpora-te^ Tillage or city, and! whdly withm such town. Tie petition must describe l3ie proposed distritJt and state the maximum amount proposed to be expendted in the con- struction of such water system- Each petitioner shall state oppo- site his name the assessed yadnatioa of the real property owned hyt him in auck district aceordiog to &ie last piraced£n@ eompkiiedt assessment-roll of the town. The petition must be signed by the petitkoiuera amd acfaiowlGdgedi in the saxoe: Buauner as a deed to be recorded. [L. 1900, chap. 451, sec. 1.] Sec. 2. Map and plans. — ^There shall be annexed to tte petition above picwided a map and plan shawiii'g^ the sources of water supply and a description: of the lands, streamsj water or water rights to' be flicquired th^ef or,, and the mfide of comstiueting the proposed water works and the location thereof, including reservoirs, mains, dis- tributing pipes and hydrants. The map and plans shall be filed with the town: clerk, and a certified copy oi such mFd to act as local board of health ; health ofBcer of town. There shall continue to be local boards of health and health ofBcera iii the several cities, villages and towns- of the state. • •• • • ■ •• •• In towns the board of health shall consist of the town board and another citizen of the town of full age, annually appointed by the town board at a meeting thereof after each annual town meeting, for the term of one year from and after such town meeting and until his successor is appointed. Such board of health shall annually appoint a competent physician to be the health officer of the town. If the proper authorities shall not fill any vacancies occurring in any local Town Board as Local Board of Hbalth. 451 board within thirty days after the happening of such vacancy, the county judge of the county shall appoint a competent person to fill the vacancy for the unexpired term, which appointment shall be immediately filed in the office of the county clerk, and a duplicate thereof filed with the clerk of the municipality for which such appointment is made. Notice of the membership and organization of every local board of health shall be forthwith given by such board to the state board 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. [Public Health Law (L. 1893, ch. 661), § 20, in part, as amended by L. 1897, ch. 282.] § S. General po^rers and duties of local boards of health ; rules and regulations ; suppression of nuisances ; subpoenas ; vrarrauts of arrest ; penalties. Every such local board of, health shall meet at stated inter- vals to be fixed by it, in the municipality. The presiding officer of every such board may call special meetings thereof where in his iudgment the protection of the public health of the municipality requires it, and he shall call such meeting upon the petition of at least twenty-five residents thereof, of full age, setting forth the necessity of such meeting. Every such local board shall prescribe the duties and powers of the local health officer, who shall be its chief executive officer, and direct him in the performance of his duties, and fix his compensation. Every such local board shall make and pub- lish from time to time all such orders and regulations as they may deem necessary and proper for the preservation of life and health, and the execution and enforcement of the public health law in the municipality. It shall make with- out publication thereof, such orders and regulations for the suppression 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 post the same in some conspicuous place thereon. It may employ 452 Town and County Officbbs* Manual. 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 purposes 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 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 tes- tify upon matters not related to the public health. It may issue warrants to any constable or policeman of the munici- pality to apprehend and remove such persons as cannot otherwise be subjected to its orders or regulations, and a warrant to the sherifif of the 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 sub- ject to the same duties in the execution thereof, as if it had been duly issued out of a court of record of the state. Every such local board may proscribe 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 the municipality; and to maintain actions in any court of competent jurisdiction to restrain by injunction such violations, or otherwise to enforce such orders and regulations. [Public Health Law (L. 1893, ch. 661), § 21, as amended by L. 1895, ch. 203.J The amendment of L. 1895, ch. 928. added a paragraph to this section relating solely to incorporated villages. § 3. Board to supervise registration of births, marriages and deaths; physicians, midlives, clergymen, &c>t to furnish certifi- cates ; cost of registration a town charge. Every such local board shall supervise and make complete the registration of all births, marriages and deaths occurring within the municipality, and the cause of death and the find- ing of coroners' juries, in accordance with the methods and Town Board as Local Board op Health. 453 forma preacribed by the atate board of health, and, after registration, promptly forward the certificates of such births, marriages and deaths to the state bureau of vital statistics. Every physician or midwife attending i'.t the birth of a child, and no physician or midwife being in attendance, the parent or custodian of a child born, and every groom, officiating clergyman or magistrate ct every marriage shall cause a cer- tificate of such birth or marriage to be returned within thirty days thereafter to the local board of health or person desig- nated by it to receive the same, which shall be attested, if a birth, by the physician or midwife,, 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 officiat- ing clergyman or magistrate. The person making such certificate shall be entitled to the sum of twenty-five cents threfor, 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 complete registered record of a birth, marriage or death, shall be a charge upon the municipality. 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 per- son, 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. [Public Health Law (L. 1893, eh. 661), § 22, as amended by L. 1897, ch. 138.J § 4. Jurisdiction of town board of health over city or village ; uniting of towns and villages in a combined sanitation and regis- tration district. A town board of health 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 incor- porated villages therein, or any two or more towns and the 454 Town and County Opfiobrs' Manuai. incorporated villages therein, may unite, with the written approval of the state board of health, in a combined aanitary and registration district, and appoint for such district one health ofiScer and registering officer, whose authority in all matters of general application shall be derived from the boards of healtb appointing him; and in special cases 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 tbe incorporated villages therein unite in one registration district, the registrar of vital statistics of such combined district will be required to make separate returns to the state board of health of village and town cer- tificates of births, marriages and deaths. [Public Health Law (L, 1893, ch. 661), § 29, as auended by L. 1897, ch. 169.J § 5. 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 heath in the performance 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 board of health shall not be sub- ject to taxation for maintaining any town board of health, or for any expenditure authorized by the town board of health, but the costs 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.] § 6. 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, proscribed or required by this article, may be enforced by mandamus at the instance of the state board ci heath, or of its president or secretary, or of the local board of health, or of its president or secretary, or of any citizen of Town Board as Local Board oe Health. 455 full age, resident of the municipality where the duty should be performed or the act done. [Public Health Law (L. 1893, ch. 661), § 3LJ § 7. Local board may remove nuisances if ovrners refuse to obey order ; recovery of expense. If the owner or occupant of any premises fails to comply with any order or regulation of any such local board for the suppression and removal of any 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 other matter. The expense of such suppression or removal shall be paid by the owner 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 muni- cipaity to recover such expense, and the same when recov- ered shall be paid to the treasurer of the municipality, or if it has no treasurer to its chief fiscal officer, to be held and uaed as the funds of the municipality. [Public Health Law (L. 1893, ch. 661), § 26.] § 8. If judgment recovered in action for abatement of nuisance is not paid, it is a lien on premises; sale of premises by board; notice. If execution upon a judgment for the recovery of the expense of the suppression or removal of a nuisance or other matter, purusant to an order or regulation of any such local board, is returned wholly or in part unsatisfied, such judg- ment, 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 premises, having preference over all other liens and incumbrances whatever. The board may cause such premises to be sold for a term of time for the payment and satisfaction of such lien and the expenses of the sale. Notice of such sale shall be published for twelve weeks successively, at least once in each week, in 456 Town and County Officers' Manual. a newspaper of the city, village or town, or if no newspaper 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 east twenty-eight days prior thereto. The premises shall be sold to the person offering to take them for the shortest time, paying the amount unpaid on such judgment and interest and the expenses of such 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 occu- pant, as against a tenant of real property holding over after the expiration of his term; and the costs of any such action or proceeding, if not paid by the occupant, shall also be a lien upon such premises, having the same preference as the lien of such judgment, and the right of the purchaser to such premises shall be extended for a longer 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- chaser on such sale. The term of the purchaser at auy 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 redemp- tion 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 incumbrancer. Town Boaed as Local Board of Health. 457 the amount paid shall be added to his mortgage, incum- brance 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. [Public Health Law (L. 1893, ch. 661), § 27.] § 8. Duties of local boards of health as to burials and burial permits. Every such local board shall prescribe sanitary regula- tions for the burial and removal of corpses, and shall desig- nate the persons who shall grant permits for such burial, and permits for the transportation of any corpse which is to be carried for burial beyond the county where the death occurred. Where such persons are appointed by the board of health of any town, one of such persons shall be the town clerk of such town. Every undertaker, sexton or other per- son having charge of any corpse shall procure a certificate of the death and the probable cause duly certified by the physician in attendance upon the deceased during his last illness, 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 bylaw, an afBdavit stating the cir- cumstances, time and cause of death, and sworn to by some credible person known to the officer granting the permit, and tbere shall be no burial or removal of a corpse until such certificate or affidavit has been presented to the local board or to the person designated by it, and thereupon a permit for such burial or removal has been obtained. When application is made for a permit to transport a corpse over any railroad or upon any passenger steamboat within the state, the board of health, or the officers to whom such ap- plication is made, shall require such corpse to be inclosed in a hermetically sealed casket of metal or other indestructible material, if the cause of death shall have been from a conta- gious or infectious disease. [Public Health Law (L. 1893, ch. 661), § 23, as amended by L. 1899, ch. 211.] g 10. Duties of local boards of health as to contagions and infectious diseases; reports to state board of health by health officers ; small pox, duties of health officer as to> Every such local board of health shall guard against the introduction of contagious and infectious diseases by the 458 Town and Courty Officers' Manual. exercise of proper and vigilant medical inspection and con- trol of all persons and things arriving in the municipality from infested places, or which 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 persons who cannot otherwise be provided for. It shall prohibit and prevent all intercourse and communication with or use of infected premises, places and things, and require, and, if necessary, provide the means for the thorough puri- fication and cleansing of the same before general intercourse with the same or use thereof shall be allowed. It shall report to the state board of health, promptly, the facts relat- ing to contagious and infectious diseases, and every case of small-pox or varioloid within the municipality. Health officers of villages and towns shall report in writing once a month to the state board of health all cases of auch infectious and contagious diseases as may be required by the state board of health, and for such reporting the health oflQcer shall be paid by the municipality employing him, upon the certification of the state board of health, a sum not to exceed twenty cents for each case so reported; and the health officer shall report annually on or about 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 board of health, and during an actual epidemic of small-pox obtain fresh supplies of such virus at intervals not e:^ceeding 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 dis- ease exists in any county alms-house or its vicinity, and the physician thereof shall certify that such disease is likey to endanger the health of its inmates, the county superintend- ent of the poor may cause such inmates or any of them to be Town Boaed as Local Board of Health. 459 removed to such other suitable place in the county as the local board of health of the municipality where the alms- house is situated may designate there to be maintained and provided for at the expense of the county, with all necessary medical care and attendance until they shall be safely returned to such alms-house or otherwise discharged. The boards of health of the cities of New York, Brooklyn, Buffalo, Albany and Yonkers, shall report promptly to the state board all cases of sraall-pox, typhus and yelljw fever and cholera and the facts relating thereto ^Public Health Law (L. 1893, ch. 661), § 24.] § 11. Nuisances, examination into complaints aa to; powers upon such examination. Every such local board shall receive and examine into all complaints made by any inhabitant concerning nuisances, or causes of danger or injury to life and health within the municipality, and may enter upon or within any place or premises where nuisances or conditions dangerous to life and health are known or believed to exist, and by its members or other persons designated for that purpose, inspect and examine the same. The owners, agents and occupants of any such premises shall permit such sanitary examinationa to be made, and the board shall furnish such owners, agents and occupants with a written statement of the results and conclusions of any such examination. Every such local board shall order the suppression and removal of all nuis- ances and conditions detrimental to life and heath found to exist within the municipality. Whenever the state board of health or its president and secretary shall by notice to the presiding officer of any local board of health, request him to convene such local board to take certain definite proceed- ings concerning which the state board of health or its president and secretary shall be satisfied that the action recommended by them is necessary for the public good, and is within the jurisdiction of such board of health, such pre- siding officer shall convene such local board, which shall take the action recommended. [Public Health Law (L. 1893, ch. 661), § 25.] 460 Town and County Officers' Manual. CHAPTER XXXV. Duties op Town Officers as to Jury Lists. Section 1. Supervisor, town clerkand assessors to make lists of trial jurors; names to be taken from assessment roll. 2. Qualifications_of trial jurors. 3. Who are disqualified to serve as trial jurors; 4. Who are entftled to De exempted from jury serrioe. 6. Duplicate jurj_lists_tolbe made and filed. 6. Proceedings when-county olerk does not receive lists. 7. Jurors so returned to serve for three years. § 1. Supervisor, to^vn clerk and assessors to make lists of trial jurors; names to be taken froni assessment-roll. The supervisor, town clerk and assessors 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 town, 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 speci- fied in this section, they must meet as soon thereafter as practicable. [Code Civ. Pro. § 1035.J At a meeting specified in the last section, the offices present must select from the last assessment-roll 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 article. [Code Civ. Pro. § 1036.] § 2. 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 sixty years of age. Duties of Town Offices as to Jury Lists. 461 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 own right, of the value of one hundred 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 informed. [Code Civ. Pro. § 1027.] But a person who was assessed, on the last assessment- roll of the town, for land in his possession, held under a contract for the purchase thereof, upon which improve- meuta, 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 qualifica- tions, specified in subdivision third of the last section, if he is qualified in every other respect. [Code Civ. Pro. § 1028.] § S. Who are disqualified to serve as trial jurora. Each of the following officers is disqualified to serve as a trial juror: 1. The governor; the lieutenant-governor; the governor's private 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 bouse, of which he is a member. 4. A judge of a court of record, or a surrogate. 5. A sheriff, under sheriff, or deputy sheriff. 462 Town and County Officers' Manual. 6. The clerk or deputy clerk of a court of record. [Code Civ. Pro. § 1029.] § 4. Who are entitled to be exempted from jury service. Each of the following persons, although qualified, ia entitled to exemption from service as a trial juror, upon his claiming exemption therefrom : 1. A clergyman, or a minister of any religion officiating as such, and not following any other calling. 2. A resident officer 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 a 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.] 4. A practicing physician or surgeon, having patients requiring his daily professional attention, and a licensed pharmacist actually engaged in his profession as a means of livelihood, and a duly registered veterinary surgeon actally engaged in his profession as a means of livelihood. [Amended L. 1895, ch. 532.J 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. 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, authorized by the law of the state, which is actually con* structed and navigated. 9. A master engineer, assistant engineer or fireman, actally employed upon a steam vessel, making regular trips. 10. A superintendent, conductor, or engineer, employed by a railroad company, other than a street railroad com- pany, or an operator or assistant operator, employed by a telegraph company, who is actually doing duty in an office, or along the railroad or telegraph line of the company, by which he is employed. Duties op Town Opficeks as to Jury Lists. 463 11. An officer, non-commissioned officer, musician or private of the national guard of the state, performing military duty, or a person who has been honorably dis- charged from the national guard, after five years' service in either capacity. 12. A person who has been honorably discharged from the military forces of the state, after seven years' faithful service therein. But in order to entitle a person to exemp- tion, under this subdivision, his service must have been performed before the twenty-third day of April, eighteen hundred and sixty-two, either as a general 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, uniformed and equipped according 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 organized according to law 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. Pro. § 1030.J § B. Duplicate jury lists to be made and filed. Duplicate lists of the name of the persons so selected, show- ing 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 sigued by the officers, or a majority of them. Within ten days after the meeting, one of the lists must be transmitted by those officers to the county clerk, and filed by him; and the other must be filed with the town clerk. [Code Civ. Pro. § 1037.J 464 Town and County Officers' Manual. § 6. 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 containing 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 received 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 destroyed, he must forthwith give notice thereof to the town clerk, and a copy of the duplicate list on file in the town clerk's office, certi6ed by him to be correct, or if that dupli- cate 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 there- after as practicable; and the county clerk must prepare new ballots, and destroy the old ballots, containing the names of residents of that town immediately after the receipt by him of the list therefrom. [Code Civ. Pro. § 1039.] § 7. Jurors so returned to serve for three years. Each person, whose name is contained in a list, so trans- mitted, must, unless he is excused or discharged, serve, aa a trial juror, for three years from the first Monday of August of that year, and thereafter until another list from bis town is received and fied. [Code Civ. Pro. § 1040.J School Moneys, theie Apportionment, etc. 465 CHAPTEE XXXVI. School moneys, their apportionment and the duties of town and county officers in respect thereto. Seotiom 1. School commissioners to appoi'tion moneys ; duties of commis- sioners ; county treasurer to furnish statement of moneys on hand for sc'iool purposes. S. Correction of erroneous apportionments. 5. 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 school fund 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. Powers and duties of supervisors as to common schools, con- tinued. 10. Supervisor to annually return to county treasurer amount of school moneys' remaining in his hands. 11. Disbursement of school moneys ; payment of moneys to district collector or treasurer ; library moneys ; accounts of school moneys ; payment of moneys by predecessor. 12. Duties of supervisor as to the property and effects of dissolved ■ — TSCtt^rn^&icts. 13. Powers and duties of boards of supervisors as to school commis- siSnefsanS^ school commissioner districts. 14. Duties of town clerks in respect to the common schools ; com- pensation and'^expenses a town charge. 15. Unpaid scho >! taxes, collector to return account of, to trustees ; trusteesHjor transmit" account, with certificate, to county treasurer. 16. County treasurer to pay to collector of school district amount ' of unpaidntaxes returned. 17. Oounty trt a^urer to lay account of unpaid school taxes before board of-supervisors ; aotitm of board thereon ; collection of such taxes. 18. Special provisions of the consolidated school law applicable to town- officers. 30 466 Town and County Officers' Manual. § 1. School commissioners to apportion moneys ; duties of com- missioners; county treasurer to furnish statement of moneys on hand for school purposes. The school commiasioner, 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 dis- trict the amount apportioned to it by the state superintend- ent, and to every district which did not participate in the apportionment of the previous year, and which thp super- intendent shall have excused, such equitable sum as he shall have allowed to it. 3. County treasurer to furnish statement of unexipended 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 ad.d the whole sum of such moneys to the balance of the state moneys to be apportioned for teachers' wages. The amounts in each supervisor's hands shall be charged as a partial payment of the sums appor- tioned 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 accru- ing 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 apportion ■them together with such as belong to the schools of the ScHlO'Ot MdNE'S'S, TfiEiR APP0KTI0NM3NT, ETO. 467 couflty as hereinafter provided for the payment of teachers Wage's. 5. Library moneys, how apportioned. They shall apportioii library moneys to the school districts, and parts of school districts, joint with parts in any city or in any adjoining county, which shall be entitled to participate therein, as follows: To each 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 amotint 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 appor- tionment pro rata to the total amount apportioned to the county. 6. Apportionment acdotding to attendance ; attendance, how ascertained. They shall apportion all of such remaining unapportioned 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 respective 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 estafblished. The aggregate number of days in attendance of the pupils is to be ascer- tained from the records thereof, kept by the teachers as hereinafter prescribed, by adding together the whole num- ber of days' attendance of each and every pupil in the dis- trict, or part of a district. [Thus amended by L. 1896, oh. 264.] 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 apportntonment. They shall sign, in dupli- cate,, a certificate; showing the amounts appoi'tioned attd set apart to each school district and part of a district,' a'Qd 468 Town and County Opficbrs' Manual. 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- visor of each town the amount of school moneys so appor- tioned to his town, and the portions thereof to be paid by him for library purposes and for teachers' wages, to each distinct district and part of a district. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 13.J § 8. Correction of erroneous apportionment^ If, in their apportionment, through any error of the com- missioners, any district shall have apportioned to it a larger or a less share of the moneys than it is entitled to receive, the commisaoners may, in their next annual apportionment, with the approval of the superintendent, correct the error by equitably adding to or deducting from the share of such dis- trict. [Consolidated ^School Law (L. 1894, ch. 556), tit. 2, § 14. J § 3. When districts are not entitled to moneys. No 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 common school was supported in the district and taught by a qualified teacher for such a term of time as would, under section six of this title, entitle it to a distrib- utive share under the apportionment of the superintendent. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 15. ] § 4. Supervisor to file ori^nal certificate ; moneys to be paid to supervisor. On receiving the certificate of the commissioners, each supervisor shall forthwith make a copy thereof for his own use, and deposit the original in the office of the clerk of hia town; and the moneys so apportioned to his town shall be School Moneys, their Apportionment, etc. 469 paid to him iminediately on his compliance with the require- ments of the following section, but not before. [Consoli- dated School Law (L. 1894, ch. 556), tit. 2, § 16.] § 5. Supervisor to give bond before receiving school moneys ; refasal to give bond a misdemeanor Immedately on receiving the commissioners' certificate of apportionment, the county treasurer shall require of each supervisor, and each supervisor shall give to the treasurer, in behalf of the town, his bond, with two or more sufiScient sureties, approved by the treasurer, 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 disburse- ment, 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 successor of the supervisor in default, such successor having first given security as aforesaid. When- ever the office of a supervisor shall become vacant, by reason of the expiration of his term of service 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 penalty of at least double the sum of the school moneys remaining in the hands of the old supervisor, when the office became vacant, conditioned for the faithful disbursement and safe- keeping of and accounting for such moneys. But the execu- tion of this bond shall not relieve the supervisor from the duty of executing the bond first above mentioned. [Consoli- dated School Law (L. 1894, ch. 556), tit. 2, § 17.] The refusal of a supervisor to give such security shall be a misdemeanor, and any fine imposed on his conviction thereof shall be 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 and disbursed by 470 Town and County Gfpioers' Manual. some other ofBcer or person to be designated by the county judge, under auch regulations and with such safeguards as he may prescribe, and the reasonable eompensation of such ofiBcer 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. J FORM NO. 144, Bond op Supeevisob on Account op Schooi. Money3, Know all men by these presents, that we, A B, supervisor of the Town ol , 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 dol- lars (o sum at least double the amount of school moneys set apart or appor- tioned to the town), to be paid to the said E F, as treasurer of said county, his successor in office, att tney or assigns, for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators and as- signs jointly and severally, firmly by these presents. Sealed with our seals and dated the day of ,18.. 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 efiect. A B. [L. s.] C D. [L. 8.] D E. [L. S.] (Acknowledgment and Justification as in Form No. 6, ante, p. 45.) Apfboval op County XbiBiasubeb. County op ss.: I hereby approve of the above (or within) bond as to its form and manner of execution, and of the sufSoienoy of the sureties therein. Dated 18~. EP, Treasurer of county. § 6. Grant,, bequest or devise of property to towns for benefit of ■cbools. Keal and personal estate may be granted, conveyed, devised, bequeathed and given in trust and in perpetuity or otherwise to the state, or to the superintendent of public instruction, for the support or benefit of the common Bcohola, within the state, or within any part or portion of School Moneys, their Apportionment, etc. 471 it, or of any particular commoQ school or schools within it; and to any county, or the school commissioner or comtnis- sioners of any county, or to any city or any board of otEcers thereof, or to any school commsaioner district or its com- missioner, 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. No 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 incompettint one ia 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. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 19.J 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 accounting for the trust property and its income and interest at such times, in such forma, and with such authentications, as he shall, from time to time, prescribe. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 20.J The common council of every city, the board of super- visors of every county, the trustees of every village, the supervisor of every town, the trustee or trustees of every school district, and every other ofiicer or person who shall be thereto required by the supqi-intandent of public instruc- tion, 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 pur- poses, 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 sub- sequently created. [Consolidated School Law (L. 189 i, ch. 556), tit. 2, § 21.] 472 Town and County Officers' Manual. § 7. Supervisor to report to superintendent amount of gospel school funds in his hands. Every supervisor of a town shall report to the superin- tendent 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 is 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 such lots and investments, and shall report a full statement and account of such lands, moneys and securities. [Consolidated School Law (L. 1894, csh. 556)^ tit. 2, § 22.] Every supervisor of a town shall in like manner report to the superintendent whether the town has a common school fund originated under the "Act relative to moneys in the hands of overseers 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 appli- cation, in such form as the superintendent may prescribe. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 23.] In respect to the property and funds in the last two sec- tions mentioned, the superintendent shall include in his annual report a statement and account thereof. And, to these ends, he is authorized, at any time, and from time to time, to require from the supervisor, board of town auditors, or any officer of a town, a report 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.] § 8. Disposition of fines and penalties for the benefit of the com- mon schools ; district attorney to report to board of supervisors 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 School Moneys,, their Apportionmknt, etc. 473 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 b, .iiig a special school act, in which case he shall report it to the superintendent, 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.] Every district attorney shall report, annually, to the board of supervisors, all such fines and penalties imposed in any prosecution conducted by him during the previous year; and all moneys collected or received by him or by the sheriS', or any other officer, for or on account of such fines or penal- ties, shall be immediately paid into the county treasury, and the receipt of the county treasurer shall be a sufficient and the only voucher for such money. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 26.] 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 officer collecting or rfceiv- ing 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 hav- ing a special school act, or of any part or district of a city, it shall be paid into the city treasury. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 27.J "Whenever, by this or any other act, a penalty or fine is imposed upon any school district officer for a violation or omission of official duty, or upon any person 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 474 Town and County Obficers' JvIanual. school district lies in two or more towns or counties, the town or county intended by the act shall be taken to be the one in which the school-house, or the school-house longest owned or held by the district, is at the time of such viola- tion, act or omission. [Consolidated School Law (L. 1894, ch. 556), tit. 2, § 28.J § 9. Powers and daties of supervisors as to common schools, con« tinned. The several supervisors continue vested with the powers and charged with the duties formerly vested in and charged upon the trustees of the gospel and school lots, and trans- ferred to and imposed upon town superintendents of common schools by cliapter one hundred and eighty-six of the laws of eighteen hundred and forty-six. The several supervisors continue vested with the powers and charged with the duties conferred and imposed upon the commissioners of common schools by the act of eighteen hundred and twenty-nine (ch. 287), entitled "An act relative to moneys in the hands of overseers of the poor." [Consoli- dated School Law (L. 1894, ch. 556), tit. 3, §§ 1, 2.] § 10. 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 super- visor shall make a return in writing to the county treasurer for the use of the school commissioners, showing the accounts 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 certifi- cate of the next apportionment, and the moneys so returned by him shall be reapportioned as hereinbefore directed. [Consolidated School Law (L. 1894, ch. 656), tit. 3, § 3.] SCHOOI. MoiISiYS, THBIR AFPOBTION]i;e:NT, BTO. 475 FORM NO. 145. FoBM OF Report of School Moneys on Hand. To Bon. J. K. Chrant, County Treasurer of County: I, the undersigned, supervisor of the town of in the coainty of , hereby return, as required by sec tion 3 of title 3 of the Cob- Bolidated School Law, that the amounts of school moneys in my hands not paid out on the orders o£ 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 DistrictNo. 2 75 00 District No. 3 50 00 Total in my hands $235 00 Dated 18. GEO. H. HAGAN, Supervisor. § 11. Disbursement of school moneys ; payment of moneys to dis- trict 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 payment of teachers' wages, upon and only uijon the written orders of a sole trustee 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 ofiSce 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, upon the receipt by him of a copy of the bond executed by said col- lector 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 fire specified herein to the teachers entitled to the same. [Thus amended by L. 1896, ch, 177.J 2. .Library moneys. To disburse the library moneys upon, 476 Town and County Officers' Manual. and only upon the written orders of a sole trustee, or of a raajority of the trustees. 3. Union free schools. In the case of a union free school district, to pay over all the school money apportioned thereto, whether for the payment of teachers' wages, or as library jnoneys, 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, 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 hook. 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 ofiBce. 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 tiling. 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's 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. Recovery of penalty. 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 default or omission of any town officer or school School Moneys, thbik Apportionment, etc. 477 district board or ofBcer 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. Erection or alteration of school districts. In case of refusal of trustees of a school district to consent to the alteration of the boundaries of a school dis- trict, the trustees may request that the supervisor and town clerk of the town or towns in which such district is situated be associated with the school commissioner in a proceeding to determine whether such alteration should be made. Consolidated School Law (L. 1834, oh. 556), tit. 6, § 4. The super- visor and town clerk are entitled to one dollar and fifty cents for each day spent in any such matter. Id. § 5. § 12. Duties of supervisor as to the property and effects of dis- solved school districts. When a district is parted into portions, which are annexed to other districts, its property shall be sold by the super- visor 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 pay- ment of the debts of the district, and apportion the residue, if any, among the owners or possessors of taxable property in the district, in the ratio of their several assessments on the last corrected assessment-roll or rolls of the town or towns, and pay it over accordingly. [Consolidated School Law (L. 1894, ch. 556), tit. 6. § 10.] The supervisor of the town within which the school-house of the dissolved district was situated may demand, sue for and collect in his name of oDBce, any money of the district outstanding in the hands of any of its former oflSoers, 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 478 Town and County Officers' Manual. which the parts of the dissolved district were annpxed, to be by them applied as their district meetings shall dptermiiie. (■Ooasolidated School Law (L. 1894, ch. 656), tit. 6, § 11.] § 13. PoTrers and duties of boards of supervisors as to school commissioners and sciiool commmissioner districts. School commissioner districts. The school commissioner dis- tricts duly and legally organized, and as the same existed January first, eighteen hundred and ninety-four, shall con- tinue to be held and recognized as the school commissioner districts of the state until the same shall be altered or modi- fied by the legislature. No city shall be included in, or form a part of any school commissioner 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 commis- sioner for such district shall be elected in the manner pro- vided by law for the election of school commissioners [Con- solidated School Law (L. 1894, ch. 556), tit. 5. § 2.] 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 appro- priated for this purpose. [Id. tit. 5, § 7.] Board may increase salary. Whenever a majority of the supervisors from all the towns composing a school commis- sioner district shall adopt a resolution to increase the salary of their school commissioner beyond the one thousand dollars payable to him from the free school fund, it shall be the duty of the board of supervisors 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 valuations of the real and personal estate of such towns. [Id. tit. 5, § 8.] Allowance of expenses. The board of supervisors shall annually audit and allow to each commissioner within the county a fixed sum of at least two hundred dollars for his School MoNEYSi THEnt AppoRTioNMETfT, etc 4T9 expenses, and shall assess and levy tliat amount annuAlly^ by tax upon the towns composing his district. [Id. tit. £^ §9.J § 14. Duties of town clerks in respect to the common scliools } compensation and expenses a to\rn 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 ofBce touching common school?, and forthwith to report to the supervisor any loss or injury to the same. 2\ To receive from the supervisors the certificates of ijpportionment of school moneys to the town and to record chem in a book to be kept for that purpose. 3. Forthwith 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 deposit with him their annual reports within the time pre- scribed by law, and to deliver them to the school' commis- sioner on demand ; and to furnish the school commissioner of the stjhool commissioner 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 for- warded to him by the state superintendent or school com- •nissioner for that purpose. 6. To receive from the supervisor, and record in a book kept for that purpose, the annual account of the receipts and disbursements of school moneys required to be submitted to the town auditors, 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 the- superimteradent of. public instruction, whenever required by him,, and to file and: pre- serve the vouchers accompanying the account. 7. To receive; and to record, in the same book,, the! super- visor's fiiQal account of the school moneys received; and dis- bursed by him,, aud deliver a copy thtireof to suoh super- Tisor'a successor, in office. 480 Town and County Officers' Manual. 8. To receive from the outgoing supervisor, and file and record in the same book, the county treasurer's certificate, that his successor's bond has been given and approved. 9. To receive, file and record the descriptions of the school districts, 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 hereinafter provided, to be deposited in his office. 12. To perform any other duty which may be devolved unon him by this act, or by any other act touching common schools. Expenses and disbursements a town charge. The necessary expenses and disbursements of the town clerk in the perform- ance of his said duties, are a town charge, and shall be audited and paid as such. [Consolidated School Law (L. 1894, ch. 556), tit. 4, §§ 1, 2.J § IS. 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 delivered to the collector, or the taxes upon non-resident stockholders in banking associations organized under the laws of Congress, shall be unpaid at the time the collector is required by law to return his warrant, he shall deliver to the trustees of the district an account of the taxes remain- ing 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 otiicer authorized to administer oaths, that the taxes mentioned in any such account remain unpaid, and that, after diligent School Moneys, their apportionment, etc. 481 efforts, he has been unable to collect the same, he shall be credited by said trustees with the amount thereof. Upon receiving any such account from the collector, 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 certiScate, to the effect that they have com- pared 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. [Consolidated School Law (L. 1894, ch. 556), tit. 7, §§ 72, 73.] § 16. 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 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, bhe board of supervisors, at the time of levying said unpaid taxes, as provided in the next section, shall pay to the collector of the school district the amount thereof, with said addition 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 by L. 1897, ch. 512.] § 17. County treasurer to lay account of unpaid school taxes before board of supervisors ; action of board thereon ; collection of such taxes. Duties of board 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 unpaid taxes, with seven per cent, of the amount in addition thereto, to be levied upon the lands upon which the same were imposed; and if imposed upon the 31 482 Town xttD County Officers' Manual. lands of any incorporated company, then upon such com- pany; and when collected the same shall be returned to the county treasurer to reimburse the amount so advanced, with the expenses of collection; and' if imposed upon the stock of a non-resident stockholder in a banking association organized trader 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 auth- orized to receive the same. [Consolidated School Law (L. 1894, ch. 556), tit. 7, § 75.] When owner may pay school tax to county treasurer. Any person 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.] Collection of unpaid tax, how made. The same proceedings in all respects shall be had for the collection of the amount so directed to be raised by the board of supervisors as are provided by law in relation to the county taxes; and, upon * 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 respect to the arrears of county taxes upon land of non-riesidents; 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 id respect to the county taxes assessed upon such company. [Consolidated School Law (L. 1894, ch. 556), tit. 7, § 77. J School Moneys, thbik Apportionment, bto. 488 § 18. Special provisions of the consolidated school law appUo- able to toTrn offlcers. Iddbility of officers for loss of school moneys. "Whenever the share of school monays or any portion thereof apportioned to any town or school district or any money to which a town or school district would have been entitled shall be lost, in consequence of any willful nelgect of official duty by any school commissioner, town clerk, trustees or Clerks of school districts, the officer 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. [Consoli- dated School Law (L. 1894, ch. 556), tit. 15, § 1.] Penalty for refusal or neglect to sue for penalty imposed for benefit of schools. Where any penalty for the benefit of a school district, or of the schools of any school district, town, school commissioner district or county, shall be incurred, and the officer or officers, whose duty it is by law to sue for the same, shall willfully and unreasonably Refuse or neglect to sue for the same, such officer 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.j Actions against school officers, including supervisors. In any action against a school officer or officers, including super, visors of towns, in resect to their duties and powers under this act, for any act performed by virtue of or under the color of their offices, or for any refusal or omission to {Jerform any duty enjoined by law, and which might have been the subject of an appeal to the superintendent, no costs shall be allowed to the plaintiff, in cases where the court shall cer- tify that it appeared on the trial that the defendants acted in good faith. But this provision shall not extend to suits for penalties, nor to suits or proceedings to enforce the deci- sions of the superintendent. [Consolidated School Law (L. 1894, ch. 666), tit. 16, § 3.] 484 Town and CouKiy OFFiCEiis' Manual. CHAPTER XXXVII. BoABDS OF supervisors; powers and duties. BeCTIOM 1. Boards of supervisors ; meetings. 5. Penalty for failure of supervisor to perform oflBcial duties. 8. General powers of boards of supervisors. 4. Penal provisions respecting the unlavcf ul audit and presentation of accounts against municipalities. 6. County charges. 6. Acts and resolutions of boards of supervisors; form and con- tents ; adoption ; publication. 7. Proceedings of board of supervisors to be printed and distrib- uted ; contents. 8. Session laws, designation of newspapers for publication of. 9. Session laws, how published ; expense of publication. 10. Slips of the session laws and concurrent resolutions to be for- warded to newspapers. 11. Session law slips to be forwarded by county clerks to clerks o( towns, villages and cities. 13. Newspapers designated to publish election notices and official canvass. 18. Compensation of supervisors as members of the board of super- visors ; copying assessment-roll. 14. County records, boards of supervisors to have general charge of ; copies may be made for public use; cost of copies. 15. Witnesses and county and town officers may be examined by board ; books and papers may be inspected. 16. Powers of committee of board of supervisors as to hearings ami examinations. 17. Adjournment of hearing or examination by board or committee ; discharge of person arrested for failure to appear. 18. Filing and enforcement of undertaking given under preoedin;; section. 19. County buildings, location of, may be changed; petition for change beyond boundaries of village or city. 20. Action of board upon presentation of petition for change of location. 91. Submission of question of removal of county buildings to vote of people. 2dT Soldiers' monument, board of supervisors may appropriate moneys for the erection of. 28. Commissioner of jurors : iKjwers and duties. § 1. Boards of superTisors; laeeKings. The supervisors of the cities and towns in each county when lawfully convened shall be the board of supervisors Boards op Supervisors; Powers and Duties. 485 of the county. They shall meet annually, at such timj 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 required by law. A majority of the board shall constitute a quorum. They may adjourn from time to time, and their meeetings shall be public. At the annual meeting they shall choose one of their number chair- man 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 con- duct of their proceedings, and impose and enforce penalties for the violation thereof, not exceeding fifty dollars for each offense. [County Law (L. 1892, ch. 686), § lO.J § S. Penalty for failure of supervisor to perform official duties If any supervisor shall refuse or neglect to perform any of the duties which are or shall be required of him by law, as a member 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 by law, he shall for every such offense forfeit a like sum to the town. [County Law (L. 1892, ch. 686), § ll.J § 3. General pow&rs of boards of supervisors. The board of supervisors shall: 1. County property. Have the care and custody of the cor- porate property of the county. [County Law (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. [Idem, sub. 2.] 3. Town charges. Annually direct the raising of such sums in each town as shall be necessary to pay its town charges. [Idem, sub. 3.] 488 Td#N AND County Ofpiobbs' Manual. 4. Taxes. OaUse tc* be assessed, levied and collected, such other assessments and taxes as shall be required of them by any law of the statSi [Idem, sub. 4.] 5. Salaries of county officers. Fix the salaries and compen- sation of county treasUtei-s, district attorneys and superin- tendents of the poor of their county, which shall be a county charge, and not be changed during the term of any auch officer; and prescribe the mode of appoiutmentj and fix the number, grade and pay of the clerks, assistants and employes in such offices, when not otherwise fixed by lav*^ which shall be a county charge. [Idem, sub. 5kJ 6. May borrow money. Borrow money when they deem it necessary, 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 represente 1 by bonds, and issue county obligations therefor, and for other lawful county uses and purposes; and authorize a town in thteir county to borrow money for town uses and purposes on its credit, and issue its obligatiobs therefor, when, and in the manner, authoi-ized by law. [Ideni, sub. 6.] 7. Ariimals and weeds, destruttidH of. Make such laws and ^egUlAtiorls as they may deem necessary fbr the dostructitJn of Wild and nbxious aniiii^ls ahd weeds, within the countj'. [Idem, sub. 7.J 8. Fish and gnmd. Provide fot the protection and preser'v'A- 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 viola- tion thereof. [Idem, sub. 8.] By Fisheries, Game and Forestry Law (L. 1898, oh. 488, as amended by L. 1893, dh. 974), % 303, boards of SlijjetvisOiJs are no loagdi authorized to piss regulations for tlie protection of fish and game. 9. Seh&dl ddiiiihiwsi'oner districts. Divide any school cdin- raissioner's district within the county which Contains mofe than two hundred school distfiots, and erect therefrom aa additional school commissioner's district, and When such district shall have been formed, a schobl commissionBP for the district shall be elected iti the manner provided by laW for the election of school oommissionera. [Idem, sub. 9.j BoAiEDS OF SUBBEVISOES; FOWEES ANB DuTIES. 48'i' 10. Opening and closing of county offieea. Fix and regulate the time of open- ing and closing the county offices daily, except Sundays and holidays, where sueh time is not fixed by law. [Idem, sub. 10.] 11. Contracts with penitentiaries. ContTaot, at such tim^s and upon such ^rma as the board may by re8olul;ion determine, witji the authori|;ies of any other county for thg reception into the penitentiary of such county, and the custody and employment at hard labor therein, of any person convicted \i7ithin their county of any offense, pther than a felony, and sentenced to imprisonment in a county jail, or penitentiary, for a term exceeding sixty days. [Idem, sub. 11.] 12. Actions on undertakings. Cause an action to be brought upon the undertaking of any county officer, whenever a breach thereof shall ocpur. [Idem, sub. 12.] 13. County iuildings; acquisition of lands. Purchase, lease, or otherwise acquire, for the use of the county, necessary real property for court houses, jails, alms-houses, asylums and other county buildings, and for other county uses and purposes; and erect, alter, repair, or construct, any necessary build- ings or other improvements thereon for necessary county use, and cause to be levied, collected and paid, all such sums of money as they shall deem necessary therefor; and sell, lease, or apply to the 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, pub. 14.] 14. Jiiry districts. To make one or more jury districts and to make siiph regiUations in respect to the hplding of the terms of courts as shall be neces- sary by reason of such change. [Idem, sub. 14.] 15. To contract at such times and on such terms as the board may by reso- lution 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, or in the penitentiary of such county, when used as a jail and in charge of the sheriff. [Sub. 15 added by L. 1900, ch. 130. Sec. 2 of sueh act legalizes contracts heretofore executed.] 16. To raise by tax a sum not exceeding one thousand dollars in any ye£j.i to aid in carrying out the provisions of the fisheries, game and forest law. l[Sub. 16 added by L. 1900, ch. 296.] I. — ^Audits bt Boabd of Stjpeevisoes. See ciiapter XXXII, ante, p. 422, for cases cited relative to audits by town ]l)oard3, which are for the most part applicable to audits by boards of super- ivisgrs, '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. 488 Town and County Officers' ManuaIi. As to the proper manner of arriving at a determination, see Pecyple ex rd. Bliss V. Supervisors, 39 N. T. State Rep. 313. WTistt constitutes audit. Arbitrary reduction of the gross amount, without passing upon the separate items, is not an audit. People ex rd. Thurston v. Board, 82 N. Y. 80. Jurisdiction of board in auditing accounts. Their jurisdiction is limited to the powers conferred by statute. People v. Lavirence, 6 Hill. 244; Chemung Canal Bank v. Supervisors, 5 Denio, 517. When the board transgresses the powers conferred by statute, their acts are void. Osterhoudt v. Bigney, 98 N. Y. 222. When amount is fixed by statute, the amount must be allowed. People ex rel. Kinney v. Supervisors, 40 How. 5S. The board may receive evidence, hear, consider and determine the justice of a claim presented. People ex rel. Baldvnn v. Board of Supervisors, 12 How. Pr. 204. Supervisors are not compelled to receive evidence when such evidence would not affect their decision. People ex rel. White v. Supervisors, 48 N. Y. State Rep. 3. Audit of rejected accounts. 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 disallowed for any reason not affecting the merits thereof, it may be audited by a subse- quent board. People ex rel. Mason v. Board of Supervisors, 45 Hun, 62. Power of audit cannot he delegated. The final audit should be by the board as a whole. The examination of accounts may be made by a committee of the board, but the determination as to the allowance or disallowance 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. Sagadom, 104 N. Y. 516; Bellinger v. Cfray, 51 N. Y. 610. Neglect of boa,rd to act. 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 its allowance. People V. Supervisors of Richmond Co., 20 N. Y. 252. See, also, People -v. Supervisors of Chenango Co., 8 N. Y. 318. Presentation of accounts in certain counties. The supervisors of the coun- ties 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 provide boxes with suitable inscriptions thereon, and with openings in the top, to be kept in the ofiSces of the clerks of said counties and in their charge, imder lock and key, in whioh shall be deposited by said clerks, all accounts and claims against said counties, duly verified according to law ; and when- ever said boards shall severally for themselves order, the clerks of said boards shall take from said boxes all bills and accounts against 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 other- wise in their possession, upon the morning of the fourth day of the annual meeting of said boards ; except bills for the services of supervisors, their clerks and janitors, and except bills for services or disbui-sements, rendered or made during the session of the board. [L. 1861, oh. 83, § 1, as amended by L. 1862, ch. 245, § 1.] Boards of Supekvisoks; Powers and Duties. 489 Notice to be pvblished to file claims. The clerlrs of the boards of supervisors of the several counties named in this act shall annually give notice, in at least two of 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 in- serted 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 that such bills or accounts will not be audited by said annual meet- ings. [L. 1861, ch. 83, i 3.] Last two sections may be made applicable to other counties. 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 suoh county, the provisions of this act shall thereafter be applicable to suoh county. [L. 1861, ch. 83, § 4, as added by L. 1862. ch. 345, § 2.] Albany County. Auditing accounts. [L. 1881, ch. 283.] Saratoga County. Presentation of accounts. [L . 1355, ch. 190.] Montgomery County. Presentation and auditing of accounts. [L. 1859, oh. 890.] Rensselaer County. Auditing accounts. [L. 1884, oh. 163.] Accounts to be itemized ; verification ; may be disallowed in part ; account* to be numbered. No account shall be 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 or 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 superintendents may require any other or further evidence of the truth or propriety thereof. Each suoh account shall be numbered from one upwards in the order of pre- sentation, 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 proceeding, and after being so used it shall be forthwith returned. [County Law (L. 1892, oh. 686), § 24.] Form and verification of accounts against towns and counties is also pre- Boribed by Town Law, §§ 167, 168, ante, p. 422. Clerk of board of supervisors is required to designate upon each account audited the amount allowed and the items or amount disallowed, and to deliver to any person on demend a certified copy of any aooouat on file in hie oflhse. [County Law, § 60, sub. 5, post, p. 617.J 490 Town and Oouhty Ofpicbbs' Manual. FORM NO. 146. AccoDirre Against a Countt. Albany, N. Y., October ...., 1890. The Ootmty of Albany, To Matthew Bendes, Dr. 1899. June 28. To 10 copies Camming & Oilbert's Poor, Insanity and State Charities Laws, at $3.00 $50 00 To 5 copies Greene's Highway Laws of the State of New Tork,at$3.60 17 60 $67 SO STATE OF NEW YORK, > ., . County of Albany, f " 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- bursement 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 tliat no part thereof has been paid or satisfied. MATTHEW BENDER. Subscribed and sworn to before me, > this -..day of 18U9. f JOHN DOE, Notary Public in and for Albany County. Board may make additional requirements as to accounts. Boards of super- visors may make such additional regulations and requirements, not in conflict with law, concerning the keeping and rendering of official accounts and re- ports of its county and town officers, and the presentation and auditing of bills presented 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.] n. — Othee Powers and Duties op Boards of Supervisoes. Town meetings, board may, by resolution, fix a time for holding bienniaL Town Law, { 10, ante, p. 8. Towns, alteration and erection of, by board. County Law, § 34, ante, p. 3. Dogs, taxation of, board may fix rate of. County Law, § 110, ante, p. 188. Superintendents of the poor, number of, to be determined by board ; board may appoint in certain cases. County Law, § 210, ante, p. 195. Keeper of alms houses, board may appoint superintendent of the poor to aot as. Poor Law, § 4, ante, p. 201. County poor, board to cause sufficient amount to be raised for support of. Poor Law, § 11, ante, p. 205. Temporary relief of poor, board may make rules and regulations respect- ing. Poor Law, § 13, ante, p. 207. Overseers of the poor, board to cause amount estimated by, and appropriated by town board to be raised in town. Poor Law, § 27, ante, p. 220. Poor persons, board to charge to town liable for support of, the expense of such support, when overseer of proper town fails to remove auch persons. Poor Law, § 45, ante, p. 231. BoAEDsop Supervisors; Powers and Duties. 491 Tovm and ccnmty poor, board may abolisl) distiinctioQ, Poor La-w* § 184| emte, p. 240. Soldiers, sailors and marines, board to provide for burial of. Poor Law, § 83, ante, p. 263. Board to provide headstones for graves of. Poor Lav, g 84, and L. 1881, oh. 206, § 2, as amended by L. 1898, ch. 411, ante, p. 263. Highways, when town board has borrowed money for, board of supervlson to cause money to be raised to meet indebtedness. Town Law, § 184, ante, p. 481. Highways and bridges, duties of boards of sup^r^isoxs as to, geiierally, Chapter XXVni, ante, p. 379. State aid for highways, duties of board of supervisors as to. Chapter XXIX, ante, p. 393. Appeals to board of supervisors from audit or reje<3tion of accounts of JOS' tices or constables by town board. Town Law, § 163, ante, p. 419. School commissioner district, board may divide or erect new. Consolidated School Law, tit. 5, § 2, ante, p. 478. School commissioners, board may increase salaries of. Consolidated School Law, tit. 3, § 8. Expense of, to he audited and paid by board. Idem, § 9. Higuways, moneys raised in towns for, amount of to be certified by chair« man and clerk of the board to the comptroller. Highway Law, § 63, ante, p. 307. County roads, powers and duties of board as to. Highway Law, §§ S4-^9a, ante, p. 309. Highway labor, arrearages in towns to be levied and collected from prop* erty of owners failing to perform labor. Highway Law, § 68, ante, p. 319. Bridges, board to levy taxes upon county for aid to towns in maintaining. County Law, § 63, ante, p. 369. Between towns, actions of board in relftr tion to. Highway Law, § 139, ante, p. 375. Plankroad or turnpike, application to board of commissioners to lay out. Trans. Corporations Law, § 123, ante, p. 401. Jail physician, board may appoint. Code Civil Procedure, § 126, post, p. 678. Surrogate, temporary, board may appoint a person as. Code Civil Proce- dure, § 2492, post, p. 548. Surrogate to report to board. Code of Civil Procedure, § 3501, post, p. 548. Board may create oflSce of in certain counties. County Law, § 221, post, p. 548. Assistant district attorneys, board may authorize appointment of in certain counties. County Law, § 202, post, p. 544. Official seal of board of supervisors, provisions respecting. County Law, S885,pos<, p. 593. Railroad commissioners, board may abolish office of. General Municipal Law, § IS, post, p. 611. § 4. Penal provisions respecting the unlawful audit and presenp tation of accounts against municipalities. Unlawfully auditing and paying claims. A public oflScer, or person holding or discharging the duties of any office or place of trust under the state, or in any county, town, city oi 492 Town and County Officers' Manual. village, a part of whose duty is to audit, allow or pay, or take part in auditing, allowing or paying, claims or demands upon the state, or such county, town, city or village, who knowingly audits, allows or pays, or directly or indirectly consents to, or in any way connives at ^the auditing, allow- ance 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 falsa 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. [Penal Code, § 165, as amended by L. 1892, ch. 662.J U a supervisor, acting as a member of the board, corruptly, unlawfully and partially votes that an account presented against the county is a county charge, be allowed and made a charge against the county, he is guilty of a misdemeanor, and may be indicted therefor. People v. SocMng, 50 Barb. 573. False auditing and paying claims; punishment therefor; for' feiture of office. A person who, being or acting as a public officer or otherwise, by willfuly auditing or paying, or con- senting to, or conniving at the auditing or payment of a false or fraudulent claim or demand, or by any other means, wrongfully obtains, receives, converts, disposes of or pays out or aids, or abets another in obtaining, receiving, con- verting, 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 corporation, or any board, department, 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 prop- erty converted, paid out, lost or disposed of by means of the act done or abetted by such person, or by both such imprison- ment 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 conviction under this section forfeits any office held by the offender, and renders him incapable there- after of holding any office or place of trust. [Penal Code, § 166.] Boards op Supervisors; Powers and Duties. 493 Fraudulently presenting bills 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 village, authorized to audit, or allow, or to pay bills, claims or charges, any false or fraudulent claim, bill, account, writing or voucher, or any bill, account or demand, containing false or fraudulent charges, items or claims, is guilty of a felony. [Penal Code, § 672. J Aa attempt on the part of a public official to obtain money wrongfully by presenting a false bill to the county is within the statute. People v, Bragle, 10 Abb. N. 0. 300. As to character of evidence allowed to make out a case, aes Peopl* ▼. Bragle, 88 N. Y. 585; 63 How. Pr. 143. § 5. 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; 3. The compensation of the county officers, their subor- dinates and assistants, 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. [Thus amended by L. 1896, ch. 439. j 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 attend- ing courts of record, and the compensation allowed by law to constables and other officers, for executing process on per- sons charged with a felony; for services and expenses in conveying such persons to jail; and for the service of sub- poenas issued by the district attorney and for other services in relation to criminal proceedings and support of prisoners 494 Town and County Officbks' Manual. in transit, for which no specific compensation is prescribed by law, and which are not a town charge, as prescribed by article seven of the town law; but no charge for issuing or serving any supboena in any criminal action or proceeding issued or served on behalf of a defendant shall be allowed, unless otherwise ordered by the court in which the action or proceeding was pending; 7. The expenses necessarily incurred in the support of persons charged with, or convicted of crimes, and committed to the jails of the couqty; 8. The sums required by law to be paid to witnesses in criminal actions and proceedings; 9. The moneys necessarily expeqded by any county oflBcer in executing the duties of his office, in case in which no specific compensation for such services is provided bylaw; 10. The accounts of the coroners of the county for such services as are not chargeable to the person employing them ; 11. The accounts of the county clerks, for the services an4 expenses incurred under the law respecting eleqtionp, other than for militia and town officers; 12. The sums required to pay the bounties authorized by resolution of the board of supervisors for the destructiop 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.J 13. The compensation of the members of the board of supervisors; 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 auth- orized by law, or by the board of supervisors, pursuant to law, to be raised for any county purpose; 16. The reasonable costs and expenses in proceedings before the governor for the removal of any county officer upon charges preferred against him, including the taking and printing of the testimony therein; Boards of Supervisors; Powbhs and Dutibs. 495 17. All judgments duly recovered against a county; 18. All damages recovered against, bt costs and expenses lawfully incurred by a county officer in prbsfedutiiig or defend- ing Bkti action or proceeding brought by or against the county or such officer, for an official act done, when such act was dotjej or such action or proceeding was prosecuted or defended pursuant to law, or by authority of the board of supefvisdrs; and any sudh damages so i^ScoVered, or costs and expenses iiicufred by any such bificer's, fdt any act dolle in good faith in his ofiicial capacity, without any such authority, may be made a county charge by a majority vote of all the members elected thereto. [County Law (L. 1892, ch. 686), § 230.] Election expenses, printing ballots, etc., are a charge upon tiie county. Election Law, § 18. Session laws, local, cost of publication of, is a county charge. L. 1893, ch. 280, § 5, as amended by L. 1893, ch. 715, post^ p. 495. Civil prisoners, support of, a county dii^t'g^, When they make oath as to their inability to support themselves. § 6. Acts and nesoldtibns of boards of sttpervisord; form and con- tents; adoption; publication. Every act or resolution of the board shall irequire for its passage the assent of a majority of the supervisors elected, unless otherwise required by law. Every act or resoluitOn of such board in the exercise of its legislative powers shall have a title prefixed, concisely expressing its contents, fol- lowed by a reference to the law or laws conferring the auth- ority 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 chairman and clerk, and withifl six weeks aftef the close ttf each Session, pub^ lished in the newspapers ih the county appointed to publish the session laws of the legislatui^a. [Oounty Law (L. 1892, ch. 686), § 17 J Publication of acta 6f boafds of iupei'visorv. All &ots pasSefl by tlie boards «rf supervisors of the several counties of this state, shsiU be published ia two newspapers representing l-espeotively the two principal political parties Into 496 Town akd County OrncEKs' Manual. which the people of the counties are divided, after such manner, and at such compensation as the several boards of supervisors may provide, the same to be a county charge, payable in the manuer 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 legislature. [L. 1845, ch. 380, § 6. as amended by Ii. 1892, oh. 615. See L. 1845, ch. 280, § 5, as amended by L. 1893, ch. 715, post, p. 495.] § 7. Proceedings of board of supervisors to be printed and dis- tributed ; 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, to be printed as a county charge in a pamphlet volume, as soon as may be after each session, for exchange with other boards, and for the members of the board and other town and county officers. At least three copies of such printed volume shall be for- warded 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 pro- ceedings 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 in the English language in said couniy; 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 printmg of pamphlet copies thereof for the use of the members of said board at its sessions. Such printed proceedings shall contain a summary state- ment of all bills against the county, presented to the board, and audited and allowed or disallowed, indicating the amount allowed or disallowed. The board of supervisors may, as often as it shall deem necessary, cause to be printed and distributed in like manner, in the same volume or other- wise, its county laws, combined with suitable forms and instructions thereunder. [County Law (L. 1892, ch. 686), § 18, as amended by L. 1899, ch. 203.] ^ 8. Session latvs, designation of newspapers for publication of. The members of the board of supervisors in each county representing, 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 th e advocacy by such paper of the principles of its party and its support of the state and national nominees thereof, and to its regular and general circulation in the town of the county, to publish the session laws and concurrent resolutions of the legislature required BOAEDS OF SUPEEVISOES J PoWEES AND DUTIES. 49 X by law to be published, -which designation shall be signed by the memberi making it and filed with the clerk of the board of supervisors. If a majority of the members of the board representing either of such parties cannot agres 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 desig« sated in behalf of the party or parties whose representatives, or a majority of them, have failed to agree shall be held to be duly designated to publish the laws for that year, and any designation of a paper or papers made con- trary to the provisions of this section shall be void. If there shall be but one paper 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 no representative among the members of the board of supervisors, then it shall be the duty of the board of super- visors, by resolution, to designate a paper fairly representing such political party to publish such laws. 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 the coimty 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 newspaper published in the county. The secretary of state shall desig- nate two newspapers in each of the counties of Queens and Kichmond for the publication of 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 the county committee of each of such parties. [County Law (L. 1892, ch. 686), sec. 19, as amended by li. 1898, ch. 349, and L. 1900, ch. 400.] This section, as amended, supesedea hr 1845, ch. 280, sec. 3, as amended by L. 1892, ch. 715. §9. Session laTTS, ho-w published; expense of publication. General laws published at expense of state. — ^All laws of a general nature which shall hereafter be passed by the legislature of this state, shall be published in at least two newspapers in each county of this state where there are or may be here- after two newspapers published; and in one newspaper ia 498 Town and CouNtY Officers' Manual. each county where but one newspaper is published or may be published. The dhdtge for such publication of general laws in the newspapers designated to publish said laws, shall be paid by the treasurer Of the state on the warrant of the comptroller, after certification by the secretary of state, that the said publication has been regularly made as pro- vided in this act, at the fixed rate of thirty cents for each fjlio of one hundred words. [L. 1845, ch. 280, § 1, as amended by L. 1892, ch. 715.] Local laws published at expense of county. All laws of a local nature which shall hereafter be passed by the legislature of this state, shall be published in like manner in each of the counties interested in the same. The charge for such pub- lication of laws of a local nature in the newspapers desig- nated to publish said laws shall be paid by the several counties of the state in which said laws may be published in the manner prescribed by section five of this act, at a ra^e which shall not be less than twenty-five cents nor more than fifty cents for each folio of one hundred words, as the board of supervisors in the several counties may determine. All laws affecting two or more counties, and not all the counties of the state, shall be considered local laws applicable to the several counties affected. [L. 1845, ch. 280, § 2, as amended by K 1892> ch. 715.] Sedvetwry of state to transmit dopiea to Munty tr^asuttt and to papers designated ; duties of county treasurer. It shall be the duty Of the secretary of state to transmit in the order in which they are passed, and within twenty days from the date of the filing «f said laws in his office, to each treasurer of the several countieB of the state, and to the publisher of •ach newspaper designated under the provisions of section three of this act to publish the session laws, two copies of all laws of a general nature, and such as relate to the local affairs therein, for publication in the manner provided for in this act. It shall be the duty of each treasurer to cause the same to be published in the papers d6"6lgnated for pub- lishing them, within ninety days from date of the receipt thereof by the said publisher. The secretary of state shall BOABDS OF SUPBBVISORS; PoWBRS AND DuTIES. 499 cause to be stated upon each and every law transmitted by hina for publication as aforesaid, the exact number of folios contained therein, which shall be the basis for payment; and he shall also indicate in the same manner, which are general laws, and which are laws of a local nature applica- ble only to the county affected. Tt shall be the duty of the publisher of each newspaper designated to publish the ses- sion laws under this act, to forward to the secretary of state, a marked copy of each general law published in said news- paper within five days after such publication, and also to forward to the county treasurer of the county within which such publication is made, a marked copy of each local law passed by the legislature and published under the jjrovisions of this act. It shall be the duty of the county treasurer to keep a correct record of all laws received from the secretary of state for publication, with the date of receipt, and the number of folios indicated, and to report to the secretary of state on or before October first, in each year, whether the publication of general laws has been regularly made as pro- vided by law, and he shall also report to the board of super- visors of his county during the first week of the annual session thereof, whether the publication of local laws has been made as provided by law, transmitting with his report a copy of each local law received from the secretary of state, with the number of folios indicated in each such local law, together with the date of publication in newspapers legally designated to make such publication. [L. 1845, ch. 280, § 4, as amended by L. 1892, ch. 715.] Tax for expense of 'publishing local laws. It shall be the duty of each board of supervisors in the several counties of this state, in making out the assessment-rolls, to assess and levy on the taxable property of the county whose representatives they are, such suras as shall be sufiBcient to defray the expense of publishing the laws of a local nature applicable only to the county affected, in the newspaper designated. [L. 1845, ch. 280, § 5, as amended by L. 1892, ch. 715.] County law, §§ 30, 31, are superseded by the amendment of L. 1893, oh. 71S. 600 iowN AND County Opficbbs' Manual. §10. Slips of session laws and current resolutions to be tor- ^rarded to ne^^spapers. The secretary of state shall send to each newspaper desig- nated by the members of the board of supervisors represent- ing, respectively, each of the two principal political parties into which the people of the county are divided, or if there is but one newspaper published in a county, to such news- paper in the order in which they are passed, and as soon as the slips are printed, copies of all laws of a general nature, of such local laws as relate to the affairs of the county in which such newspaper is published, and of such concurrent resolutions, as are required to be published. Concurrent resolutions proposing amendments to the con- stitution shall be published in such newspapers once in each week for thirteen consecutive weeks, under the direction of the secretary of state, at the expense of the state. [Legis- lative Law (L. 1892, ch. 682), § 48.J § 11. Session law slips to be forwarded by county clerks to clerks of towns, villages and cities. The county clerk of each county shall, on or before the first day of January of each year, notify the secretary of state of the total number of towns, villages and cities within such county. The secretary of state, as soon as practicable after the receipt of the slips of the session laws from the printer shall send to the county clerk of each county a suffi- cient number of each printed slip of each law and concurrent resolution of the legislature affecting such county or any municpiality therein, to supply such county and each such municipality affected by any such law or concurrent resolu- tion, with one copy thereof. The county clerk of each county, as soon as practicable after the receipt thereof, shaU send one of each such slips affecting any town, village or city therein to the clerk thereof, and shall retain one of each such slips on file in his office. Such distribution by the county clerk shall be by mail and shall be a county charge. Such slips shall be kept on file in the office of such clerks, arranged in the order in which they were passed. Such clerks shall not be entitled to any fee or compensation for BOAEDS OF SUPBEVISOES; PoWEES ASD DuXIES, SOl filing such slips or keeping the same on file in their respective offices. [Legislative Law (L. 1892, ch. 686), sec. 49.J § IS. Newspapers designated to publish election notices and ofBcial notices. Such boards, except in the counties of Erie and Kings, shall, in like manner, designate two newspapers, representing respectively each of the two principal political parties into which the electors of the county are divided, in which shall be published the election notices issued by the secretary of state, and the official canvass, and fix the compensation therefor, which shall be a county charge. [County Law (L. 1892, ch. 686), sec. 22.] § 13. Compensation of supervisors as members of the board of supervisors; copying assessment-roll. For the services of supervisors, except In the counties of Albany, Broome, Columbia, Erie, Kings, Montgomery, Niagara, Oneida, Onondaga, Eensselaer, Westchester and Richmond, each supervisor shall receive from the county compensation at the rate of four dollars per day for each calender day's actual attendance at the sessions of their respective boards, and mileage at the rate of eight cents per mile, for once going and returning from his resi- dence 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 Bichmond, each supervisor shall receive an annual salary, in the county of Niagara of three hundred and in the county of Kichmond 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, Kensselaer, Westchester and Richmond, may also receive compensa- tion from the county at the rate of four dollars per day while actually engaged in any investigation or other duty, which may be lawfully committed to him by the board; except for services rendered when the board is in ses- sion, and, if such 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 shall be made to anj supervisor for his 502 ' Town and County Officees' Manual. services, except suck as shall be by law a town charge. The board of supervisors of any county may also 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. [County Law (L. 1892, ch. 686), sec. 23, as amended by L. 1895, ch. 480, and L. 1900, ch. 529.J Compensation of supervisors as town officers. See Town Law, sec. 178, ante p. 429. Compensation of members of the board of supervisors of Monroe county is ftxed by L. 1900, ch. 639; of Dutchess county by L. 1898, ch. 134. § 14. County records, boards of sapervisors to ha-ve general charge of; copieslmay 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 oflBcers using or having custody of the same, and shall pro- vide for their safekeeping. They may authorize county officers having the official 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 tran- scripts 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.] § 15. Witnesses and county and to^rn o£Scers may be examined by board ; books and papers may be inspected. Any such board may require the attendance of witnesses Boards os- Supervisors; Powers and Duties. 603 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 concerning the possession or disposi- tion by him of any property belonging to the county, or to use, inspect, or examine, any book, account, voucher or document ia his possession or under his control, relating to the afifairs or interest of such county or town. [County Law (L. 1892, ch. 686), § 27.J Oath may be administered by member of board or oommittee. Code Civ- Pro. § 843. For form and manner of administering oath, see Code Civ. Pro. §§ 845-851. Subpoenas may be issued by a board of supervisors or oommittee thereof. See Code Civ. Pro. § 854. Compelling attendance and testimony of ■witness. Sections 855-869 of the Code of Civ. Pro. are applicable to hearings and examinations had before a board of supervisors or a committee thereof. FORM NO. 147. SuBPCBNA BV Board oe Committee. The People of the State of New York to A. B.: We, the supervisors of the county of (or a oommittee at the board of supervisors of the county of ) , command you» that (all and singular) business and excuses being laid aside you attend be- fore said board (or said committee), at the rooms of said board (or at (statS place), in the of the city of on the.... day of , 18. ., 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, relating to (state matter) {or if any particular 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 g^uilty of contempt and will be proceeded against in the manner provided by the Code of Civil Procedure. C. D., Chairman, Dated this day of , 18... § 16. Powers of committee of board of supervisors aa to hearings 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, 604 Town and County Officbbs' Manual. the chairman 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, oh. 686), § 28.J See note to preoeding seotion. § 17. Adjoamment of hearing or examination by board or eom- mittee ; 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 adjournments or on call of the chairman thereof, during the recess, or after the final adjournment of the board of super- visors; but where a warrant shall have been issued as pro- vided by seotion 845 of the Code of Civil Procedure and not returned, such adjournment 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.] The reference to the seotion of the Code of Civil Procedure is wrong ; it Bhould have been § 855 of the code, whioh provides for the arrest of a witness who fails to attend before a court, board or person by whom he has been duly subpoenaed. § 18. Filing and enforcement of undertaking given under pre- ceding section. Such undertaking shall be filed in 'the clerk's office of the county, and if default shall be made in the condition thereof, the district attorney of the county may sue and collect the sum therein mentioned, and the money, when received, and all moneys received for fines and penalties before such boards Boards op Supervisors; Powers and Duties. 505 or committees, shall be paid into the treasury of the county. [County Law (L. 1892, ch. 686), § 30.] § 19. County buildings, location of may be changed ; petition for change beyond boundaries of village or city. The board of aupervisora may, except in the county of Kings, by a majority vote of all the members elected thereto, fix or change the site of any county building, and the location of any county office; but the site or location of no county building or office shall be changed when the change shall exceed one mile, and shall be beyond the boundaries of the incorporated village or city, where already situated, except upon a petition of at least twenty-five freeholders of the county, describing the buildings or office, the site or location of which is proposed to be changed, and the place at or near which it is proposed to locate such new buildings or office; which petition shall be published once in each week for six weeks immediately preceding an annual or special meeting of such board, in three newspapers of the county, if there be so many, otherwise, in all the newspapers published in the county as often as once a week. With such petition shall also be published a notice signed by the petitioners, to the effect that such petition will be presented to the board, of supervisors at the next meeting thereof. The board of supervisors of any county may acquire a new site or location for the county almshouse, erect suitable buildings thereon, and remove the inmates of the existing almshouse thereto, upon a majority vote of all the members elected to said board at a regular session thereof or at a special session called for that purpose, in any case where the state board of charities shall have certified to said board of supervisors that in the opinion of a majority of said state board of char- ities such change is necessary to the proper care of the in- mates of such institution; in which case it shall not be neces- sary to receive or publish the petition hereinbefore provided or to submit the question of change or removal to the elec- tors of such county as provided in sections thirty-two and thirty-three of the act hereby amended; provided, however, that no site or location shall be selected or acquired by such 506 Town" AUTD County Officers' Manual. board of supervisors which shall not have been approved by said state board of charities. [County Law (L. 1892, ch. 686), § 31, as amended by L. 1899, ch. 133. J § SO. Action of board npon presentation of petition for change of location. Oil the presentation of such petition and notice, with due proof of their publication, if a majority of all the members elected to such board vote in favor ot a ^resolution for the removal of the site of the building or buildings described in such petition, to the site therein described, or the change of the location of its county ofiBces or any of them, said board shall thereupon |direct that such resolution, together with the notice that the question of such removal will be sub- mitted to the electors of the county at the ensuing general election, be published in at least two newspapers published in the county to be designated by the board, once in each week for six consecutive weelrs immediately preceding such general election. Such resolution and notice shall [be pub- lished accrdingly. [County Law (L. 1892, ch. 686), § 32.] § 21. Submission of question of removal of county buildings to vote of people. The question of the removal of the site of such buildings, or the change of the location of any such office, shall there- upon be voted on by the electors of the county at such general election by ballot. If a majority of the ballots cast shall be in favor of such removal, the proceedings of such board of supervisors shall be deemed ratified by the electors and the change of the site of such buildings, or the removal of such offices, shall be made accordingly; but the old site, and buildings thereon shall be continued and used until new buildings upon the new site have been provided and accepted by the board of supervisors. [County Law (L. 1892, ch. 686), § 33.J § iSS. Soldiers' monument, board of supervisors may appropriate moneys for the erection of. Any such board may also, by a vote of two-thirds of its members, raise and appropriate such moneys as it may deem BOAKDS OF SUPEKVISOBS ; PoWEB3 AND DuTlES. 506a necessary, for the erection within the county of public monuments, in commemoration of the federal soldiers and sailors in the late war of the rebellion, or of any other public person or event, and for repairing and remodeling such monuments; all moneys raised shall be expended by direction of the board of supervisors; but no county officer shall re- ceive any compensation for services rendered pursuant to this section. [County Law (L. 1892, ch. 686), § 38.J § S3. Commissioner of jurors ; powers and duties. Office established. The office of commissioner of jurors is hereby established in and for each of the counties of Eichmond and Queens, and the board of supervisors in any other county of the state, may adopt a resolution at its annual or a special meeting called for that purpose, to establish the office of com. missioner of jurors in such county. A copy of such resolu- tion certified by the clerk of such board of supervisors, shall be filed in the office of the clerk 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, in efifect April 26. 1899.J Appointment. In any county in which the office of com- missioner of jurors is established as provided in the pre- ceding section, 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, surrogate and county clerk shall make the appointment. 4. If no supreme court justice resides in such county and such county has no separate surrogate, the county judge, district attorney and County clerk shall make the appoint- ment. The first appointment shall be made within thirty 606b Town and Countt Offiobes' Manttal. dajs 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 appointment 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. [Id. § 2.] Term of office. A commissioner of jurors first appointed under this act shall take office immediately and each com- missioner appointed under this act, except to fill a vacancy, shall hold his office for a term of [^five years, commencing on the first day of January next succeeding his appointment. All terms shall expire on the thirty-first day of December, and before entering upon the duties of his office, he shall execute an undertaking to the county in a sum to be fixed and approved by the appointing authority, not less than two thousand dollars, nor more than five thousand dollars, con- ditioned that he will faithfully perform the duties of his office, and account for and pay over all the moneys which come into his hands by virtue thereof, which shall be filed in the office of the county clerk. [Id. § 3. J 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 thous- and and not more than one hundred and fifty thousand, fifteen hundred dollars. 2. In counties having a population of more than one hun- dred and fifty thousand and not more than three hundred thousand, not exceeding three thousand dollars to be fixed by the resolution creating the office. 3. In counties having a population less than one hundred thousand a sum to be fixed by the resolution creating the office. [Id. § 4. J Rooms and accommodations. In the city of New York, the municipal .assembly shall provide suitable rooms and accommodations for the commissioner of jurorsjin each county within such city, and shall also make provision for necessary Boards of Stjpebvisoes ; Powers and Duties. 5060 printing and advertising, and for supplying him with necessary books, stationery and other articles. In any other county such rooms, accommodations and supplies shall be provided for by the board of supervisors. Until such pro. vision has been made a commissioner of jurors shall use the county clerk's oflBce of his county to transact 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. [Id. § 5.] Assistants; clerks. A commissioner of jurors 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 ia equal monthly installments and an assistant commissioner of jurors may be designated by the commissioner appointing him to perform any of the duties of a commissioner of jurorg in his absence. 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 of affirmation in relation to any matter embraced within the provisions of this act. [Id. § 6. J Trial jurors, hoiu selected, etc. 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. [Id. § 7. J 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 Kichmond and Queens all the assistance in their power to enable him to procure the names of persona liable to serve as trial jurors, and in the other counties of i f)06D Town and County Officers' Manual. thia state in which commisaioners 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 fortwith upon the request of the commissioners of jurors of any county furnish him a jury list made by selecting and entering thereon from the last revised asessment roll in their possession the names of all persons whom they believe possess the quallBcations 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 ascer- tained, and must be certified by the officers making the same. [Id. § 8.] List of trial jurors. Immediately upon the receipt of the list mentioned in the last section, the commissioner of jurors must commence 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 particulars can be con- veniently ascertained. Upon the completion 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 exemption is allowed. [Id. § 9.] Notice to jurors, etc. The commissioner may cause to be personally served, upon any person within the county, a notice requiring 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 liis own liability, or the liability of any other person to serve as a juror. A person so notified must attend and testify accord- ingly. If he fails to attend, as specified in the notice, for any cause, except physical inability, or if he refuses to be sworn Boards of Sxjpeevisors ; Powers and Duties. 506b or to anwer 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 person so notified, where another person cognizant of the facts is produced and testifies in his stead; and where a person has so attended twice they cannot be required to attend again in the same jury year, [Id. § 10.] Lists to be filed. On or before the first day of December in each year, the commissioner 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. He may, from time to time thereafter, strike from the lists kept by him the name of a person who is found by him fro be exempt or disqualified. In that case he must record the reason why tfie name is stricken off. [Id § 11. J In a county which has a commissioner of jurors, other than a county included in the city of New York, the com- missioner shall, on or before the fifteenth day of December, in each year, file with each town and city clerk in such county a list of names of the residents of such town or city which have been placed by him on the trial jury list for such county. [Id. § 12.] List of grand jurors. In a county which has a com- missioner of jurors, such commissioner and the board appointing him shall prepare in the month of December of each year from the trial jury list filed aa herein provided a 6061" Town and County Officees' Manual. 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 the 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. [Id. § 13. J 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 clerk before depositing the ballots, must destroy each ballot remaining in either of the boxes kept by him, and containing the name of a resident of a town for which a new list has been trans- mitted. [Id. § 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 sheriflF and the commis- sioner of jurors, or a majority of them. [Id. § 15, J Removal of commissioner. Any commissioner of jurors ap- pointed pursuant to the provisions of this act may be removed for cause by the board by whom the appointment is 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 Boards op Supeevisors ; Powers aitd Duties. 506o of application to the appellate division for his removal. [Id. §16.] Application of act. This act shall not apply to the counties of New York, Kings, Erie, Monroe, Onondaga, Albany, Westchester or Rensselaer. [Id. § 17.] § 24. Boards of supervisors may acquire property of corpora^ tions and individuals o^ming toll roads and bridges. Board to acquire property. The board [oi supervisors of any county, except a county wholly within the city of New York, and except the counties of Onondaga, Erie and Essex, may by a vote of a majority of the members thereof, by resolution, determine to acquire the rights and franchises of any individual or corporation, lawfully entitled to exact a toll or charge for walking, riding or driving 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 owners thereof, and otherwise by condemnation in the name of the county. Any turnpike, plankroad or bridge corporation may by the affirmative vote of stockholders owning a majority of the stock thereof, expressed in writing or at a special meeting of the stockholders of such corpora- tion held upon written notice of at least ten days to all the stockholders thereof, authorize its board of directors or trustees, to dispose of the rights, franchises and property of such corporation within a county, pursuant to this act for a specified sum ; and thereupon the board of directors or trustees of such corporation may convey and sell such rights, franchises and property to the county accordingly. [L. 1899, oh. 594, § 1.] 506h Town and County Officers' Manual. Issiie of bonds therefor. The board of supervisors of such county may borrow money for the acquisition of such rights, franchises and property, and may issue the bonds or other evidences of indebtedness of the county therefor, but such bonds or other evidences 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.J Bonds to be apportioned. The amount of such bonds to- gether with the interest thereon shall be apportioned by the board of supervisors upon the towns, cities and villages con- stituting 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 apportioned 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. [Id. § 3.] Highways and bridges acquired, how maintained. A plank- road, turnpike or bridge acquired pursuant to this act shall become part of the highway system of such county, and of the towns, cities and villages in which the same is located, and shall thereafter be repaired and maintained in the same manner as the other highways and bridges therein. [Id. § 4.] When road or bridge is in two counties. When a plank- road, turnpike, tollroad, or bridge is partly in one county and partly in another, the board of supervisors of the said counties shall act together, in the manner prescribed above, and determine the amount to be paid to said plankroad, turn- pike, 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 Boards of County Canvasseks. 507 CHAPTER XXXVIII. BoABDS OP Supervisors as Boards op County Canvassers. Section 1. Organization of county board of canvassers ; meetings, 2. Production of original statements and copies thereof. 8. Correction of clerical errors in election district statements. 4. Correction in state or county board of canvassers' statement. 5. Statement of canvass by county boards. 6. Decisions of county boards as to persons elected. Transmission of statements of county boards to secretary of state. g 1, Organization of county boards of canvassers ; meetings^ The board of supervisors of each county shall be the county board of canvassers of such county. The county board of canvassers of the counties wholly or partly within the city of New York shall be the city board of canvassers of the city of New York within their respective counties. The county boards of canvassers of the respectives counties shall meet at the ofiSce of the county clerk thereof on the Tuesday next after each election of public officers held in such county other than an election of town, city, village or district school officers held at a different time from a general election. Upon such meeting they shall choose one of their number chairman of such board. Such county clerk, or if he be absent or unable to act, the deputy county clerk of such county, shall be the secretary of such board. The secretary of the board shall thereupon administer the consti- tutional oath of office to the chairman of the board, who shall then administer such oath to each member, and to the secretary of the board. A majority of the members of any board of canavssers shall constitute a quorum thereof. If, on the day fixed for such meeting, a majority of any such board shall not attend, the members of the board then pres- ent shall elect the chairman of the board and adjourn to some convenient hour of the next day. If such board, or a majority thereof, shall fail or neglect to meet within two 508 Town and County Officers' Manual. days after the time fixed for organizing such board, the supreme court, or any justice thereof, or county judge within such county, may compel the membei's thereof by writ of mandamus to meet and organize forthwith. [Election Law (L. 1896, ch. 909), § 130, as amended by L. 1897, ch. 379.] § 2. Production of original statements and copies thereof. As soon as such board of county canvassers shall have been organized, the officer with which they were filed, shall deliver to such board of canvassers all the original state- ments of canvass received from inspectors of election for dis- tricts within the county for which said board are county or city canvassers. The copies of the original statements which have been delivered to members of the board of assessors shall then be delivered to the board. If any member of the county board of canvassers shall be unable to attend the first meeting of such board, he shall, at or before such meeting, cause to be delivered to the secretary of such board all such copies of original statements delivered to him, and any original statement that may have come into his possession. If, at the first meeting of a county board of canvassers of any county, all such original statements of the result of the canvass of the votes cast at such election in all the election districts in the county shall not be produced before the board, it shall adjourn to some convenient hour of the same or the next day, and the secretary of such board shall, by special messenger or otherwise, obtain such missing original statements, if possible, otherwise he shall procure one of the certified copies thereof in time to be produced before such board at its next meeting. At such first meeting, or as soon as an original statement of the result of the canvass of the votes cast in such election in every election district of the county shall be produced before such board, or a copy- thereof, in case the original cannot be produced, the board shall, from such original statements and certified copies, pro- ceed to canvass the votes cast in such county at such election. ijOAKDs OP County Canvassers. 609 [Election Law (L. 1896, ch. 909), § 131, as amended by L. 1897, ch. 379.] § 3. Correction of clerical errors in election district statements. If, upon proceeding to canvass such votes, it shall clearly appear to any county board of canvassers that certain matters are omitted from any such statement or copy, ■which should have been inserted, or that any merely clerical mistakes exists therein, they shall have power, and such power is hereby given, to summon the inspectors of election whose namss are subscribed thereto, before such board, and such inspectors shall forthwith meet and make such correction as the facts of the case require; but such inspectors shall not change or alter any decision before made by them, but shall only cause their canvass to be correctly stated. The board of county canvassers may adjourn from day to day not exceeding three days in all, for the purpose of obtaining and receiving such corrected statements. [Election Law (L. 1896, ch. 909), § 132.J 1^ 4. Correction in state or county board of canvassers' statement. The supreme court may, upon affidavit presented by any elector, showing that errors have occurred in any statement or determination made by the state board of canvassers, or by any board of county canvassers, or that any such board has failed to act in conformity to law, make an order requir- ing such board to correct such errors, or perform its duty in the manner prescribed by law, or show cause why such cor- rection should not be made or such duty performed. If such board shall fail or neglect to make such correction, or per- form such duty, or show cause as aforesaid, the court may compel such board, by writ of mandamus, to correct such error or perform such duty; and if it shall have made its determination and dissolved, to reconvene for the purpose of making such corrections or performing such duty. Such meeting of the board of state or county canvassers shall be deemed a continuation of its regular session, for the purpose of making such corrections, or otherwise acting as the court 510 Town and County Officers' Manual. may order, and the statements and certificates shall be made and filed as the court shall direct, and shall stand in lieu of the original certificates and statements so far as they shall vary therefrom, and shall in all places be treated with the same effect as if such corrected statement has been a part of the original required by law. A special proceeding auth- orized by this section must be commenced within four months after the statement or determination in which it is claimed errors have occurred was made, or within four months after it was the duty of the board to act in the particular or par- ticulars as to which it is claimed to have failed to perform its duty. [Election Law (L. 1896, ch. 686), § 133.] § 6. Statements of canvass by county boards. Upon the completion by a county board of canvassers, of the canvass of votes of which original statements of canvass, or certified copies thereof, are by law required to be delivered to them, by the boards of officers with whom the same may have been filed by the inspectors of election, they shall make separate statements thereof as follows: 1. One statement of all such votes cast for each office of elector of president and vice-president of the United States. 2. One statement of all such votes cast for each state office. 3. One statement of all such votes cast for each office of representative in cougress, except that the board of can- vassers in the county of New York shall not make a state- ment of the votes cast in any election district in said county, for any candidate for the office of assemblyman, senator or representative in congress, the candidates for which were also voted for by electors in election districts in any county not within the city of New York. 4. One statement as to all such votes cast upon every pro- posed constitutional amendment or other proposition or question duly submitted to all the electors of the state. 5. One statement as to all the votes cast for all and each of the candidates for each office of member of assembly for which the electors of such county or any portion thereof, Boards ow County Canvassekb. 811 eseept as provided in the paragraph numbered three iu this section, were entitled to vote at such election. '6. One statement as to all the votes cast for each couni: , office, and oflSce of school commissioner, for which the electors of such county, or any portion thereof, were entitled to vote at such election, and to be canvassed by them. 7. One statement as to all the votes, if any, so cast upon any proposition or question upon which only the electors of such county were entitled to vote at such election. 8. In the counties wholly or partly within the city of New York, the respective county boards shall make a separate statement as to the votes, if any, so cast upon any proposi- 'tion or question upon which only the electors of such city were entitled to vote at such election in such county or por- tion thereof. Each such statement shall set forth, in words ■written out at length, all sutfh votes cast for all the candi- da'tes for each such office; and if any such office was to 'be filled at such election by the electors of a portion only of Buoh county all the votes cast for all the candidates for each office in any such portion of the county, designating by its proper district number or other appropriate designation, the names of each such candidate and the number of votes so cast for each, the whole number of votes so cast upon any proposed constitutional amendment or other proposition or question, and of all the votes so cast in favor of and against the same respectively. In the counties wholly or partly within the city of New Yor'k the respective county boards ebai'l imake a separate statement of the votes cast for ail the city offices voted for by the electors of such cifty or any por- tion thereof, within such counties. If, upon such canvass, to any original statement or duly certified copy«of «n original etatenaentiof the result of the canvass of th« votes of any «leetiora district in such county or city, there shall 'be iocluded any ballot indorsed by the inspectors to the effect *hat it was objected to as marked i&r Identi'fication, the coiiflinity and city boards of canvassers s'hall add to oac'b s'tate- oaoetnt in wMeh the oountiagof any such 'ballot or any portion thereof is incl'jaded, a ^stateme-nt o^f the iritole num'ber of 632 Town and County Officers' Manttal. ballots 80 indorsed and counted. If, upon such canvass, in any original statement or duly certified copy of an original statement of the result of the canvass of the votes of any election district there shall be included any ballot indorsed by the inspectors to the effect that it was rejected as void, the county and city boards of canvassers shall add to each statement, a staterarfiit of the whole number of ballots so indorsed. The statements required by this section shall eacl^ be certified as correct over the signatm-es of the members of the board, or a majority of them, and shall be filed and recorded in the office of the county clerk of such county. When the whole canvass shall be completed, the original statements of canvass and certified copies used thereat shall be filed in the office of the secretary of the board. The cer- tified copies of such original statement of canvass not used ut the canvass and the sealed packages of void and protested ballots shall be retained in the office in which or by the officer with whom they were filed. • The sealed packages of void and protested ballots shall be retained inviolate in the office in which they are filed subject to the order and exam- ination of a court of competent jurisdiction, and may be destroyed at the end of six months from the time of the com- pletion of such canvass, unless otherwise ordered by a court of competent jurisdiction. [Election Law (L. 1896, ch. 909), 5 135, as amended by L. 1897, ch. 379.J § 6. Decision of county board as to persons elected. Upon the completion of the statements required by section one hundred and thirty-five of this act the board of can- vassers for each county shall determine what person has by the greatest number of votes been so elected to each office of member of assembly to be filled by the electors of each county for which they are county canvassers if constituting one assembly district, or in each assembly district therein, if there be more than one, and each person elected by the greatest number of votes to each county office of such county to be filled at such election, and if there be more tban one school commissioner district in such county, each person. Boards of County Canvassers. 513 elected by the greatest number of votes to the ofiQce of achool commissioner to be filled at such election in each such dis* trict. The county clerk of the county of Hamilton shall forthwith transmit to the county clerk of the .county of Fulton, a certified copy of the statement so filed and record it in his ofifice, of the county board of canavssers of Hamil- ton county, as to all the votes so cast in Hamilton county for all the candidates and for each of the candidates for the office of member of assembly of the assembly district com- posed of Pulton and Hamilton counties; and the county clerk of Fulton county shall forthwith deliver the same to the Fulton county board of canvassers, who shall from such cer- tified copy, and from their own statement as to the votes so cast for such office in Fulton county, determine what person was at such election, elected by the greatest number of votes to such office. Such board of each county shall determine whether any proposition or question submitted to the electors of such county only, has by the greatest number of votes been adopted or rejected. All such determinations shall be reduced to writing, and signed by the members of such board, or a majority of them, and filed and recorded in the office of the county clerk of such county, who shall cause a copy thereof, and of the statements filed and recorded in his office, upon which such determination was based, to be pub- lished in accordance with the provisions of sections twenty- one and twenty-two of the county law. The clerk of each county shall prepare as many certified copies of each certifi- cate of the determination of the county board of canvassers of such county as there are persons declared elected in such certificate, and shall, without delay, transmit such copies to the persons therein declared to be elected, respectively. [Election Law (L. 1896, ch. 909), g 136, as amended by L. 1897, ch. 379.J § 7. rransmission of statements of county boards to secretary of state and municipal assembly. Upon the filing in the office of the county clerk of a state- ment of the county board of canvassers as to the votes cast 33 514 Town and County Officers' Manual. for candidates for the offices of electors of president and vice- president, or as to the votes cast for candidates for state officers, except member of assembly and for representatives in congress, or as to the votes cast on any projjosed consti- tutional amendment or other proposition or question sub- mitted to all the electors of the state, such county clerk shall forthwith make three certified copies of each such statement, and, within five days after the filing thereof in his office, transmit by mail one of such copies to the secretary of state, one to the governor and one to the comptroller of the state. The governor and comptroller shall forthwith upon the receipt thereof by them deliver such certified copies to the secretary of state. If any certified copy shall not be received by the secretary of state on or before the last day of November next after a general election, or within twenty days after a special election, he shall dispatch a special messenger to obtain such certified copy from the county clerk required to transmit the same, and such county clerk shall immediately upon demand of such messenger at his office make and deliver such a certified copy to such messen- ger who shall, as so in as practicable, deliver it to the secre- tary of state. The county clerk of each county shall transmit to the secretary of state, within twenty days after a general election, and vyithin ten days after a special election, a list of the name and residence of each person determined by the board of county canvassers of such county to be elected mem- ber of assembly, school commissioner, and to any county office; and on or before the fifteenth day of December in each year a certified copy of the official canvass of the votes cast in each such county by election districts at the last preceding general election. Tie secretary of state shall obtain from the governor affld comptroller such ceritified copies so tramsmitted to them and file the same in his office. Upon the filing in the office of the county clerk of a county wholly or partly within the city of New York of a statement of the county board of canvassers as to the votes cast for candidates for a city office within such city such county clerk shall forthwith make a certified copy of each such statement and, within five BoABi>s OF County Cauvassees. 515 days after the filing thereof in his ofiSce, deliver in a sealed envelope such certified copy to the clerk of the municipal assembly of the city of New York at his office in the borough of Manhattan; on or before the fifteenth day of December in any year in which there shall have been an election for a city office for which votes were cast in such county wholly or partly within the city of New York the county clerk thereof shall file with the city clerk of such city a certified copy of the official canvass of the votes cast in such county or portion theMof by election districts for Buch city office and such canvass by election districts shall, as soon as possible thereafter, be published in the city record. [Election Law (L. ]S96, cli. 909), § 137, aa amended by L. 1897, cb. 379,] 616 Town and County Officers' Manual. CHAPTER XXXIX. ClBBES of boards of SUFBBVISOBa. Seotion 1. Appointment of clerk ; compensation ; oath of office. 2. General duties of clerks of boards of supervisors. 8. Clerk to cause statement of accounts audited to be published. 4. Clerk of board to report indebtedness of county, and of each town. city, village and school district to the comptroller. 6. Statement of railroad, telegraph, telephone and electrio light taxes. 6. Failure to make statement, return or report ; penalty for ; action to recover penalty. §1. Appointment of clerk ; compenaation ; oathofofiBce. The board of supervisors shall appoint a clerk thereof to serve during their pleasure, and until his successor is appointed ; and shall fix his compensation. (County Law, § 10, ante, p. 484.) Being a county officer, he is required to take and subscribe the constitu- tional oath of office before the county clerk or county judge. (County Law, § 336, post, p. 594.) For form of oath, see Form No. 5. ante, p. 43. See Public Officers Law, §§ 10, 13, 15, SO, ante, pp. 43, 51, 56, for manner of exe- cuting oath, time and place of filing and effect of failure to file. Vacancies in the office of clerk of the board of supervisors may be created in the same manner as other town and county officers. See Public Officers Law, § 20, ante, p. 56. Resignations by the clerk are made to the board of supervisors. Public Officers Law, § 31, sub. 8, ante, p. 65. § 2. General duties of clerka of boards of snpervisors* Clerks of boards of supervisors shall: 1. Record in books provided for the purpose all the pro- ceedings of such board, 2. Make regular entries of all their resolutions or deci- Bions. 3. Record the vote of each supervisor on any question submitted to the board, when the law authorizing the vote requires an entry of the yeas and nays, and. in other cases if required by any member present. 4. File and preserve all accounts acted upon by the board. Clerks of Boards of Supervisors. 617 5. Designate upon every account audited and allowed by the board the amount so audited and allowed, and the items or amount disallowed; and deliver to any person who may demand it a certified copy of any account on file in his oflfice, on receiving from such person eight cents per folio therefor. 6. Keep the books and papers of the board open to public inspection without charge. 7. Transmit to the librarian of the state library at Albany, a copy of the proceedings of such board, annually, and within twenty days after the same shall be published. 8. Prepare the tax-rolls under the direction of the board. 9. Perform such other duties as may lawfully be required of him by the board. [County Law (L. 1892, ch. 686), § 50. J Newspapers designated to publish session laws, clerk to forward names of, to secretary of state. County Law, § 19, ante, p. 496. § 3. Clerk to cause statement of accounts audited to be published. The clerk shall annually, on or before the first day of January, make out and certify, and within two weeks cause to be published in a newspaper printed in the county, with the abstract of accounts furnished by town auditors, a state- ment for the preceding year, containing: 1. An abstract of all county accounts presented to the board at its last annual meeting, allowed or disallowed, with the amount claimed and allowed, and the name of each person presenting the same, and the general nature of the account. 2. The amount, items and nature of all compensation audited by the board to each member thereof. 3. The number of days the board was in session, and the distance traveled by each member in attending the same. [County Law (L. 1892, ch. 686), § 51.] 618 Towis AND County Officees' Manual. FORM NO. 148. Statement op County and Town Accounts. I. — County Charges. Accounts against the county of , presented to the board of sapervisors, at its annual meeting for the year of 18. ., with amount claimed by and allowed to each person named. CLAIMANT. Natui-e of account. Amount claimed. Amount allowed. A. B Printing $350 00 $300 00 II. — Town Abstracts. Totonof Abstract containining 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 18..., with the amounts claimed by and allowed to the several persons named therein : ^ Claimed. Allowed. A. L. Kellogg, services as attorney $271 no $275 00 A. L. Van Dozen, town derk > ~'J Oi> 29 00 (And so on for each town.) III.— SupEHvisoEs' Accounts. County of To John Dooley, supervisor of the town of Stamford, Dr. December 30, 18.. 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 15 00 lf> 00 To 46 miles, to and from annual session of board, at $.08. 8 63 d 68 (The same for each supervisor.) (98 68 $98 68 The board of supervisors of the county of was in session during .the year ending December 31, IS..., fotr 16 days, and .the distance necessarily traveled by each member of the board of supervisors in attending the meetings thereof is specified in the foregciing accounts of the several supervisors. COUNTY OF Office of Clerk of Board of Supervisors [, J. K., clerk of the board of supervisors of county, do ,H»" Clerks of Boards of Supervisors. 519 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 18.... J. K., Clerk of the Board of Supervisors of County. § 4. Clerk of board to report indebtedness of county, and of each to'wn, city, village and school district to comptroller. The clerk shall aanually on or before the second Monday in December, transmit to the comptroller by mail, in the form which the comptroller shall prescribe, a certified state- ment of all the indebtedness of his county, and of each town, city, village and school district therein, and of the aggregate valued amount of real and personal estate in each town or ward, as corrected by the board of supervisors, and it shall be the duty of the person or persons charged with the issue or payment of such indebtedness to transmit a statement of the same to the said clerk annually, on or before the first day of November. The provisions of this section shall also apply to the county of New York. [County Law (L. 1892, ch. 686), § 52, as amended by L. 1895, ch. 310.J § 5. Statement of railroad, telegraph, telephone and electric light taxes. The clerk shall, within five days after the making out, or issuing of the annual tax-warrant by the board of super- visors, prepare and deliver to the county treasurer of his county, a statement showing the title of all railroad cor- porations and telegraph, telephone and electric light lines in such county, as appear on the last assessment-roll of the towns or cities therein, the valuation of the property, real and personal, of such corporation and line in each town or city, and the amount of tax assessed or levied on such valua- 520 Town and County Officers' Manual. tion in each town or city in his county. [County Law (L. 1892, ch. 686), § 53.] Superseded by Tax Law, § 57, ante, p. 137. § 6. Failure to make statement, return or report, penalty for| action to recover penalty. 1. Any such clerk, or any person or persons required under this article to make any report, return or statement who shall refuse or neglect to make the same, shall forfeit to the county the sum of one hundred dollars, to be recov- ered by the district attorney thereof in the name of the county, and whenever such failure or neglect is caused by any such clerk, person or persons required to make such report, return or statement under the provisions of section fifty-two of this article, such district attorney shall forthwith proceed to obtain such forfeiture on notice in writing by the state comptroller of such failure or neglect; but such clerk shall not be subject to such forfeiture, in case he certifiy to the said comptroller, on or before the second Monday in December, the name or names of such person or persons who have refused or neglected to furnish him with the infor- mation necessary to make such report, return or statement required by said section fifty-two of this article; provided, however, that any such report, return or statement, which may have been made after said second Monday in December, shall be furnished by said clerk to the comptroller imme- diately upon its receipt. 2. The costs awarded upon the collection of such recov- eries may be retained by the district attorney for his own use. [County Law (L. 1892, ch. 686), § 54, as amended by L. 1897, cb. 406.] County Tbeasubbb. 621 CHAPTER XL. County treasurer. SBOnos 1. Connty treasurer to be elected in each county; vacanqy filled by governor ; term of ofHce ; official undertaking. 2. General powers>and duties of county treasurer. 8. Time for making report may be extended by order of supreme court. 4. County treasurer to designate banks of deposit ; interest on de- posits to be credited ; deposits, when made. 6. Depositary to give undertaking before receiving deposits ; con- tents and effect of undertaking. 6, Treasurer not relieved from liability by designation of depos.i- tary and deposit of money. 7, Moneys deposited not to be drawn except upon order of super- visors ; transfer of funds from one depositary to another. 8. Treasurer to deliver books and funds to successor ; penalty for failure. 9. Penalty for neglect to make report or statement. 10. Misappropriation of moneys and securities by county treasurer. 11. Penalty for neglect to pay over money on order of the court. 13. Duties under the Liquor Tax Law ; tax to be paid to county treasurer and distributed by him. 13. Compensation of county treasurers on account of the Liquor Tax Law. 14. Duties of county treasurers under taxable transfer provisions of Tax Law. § 1. County treasurer, to be elected in such county ; vacancy filled by governor ; term of office ; official undertaking. There shall continue (1) to be elected iu each of the counties a county treasurer, who shall hold his office for three years from and including, in the county of Kings, the first Tuesday of August; in the county of Monroe, the first Tuesday of October, and in the other counties, the first day of January, succeeding his election, and until his successor is duly elected and qualified; (2) To be appointed by the governor, by and with the consent of the senate, if in ses- sion, a county treasurer, when a vacancy shall occur in such office, and the person so appointed shall hold the office until 522 Town and County Officbbs' Manual. and including, in the county of Kings, the first Monday of August; in the county of Monroe, the first Monday of Octo- ber, and in the other counties, the last day of Decembei", succeeding his appointment, and until his successor shall be duly elected and qualified. Every person elected or appointed to the ofiBce of county treasurer shall, before he enters upon the duties of his office, and if appointed', within fifteen days after notice thereof, give an undertaking to the county, with throe or more sufficient sureties, with the approval of the board of supervisors, if in session, indorsed thereon by the clerk, otherwise with the approval of the county judge and county clerk, and in such sum as such board or judge and clerk approving the same shall direct, to the effect that such person shall faithfully execute the duties of his office, and shall pay over according to law, and account for all moneys, property and securities which come to his hands as treasurer, and render a just and true account thereof to the board of supervisors when required, and obey all orders and directions of a competent court relating thereto. When, iu the opinion of the board of supervisors, the moneys intrusted to such person as treasurer shall be unsafe, or the surety insufficient, such board may require from such treasurer a new or further undertaking to the same effect as at first, and with like sureties; and if such county treasurer shall fail to renew such undertaking as required within twenty days after he shall be notified by such board of such request, such omission shall work a for- feiture of his office and the same shall become vacant. Such undertaking, with the approval indorsed thereon, shall be filed in the office of the county clerk. The sureties and county therein named shall be liable to the state for the pay- ment to the state treasurer, according to law, of all moneys belonging to the state, which shall come into his Innds as county treasurer, and for the rendering of a just and ;iie account thereof to the state comptroller. [County Law (L, 1892, ch. 686), § 140, as amended by L. 1893, oh. 222.] County treasurers to be elected by the electors of the county or appointed by county authorities ; legislature may provide for fiUing vacancies. Con- stitution, art. X, 1% 2, 8. County Treasurer. 523 Offiddl oaths, when and how taken. County Law, § 236, post, p. 594. Effect of failure to take oath. Public OfScers Law, § 13, ante, p. 43. Va- cancy created by failure to take oath. Public OfScers Law, § 20, ante, p. 66. Undertaking, further provisions respecting. County Law, § 237, post, p. 594; Public Officers Law, § 11, ante, p. 52. Money not to be delivered to county treasurer before executing undertaking ; force and effect of under- taking. Public Officers Law, § 12, ante, p. 53. Effect of failure to execute undertaldng. Public Officers Law, g 13, ante, p. 43. Validation of official acts of treasurer before executing bond. Public Officers Law, § 15, ante, p. 54. Vacancy in office created by failure to execute undertaking. Public Officers Law, § 20, sub. 7, ante, p. 55. Vacani '.3s, how created. Public Officers Law, § 20, ante, p. 66. Resignations of all county officers are to be made to the county clerk. Public Officers Law, § 21. Forms of official oaths and undertakings, see Forms Kos. 5, 6. Supervisor. County treasurer not eligible to office of supervisor. Town Law, § 50 ante, p. 41. Official seal of county treasurer. County Law, § 235, post, p. 593. Superintendent of the poor, county treasurer not to be elected or appointed as. County Law, § SIO, ante, p. 195. Compensation and clerks of county treasurer, board of supervisors to deter- mine. County Law, § 12, sub. 5, ante, p. 486. Expiration of term, county treasurer to hold office until successor is ap- pointed and has qualified. Public Officers Law, § 5. § S. General powers and duties of county treasurer. The county treasurer shall: 1. Receive all moneys belonging to the county, and all other moneys by law directed to be paid to him, and apply them and render an account thereof, as required by law. 2. Keep a true account of the receipt and expenditure of all such moneys, in books prepared for the purpose at the expense of the county. 3. Yearly, and at such other times as the board of super- visors shall by resolution require, make a true, written statement of his accounts generally, verified by his oath to be in all respects true, and file the same with the clerk of the county, and transmit a copy thereof by mail to the comptroller and state treasurer. [Thus amended by L. 1896, ch. 281.] 4. On or before the first day of March in each year trans- mit to the comptroller a statement of all moneys received by him during the preceding year for penalties belonging to the 524 Town and County Officers' Manual. people of the state; and at the same time, pay to the treas- urer of the state, the amount of such penalties, after deduct- ing bis compensation, in the same manner as state taxes are directed to be paid. 5. On or before the fifteenth day of April in each year pay to the treasurer of the state one-half of the state tax raised and paid over to him; on or before the fifteenth day of May, the other half, retaining the compensation to which he may be entitled, which shall not in any case exceed the sum of two thousand dollars. If any county treasurer shall not pay over the state tax as herein directed, the comptroller shall charge on all sums withheld, such rate of interest as shall be sufiBcient to repay all expenditures incurred by the state in borrowing money, equivalent to the amount so withheld, and such additional rate as he shall deem proper, not exceed- ing ten per cent., from the first day of April in each year, which shall be regarded as funds in the hands of the county treasuer, belonging to the state, and for which his sureties and county shall be liable. This subdivision is foi the most part superseded by the Ta:^. Law, § 91, ante, p. 161. 6. Within ten days after the first day of July In each year, • make and file in the ofBce of the clerk of his county, a special report, which shall contain a statement of all moneys or securities in his hands belonging to infanta, or other per- sons, for whom invested, and how invested, with a partic- ular description of such securities, containing a statement of the amount due thereon for principal and interest, with a statement of his account with each infant, up to the first day of July preceding the date of such report, the amount of fees charged by him, the amount in bis hands, invested and uninvested, and to whom the same belongs; and if he has in his hands any money not invested, such report shall state the amount thereof, the length of time the same has been in his hands uninvested, and the reasons therefor; and whether the moneys so uninvested are for principal and inter- est, and the length of time any principal sum thereof shall County Tkbasurbb. 525 have remained so uninvested, during the year preceding the date of such report; which report he shall verify to be in all respects true; 7. Exhibit to the board of supervisors, at their annual meeting, or whenever they direct, all his books and accounts, and all vouchers relating thereto, to be audited and allowed. [County Law (L. 1892, ch. 686), § 141.J Payment of money into court. All moneys paid into court are to be paid to the county treasurer. Code Civ. Pro. § 745. The county treasurer is a trustee of the fund and may bring an action in relation thereto. Code Civ. Pro. S 749. Upon the expiration of term, removal or death of a county treasurer, fund must be credited to his successor. Code Civ. Pro. § 750. No part of fund to be paid out except upon order of court. Code Civ. Pro, § 761. Accounts, how kept. Code Civ. Pro. § 753. Beporfc of funds to comptroller. Code Civ. Pro. § 753. Other Powers and Duties of County Treasubee. C>«ilHy by designation of depositary and deposit of money. Such designation and deposit of moneys shall not release the treasurer, or his sureties, from any liability in relation to such money, or in any manner afifect such liability; but any default by such depositary, shall be deemed a default of such treasurer, and he and his sureties shall be liable there* for. [County Law (L. 1892, ch. 686), § 145.] § 7. Moneys deposited not to be dratm except upon order of su* pervisors ; transfer of funds from one depositary to another. The county treasurer shall draw the moneys so deposited only for the payment of claims ordered to be paid by the board of supervisors, or other lawful authority, or of salaries of county officers, or pursuant to the lawful direction of some court; and if he shall draw or appropriate any money for any other purposes, it shall be deemed a malfeasance in office, and cause for removal therefrom. Nothing herein shall prevent such county treasurer from transferring any such moneys from one depositary to another, which shall have duly qualified by giving security as herein provided. [County Law (L. 1892, ch. 686), § 146.] § 8. Treasurer to deliver books and funds to successor ; penalty for failure^ When the right of a county treasurer to his office expires, the books and papers belonging to the office, and all moneys in his hands by virtue thereof, shall, upon his oath, or if not living, upon the oath of his executor or administrator, be delivered to his successor. Any person violating this section shall forfeit to the county the sum of twelve hundred and fifty dollars. Such successor may recover such for- feitures, books, papers or money due, by action or other legal proceedings, in the name of his county, upon the official undertaking of such former county treasurer, or as otherwise authorized by law. [County Law (L. 1892, ch. 686), § 147.J SMmmar^lwocsedfM^stooompeldeliTery of papers and books. CJode CSv, Pro. § 2471a. County Trbasubbb. 629 § 9. Penalty for neglect to make report or statement. If a county treasurer shall neglect to make any report or statement herein required of him, except as herein other- wise provided, he shall forfeit to the county a sum to be determined by the jury or court before whom the trial is had, not less than one hundred normorethan five hundred dollars, to be recovered by the district attorney, by action in the name of the county, against such treasurer and his sureties, or one or more of them. [County Law (L. 1892, ch. 686), § 148.] Failure to make report required by law is a laisdemeanor. Penal Code, § 117a. § 10. Ulisappropriation of moneys and securities by county treasurer. A county treasurer, who willfully misappropriates any moneys, funds or securities, received by or deposited with him as such treasurer, or who is guilty of any other malfeas- ance or willful neglect of duty in his ofiice, is punishable by a fine not less than five hundred dollars nor more than ten thousand dollars, or by imprisonment in a state pi-ison not less than one year or more than five years, or by both such fine and imprisonment. [Penal Code, § 472,] § 1 1. Penalty for neglect to pay over money on order of the court. Whenever any county treasurer shall, after service on him personally, or by leaving at his oflSce, in his absence, with some person having charge thereof, or if such service cannot be made by leaving with some person of suitable age and discretion at his place of residence, or at his last place of residence in the county, if he has departed therefrom, or a certified copy of an order of the court, directing the pay- ment or delivery of any money or securities held by him pursuant to an order of the court, to any person or persona, shall fail or neglect so to do, or where any county treasurer has invested or loaned any moneys, held by him pursuant to order of the court, to any person or persons on inadequate 34 630 Town and County Officers' Manual. or worthlees securities, and shall fail or neglect when required so to do, to pay over the amount of the money so invested to the person or persons entitled thereto, the court may, by order, direct that an action be brought upon the official bond of such treasurer, against him and his sureties, to recover the amount of the money or securities so directed to be paid or delivered, or of the moneys so invested on inadequate or worthless security, for the benefit of the per- son or persons in whose behalf the direction shall have been by such order given, and whose name or names appear therein, or their assigns, and thereupon such action may be brought for such purpose. [L. 1879, ch. 447, § 2.] § 18. Duties under the liquor tax lavr; tax to be paid to county treasurer and distributed by him. The taxes assessed and all fines and penalties incurred under this act in counties containing a city of the first class shall be collected by and paid to the special deputy commis- sioner for such county, and in all other counties by and to the county treasurer of the county in which the traffic is carried on, except that the taxes assessed under subdivisions four and five of section eleven of this act, and all fines and penalties in connection therewith, shall be collected by and paid to the state commissioner of excise and by him to the state treasurer. One-third of the revenues resulting from taxes, fines and penalties under the provisions of this act, less the amount allowed for collecting the same, shall be paid by the county treasurer, and by the several special deputy commissioners receiving the same within ten days from the receipt thereof, to the treasurer of the state of New York, to the credit of the general fund, as a part of the general tax revenue of the state and shall be appropriated to the payment of the current general expenses of the state and the remaining two-thirds thereof, less the amount allowed for collecting the same, shall belong to the town or city in which the traffic was carried on from which the revenues were received, and shall be paid to the county treasurer of such county, and by the special deputy commissioners to County Teeasthbeb. , B3I ihe supervisor of such town, or to the treasurer or fiscal officer of such city, within ten days from the receipt thereof. All moneys so collected by speciiU deputy commissioners of excise shall be deposited until the same shall be paifl over to the state treasurer or local fiscal officer as is herein provided, in banks or other depositories designated by the state commissioner of excise, who shall require from each such bank or depository a bond running to the people of the state of New York in such penalty and with such sureties as shall be approved by the said state commissioner, conditioned that such bank or depository will safely keep all such moneys that may be so deposited in or held by it on deposit and will promptly pay the same over at any and all times upon legal demand therefor. Action on said bond for any default or violation of its conditions may be brought by the state commissioner of excise who shall distribute the amount of money recovered to the locality and the state as their respective interests may appear. At the time of making such payment the special deputy commissioner or county treasurer shall fur- nish to the officer of such city or town to whom such payment is made a writ- ten statement under oath stating when such money was received and from whom received; and that the statement includes all the moneys received to ft date named in such statement. Such revenues shall be appropriated and expended by such town or city, in such manner as is now or may hereafter be provided by law for the appropriation and expenditure of sums received tor excise licenses, or in such other manner as may hereafter be provided by taw; and any portion of such revenues not otherwise specifically appropriated by law may be applied to the ordinary expenses of the city or town. Any special deputy commissioner or county treasurer who shall neglect or refuse to apportion and pay over such moneys, as above provided, shall in addition to the fines and penalties otherwise provided in this act, be liable to a penalty of fifty dollars for each and every offense, to be recovered in an action by the officer entitled to receive such excise moneys, brought by such officer in the name of the city or town entitled thereto, with costs, in addition to the money imlawfuUy withheld; and if any special deputy commissioner or county treasurer shall willfully make and verify a false statement under this seo tion, he shall be guilty of perjury. [Liquor Tax Law (L. 1896, ch, 112), seo. 13, as amended by L. 1897, ch. 312, and L. 1900, ch. 367.] Amount of tax. Liquor Tax Law, sec. 11. See Cummings & Gilbert's Liquor Tax Law. Books and blanks furnished by state excise commissioner. Liquor Tax Law, sec. 15. Bond of applicants for liquor tax certificates to be approved by counl^ treasurer. Liquor Tax Law, sec. 18. Application for liquor tax certificates, what to state. Liquor Tax Law, sec. 17. Certificates, liquor tax, to be issued by county treasurer. Liquor Tax Law, sec. 19. Refusal to gra/nt certificate, county treasurer to endorse reasons therefor on application. Liquor Tax Law, sec. 28. 532" Town and •County Officers' Manual. Injunetiom to restrain unlawful traffic in liquors, county treasurer may in- stitute proceedings. Liquor Tax Law, § 29. Violations of liquor tax law, county treasurer to make complaint thereof to district attorney. Liquor Tax Law, § 37. Other duties relating to the issuance of liquor tax certiflcateB, and under the liquor tax law, see Oumming & Oilbert'a Liquor Tax Law • § 18. Compensation of ooonty treasorers on account of the liquor tax law. As full compensation and in full payment of all charges and expenses for collecting the taxes herein provided for, and keeping the necessary books, and making the necessary reports, and issuing the liquor tax certificates the oflScer charged therewith, shall be allowed in counties containing a city of the first or second class or any part thereof one per centum on the amount of taxes, penalites and fines collected except as provided in section nine; in counties containing a city of the third class, but not a city of the first or second class or any part thereof, two per centum; in all other counties, three per centum, which amount shall be deducted and retained by him from the moneys so collected, and charged one-third to the state and two-thirds to the locality to which the tax belongs. The provisions of this section shall not operate to reduce the per centum heretofore allowed for compensation of county treasurers in counties which now contain a portion of a city of the first or second class. [Liquor Tax Law (L. 1896, ch. 112), § 14, as amended by L. 1898, ch. 167.J § 14. Duties of county treasurers under taxable transfer provi* alons of tax law. . . . The tax shall be paid to the treasurer or comp- troller of the county of the surrogate having jurisdiction as herein provided; and said treasurer or comptroller shall give, and every executor, administrator or trustee shall take,' duplicate receipts from him of such payment, one of which he shall immediately send to the comptroller of the stiite, whose duty it shall be to charge the treasurer or comptroller County Trbasurbk. 533 so receiving the tax with the amount thereof and to seal said receipt with the seal of his ofiBce and countersign the same and return it to the executor, administrator or trustee, whereupon it shall be a proper voucher in the settlement of his accounts; . . . [Tax Law (L. 1896, eh. 908), § 222, in part.] The amount of tax on transfers is determined by Tax Law, §§ 220, 221. Receipt from the county treasurer and comptroller. Any person ahall upon the payment of the sum of fifty cents be entitled to a receipt from the county treasurer of any county or the comptroller of the city of New York, or at his option to a copy of a receipt that may have been given by such treasurer or comptroller for the payment of any tax under this article, under the official seal of such treasurer or comptroller, which receipt shall designate upon what real property, if any, of which any decedent may have died seized, such tax shall have been paid, by whom paid, and whether in full of such tax. Such receipt may be recorded in the clerk's office of the county in which such property is situate, in a book to be kept by him for that purpose, which shall be labeled "transfer tax." [Tax Law (L. 1896, ch. 908), § 236,] Fees of county treasurer and comptroller. The treasurer of each county and the comptroller of the city and county of New York, shall be allowed to retain on all taxes paid and accounted for by nim each year, under this article, five per centum on the first fifty thousand dollars, three per centum on the next fifty thousand dollars, and one per centum on all additional sums. Such fees shall be in addition to the salaries and fees now allowed by law to such officers, except that in the counties of Erie and Monroe such per centum shall be credited to and belong to the county where coUected- [Tax Law (L. 1896, ch 908), § 237.] Reports of county treasurer and of the comptroller of the city of New York. Each county treasurer and the comptroller of the city of New York shall make a report, under oath, to the state comptroller, on January, April, July and October first of each year, of all taxes received by him under this article, 634 TowK AND OouNTT Ofbtobrs' Manual. stating for what estate and by whom and when paid. The form of such report may be prescribed by the state comp- troller. He shall, at the same time, pay the state treasurer all taxes received by him under this article and not pre- viously paid into the state treasury, and for all such taxes collected by him and not paid into the state treasury within thirty days from the times herein required, he shall pay interest at the rate of ten per centum per annum. [Tax Law (L. 1896, ch. 908), § 240.] Taxable transfers. See Oreen'a Taxable Trarwfir Law (Matthew Bander, publisher, Albany, N. Y.) for a full and oomplate eapoaition of the law relating to taxable tnuuftea. County Ci.bbs. 035 CHAPTER XLI. County cleek. Sscmoif 1. Election, appointment, term of offlce and undertaking of eoxmty clerk. 5. General powers and duties of county clerk, 8. County clerk to appoint a deputy ; oath of office ot deputy ; designation of clerk to act as deputy. 4. Duties of deputy county clerk. 6. County clerk to present statement of receipts and expenditures to board of supervisors. 6. Business hours in office of county clerk. 7. False certificates by clerk, etc.; penalty for recording instru- ment without acknowledgment attached. 8. County clerk omitting to publish statement required by law. § 1. Election, appointment! term of ofBce and undertaking of eonnty clerk. There shall continue, 1. To be elected in each of the countiea a county clerk, who shall hold bia office for three years from and including the first day of January succeeding his election. 2. To be appointed by the governor, a county clerk, 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 after the happening of the vacancy. Every person elected or appointed to the office of county clerk, shall, before he enters on the duties of his office, and if appointed, ■within fifteen days after notice thereof, execute an undertaking to the county, with at least two sureties, with the approval of the board of supervisors, if in session, indorsed thereon by the clerk of the board, otherwise with the approval of the county judge, or a justice of the supreme court residing in the county, to the effect that he will faith- fully execute and dischage the duties of county clerk, and account for all moneys deposited with him pursuant to law, or the order of any court, or by his predecessor in office, and 536 Town and County Officers' Manual. pay them over as required by law, or directed by such order. [County Law (L. 1892, ch. 686), § 160.J County clerk must be elected by electors of county for terms of three years, except in New York and Kings counties. Constitution, art. X, § 1. Removal of county clerk. The county clerk is removable by the governor. Constitution, art. X, § 1. The procedure for such removal is prescribed by Public Officers Law, JJ 23-35, post, p. 595. The expenses of such removal are a county charge. Cpunty Law, § 2?0, sub. 16, ante, p. 494. Official oath to be taken. County Law, § 336, post, p. 594. Effect of fail- ure to take oath. Public Officers Law, § 13, ante, p. 43. Vacancy created by failure to take. Public Officers Law, § 80. ante, p. 56. Undertaking, further provisions respectiag. County Law, § 237, post, p. 594; Public Officers Law, § 11, ante, p. 58. Effect of failure to exeouta undertaking. Public Officers Law, § 13, ante, p. 43. Validation of official acts before executing undertaking. Public Officers Law, § 15, ante, p. 54. Vacancy in office created by failure to execute undertaking. Public Officera Law, § 20, sub. 11. Vacancies, how created. Public Officers Law, § 20, ante, p. 56. Besignations of county clerks are to be made to the governor. Public offi- cers Law, § 21. Forms of official oaths and undertakings. See Forms Nos. 5, 6. Expiration of term of office, county clerk to hold office after, until suo- oessor is appointed and has qualified. Public Officers Law, § 5. § S. General powers and duties of county clerk. The county clerk shall: 1. Have the custody of all books, records, deeds, parch- ments, maps and papers, deposited in his office in pursuance of law, and attend to their arrangement and preservation. 2. Provide at the expense of the county, all necessary books for recording all papers, documents or matters author- ized by law to be recorded in his office. '3. When a certificate of election, or appointment to any County office, or revocation thereof, is received at his office give immediate notice thereof, at the expense of the county, to every person named therein. When any other commis- sion or appointment to office, or order of removal from office is received at his office, give immediate notice thereof, at the expense of the state, to every person named therein. 4. Give immediate notice to the governor, at the expense of the state, when there is a vacancy in any county office which he is authorized to fill; and the names of all persons elected or appointed to any such office who have neglected. County Clerk, 537 within tlie time required bylaw, to file the constitutional oath of oflBce, or the undertaking severally required of them ; and on or before the fifteenth day of January in each year, the names of all persons elected or appointed to a county office in his county during the preceding year, who have duly qualified. 5. On or before the first day of January in each year report to the secretary of state, at the expense of the state, the names of all corporations whose certificates of incorpora- tion have been filed in his office during the previous year. 6. Keep in his office a book, free at all tims to public inspection, in which shall be entered all fees charged or received by him for any official service, the time of receiving it, its nature, and the persons for whom rendered. [County Law (L. 1892, ch. 686), § 161.J Notary public, county clerk must notify person appointed as. Executive Law, § 83. Eleeiions. County clerk to publish notice of submission of proposed con- stitutional amendments and other questions. Election Law, § 6. Compen- sation for duties respecting elections to be fixed by board of supervisors. Election Law, § 18. Copy of election laws to be transmitted to clerk. Elec- tion Law, § 19. Certificates of nominations to be filed in ofSce of clerk. Election Law, §§ 58, 59, as amended by L. 1898, ch. 363. County clerk to publish nominations. Election Law, § 61, as amended by L. 1897, ch. 379. List of candidates to be sent to town clerks and aldermen. Election Law, § 63, as amended by L. 1897, ch. 379. Notice of declination of nominations to be filed with clerk. Election Law, ^ 64, as amended by L. 1897, ch. 379. Clerk to notify committees. Id. Vacancies in nominations, how filled, and correction of certificates of nominations. Election Law, § 66, as amended by L. 1897, ch. 379. J5aMo 318 00 13,120 00 Payments. Paid for clerical services to (A B ) $1,216 00 Paid for fuel to (B C ) 118 00 Paid for lights to (C D ) 40 00 Paid for stationery to (E F ) 320 00 540 Town and County Officbes' Manual. Paid for inoldental expenses : ToGH 68 00 ToH L. 34 00 1,796 00 Balance $334 qO Dated this. .. .dav of 18.. AB. County Clerk. STATE OF NEW YORK, » „ . County OF j " A B, being duly sworn, deposes and says that he is county olerk of the Bounty of and that the foregoing account is true and correct, Etnd that the amounts stated therein were actually received and expended by him. A B. Subscribed and sworn to before me, ) this .... day of > 18> • ) Notary Piiblio, § 6. Business hours in office of county clerlb Clerks of counties, courts of record, and registers of deeds, except in the counties of New York and Kings, as herein- after provided, shall respectively keep open their oflGces for the transaction 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 forenoon to five o'clock in the afternoon. In the counties of New York and Kings said offices 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 each year from nine o'clock in the forenoon to four o'clock in the afternoon. [County Law (L. 1892, ch. 686), § 6, as amended by L. 1895, ch. 961. J Holidays and half-holidays are enumerated in the Statutory Construction Law, § 24, as amended by L. 1897, ch. 614: January 1 (New Year's day); February 12 (Lincoln's birthday); February 23 (Washington's birthday); May 80 (Memorial dayO; July 4 (Independence day); first Monday of September County Clerk. 541 (Labor day); first Tuesday after first Monday in November (Election day); Thanksgiving day; Deoember 35 (Christmas day). If any of such days fall on Sunday, the day following is observed as a holiday. The term, half-holi- day, includes the period from noon to midnight of each Saturday which ia not a holiday. § 7. False certiflcates by county clerks, etc.; penalty for record- ing instrument without acknowledgment attached. An ofiQcer authorized by law to record a couTeyance of real property, or of any other instrument, 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 ofiBcer who, being authorized by law to 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.J 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 instrument or conveyance which is not accompanied by a certificate according to law, of the proof or acknowledgment, is guilty of a misdemeanor. [Idem, § 164.J § 8. County clerks omitting to publish statement required by law. A county clerk who willfully omits to publish any state- ment required by law, within the time prescribed, is guilty of a misdemeanor, punishable by a fine of one hundred dollars, or imprisonment for six months, or both. [Penal Code, § 474.] 642 Town and Gounit OffFicBBs' Manuau CHAPTER XLH. DiSTBICT ATTOBNBYS, COUNTY JUDGES AND SUBBOOATB8. Sbciioii 1. Election, appointment, term of ofSoe and undertaking ot district attorney. 5. Report of district attorney of moneys received. 8. Board of supervisors may authorize district attorney to appoint assistant ; powers of assistants. 4. Appointment of assistants in Erie, Monroe and Rensselaer coun- ties. 6. Employment of counsel by district attorney, 6. Election, appointment and term of office of county judge, surrtv 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. § 1. District attorneys, county jadges and surrogates. There shall continue: 1. To be elected in each of the counties a district attorney, who shall hold his office for three years from and including the first day of January succeeding his election ; 2. To be appointed by 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 there- after at which such vacancy can be lawfully filled. 3. Except in the county of Kings, every person elected or appointed to the office of district attorney, 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 the county judge, with two or District Attoensys, County Judges, Subrogates. 543 more sufficient sureties, being resident freeholders, to the effect that he will faithfully account for and pay over accord- ing to law, or as the court may direct, all moneys that may come into his hands as such district attorney. [County Law (L. 1892, ch. 686), § 200.] Term of office of district attorney is fixed by the constitution at three years. Constitution, art. X, § 1. Removal. The district attorney is removable by the governor. Constitu- tion, art. X, § 1. Proceedings for his removal are prescribed by Public Offi- cers Law, §§ 33-25, post, p. 595. The expenses thereof are a county charge. County Law, § 280, sub. 16, ante, p. 494. Undertaking, further provisions respecting. County Law, § 237, post, p. 694; Public Officers Law, § 11, ante, p. 52. Effect of failure to execute. Public Officers Law, § 13, ante, p. 43. Validation of official acts before exe- cuting. Public Officers Law, § 15, ante, p. 54. Vacancy in office created by failure to execute. Public Officers Law, § 20, sub. 11, ante, p. 56. Vacancies, how created. Public Officers Law, § 20, ante, p. 56. Resignation of district attorneys to be made to the governor. Public Ofifi- cersLaw, %2l. Official oaths to be taken. County Law, § 286. post, p. 594. Eflfect of failure to take. Public Officers Law, § 13, ante, p. 43. Vacancy created by failure to take. Public Officers Law, § 20, ante, p. 56. Bribery, failure to prosecute for, a ground for removal. Constitution, art. 13, § 6. Displaced temporarily by attorney-general, when ordered by the governor. Executive Law. § 52, sub. 2. Salary of district attorney fixed by board of supervisors. County Law, g 12, sub. 6, ante, p. 486. § S. Report of district attorneys of moneys received. Every district attorney shall, on or before the first Tues- day in October, annually file in the oBSce 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 account for and pay over such moneys as 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, cb. 686), § 201.] 644 Town and County Oppicees' Manual. fob:i no. 160. RSFOBT. 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. Mav 16. 1891 $100 00 Balance $300 00 Dated this. . . .day of 18. . A B, District Attorney. STATE OF NEW YORK, ) „ . County OP , y**" A B, being duly sworn, deposes and says that he la 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 ,18.. AB. Subscribed and sworn to before me, ) this day of ,18.. f O D, Notary Public. § 3. Board of 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 seventy thousand inhabitants, the district attorney may, when authorized by the board of supervisors, appoint a suitable person, who must be a counselor-at-law, in this state, and a citizen and resident of the county to be his assistant. Every appoint- ment of an assistant district attorney shall be in writing, under the hand and seal of the district attorney, 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 dis- trict attorney. Every such appointment may be revoked by the district attorney making the same, which revocation Bhall be in writing and filed in the clerk's office. Such DisTEicT Attoenets, County Judges^ Suebogates. 545 assistant district attorney may attend all criminal courts, and dis- charge any duties imposed by law, upon, or required of the district attorney by whom he was appointed. [County Law (L. 1892, ch. 686), sec. 202.J § 4. Appointment of assistants in Erie, Monroe and Rensselaer counties. The district attorney of Erie coimty may appoint, in and for the county of Erie, in the manner provided in the last section, and with like powers, two assistants, to be called respectively the first and second assistant district attorneys, and a managing clerk, who shall severally take the constitutional oath of office before entering upon the duties thereof ; and the district attorney shall be responsi- ble 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, who shall severally take the constitutional oath of office before entering upon the duties thereof; and the district attorney shall be re- sponsible for their acts. They may also appoint a person to act as interpreter at all sessions of the grand juries of the counties of Erie and Monroe, and of the city of Buffalo, whose compensa- tion 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 prose- cuted 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 Mon- roe 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 Kensselaer county to order and direct the county treas- urer of Eensselaer 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. [County Law (L. 1892, ch. 686), sec. 203, na amended by L. 1897, ch. 409, and L. 1900, sec. 330.] •546 Town and County OrFicaas' Manual. § 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 in the ofHce of the county clerk, may employ counsel to assist him on such 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.J § 6. Election, appointment and term of o£Bce of county Jndgpe, ■urrogate, 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 Januay succeeding his election. 2. A special county judge and a special surrogate, pur- suant 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 with the consent of the senate, if in session, a county judge, surrogate, special county judge or special surrogate, when a vacancy 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 annnal election thereafter at which such vacancy can be lawfully filled. [County Law (L. 1892, ch. 686), § 220, subs. 1, 2, 3.] Sub. 4, relating to the election of justices of the sessions, was made obso- lete by Constition, art. 6, § 14. Constitutional proyisions as to county judges and surrogates. Constitution , art. 6, §§ 14-16. Officers to discharge duties of county Judge and surrogate. The legislature may, on the application of a board of superrisors, provide for the election of local officers, not exceeding two in any county, to discharge the duties of county judge and surrogate in case of their inability, or of a vacancy, and in such other oases as may be provided by law. and to azercise such other powers in special cases as are oi may be provided by law. Constitution, art. «, § 16. District Attorneys, County Judges, Surrogatbs. 547 County judge as surrogate. The county judge shall be surrogate of his county except when a separate surrogate has been or shall be elected ; in counties baring a popoulation exceeding forty thousand the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years. Constitution, art. 6, § 15. Surrogate's clerk. Board of supervisors may authorize surrogate to appoint clerks, their compensation to be fixed by the board. Code Civ. Pro. § 2508. The powers of the clerk of the surrogate are prescribed by Code Civ. Fro. §§ 8509, 2510. Temporary surrogate. Where, in any county, except New Tork, the office of surrogate is vacant, or the surrogate is disabled by reason of sickness, ab- sence 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. Z. 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 pre- eluded 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 twenty-four hundred and eighty-seven 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 discretion, may, by order transfer such cause to the supreme court, to be heard and decided at a special term thereof, held in said county, which order shall be recorded in the surrogate's office. A certi- fieif copy of such order, together with the appropriate certificate or certifi- cates 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 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. Pro. § 2484, as amended by L. 1893, ch. 686.] Where the surrogate of any county, except New Tork, ia 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 officers designated in the last section, in the order therein provided for. If there is no such officer qualified to act therein, the sur-ogate may file in his office a certifi- cate stating that fact ; specifying the reason why he is disqualified or pre- cluded ; and designatin , the surrogate of an adjoining county, other than New York, to act n 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, § 2483.] 648 Town an» County Officers' Manual. Board of sunervisors may appoint person to act as surrogate. In any Ooonty, except New York, if the surrogate is disabled, by reason of sioknesa, 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 surro- gate 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 oflce, and give an official bond as prescribed by law, with respect to a person elected to the office of surrogate. [Code Civ. Pro. § 3492, as amended by L. 1893, ch. 686.] Compensation of temporary surrogate. An officer, or person appointed by the board of supervisors, who acts as surrogate of any county during a va- cancy 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 compen. sation 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 (or his services therein, to be audited and collected in the same manner. [Code av. Pro. § 2493 ] Surrogate to report fees received to board of supervisora. The surrogate of each county, except New York, at bis own expense, must make a report to the board of supervisors of the county, on the first day of each annual meet- ing 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 particularly each item thereof. [Code Civ. Pro. § 2501, in part.] § 7. Board of supervisors to create office of surrog^ate in certain eonnties ; undertaking of surrogate. The board of supervisors of any county, except Kings, having a population exceeding forty thousand, may, by reso- lution at a meeting thereof, determine that the oflBce of surrogate therein shall be a separate oflBce, and provide for the election of such officer therein. The clerk of the board 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 surrogate shall be elected for such county. Every person elected or appointed to the office of surrogate or county judge, where there is no separa'e office of surrogate, shall, before he enters upon the duties of hia District Attornbys, County Judges, Surrogatbs. 549 ofiSce, and if appointed within 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 surrogate in the execu- tion of his ofiBce ; which undertaking shall be immediately filed in the office of such county clerk. [County Law (L. 1892, ch. 686), § 221.] % 8. Compensation of county judges and surrogates. The annual salaries of county judges and surrogates in the several counties are fixed at the sums respectively set opposite the names of each county in the following schedule, to wit: • B 02 Name OF County. Salary of county judge Salary of surrogate. 1 Albany $6,000.00 2,750.00 3,000.00 1,500.00 2,000.00 2,000.00 3,000.00 3,000.00 1,200.00 2,000.00 2,500.00 3,000.00 2,000.00 5,000.00 2,500.00 2,000.00 2,250.00 2,500.00 2,000.00 800.00 3,000.00 1,500.00 $5,000.00 9, Alleaanv R Broome 4 5 Cattaraugus Cayuga 1,500.00 2,000.00 6 7 Chautauqua Chemunff *2, 000.00 8 Chenango 9 Clinton 1,800.00 10 Columbia 2,600.00 11 Cortland ^9. Delaware 18 Dutchess 2,000.00 14 Erie 6,000.00 15 Essex 16 Franklin 17 Pulton 18 Genessee 19 Greene 910 Hamilton 9A Herkimer 22 Jefferson l.BOO.OO •Amended by L. 1900, ch. 306. 550 Town and County Officbrs' Manual. -a s CO 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Name of County. Salary of county judge. Salary of surrogate. Kings Lewis Livingston. .. Madison Monroe Montgomery . Niagara Oneida Onondaga . . . Ontario Orange Orleans Oswego Otsego Putnam Queens Resselaer. . . . , Richmond ... Rockland St. Lawrence Saratoga Schenectady Schoharie. . . Schuyler. . . . Seneca Steuben Suffolk Sullivan. ... Tioga Tompkins. . . Ulster Warren Washington. Wayne Westchester . Wyoming .. . Yates $10,000.00 2,400.00 3,000.00 3,000.00 5,000.00 1,400.00 1,500.00 3,000.00 4,000.00 2,000.00 1,500.00 2,000.00 1,500,00 1,800.00 2,000.00 4,000.00 3,500.00 5,000.00 3,600.00 1,750.00 2,000.00 2, 2, 1, 1, 1, 1, 1, 2, 2, 3, 3, 1, % 6, 2, 1, 000.00 500.00 500.00 500.00 500.00 500.00 200.00 500.00 500.00 000.00 000.00 200.00 000.00 000.00 500.00 500,00 $10,000.00 4,500.00 1,600.00 1,500.00 3,500.00 3,500.00 1,500.00 2,500.(M) 1,500.00 1,500.00 6,000.00 5,000.00 1,750.00 $2,500 and $500 fox clerk hire. 2,000.00 3,000.00 3,000.00 1,500.00 6,000.00 [County Law (L. 1892, ch. 686), § 222.] DiSTBIOT ATTOKITSiTS, CotFNIT JxjDQSS, SUBBOGATBS. 651 Albany county, salaries fixed hy L. 1895, oh, 649. Delaware county, salary increased by L. 1894, ch. 227. Montgomery county, salaries changed by L. 1894, ch. 646. Oneida county, salaries decreased by L. 1894, ch 840. Benssdaer county, salary increased by L. 1893, ch. 60. Suffolk county, salary increased by L. 1897, ch. 232. § 9. Salaries of surrogates and county judges, how paid ; eomp pensation 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 couTt, or preside at a court of sessions, in any other county, he shall be paid the sum of five dollars per day for hia expenses in going to, and from, and holding or presiding at such court, which shall be paid by the county treasurer of such other county, on the presentation of .the certificate of the clerk of such court of the number of days. [County Law (L. 1892, ch. 686), § 223, as amended by L. 1897, ch. 407.] S62 Town and County Oftiobbs' Manual. CHAPTER XLIII. Shbbiff and coronbe; powers and duties, BKmON 1. Election, appointment and term of office of sheriffs and oorO' ners, and the undertakings of sheriff. 2. Sheriff to appoint undersheriffs ; duties of under-sheriff; mal- feasance of under-sheriff. 3. Deputy sheriffs to be appointed by sheriff ; appointment to b« in writing. 4. Sheriff's officers : notice of place to be filed ; when to be kept open ; papers served on sheriff. 6. 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 cor» ner to act ; undertaking. 8. When other coroner to be designated ; when coroner to executt duties of office of sheriff. 9. County judge may appoint a person other than a coroner in certain cases. 10. Coroner to execute duties of office until vacancy is filled; duties and liabilities of incumbent. 11. Duties of sheriff in respect to service of mandates in civil actions; copy of process to be delivered ; return of sheriff. 12. Liability of sheriff for neglect in serving process in special pro- ceeding. - 18. Powers of sheriff in case of resistance to the service of mandate ; name of resisters to be certified to court ; sheriff may ask as- sistance ; governor may order out militia. 14. Trial by sheriff of claim of title to property seized by Mmi jurors, how summoned ; examination of witnesses ; payment of fees. 15. Certificate of new sheriff; certificate to be served upon oU sheriff. 16. Former sheriff to deliver books, papers, etc., to new sheriff ; pro- ceedings to compel delivery. 17. Duties of former sheriff upon new sheriff taking his office. 18. Under-sheriff or coroner, when to comply with foregoing pro visions. 19. In juries to records and misappropriation by ministerial officers SO. Sheriffs and others permitting escapes or refusing to receivt prisoners. Sheriff and Coroner; Powers and Duties. 553 § 1. Election, appointment and term of office of sheriffs and coroners, and the undertakings of sheriffs. There 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 and over four coroners, and in all other counties Buch number of coroners, not more than four, as shall be fixed by the board of supervisors, who shall respectively hold their ofBces for three years from and including the first day of January succeeding their election. [Thus amended by L. 1898, ch. 334.] 2. To be appointed by the governor, a sheriff, or a coro- ner, when a vacancy shall occur in either of such offices, and the person so appointed shall hold the office until and includ- ing 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 during his con- tinuance 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 examina- tion, 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. [County Law (L. 1892, ch, 686), § 180.J 654 Town and County Officers' Manual. Term of office of sheriffs is fixed by the constitution at three years ; and sheriffs shall hold no other ofi5oe and be ineligible for the next term after the termination of their offices. Constitution, art. X, § 1. Acts of sheriff, county not responsible for. Constitution, art. X, § 1. Undertaking. 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, § 1. Further provisions respecting undertaking. County Law, § 237, post, p. 594; Public Oflacers Law, § 11, ante, p. 53. Effect of failure to execute undertaking. Public Officers Law. g 13, ante, p. 43. Validation of official acts before executing undertaking. Public Offi- cers Law, § 15, ante, p. 54.; Vacancy in office created by failure to exeout* undertaking. Public Officers Law, g 20, sub. 11. Removal of sheriff. The sheriff is removable by the governor. Constitu- tion, art. X, § 1. The procedure for removal is prescribed by Public Officers Law, §§ 23-25, post, p. 595. The expenses of suoh removal are a county charge. County Law, § 230, sub. 16, ante, p. 494. Official oaths of sheriffs and coroners, to be taken and filed. County Law, g 236, post, p. 594. Effect of failure to take oath. Public Officers Law, § 13, ante, p. 43. Vacancy created by fiulure to take. Public Officers Law, § 20, ante, p. 56. Vacancies in offices of sheriff and coroners. Public Officers Law, § 20, ante, p. 56. Resignations of sheriffs and coroners are to be made to the governor. Pub- lic Officers Law, § 31. Foiins of official oaths and undertakings. See Forms Nos. 5, 6. Fees of sheriff and coroner. See chapter LI. post. Collection of taxes, duties of sheriff relating to. Tax Law, §§ 70, 77, 87, ante, p. 14S. § S. Sheriffs to appoint under-sheriffs i duties of under-sheriff f malfeasance of under-sheriff. Each sheriff shall, within ten days after he enters on the duties of bis ofiBce, appoint some proper person under-sheriff of his county, to hold during hia pleasure. When a vacancy shall occur in the ofiQce of sheriff, the under-sheriff shall, in all things, execute the duties of the office as sheriff, until a sheriff shall be elected or appointed and duly qualified; and any default or misfeasance in 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 ander-sheriff, to the sheriff by whom be was appointed. [County Law (L. 1892, ch. 686), § 181.J SHKEIfK AND CORONER; PoWERS AND DuTIES. 555 § 3. Deputy sheriff's 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 thou- sand inhabitants of the county; any person may also be deputed by any sherifif or under-sheriff by written instru- ment, to do particular 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 constitutional oath of office; but this last provision shall not extend to any person who may be deputed by any sheriff or under-sheriff to do a particular act only. [County Law (L. 1892, ch. 686), § 182.J § 4. Sheriff's offices ; notice of place to be filed ; when to be kept open ; papers served on sheriS", Every sheriff shall keep an office in some proper place in the city or village in which the county courts of his county are held, of which he shall file a notice in the 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 holidays or half-holidays, from nine o'clock in the morning until five o'clock in the afternoon, during the months of November, December, January, February 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 556 Town and County Officers' Manual. notice or paper shall be delivered to auch person, and every such service shall be deemed equivalent to a personal service on such sheriff. In the counties of Kings and New York said offices shall 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.J Holidays and half holidays. Enumerated by Statutory Construction Law (L. 1892, oh. 677). § 34. See ante, p. 540. g 5. Fees for services for the state ; accounts, hoyr audited. When a sheriff shall be required by any statute to perform any service in behalf of the people of this state, and for their benefit, which shall not be made chargeable by law to hia county, or to some officer, body or person, his account for such services shall be audited by the comptroller and paid out of the state treasury. [County Law (L. 1892, ch. 686), § 185.] g 6. Sheriff to be removed for non-payment of moneys. When a sheriff shall be committed to the custody of any other sheriff, or to any coroner by virtue of an execution or attachment for the non-payment of moneys received by him by virtue of his office, and shall remain so committed for the space of thirty days successively, such facts shall be pre- sented to the governor by the officer in whose custody such sheriff' may be, to the end that such sheriff may be removed from office. [County Law (L. 1892, ch. 686), § 186.] Procedure for removal of county officers by governor. Public Officers Law, g§ 23-25, post, p. 695. § 7. When coroner to act as sheriff; county judge to designate coroner ; undertaking. When a vacancy shall occur in the office of sheriff, and there shall be no under-sheriff of the county 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 Sheriff and Coroner; Powers and Duties. 557 another sheriff of the same county shall be elected or appointed and qualified, and there shall be more than one coroner of such county then in office, the county judge of such county shall forthwith designate one of such coroners to execute the duties of the office of sheriff of the county until a sheriff thereof shall be elected or appointed and qualified. Such designation shall be by a written instru- ment, 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. [County Law (L. 1892, ch. 686), § 187.J § 8. When other coroner to be designated ; Trhen coroner to execute duties of office of sheriff. When the coroner so designated 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 successive designation until all the coroners of the county shall have been designated to assume 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 the 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 658 Town and County Officers' Manual. required by law from a sheriff; and such undertaking shall be subject in all respects to the same regulations as the security required from the sheriff. [County Law (L. 1892, ch. 686), § 188.J § 9. County judge may appoint a person other than a coroner in certain cases. If such coroner so in office on the happening of such vacancies 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 event, shall successively neglect or refuse to execute the undertaking within the time required, the county judge shall appoint some suitable per- son to execute the duties of the office of sheriff in his 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 per- son so appointed, who shall, within 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. [County Law (L. 1892, ch. 686,) § 189.J § 10. Coroners to execute duties of ofiSce 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 fore- going provisions the person so executing the same shall be subject to all the duties, liabilities and penalties imposed by Sheriff and Coronee ; Powers and DuTiEa. 559 law upon the sheriff duly elected and qualified, and he shall be entitled to the same compensation. [County Law (L. 1892, ch. 686), § 190.] 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 thereafter coroners in said county shall receive for their services only the salary so fixed and shall not be entitled to any fees whatever, except when performing the duties of a sheritf, in which last named case the coroner so acting, shall have the same compensation as the sheriff, whose duties he performs would have had. [County Law (L, 1892, ch. 686), § 19, as added by L. 1899, ch. 447, in effect April 27, 1899.] § 1 1. 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 compeaation, give to the person delivering the same, if required, a minute in writing, signed by the sheriff, specifying the name of the parties, the general nature of the mandate, and the day and hour of receiving the same. [Code Civ. Pro. § 100.] A sheriff or other oQicer, serving a mandate, must, upon the request of the person served, deliver to him a copy thereof, without compensation. [Idem, § 101.] A sheriff or other officer, to whom a mandate is directed and delivered, must execute the same according to the com- mand thereof, and make return 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 is situated. [Idem, § 102.] § IS. Liability of sheriff for neglect in serving process in special proceeding. A sheriff or other officer to whom is delivered! for service or execution a mandate authorized by law to be issued by a judge or other officer, in a special proceeding, who wilfully neglects to execute the same, may be fined by the judge, in a sum not exceeding twenty-five dollars, and is liable to the party aggrieved for his damages sustained thereby. [Code Civ. Pro. § 103.] 560 Town and County Officers' Manual. § 13. Powers of sheriff in case of resistance to the service of mandate ; name 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 oranization armed and equipped, to assist him in overcom- ing the resistance, and, if necessary, in arresting and con- fining the resisters, their aiders and abettors, to be dealt with according to law. [Code Civ. Pro. § 104.] 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 ascer- tain the same, to the end that they may be punished for their contempt of the court. [Idem, § 105. J A person, commanded by a sheriff to assist him, as pre- scribed in the last section 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 suflScient to enable the sheriff thereof to serve or execute the process or other mandates, delivered to him, he must, on the application of the sheriff, order such a military force, from another county or counties, as is necessary. [Idem, § 107.] § 14. Trial by sheriff of claim of title to property seized by him; jurors, how summoned ; examination of 'witnesses ; payment 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 a claim or title to, or of the right of possession of goods or effects, 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: I 1. The sheriff must, from time to time, notify as many {Sheriff and Coroner; Powers and Duties. 561 persons 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 court of common pleas for that city and county to try the validity of the claim. 2. Upon the trial, witnesses may be examined, in behalf of the claimant, and of the party, at whose instance the property was taken by the sheriff. For the purpose of com- pelling a witness to attend and testify, the sheriff, upon the application of either party to the inquisition, must issue a subpoena, as prescribed in section eight hundred and fifty- four of this act, and with like effect; except that a warrant to apprehend or to commit a witness, in a case specified in section eight hundred and fifty-five or section 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, or in the city and county of New York, by a judge of the court of common pleas for that city and county. 3. The sheriff or under-sheriff must preside upon the trial. A witness, produced by eithr^r party, must be sworn by the presiding officer, and examined orally in the presence of the jury. A witness, who testifies falsely upon such an exam- ination, is guilty of perjury in a like case, and is punishable in like manner, as upon the trial of a civil action. [Code Civ. Pro. § 108.] 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, or, in the city and county of New York, by a judge of the court of common pleas for that city and county, and must be paid as follows: 1. If the jury, by their verdict, find the title, or the right of posesssion 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 projierty claimed, to be in the claimant; each 36 562 Town and County Ofpicebs' Manual. party must pay his own witnesses' fees; and the sheriff's and juror's fees must be paid, one-half by each party to the inquisition. Before notifying the jurors, the sheriff may, in his dis- cretion, 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 the fees, lawfully chargeable to that party, as prescribed in this section. [Idem, § 109.] § 15. Certificate of new sheriff; certificate to be served upon old sheriff. When a new sheriff has been elected or appointed, and has qualified and given the security required by law, the clerk of the county must furnish to the new sheriff a certifi- cate, under his hand and ofBcial seal, stating that the person so appointed or elected, has so qualified and given security. [Code Civ. Pro. § 182.] Upon the commencement of the new sheriff's term of office, and the service of the certificate on the former sheriff, the latter's powers as sheriff cease, except as otherwise expressly prescribed by law. [Idem, § 183.] § 18. Former sheriff to deliver books, papers, Sbc, 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 com- mitment has been returned, a statement in writing of the contents thereof, and when and where it was returned. 4. All mandates, then in his hands, except such as he baa Shhsife' and Coroner; Powers and Duties. 563 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. Pro. § 184.J If the former sheriff neglects or refuses to deliver to his successor, the jail, or any of the property, documents or prisoners in his charge, as prescribed in this title, his suc- cessor must, notwithstanding, 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, § 185.J § 17. Duties of former sheriff upon nevr sheriff taking his office. At the time of the delivery, the former sheriff must exe- cute an instrument, reciting the property, documents and prisoners delivered, specifying particularly the process or other authority, by which each prisoner was committed and is detained, and whether the same has been returned or is delivered to the new sheriff. The instrument must be delivered to the new sheriff, who must acknowledge, in writing, upon a duplicate, thereof, the receipt of the prop- erty, documents and prisoners therein specified; and deliver such duplicate and acknowledgment to the former sheriff. [Code Civ. Pro. § 185.] Notwithstanding the election or appointment of a new sheriff, the former sheriff must return, in his own name, each mandate which he has fully executed; and must pro- ceed with and complete the execution of each mandate which he has begun to execute in the manner specified in subdivison fourth of the last section but one. [Idem, § 186.J Where a person, arrested by virtue of an order of arrest, is confined, either in jail, or to the liberties thereof, at the time of aadignlng and delivering the jail to the new sheriff, the order, if it is not then returnable, must be delivered to the new sheriff, and be returned by him at the return day thereof, with the proceedings of the former sheriff and of the new sheriff thereon, [Idem, § 187.J 564 Town and County Officers' Manual. § 18. Under-sheriff or coroner, when to comply -with foregoing provisions. If, at the time when a new sheriff qualifies, and gives the security required by law, the office of the former sheriff is executed by hia under-sheriff, or by a coroner of the county, or a person s^jecially authorized for that purpose, he must comply with the provisions of this title, and perform the duties thereby required of the former sheriff. [^ode Civ, Pro. § 189. J § 19. Injury to records and misappropriation by ministerial o£Bcers. A sheriff, coroner, clerk of a court, constable or other ministerial officer, and every deputy or subordinate of any ministerial officer, who either 1. Mutilates, destroys, conceals, erases, obliterates or falsifies any record or paper appertaining to his office; or, 2. Fraudulently appropriates to his own use or to the use of another person, or secretes with intent to appropriate to Buch use, any money, evidence of debt or other property intrusted to him in virtue of his office, is guilty of felony, f Penal Code, § 114.] § 20. Sheriffs and others permitting escapes or refusing to re* ceive prisoners. A sheriff, coroner, clerk of a court, constable or other ministerial ofidcer 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 uuder his charge, willfully neglects or refuses so to do, is guilty of a misdemeanor. [Idem, § 116.J Go£0^£b's Inqubst. 635 CHAPTER XLIV. Coroner's inqubst. SBOnon !• In what oases coroner to summon a jury ; number of juron to be summoned ; coroner, when disqualified. 2. Jury to be sworn. 8. Witnesses to be subpoenaed ; compelling attendance. 4. Verdict of jury, what to contain. 6. Testimony to be in writing and filed ; when defendant fa ar« rested before inciuisition, testimony to be delivered to mag- istrate. 6. Warrant for arrest of party charged by verdict ; form of war- rant. 7. Execution of warrant. 8. Proceedings of magistrate or coroner on defendant being brought before him. 9. Disposition of money or property found on deceased. 10. Coroner to give statement to board of supervisors before his ao- counts are audited ; compensation. 11. Coroner may employ surgeons. 12. Witnesses and jurors ; report of coroner. 13. Justices of the peace, when to act as coroners. § 1. In what cases coroner to summon a jury ; number of jurors to be summoned ; coroner, when disqualified. Whenever a coroner ia informed that a person has been killed or dangerously wounded by another, or has suddenly died under such circumstances as to afford a reasonable ground to suspect that his death has been occas- sioned by the act of another by criminal means, or has com- mitted suicide, he must go to the place where the person is and forthwith inquire into the cause of the death, or wound- ing, and in case such death, or wounding, occurred in a county in which is situated in whole, or in part, a city of the first class, but not otherwise, summon not less than nine, nor more than fifteen persons, qualified by law to serve as jurors, to appear before him forthwith, at a specified place, to inquire into the cause of the death or wound, and if it shall appear from the sworn examination of the informant. 666 Toww Aied ; compelling attendance. The coroner may issue subpoenas for witnesses, returnable forthwith, or at such time and place aa he may appoint. He must summon and examine aa witnesses, every person who, in his opinion, or that of any of the jury, has any knowl- edge of the facts; and he must summon aa a witness a surgeon or physician, who must, in the presence of the COEONEIS'S iNQUESl!. 567 jury, inspect the body, and give a professional opinion as to the cause of the death or wounding. [CodeCrim. Pro. § 775,] A witneaa served with a subpoena may be compelled lo attend and testify, or punished by the coroner for disobed- ience, as upon a subpoena issued by a magistrate, as pro- vided in this code. [Idem, § 776.J Compelling attendance and testimony of witnesses. Code Ctim. Pro. § 619, and Code Civ. Pro. g§ 853-866. § 4. Verdict of jury, what to contain. After inspecting the body and hearing the testimony, the coroner must render his decision, or if in a county where a jury is summoned as provided id section seven hundred and seventy-three, the jury must render their verdict, and certify it by an inquisition or decision in writ- ing, signed by him or them as the case may be, and settiag forth who the person killed or wounded is, and when, where and by what means he came to his death, or was wounded; and if he were killed, or wounded, or his death were occa- sioned by the act of another, by criminal means, who is guilty thereof, in so far as by such inquisition he or such jury has been '^able to ascertain. [Code Grim. Pro. § 777, as amended by L. 1899, ch. 464, in effect September 1, 1899.] § 5. Testimony to be in trriting and filed ; \rhen defendant is arrested before inquisition, testimony to be delivered to magis- trate. The testimony of the witnesses examined before the coroner or the jury must be reduced to writing by the coroner or under his direction and must forthwith by him, with the inquisition or decision filed in the office of the clerk of the county court of the county or of a city court having power to inquire into the offense by the intervention of a grand jury. [Code Crim. Pro. § 778, as amended by L. 1895, ch. 880, and L. 1899, ch. 464, in effect September 1, 1899.] If, however, the defendant be arrested before the inquisi- tion can be filtd, the coroner must deliver it with the testi- mony, to the magistrate before whom the defendant is brought, 33 provided in section 781, who must return it with the depositions and statement taken before him, in the manner prescribed in section 221. [Idem, § 779.] 568 Town and Cottntt Officeks' Manual. § 6. Warrant for arrest of party charged by verdict ; form of Trarrant. If the coroner or jury, where a jury is summoned finds that the person was killed or wounded by another, under circumstances not excusable, or justifiable, by law, or that his death was occasioned by the act of another, by criminal means, and the party committing the act be ascer- tained by the inquisition or decision, and be not in custody, the coroner must issue a warrant, signed by him with bis name of ofiBce, into one or more counties, as may be neces- sary, for the arrest of the person charged. [Code Grim. Pro. § 780, as amended by L. 1899, ch. 464, in effect September 1, 1899.] The coroner's warrant must be in substantially the following form : County of Albany (or as the case may be). In the name of the people of the state of New York, to any sheriff, constable, marshal or policeman in this county; An inquisition having been this day found by a coroner's jury before me, (or a decision having been made by me) stating that A B has come to his death by the act of CI D by criminal means (or as the case may be), as found by the inquisition (or decision); or information having been this day laid before me that A B has been killed or dangerously wounded by C D by criminal means (or as the case may be), you are hereby commanded forthwith to arrest the above named D and bring him before me, or in the case of my absence or inability to act, before the nearest or most accessible coroner in this county. Dated at the city of Albany (or as the case may be), this day of E. F. Coroner of the county of Albany (or as the case may be). [Idem, § 781, as amended by L. 1899, ch. 464, in effect September 1, 1899.] § 7. Execution of 'warrant. The coroner's warrant may be served in any county; and the oflBcer serving it must proceed thereon, in all respects, as upon a warrant of arrest on an information; except, that when served in another county, it need not be indorsed by a magistrate of that county. [Code Crim. Pro.«§ 782.] § 8. Proceedings of magistrate or coroner on defendants being bron^it before hinu The magistrate or coroner, when the defendant is brought before him, must proceed to examine the charge contained Coroner's Inquest. 569 in the inquisition or information, and hold the defendant to answer, or discharge him therefrom in the same manner, in all respects, as upon a warrant of arrest on an information. [Code Crim. Pro. § 783.J Upon the arrest of the defendant, the clerk with whom the inquisition is filed, must, without dely, furnish to the magistrate or coroner before whom the defendant is brought, a certified copy of the inquisition and of the testimony returned therewith. [Idem, § 784.J § 9. Disposition of money or property found on deceased. The coroner must, within thirty days after an inquest upon a dead body, deliver to the county treasurer any money or other property which may be found upon the body, unless claimed in the moan time by the legal representatives of the deceased. If he fail to do so, the treasurer may proceed against him for its recovery, by a civil action in the name of the county. [Code Crim. Pro. § 785.] Upon the delivery of money to the treasurer he must place it to the credit of the county. If it be other property, he must, within thirty days, sell it at public auction, upon reasonable public notice; and must, in like manner, place the proceeds to the credit of the county. [Idem, § 786.J If the money in the treasury be demanded within six years, by the legal representatives of the deceased, the treas- urer must pay it to them, after deducting the fees and expense of the coroner and of the county, in relation to the matter, or it may be so paid at any time thereafter, upon the order of the board of supervisors, [Idem, § 787.J § 10. Coroner to give statement to board of supervisors before his accounts are audited ; compensation. Before auditing and allowing the account of the coroner, the board of supervisors must require from him a statement in writing, of any money or other property found upon per- sons on whom inquests have been held by him, verified by his oath, to the effect that the statement is true, and that the money or property mentioned in it has been delivered to 570 Town and County Offiobrs' Manual. the legal representatives of the deceased, or to the county treasurer. [Code Grim. Pro. § 788.] The coroner is entitled, for his services in holding inquests and performing any other duty incidental thereto, to such compensation as defined by special statutes. [Idem, § 790.J Fees of coroners ; see chapter LI, post. § 1 1. Coroner may employ surgeons. A coroner shall have power, when necessary, to employ not more than two competent surgeons to make post-mortem examinations and dissections and to testify to the same, tho compensation therefor to be a county charge. [L. 1873, ch. 833, § 2. as amended by L. 1874, ch. 535.] § liS. Witnesses and jurors; report of coroner. Whenever, in consequence of the performance of his official duties, a coroner becomes a witness in a criminal proceed- ing, 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. 833, § 3, as amended by L. 1874, ch. 535.] The fees of jurors necessarily summoned upon any coro- ners'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 coro- ner 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, ch. 286, § 1.] § 13. 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 hours after the discovery of a dead body, upon which Cobonee's Inquest. 571 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 effect as coroners. [L. 1864, ch. 379, § 1.] Post-mortem examinations. In all cases in which the cause of a death is not apparent, it shall be the duty of the justice to associate with himself a regularly licensed physi- cian, to make a suitable examination for the discovery of said cause. [Idem, § 2.] Fees. Each and every justice of the peace who shall bold inquests by virtue of this act, shall receive the same fees as are now allowed by law to coroners. £Ideia, § 3.] Fees of coroneis. See ohaptec LI, jfoit. 672 Town and County Officers' Manuai* CHAPTER XLV. County jails. Beoiion 1. Sheriff to have custody of jails. 2. Number of rooms in county jaila. 8. Custody and control of prisoners ; civil prisoners to be kept sep- arate ; women not to be kept in same room with men ; com- munication with counsel, etc. 4. Prisoners to be furnished with wholesome food ; emyloyment 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 oourtp 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. Board of supervisors may establish and maintain county worlc- 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. g 1. Sheriffs to have custody of jails. Each sheriff shall have the custody of the jaila of his countj and the prisoners therein and such jails shall be kept by him, or by keepers appointed by him, for whose acts he shall be responsible. [County Law (L. 1892, ch. 686), § 183.] § S. Number of rooms in county jail. Each county jail shall contain, 1. A sufficient number of rooms for the confinement ol County Jails. 573 persons committed on criminal process, or detained for trial, or examination as witnesses in a criminal case, separately from prisoners under sentence; 2. A sufiBcient number of rooms for the separate confine- ment of persons committed on civil process, or for contempt; 3. A sufficient number of rooms for the solitary confine- ment of prisoners under sentence. [County Law (L. 1892, ch. 686), § 91.J § 3. Custody and control of prisoners ; civil prisoners to be kept separate ; -veomen not to be kept in same room \7ith men ; communi- cation with counsel, &c. Each sheriff shall receive and safely keep in the county jails of his county, every person lawfully committed to his custody, for safe-keeping, 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 cus- tody on civil process, or committed for contempt, or detained as witnesses, shall not be put or kept in the same room with persons 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 convicts under sen- tence. A woman detained in jail 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 con- tempt, or as a witness, she shall not be put or kept in the same room with a man, except with her husband, in a room in which tiere are no other prisoners. All persons confined in a county jail shall, as far as practicable, be kept separata from each other, and shall be allowed to converse "with their counsel, or religious adviser, under such reasonable regula- tions 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 ail other conversation by any 574 Town and County Ofpicbes' Manual. other prisoner in the jail, when he shall deem it necessary or proper. [County Law (L. 1892, ch. 686), § 92.] Separation of prisoners. Civil prisoners to be separated ; male and female prisoners to be separated ; officers violating provisions guilty of a misdemeanor. Code Civ. Pro. §§ 123, 134, 135. § 4. Prisoners to be furnished .vrith ivholesoine food; employ- ment of prisoners. Prisoners detained for trial, and those under sentence, shall, be provided with a sufficient quantity of plain but wholesorae 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 committed to his jail for imprisonment under sentence, to be constantly employed at hard labor when practicable, dur- ing every day, except Sunday, and the board of supervisors of the county or judge of the county, may prescribe the kind of labor at which such 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 super- visors 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 adjoining county, upon such terms as may be agreed upon between the keepers and the oflGcers, 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 author- ized to employ convicts under sentence to confinement in the county jails, in building and repairing penal institutions 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, villages and cities therein; and to make rules and regulations for their employment; and the said board of supervisors are hereby authorized to cause money to be raised by taxation for the purpose of furnishing materials County Jails. 575 and carrying this provision into efifect; and the courts of this state are hereby authorized to sentence convicts com- mitted to detention in the county jails to such hard labor as may be provided for them by the boards of supervisors. [County Law (L. 1892, ch. 686), § 93, as amended by L. 1896, ch. 826.] § 5. Prisoners to be furnished vrith reading matter. Each keeper shall provide a bible to be kept in each room of the jail in his charge, and he shall permit the persons therein confined, to be supplied with other suitable and proper books and papers, and- if practicable, he sh ill cause divine service to be conducted 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.J § 6. Record of commitments and discharges, what to state* Each keeper shall keep 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 discharged, trade or occupation, whether so employed when arrested, number of previous convictions. [County Law (L. 1892, ch. 686), § 95.] { 7. ITnited States prisoners to be received. Such keeper shall receive and keep in his jail every person duly committed thereto, for any oEfense against the United States, by any court or officer of the United States, until he shall be duly discharged; the United States supporting such person during his confinement; and the provisions of this article, relative to the mode of confining prisoners and con- victs, shall apply to all persons so committed by any court or officer of the United States. [County Law (L. 1892, ch. 686), § 96.] 576 Town and County Officers' Manual. § 8. Calendars of names of prisoners, &c>, 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 when he was committed, and by virtue of what precept. 3. The cause of his detention. [County Law (L, 1892, ch. 686), § 97.] Court of oyer and terminer and courts of sessions abolished and supreme court and county cjurts substituted. Constitution, art 6, g§ 6, 14. FORM NO. 151. Calendar for Courts. NAMES OF PRISONEllS. "When committed. By what precept. Cause of de- tention. By whom committed; (if disorderly person.) Disorderly person, the names of each, with nature of offense, name of mag- istrate by whom committed, and the term of imprisonment, to be presented to county court on the first day of each session thereof. Code Grim. Pro. §908. § 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 cause every person so confined in jail on a criminal charge, who shall not have been iadicted, to be discharged without bail, unless satisfac- tory cause shall be shown for its further detention, or if the case may require, upon bail, until the meeting of the next grand jury in the county. [County Law (L. 1892, ch. 686), § 98.J County Jails. 577 g 10. Suspension of habeas corpus duriag term of court. During the session of the court of oyer and terminer of any county, no person detained in a county jail of such county upon a criminal charge, shall be removed there- from by writ of habeas corpus, unless such writ shall have been issued by or shall be made returnable before such court. [County Law rL. 1892, ch. 686), § 99.J See note to § 97. {11. Prisoner to be discharged if unable to pay fine. When any person shall be confined in a jail for the non- payment of a fine, not exceeding two hundred and fifty dollars, imposed for any criminal offense, and against whom no other cause of detention shall exist, on satisfactory proof being made to the county court of the county in which such prisoner may ba confined, that he is unable, and has been ever since his conviction, to pay such fine, the court may, in its discretion, order his discharge. [County Law (L. 1892, ch. 686), § 100. J § IS. Houses of detention for \romen, children and Tritnesses. The board of supervisors of any county, except the county of Kings, may procure, by lease or purchase, a suitable place or places, other than the jail, for the safe and proper' keep- ing and care of women and children charged with crime not punishable by death or imprisonment in state prison for a term exceeding five years or with second offense, and persons detained as witnesses, to be termed houses of deten- tion; and when so provided, any magistrate in the county shall commit women and girls, and boys under sixteen years of age, and all persons held as witnesses thereto, instead of the jail. The sheriff shall have the same charge and control of such house, and shall be entitled to the same compensa- tion for the care and keeping of prisoners therein, as in the county jail. [County Law (L. 1892, ch. 686), § 101.] 37 578 Town and County Officers' Manual. § 13. Board of supervisors may establish and maintain eonnty 'Work-houses. The board of supervisora of any county may establish and maintain a work-house for the confinement of persons con- victed within the county of crimes and criminal offenses, the punishment for which is imprisonment in the county jail, and may provide for the imprisonmnet and employment therein of all persons sentenced thereto, and any court or judicial officer may sentence such person to such work-house instead of to the county jail. [County Law (L. 1892, ch. 686), § 102.] Penitentiaries are of the same nature as work-houses, and under^this section boards of supervisors might establish and maintain penitentiaries. § 14. Who may visit jails and 'work-houses. The following persons may visit at pleasure all county jails and work-houses: The governor and lieutenant-governor, secretary of state, comptroller and attorney-general, mem- bers of the legislature, judges of the court of appeals, jus- tices of the supreme court and county judges, district attorneys and every member* of the gospel having charge of a congregation in the town in which such jail or work-house is located. No other person not otherwise authorized by law shall be permitted to enter the rooms of a county jail or work- house in which convicts are confined, unless under such regu- lations as the sheriff of the county shall prescribe. [County Law (L. 1892, ch 686), § 103.] § 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 practice medicine, as the physician to the jail of the county. If there is more than one jail they must appoint a physician to each. The common council of the city of New 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 • So in originaL County Jails. 579 county of Kings. In that county, the term of his oflSce is three years. [Code Civ. Pro. § 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 jail. Spirituous, fermented or other liquor, except cider, and that quality of beer called table-beer, shall 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. Pro. § 128.] Such a permit shall not be granted, unless the physican is satisfied, 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.] A person who brings into or sells in a jail, strong, spirit- uous, fermented or other liquor, or wine, contrary to the foregoing provisions of this article; or a sheriff, keaper of a jail, assistant keeper, or an ofiBcer, or person employed in or about 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 accordingly. A con- viction also operates as a forfeiture of his office. [Idem, § 130.] g 17. Service of papers in civil action to be made on prisoner In jaU. 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 ia 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 receipt thereof by him. For a neglect or violation of this section the sheriff or jailor, guilty thereof, 580 Town and County Officers' Manual. is liable to the prisoner for all damages occasioned thereby. [Code Civ. Pro. § 131.] Subject to reasonable regulations, which the sheriff may establish for that purpose, a sheriff, jailor or other officer, who has the custody of a prisoner, must permit such access to him as is necessary, for the personal service of a paper in an action or special proceeding, to which the prisoner is a party, and which must be personally served. [Idem, g 132.] § 18. 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 confined in the jail, may be injured, or may escape, the sheriff or keeper of the jail may, in his discretion, remove them to some safe and convenient place, and there confine them, until they can be safely returned to the jail; or, if the jail is destroyed, or so injured, that it is unfit or unsafe for the confinement of the prisoners, until a designa- tion is made, as prescribed in section one hundred and thirty-five of this act. [Code Civ. Pro. § 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 diseasf 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 health of any or all of the prisoners in the 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 another suitable place within the 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 desig- nated thereupon 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 the purposes County Jails. 681 expressed in the instrument designating the same. [Code Civ. Pro. § 135, as amended by L. 1896, ch. 946.J The desigation may be modified or revoked, by the judge making the same, by a like inatrumeat in writing, filed with the clerk of the county. [Idem, § 136. J The county clerk must serve a copy of the designation, duly certified by him, under his official seal, on the 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 which 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 keeping, as if he was the sheriff of the county for which the designation is made. [Idem, § 137.] § 20. 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, notwithstanding, remain within those liberties; but lie may be removed by the sheriff, to whom he has given 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. Pro. § 138.] If a person, who is arrested, before or after the designa- tion, by the sheriff of the county for which the designation is made, becomes entitled, after the designation, and before hia 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.J If a person confined in or removed to the jail of a contig- uous county, designated as prescribed in this article, become3 entitled to the liberties of the jail, the sheriff of that county must admit him to the jail liberties, as if he had been origi- nally arrested by that sheriff, on a mandate directed to him. [Idem, § 140.J 682 Town and County Officers' Manual. § SI. Revocation of designation. When a jail is erected for the county, for whose use the designation was made, or its jail is rendered fit and safe for the confinement of prisoners, or the reason for the designa- tion of another jail or place has otherwise ceased to be oper- ative, the designation must be revoked, as prescribed in this article. [Code Civ. Pro. § 141. J The county clerk must immediately serve a copy of the revocation, duly certified by him under his oflBcial seal, upon the sheriff of the same county; who must remove the prisoners belonging to his custody, and confined without hia 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 new bond, as if he 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 Fbisoness; Jail Libbbtibs. 683 CHAPTER XLVI. Civil pkisoners; jail libbrtib3. Section 1. CSvil prisoners, when arrested ; how long imprisoned. 2. Support of civil prisoners ; sheriff not to charge for food nor for keeping prisonei out of jail ; support of civil prisoner out of jail ; sheriff not to receive room rent. 8. Civil prisoner conveyed through other counties. 4. Civil prisoner by virtue of process of United States courts; sheriff or jailor may receive compensation for services. 5. Civil prisoner when sick may be removed. 6. Jail liberties, how established ; copy of resolution by board of supervisors to be served on jailor. 7. Boundaries of jail liberties, 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. 13. When sheriff to produce civil prisoner who has been indicted. 13. ConfinemQjit of prisoner committed for contempt. § 1. Civil prisonerst vrhen arrested; hoTv long imprisoned. A person arrested, by virtue of an order of arrest, in an action or special proceeding brought in a court of record; or of an execution 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 otherwise 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. Pro. § IIO.J No person shall be imprisoned within the prison walls of any jail for a longer period than three months under an exe- cution 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 non-payment of alimony or counsel fees in a divorce ease where the amount so to be paid is less than the 684 Town and County Officers' Manual. sum of five hundred dollars; and where the amount in either of said cases is five hundred dollars or over, such imprison- ment shall not continue for a longer period than six months. It shall be the duty of the sheriff in whose custody any such person is held to discharge such person at the expiration of said respective periods without any formal application 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 aforesaid. 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 specified nothing in this section shall effect a commitment for contempt of court. [Idem, § 111.] § S. Support ot civil prisoners ; sheriff not to charge for food nor keeping prisoners oat of jail; support of civil prisoners out of jail; sheriff not to receive room rent. In any county, if a prisoner actually confined in jail makes oath before the sheriff, jailor or deputy jailor, that he is unable to support himself during his imprisonment, his support shall be a county charge. [Code Civ. Pro. § 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, ale-house, or public victualing or drinking house. [Idem, § 11 3. J A sheriff or other ofQcer shall not demand or receive from Civil Prisoneks; Jail Liberties. 585 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. [Idem, § 114.J If a person arrested is kept in a house other than the jail of the county, the officer arresting him, 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 compensation for strong, spirituous, or fermented liquor, or wine, sold or delivered to the prisoner. [Idem, § 115. J A prisoner so kept in a house, may send for and have beer, ale, cider, tea, coffee, milk, and necessary food, and such bedding, 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. [Idem, § 116.J A sheriff, jailor, or other officer, shall not demand or receive money, or any valuable thing, for chamber rent in a jail; or any fee, compensation, or reward, for the commit- ment, detaining in custody, release, or discharge of a pris- oner, other than the fees expressly allowed therefor by law, [Idem. § 117.] § 3. Prisoner conveyed through other counties. A sheriff or other officer, who has lawfully arrested a pris- oner, may convey his prisoner through one or more other counties, in the ordinary route of travel, from the place where the prisoner was arrested, to the place where he is to be delivered or confined. [Code Civ. Pro. § 118. J 686 Town and County Officers' Manual. A prisoner so conveyed, or the officer having him in cus- tody, is not liable to arrest in any civil action or special pro- ceeding, while passing through another county. [Idem, § 119.J § 4. Civil prisoners by virtue of process of United States courts ; sheriff or jailor may receive compensation for services. A sheriff must receive into his jail and keep a prisoner, committed to the same, by virtue of civil process issued by fv court of record, instituted under the authority of the United States, until he is discharged by the due course of the laws of the United States, in the same manner as if he was committed by virtue of- a mandate in a civil action, issued from a court of tlie state. The sheriff may receive, to his own use, the money payable by the United States for the use of the jail. [Code Civ. Pro. § 133.J A sheriff, or jailor, to whose jail a prisoner is committed, as prescribed in the last section, is answerable for his safe keeping, in the courts of the United States, according to the laws thereof. [Idem, § 134. J § 6. Civil prisoner, when sick may be removed. If the physician to a jail, or, in case of a vacancy, a physician acting as such, and the warden or jailor, certify in writiug, that a prisoner, confined in the jail in a civil cause, is in such a state of bodily health, that his life will be endangered, unless he is removed to a hospital for treat- ment, the county judge, or, in the city and county of New York, one of the justices of the supreme court, must, upon application, make an order, directing the removal of the prisoner to a hospital within the county, designated by the judge; or, if there is none, to such nearest hospital as the judge directs; that the prisoner be kept in the custody of the chief officer of the hospital, until he has sufficiently recovered from his illness, to be safely returned to the jail ; that the chief officer of the hospital then notify the warden or jailor, and that the latter thereupon resume custody of the prisoner. If the prisoner actually escapes, while going to, remaining at, or returning from the hospital, a new ClTOL Peisouees; Jail Libeeties. B87 (execution may he issued against his person, if he was in custody by virtue of an execution ; or if he was in custody by virtue of an order of arrest, a new order of arrest may be granted, upon proof by affidavit of the facts specified in this section, without other proof, and without an undertaking. [Code Civ. Pro. sec. 127, as amended by L. 1895, ch. 946.] § 6. Jail limits, how estaUished; copy of resolution of board of supervisors to be served on jailor. The following are the liberties of the jail for each of the counties specified, to wit: For the city and county of New York, the whole of that city and county. For the county of Onondaga, the whole of the city of Syracuse. For the county of Monroe, the whole of the city of Kocheater. For the county of Erie, the whole of the city of Buffalo. For the county of Dutoheaa, the whole of the city of Foughkeepsie^ For the county of Kings, the whole of that county. For the county of Albany, the whole of the city of Albany. i For the county of Jefferson, the whole of the city of Watertown. For the county of Herkimer, the whole of the village of Herkimer. For the county of Steuben, the whole of the village of Bath. For the county of Rensselaer, the whole of the city of Troy. [Code of Civ. Pro. see. 145, as amended by L. 1895, ch. 42, and L. 1900, cb. 113.] For the county of Niagara, the whole of the city of Lockport. The liberties of the jail in each of the other counties of the state, as heretofore established, shall continue to be the liberties thereof, until they are altered, or new liberties are established, as prescribed by law. [Idem, sec. 146.] The liberties of the jail in and for the county of Queens shall, and the same are hereby declared to be the whole of the county of Queens. [L. 1899, ch. 443, in effect April 26, 1899.] The county clerk must, within one week after a resolution of the board of supervisors, establishing or altering jail liberties, has been filed in his office, deliver an exemplified copy thereof, to the keeper of the jail, who must keep the same exposed to public view, in an open and public part of the jail, and exhibit it to each person admitted to the S8S Town and County Officers' Manxjal. liberties ef the jail, at the time of his executing a bond for tuat purpose. [Idem, § 148.J § 7* Boundaries of jail limits, hoTT- designated. Where the liberties of a jail are altered or established, by resolution of the board of supervisors, as prescribed by law, a space of ground, adjacent to the jail, and not exceeding five hundred acres in quantity, must be laid out as the jail liberties, in a square or rectangle as nearly as may be; but a stream of water, canal, street or highway, may be adopted as an exterior line, notwithstanding it is not in a straight line, or is not at right angles with the other exterior lines cf the liberties. A resolution establishing or altering jail liberties, must contain a particular description of their boundaries; and as soon as may be after its adoption, the boundaries must be designated by monuments, inclosures, posts or other visible and permanent marks, at the expense of the county. [Code Civ. Pro. § 147.J § 8. Civil prisoner, yrhea entitled to jail liberties ; undertaking, how executed ; effect of undertaking. A person in the custody of a sherifif by virtue of an order of arrest; or of an execution in a civil action; or in conse- quence of a surrender in exoneration of his bail, is entitled to be admitted to the liberties of the jail, upon delivering to the sheriff an undertaking as prescribed in the next section. [Code Civ. Pro. g 149.J The undertaking must be executed by the prisoner and one or more sufficient sureties, residents and householders or freeholders of the county, in a penalty atf least twice the sum in which the sheriff was required to hold the defendant to bail, if he is in custody under an order of arrest, or has been surrendered in exoneration of his bail before judgment; or directed to be collected by the execution, if he is in cus- tody under an execution; or remaining uncollected upon a judgment against him if he has been surrendered after judgment; conditioned that the person so in custody shall remain a prisoner, and shall not, at any time or in any Civil Prisoners; Jail Liberties. 589 inaDner, escape or go without the liberties of the jail, until discharged by due course of law. The provisions regulating the justification of bail, con- tained in article third of title first of chapter seventh of this act, govern, except as otherwise expressly prescribed in this article with respect to the notice of justification of the sure- ties; the officers before whom they must justify; the substi- tution of new sureties or a new undertaking; the examination and qualifications of the new sureties, and the allowance of the undertaking. But after the allowance the undertaking must be delivered to the party at whose instance the prisoner is in custody. [Idem, § 150.J An undertaking so taken is held for the indemnity of the sheriff taking it, and of the party at whose instance the prisoner executing it is confined. [Idem, § 151. J If the party at whose instance the prisoner is in custody discovers that a surety therein is insuflicient, he may, upon proof of the fact, by afiBdavit or otherwise, apply to the court or to a judge thereof, on whose process or mandate such prisoner is in custody, or to the county judge of the county where such prisoner is confined, and the court or a judge thereof, or such county judge may make an order committing such prisoner to close confinement in the jail until another undertaking, with good and sufficient sureties, is offered. [Idem, § lo2.J § 9. Surrender of civil prisoner upon jail limltst One or more of the sureties in an undertaking given for the liberties of a jail may surrender the principal at any time before judgment is rendered against them in an action on the undertaking, but they are not exonerated thereby from a liability incurred before making the surrender. [Code Civ. Pro. § 153.J The surrender must be made as follows: The surety or sureties making it must take the principal to the keeper of the jail, who must, upon his or their written requisition to that effect, take she principal into his custody and indorse upon the undertaking given for the liberties, an acknowl- 590 Town AND COUKTY OFtlOBES' MANUAL. edgmeirt tii the sarretid^t, and also, if requited give the Buretj or sureties a certificate, ackdowledgiag the surrender. [Idem, I 154.] g 10. Escape of civil prisoner, what eonstltutes. The going at largo, within the liberties of the jail in which he is in custody, of a prisoner who has executed such an undertaking, or of a prieoner who would be entitled to the liberties upon executing such an undertaking, is not an escape. But the goiag at large, beyond the liberties, by a prisoner, without the assent of the party at whose instanott be is in custody, is an escape; and the sheriiT in whose cus- tody he W£ls, or his sureties has the same authority to pursue and retake him, as if he had escaped from the jail. Such an escape forfeits the undertaking for the liberties, if any ; sabject to the provisions of the next article of this title. [Code Civ. Pro. § 155.] Action for escape, oa undertaking against sureties or against sheriflC Code Civ P*o. §§ 160-171. § 11. Liability of sheriff for escape. Where a prisoner, in a sheriff's custody, goes or is at large beyond the liberties of the jail, without the assent of the party at whose instance he is in custody, the sheriff is answerable therefor until an undertaking for the liberties of the jail is given and approved in an action against him as follows: 1. If the prisoner was in custody by virtue of an order of arrest, or in consequence of a surreder in exoneration of his bail, before judgment, the sheriff is answerable to the extent of the danlages sustained by the plaintiff. 2. If the prisoner was in custody by virtue of any other mandate, or in consequence of a surrender, in exoneration of his bail, after judgment, the sheriff is answerable for the debt, danlages, or sum of money, for which the prisoner was committed. [Code Civ. Pro. § 158.J A sheriff or other ofiBcer, who demands or receives a reward, gratuity, or other valtiable thing, to procure, assist, CivUj Pkisonkks; Jaii. Libbbtibs. 1591 r connive at, or permit an escape of a prisoner, in his custodj, is guilty of a misdemeanor, and shall be punished accord- ingly. A conviction also operates as a forfeiture of his oflBce, and disqualifies him forever thereafter from holding the same. [Idem, § 15.9.J § IS. When sheriff to produce civil prisoner -who has been in- dicted. "Where a person, who has been indicted for a criminal offense, is held by a sheriff, by virtue of a mandate in a civil action or special proceeding, the court, in which the indict- ment is pending, may make an order, requiring the sheriff to bring him before the court; whereupon the court may make such disposition of the prisoner, as to it seems proper. The sheriff's fees and expenses, in so doing are a county charge of the county wherein the court is sitting. [Code Civ. Pro. § 156.J § 18. Confinement of prisoner committed for contempt. A prisoner, committed to jail upon process for contempt, or committed for misconduct in a case prescribed by law, must be actually confined and detained within the jail, until he is discharged by due course of law, or Is removed to another jail or place of confinement, in a case prescribed by law. A sheriff or keeper of a jail, who suffers such a prisoner to go or be at large out of his jail, except by virtue of a writ of habeas corpus, or by the special direction of the court committing him, or in a case specially prescribed by law ; is liable to the party aggrieved, for his damages sus- tained thereby, and is guilty of a misdemeanor. If the com- mitment was for the non-payment of a sum of money, the amount thereof, with interest, is the measure of damages. [Code Civ. Pro. § 157.] 592 TawN and County Officbes' Manual. CHAPTER XLVII. Provisions gbnkballt applicable to county officbbs. Section 1. County oflSoers to report to boards of supervisors. 2. Distriot attorney to sue for and recover moneys in hands of county officers. 8. Official seals of counties, boards of supervisors, county treas> Tirers and registers. 4. Official oaths of county officers. 6. General provisions relating to official bonds and undertaking!. 6. Certain county officers may be removed by governor. 7. Evidence in proceedings for removal by governor. 8. Order of removal of officer, how made and where filed. g 1. County officer* to report to boards of supervisors. Each county oflBcer who shall receive, or is authorized by law to receive, any money on account of fines or penalties or other matter in which his county, or any town or city therein, shall have an interest, shall annually make a written report to the board of supervisors of his county, verified to be true, bearing date the first day of November, stating the time when, and the name of every person from whom, such money has been received, the amount thereof, on what account received, and the sums remaining due and unpaid; and if no such money has been received, his report shall so state. Such report shall be filed with the clerk of the board, on or before the fifth day of November; and no ofiBcer shall be entitled to receive payment for his services, unless he shall file with the supervisors, or other ofiBcers performing their duties, his affidavit that he has made such report, and paid over all moneys which he is required to pay over, within ninety days after receiving any such money, such officers shall pay the same without any deduction to the treasurer of his county, who shall execute duplicate receipts therefor, one of which he shall deliver to the person paying the money, and attach the other to his annual report herein required; but nothing herein shall be construed to apply to moneys received by any town or city officer in his official Provisions Arplicable to County Officers. 593 capacity, as such, specially appropriated for auy tjwn or city purpose. [County Law (L. 1892, ch. 686\ § 233. j Failure to make annual report punishable as a misdemeanor. Penal Code, § 2. District attorney to sue for and recover moneys in hands of county ofBcers. The district attorney shall sue 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 moneyis belonging to auy town or city in such couuty, which shall be received by the county treas- urer, shall be distributed to the several towns or cities entitled to the same, by resolution of the board of super- visors, which shall be entered in the minutes of its proceed- ings. ;County Law (L. 1892, ch. 686), § 234.J § 3. Official seals of counties, boards of supervisors, county trea> ■urers, surrogates and registers. The official seals of boards of supervisors of the several counties, county seal, county treasurer's seal, surrogate's seal, and the seal of the register of deeds, shall continue to be the official seals, respectively, of such boards, county treasurer, surrogate, and register of deeds, and used as such, respectively, when authorized by law. When any such seal shall be lost, destroyed, or become unfit for use, the board of supervisors of the county interested therein or not having such seal, :5hall cause a new seal or seals to be made at the expense of the county. A description of each of such seals, together with impressions therefrom, shall be filed in the office of the county clerk and the office of the secretary of state, unless it has already been done. In counties having two county seats, a duplicate of the county seal shall be procured and kept at the county seat where the county clerk's office is not situated, at some place to be designated by the county clerk, and may be used by him 38 594 Town and County Ofwoebs' Manual. the same as at his ofiBce. [County Law (L. 1892, oh. 686), § 235.] § 4. 0£BclaI oaths of eoanty oCDeerB. Elective officers shall be chosen at general elections. A person in office, when this act takes effect, shall continue to hold the same until the expiration of the term for which he was elected or appointed; and a person thereafter elected to any such office on or before entering upon the duties thereof, and a person thereafter appointed to any such office within ten days after notice thereof, and before entering upon the duties of his office, shall take and subscribe before the county clerk, or county judge of the county, the constitutional oath of office; and the same, with his certificate of election or appointment, shall be immediately filed in the office of the county clerk. [County Law (L. 1892, oh. 686), § 236.] § 6. Oener»I proTisions relating to official bonds and under, takings. Every undertaking required by this chapter must be exe- cuted by the officer or person in whose behalf it is given, and his sureties, and duly acknowledged or proven and cer- tified, and the approval indorsed thereon. The parties exe- cuting the same shall be jointly and severally liable, regardless of its form in that respect, for the damages sustained by reason of a breach thereof. Every officer or board required to approve an undertaking may examine each surety thereto under oath, and shall not approve the same unless the sureties are freeholders of the state and jointly worth over and above their debts and liabilities at least double a sum which such officer or board may fix upon and insert in the undertaking as reasonably sufficient to indemnify the county, and every person who may be or become interested therein, or in any breach thereof. Official bonds and undertakings, including the bonds of executors, administrators, guardians and trustees, required by law to be filed in the office of the county clerk or surru- Provisions Applicable to 43oTijrTY Os"picees. 695 gate, shall also be recorded in such offices respectively, in a book to be provided and kept in each of such offices, to bo designated "book of official bonds and undertakings." The county clerk and surrogate's clerk shall respectively be entitled to the same fees for such recording, as are allowed to county clerks for recording conveyan-ces, except that in counties where the surrogate's clerk ia a salaried officer he shall not be entitled to any fee for such services. [County Law (L. 1892, ch. 686), § 237.] Undertaking, mode of executing, force and effect, time and place of filing effect of f aUnre to execute. See Public Offic ers Law, §§ 1 1-20, ante, pp. 52-58 § 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, county superintendent Jof the poor, register of a county, or 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. 1892, ch, 681), § 23, as amsnded by L. 1899, ch. 238, in effect April 4, 1899. J Sheriffs, county clerks, distriet attorneys and registers may be removed by the governor upon charges preferred and after an opportunity to be heard. Constitution, art. X, § 1. g 7. Evidence in proceedings for removal by governor. The governor may take the evidence in any proceeding for the removal by him of a public officer or may direct that the evidence be taken before a justice of the supreme court of the district, or the county judge of the county, in which the officer proceeded against shall reside, or before a commia. eioner appointed by the governor for that purpose by an appointment in writing, filed in the office of the secretary of state. The governor may direct such judge or commissioner to report to him the evidence taken in such proceeding, or the evidence and the findings by the judge or commisaioney of the material facts deemed by such judge or commissioner to be established. The commissioner or judge directed to take such evidence may require witnesses to attend before bim, and shall issue subpoenas for such witnesses as may be requested by the officer proceeded against. 596 Town and County Officers' Manual. The governor may direct the attorney-general, or the dis- trict attorney of the county in which the officer proceeded against shall reside to conduct the examination into the truth of the charges alleged as ground for such removal. If the examination shall be before a commissioner or judge, it shall be held at such place iu the county in which the officer proceeded against shall reside as the commissioner or judge shall appoint, and at least eight days after written 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 shall be directed and delivered under this section shall execute the same without necessary* delay. [Public Officers Law (L. 1892, ch. 681), § 24.] § 8. Order of removal of ofScer, hew made and where 61ed. 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 certified 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 president and clerk of such body or board. Both such duplicate orders or certified copies shall be delivered to the secretary of state, who shall record in his office one of such duplicates, and shall, if the officer removed is a state officer, deliver the other to such officer by messenger, if required by the governor and other- wise by mail or as the secretary of state shall deem advisable, and shall, if directed by the governor, cause a copy th(rLiof 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.J * So in original. Actions bt and Against Officers. £9'^ CHAPTER XLVIII. Actions by and against town and couNTy offiobbs. SKCmON 1. Investigation by supreme court into the expenditure of town moneys by town officers, 2. Actions against municipal officers to prevent waste, eto. 8. 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. 4. Actions by and against certain town officers in their official capacities. 6. Officers, how described in summons. 6. Successor, when to be substituted. 7. When execution upon judgment cannot be issued against officer personally. § 1. InTOstigation by supreme court into the expenditure of town moneys by town officers. If twenty-five freeholders in any town or village shall pre- sent 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 prop- erty within such town or village within one year, that they have reason to believe that the moneys of such town or vil- lage are being unlawfully or corruptly expended, and the grounds of their belief, such justice, 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 investigation 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 justice, and paid, upon his order, by the officers whose expenditures are investigated, if the facts in such affidaF^^ 598 To^» AND Coosxy Opficbbs' Manoal. bo aubatantially proved, and otherwise, by the freeholders making such aflSdavit. If such justice shall be satisfied that any of the moneys of such town or village are being unlaw- fully or corruptly expended, or are being appropriated for purposes to which they are not properly applicable, or are improvidently squandered or wasted, he shall forthwith grant an order restraining such unlawful or corrupt expendi- ture, or such other improper use of such moneys. [General Municipal Law (L. 1892, ch. 685), § 3.] g 8. Actionfa 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 incorporated village of the state, maybe main- tained against any officer thereof, or any agent, commis- sioner, or other person, acting in its behalf, either by a citi- zen, resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the com- mencement of the action, has paid, a tax therein. This sec- tion does not afifect any right of action in favor of a county, city, town or incorporated village, or any public officer. [Code Civ. Pro. § 1925, as amended by L. 1892, ch. 524.J § S. Actions agrainst town and county officers to prevent illo^al acts ; bonds ; order restraining improper audit or fraudulent judg- ments : books, papers, etc., open to inspection. All officers, agents, commissioners and other persons act- ing, or who have acted, for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action or actions may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corpora- tion by any person or corporation whose assessment, or by any number of persons or corporations, jointly, the sum oi whose assessments shall amount to one thousand dollars, ACTIONK BY AND AgAINST OfFICBES. 599 and T7ho shall be liable, to pay taxes on auch assessment of assessmets in the county, town, village or municipal corpo- ration to prevent the waste or injury of whose property the aotion is brought, or who have been assessed or paid taxes therein upon any assessment or assessments of the above- named amount within one year previous to the commence^ ment of any such action or actions. Such person or persons, corporation or corporations upon the commencement of such action, shall furnish a bond to the defendant therein, to be approved by a justice of the supreme court or the county judge of the county in which the action is brought, in such penalty as the justice or judge approving the same shall direct, but not less than two hundred and fifty dollars, and to be executed by any two of the plaintiffs, if there be more than one party plaintiff, providing said two parties plaintiff shall severally justify in the sum of five thousand dollars. Said bond shall be approved by said justice or judge and be conditioned to pay all costs that may be awarded the defend- ant in such action if the court shall finally determine the same in favor of the defendant. The court shall require, when the plaintiffs shall not justify as above mentioned, and in any case may require two more sufficient sureties to 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 sum- mons in such action. If an injunction is obtained as herein provided for, the same bond may also provide for the pay-> ment 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, allow- ing or paying, or conniving at the contracting, audit, allow- ance or payment of any fraudulent, illegal, unjust or inequitable claims, demands or expenses, or any item or part thereof against or by such county, town, village or munici|)e(' 600 Town and County Officers' Manual. corporation, or by permitting a judgment or judgments to be recovered against such county, town, village or muni- cipal corporation, or against himself in his official capacity, either by default or without the interposition and proper presentation of any existing legal or equitable defenses, or by any such officer or agent, retaining or failing to pay over to the proper authorities any funds or 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 dis- cretion, 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 hereafter receiving or retaining the same, and also may, in its discretion, adjudge and declare the colluding or defrauding official personally respon- sible therefor, and out of his property, and that of his bonds- men, if any, provide for the collection or repayment ther of, so as to indemnify and save harmless the said county, town, village or municipal corporation from a part or the whole thereof; and in case of a judgment the court may, in its dis- cretion, vacate, set aside and open said judgment, with leave and direction for the defendant therein to interpose and enforce any existing legal or equitable defense therein, under the direction of such person as the court may, in it judgment or order, designate and appoint. All books of minutes entry or account, and the books, bills, vouchers, checks, con- tracts or other papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county, town, village or municipal cor- poration in this state are hereby declared to be public records, and shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any 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 op Actions by and Against Officers. 601 municipal corporation, or in favor of any ofiBcer thereof, may be enforced by action or otherwise, by the persons hereinbe- fore authorized to prosecute and maintain actions; and when- ever 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 pro- ceeding and their liabilities as such enforced by the proper judgment or direction of the court; but any recovery 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, municipal corporation or public officer. The provisions of this act shall apply as well to those cases in which the body, board, officer, agent, com- missioner or other person above named has not, as to those in which it or he has jurisdiction over the subject-matter of its action. [L. 1881, ch. 531, § 1, as amended by L, 1892, ch. 301.] § 4. Actions by and against certain town o£Bcers in their o£Scial capacities. An action or special proceeding may be maintained, by th© trustee or trustees of a school district; the overseer or overseers of the poor of a town, 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 oiHcial 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; to recover a penalty or a for- feiture 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. Pro. sec. 1926, as amended by L. 1897, ch, 302.] 602 Town and C'oitnty Officers' Manttau An action or special proceeding may ba maintained, against 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 th© 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 main- tained, by or against the body, represented by an officer designated in those sections; but, in such a case, the prose- cution 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.] § 6. Officer, hoxr described in aainiiionB. In an action or special proceeding, brought pursuant to section one thousand nine hundred and twenty-six 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 summons, or other process by which it is commenced, and in the subsequant proceedings therein, by his individual name, with the addition of his official title. An objection, growing out of an omission to join any officer, who ought to be joined with the others, must be taken by the answer, or, in a special proceeding, before the close of the case, on the part of the defendant; otherwise it is waived. [Code Civ. Pro. § 1929.] § 6. Successor, when to be sabstitated* In such an action or special proceeding, the court mus t, 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 defendant, without his consent, unless at least fourteen days' notice of the application for the substi- tution, has been personally served upon him. [Code Civ. Pro. § 1930.J Actions by and Against Officers 603 % 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 proceeding, brought by or against him, in his official capa- city, pursuant to this article- except where it is rendered against the trustee or trustees of a school district, or the com- missioner or commissioners of highways of a town. In either of those cases, an execution may be issued against and be collected out of the property of the officer, and the sum collected must be allowed to him, in the settlement of his official accounts, except as otherwise specially prescribed by law. [Code Oiv. Pro. § 1931.J 604 Town and County Officers' Manual. CHAPTER XLIX. Town and county financks and property. SaOTlOM 1. Temporary loans, when to be made. 2. Funded debt not to be contracted except for specific object. 8. Municipal bonds, how paid. ^ Retirement of bonds by new issue ; sale of new bonds ; certificate of amount of existing bonds ; town meetings may authorize issue of bonds. 6. 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. Municipal 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 mora than one hundred thousand inhabitants. 11. Resolutions of boards of supervisors authorizing issue of obliga- tions by town or county officers. 12. Board of supervisors may abolish office of railroad commis- sioner. 18. County judge to appoint commissioners ; term of office ; com- pensation. 14. Oath and undertaking of commissioners. 16. When railroad stock and bonds may be sold or exchanged ; dis- position of proceeds of sale. 16. Annual report of railroad commissioners and payment of rail. road bonds. 17. Accounts and loans by railroad commissioners. 18. Re-issue of lost or destroyed railroad bonds. 19. Payment of judgments against town or county. SO. Liability for damages by mobs and riots. 81. Condemnation of real property. 23. Insurance of town or county property. 28. County a municipal corporation. 24. Actions and contracts in corporate name. 25. Disposition of property and apportionment of debts on altera- tion of county boundary. 86. Supervisor to report to board of supervisors amount of town bonds outstanding ; form of report ; publication. 87. Duplicate report to be presented to town meeting and filed in office of town clerk. 28. Town board to cancel bonds and coupons which have bean paid. Town and County Finances and Property. 605 § 1. Temporary loans, when to be made. Moneys shall not be borrowed by a municipal corporation on temporary loan, except in anticipaion of the taxes of the current fiscal year, and for the purposes for which such taxes are levied, and shall 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 cor- poration. [General Municipal Law (L. 1892, cb. 685), § 4. J § 8. Funded debt not to be contracted except for specific object. A funded debt shall not be contracted by a municipal cor- poration, except for a specific object, expressly stated in the ordinance or resolution proposing it; nor unless such ordi- nance or resolution shall be passed by a two-third vote of all the members elected to the board or council adopting it, or submitted to, and approved by the electors of the town or county, or taxpayers of the village or city when required by law. Such ordinance or resolution shall provide for raising annually, by tax, a sum suflScient to pay the interest and the principal, as the same shall become due. [General Municipal Law (L, 1892, ch. 685), § 5.J § 8. Munitipal bonds, how paid. Where the bonds of a municipal corporation have been lawfully issued, 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 corpo- ration after such omission. [General Municipal Law (L. 1892, ch. 685), § 6.] 606 Town and County Officers' Manual. § 4. Retirement of bonds by ne-w issue ; sale of new bonds ; cer- tificate of amount of ezisting bonds; town meeting nui.y authorise 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 super- visor, board, council or officers having in charge the pay- ment 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 by money realized by the sale of such new bonds. Where such bonded indebt- edness shall become due within two years from the issue of such new bonds, such new bonds may be issued and sold to provide money in advance to pay up such existing bonds when they 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 regularity 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 rate of five per centum per annum, payable quarterly, semi-annually or annually; and an amount equal to not less than two per centum of the whole amount of such new bonds shall 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 cor- poration 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 pursuance thereof, fur bonds of a municipal corporation Town ant r^ouNTv Financtsp and Property. 607 adjudged invalid by the final judgment of a competent court. A majority of tlie taxpayers of a town, voting at a general town meeting, or special town meeting duly called, may authorize the issue in pursuance 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 evidence 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. 1892, ch. 685), § 7, as amended by L. 1897, oh. 54. J § B. Mnnlclpal bonds, how issued. Each bond issued by a municipal corporation shall be signed by each oflBcer issuing the same, with the designa- tion of his oflBce; and the interest coupons attached thereto, if any, shall be signed by one of their number. Enoh bond shall state the place of payment and, if no conpons ai ■ attached thereto, the name of the payee. [General Muui cipal Law (L. 1892, ch. 685), § 8.] § 6. Municipal bonds may be registered ; fees for registry ; effet-t of registry. Each municipal corporation shall keep in the office of its clerk suitable books, in which shall be entered a full descrip- tion 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 oflBcers, and, if such statement is not already entered, of all bonds converted 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 608 Town akd County Officeks' Manual. registered. The principal and interest of a registered muni- oipal bond shall be payable only to the payee, his legal representatives, successors or assigns, and shall be transfer- able 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 transferred and the books so kept in the ofSce 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 indebtedness 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, ch. 686), § 9, as amended by L. 1895, ch. 350.] § 7. Coupon bonds may be converted into registered bonds. When the owner of coupon bonds of a municipal corpora- tion shall present any such bonds to the officers who issued the same, or their successors, 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 *he 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 representa- tives, 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 provision is otherwise made by law or local ordinance, for the conver- sion or exchange of coupons for registered bonds. [General Municipal Law (L. 1892, ch. 685), § 10. J § 8. Municipal bonds not iuTalidated hy 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 Town and County Finances and Peoperty. 609 exceeding sixty days shall not affect their validity. [General Municipal Law (L. 1892, ch. 685), § ll.j § 9. Iiimitation of indebtedness of to^vn and county under auth- ority of board of supervisors. An issue of town or county obligations shall not be auth- orized when such issue, with the amounts issued and out- standing 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 election in such county; but in no case shall the amount of such town or county obligations, issued and outstanding, exceed one-third of such assessed valuation. This section shall not include any case where special authority has been given by the legis- lature to issue such obligations in excess of the amounts herein authorized. [County Law (L. 1892, ch. 686), § 13, as amended by L. 1893, ch. 251.] § ]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 purposes upon the then last correct assessment-roll, nor shall it contract any such debt if the amount thereof inclusive of its outstanding debts shall exceed a sum equal to ten per centum of such valuation. This sec- tion shall not be construed to prevent the issuing of certifi- cates of indebtedness or revenue bonds issued in anticipation of the collection of taxes of amounts actually contained or to be contained in the taxes for the year when such oertificatea or revenue bonds are issued and payable out of such taxes. 89 610 Town and County Gfficebs' Manual. Nor shall this section be construed to prevent the issuing of bonds to provide for the supply of water, but the term of tbe bonds issued to provide for the supply of water shall not exceed twenty years, and the oinking fund shall be created on the issuing of said bonds for their redemption by raising i;.ntiually a sum which will produce an amount equal to the amount of the principal of said sum 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 chapter. [General Municipal Law (L. 1892, oh. 685), § 2, as amended by L. 1893, ch. 349.] Gonstitution, art. 8, § 10, limits the amount of municipal indebtedness. § 11. Resolutions of boards of saperTisora aathorizing issne of obligations by town or county ofBcers. Every resolution of any such board, authorizing the issue of such obligations, shall specify the form thereof, the place of payment, in annual installments or otherwise, within a period not exceeding thirty years from the date of such obli- gation, and the rate of interest to be paid thereon, not exceed- ing the legal rate; and no such obligation shall be sold for less than par. Such resolution shall also contain a provi- sion requiring adequate security to be given by the officer, or board of officers authorized to issue such obligations, for the faithful performance of his, or their duty, in issuing the same, and the lawful application of the funds arising there- from, and of the funds which may be raised by tax for the payment thereof, which may come into their hands. [County Law (L. 1892, ch. 686), § 14.] FORM NO. 152. Resolution Authorizinq Issue of OSlioation. At a meeting of theboardof super visors of the county of •••.•.., held at , on the .... day of ,18.... Resolved, That the (officer or board) of the (town or county), is (or arfl) authorized to issue the obligations of such (town or county) for the purpose of (state purpose for which bonds are to be issued) in the amount of dollars, for a period of (not exceeding thirty) years, payable in annual install- Town and County Finances and Propbbty. 611 ments (or otherwise), at (prescribe place), with interest at the rate of per cent, per annum ; and that such bonds shall not be Bold at less than par, and shall be in the following form : (Insert form of bond.) Before issuing suon bonds, such officer (or board) shall give security to such (town or county), in the amount of dollars, for the faithful performance of his (or their) duty, in issuing the same, and the lawful appli- cation of the funds arising therefrom, and of the funds which may be raised by tax for the payment thereof, which may come into their hands. Adopted. Ayes A B, President, Noes C D, Clerk. § 1 2. Board of supervisors may abolish office of railroad com> missioner. The board of supervisors of any county may, upon the application of the auditing board of any municipal corpora- tion therein, by resolution, abolish the ofiSce of railroad com- missioners 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 hia compliance 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.J § 13. County judge to appoint commissioners; term of office; compensation. The county judge of any county within which is a munici- pal corporation having or being entitled to have railroad commissioners, when this chapter shall take effect, and in which the duties imposed upon such commissioners are not fully performed, shall contiaue to appoint and commission, upon the application of twenty freeholders within such cor- poration, three persons, who shall be freeholders and resident taxpayers therein, commissioners for the purpose of per- forming the duties and completing the business required of them pursuant to this chapter or any law. Such commis- sioners shall hold their office for five years, and until others are appointed by the county judge, unless their duties shall ba aoonef performed, or the office shall be abolished, who 612 Town and County Officers' Manual. shall also, in like manner, fill any vacancies that may exiai therein. Such commissioners shall each receive the sum of three dollars per day for each day actually engaged in the discharge of their duties, and the necessary disbursements to be audited and paid by the usual auditing and disbursing oflBcers of such municipal corporation. 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.j § 14. Oath and undertaking of commissionera. Before entering upon their duties such commissioners 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 their duties as such commissioners, and truly keep, pay over and account for all moneys belonging to such corporation coming into their hands. [General Muni- cipal Law (L. 1892, ch. 685), § 15. {IB. When railroad stock and bonds may be sold or exchanged | dispostion 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 muni- cipal 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 can- not 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 corporation, owning such stock and bonds, exchange, sell or dispose of such stock or bonds, at the best price and upon the best terms obtainable, for the municipal corporation they To-WN AND County Finances and Property. 613 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 extinguish- ment of the bonds of the municipal corporation, lawfully issued in aid of any such railroad, or substituted therefor; except that if the bonds so issued or substituted have all been paid, or the moneys so realized shall be more than sufEcient to pay them in full, and all the costs and expenses of the sale, such proceeds or balance thereof shall be paid by the ofHcers 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 provis- ions 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 au- thority hereby conferred shall not be limited by the provis- ions of any such special act. [General Municipal Law (L. 1892, ch. 685), § 16, as amended by L. 1893, ch. 490.] § 16. 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 law- fully issued by such municipal corporation, in aid of rail- roads, 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 therefor, 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 succeeding 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 mu- nicipal corporation sufficient money to pay such principal 614 Town and County Officers' Manual. and interest, as the same shall become due and payable. When collected, auch moneys, with the unpaid sums 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 cor- poration, at least five days before the annual town meeting, village or city election, or meeting of the board of super- visors, next thereafter held, who shall cancel the same, and make and file a record thereof in the clerk's ofiSce of the municipal corporation, whose bonds were so paid or can- celled. [General Municipal Law (L. 1892, ch. 685), § 17, as amended by L. 1893, ch. 466.J § 17. Accounts and loans by railroad commissioneFS. Such commissioners shall present to the auditing board of the municipal corporation they represent, at each annual meeting of such board, a written statement or report, show- ing all their receipts and expenditures, with vouchers. They shall also loan on proper security or collaterals, or deposit in some solvent bank, or banking institution, at the best rate of interest they can obtain, or invest in the bonds of the muni- cipal 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 liabilities; and all earnings, profits or interest accruing from such loans, deposits or investments, shall be credited to the municipal corporation they represent, and accounted for in their annual settlement with the gov- erning board thereof. [General Municipal Law (L. 1892, ch. 685), § 18.] § 18. Re-issue of lost or destroyed railroad bonds. When any bonds lawfully issued by a municipal corpora* tion in aid of any railroad, or in substitution for bonds bo issued, shall be lost or destroyed, such commissioners may issue new bonds in the place of the ones so lost or destroyed) Town and County Finances and Property. 615 at the same rate of interest, and to become payable at the same time, upon the owner furnishing satisfactory proof, by affidavit, of such ownership, and loss or destruction, and a written indemnity, with at least two sureties, approved as to form and sufficiency, by the county judge of the county in which such municipal corporation is situated. Every new bond so issued shall state upon its face the number and denomination 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 immediately filed in the county clerk's office. [General Municipal Law (L. 1892, ch. 685,) § 19.] § 19. Payment of judgments against tOTrn or county. When a final judgment for a sum of money shall be recov- ered 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 officer of such corporation having sufficient moneys in his hands belonging to the corporation 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.] § so. 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, or the damages sustained 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 sus- tained. A mayor or sheriff receiving notification of a threat or attempt to destroy or injure property by a mob or 616 Town and County Officers' Manual. 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 Munciapl Law (L. 1892, oh. 685), § 21.J §21. Condemnation of real property. A municipal corporation authorized by law to take and hold real property for the uses and purposes of the corpora- tion, may, if it is unable to agree with the owners for the purchase thereof, acquire title to such property by condem- nation. [General Municipal Law (L. 1892, ch. 685), § 22.] Proceedings for condemnation of real property prescribed by Code Civ. PrOk g§ 3357-3383. § 22. Insurance of to^rn or county property. Public ofiBcera having by law the care and custody of the public buildings and other pi-operty of a municipal corpora- tion, may insure the same at the expense and for the benefit of such corporation. [General Municipal Law (L. 1892, ch. 685), § 23.] § 2S. County a municipal corporation. A county is a municipal corporation, comprising the inhabitants within its boundaries, and formed for the purpose of exercising the powers and discharging the duties of local government, and the administration of public afifaira conferred upon it by law. [County Law (L. 1892, ch. -686), § 2.] § 24. Actions and contracts in corporate name. An action or special proceeding for or against a county, or for its benefit, and upon a contract lawfully made with it, or with any of its oflBcera 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 damages for any injury to any property or rights for which it is liable, shall be in the Town and County Finances and Propbrty. 617 name of the county. All contracts or conveyances, 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 contract or conveyance. [County Law (L. 1892, ch. 686), § 3. J § S6. 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 interested, by the supervisors thereof, or by the committees of their respective boards appointed for that purpose, subject to the approval of such boards; and the debts shall be charged to each county, according to such apportionment. [County Law (L. 1892, ch. 66), § 4.j § 26. Supervisor to report to board of supervisors amount of to^m 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 super- visors of the county, at every annual session thereafter, of the amount of such indebtedness. [Town Law (L. 1890, ch. 669), § 210.] Such report shall be in tabular form, specifying the dif- ferent 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 hia term of office. [Idem, § 211.] The report so made, shall be published in the annual report of the proceedings of the board of supervisors. [Idem, § 212.J 618 Town and Countt Opfioebs' Manual. FOEM NO. 153. Annual Eepoet of Town Indebtedness. To the Board of Supervisors of County : The undersigned, supervisor of the town of , in said 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 Bate of interest. Act under which bonds were issued. Amount unpaid at time of election of supervisor. Amount of indebted- ness paid at this date. Amount coming due during my term of office. Dated this day of , 18. A B, Supervisor. § S7. Duplicate report to be presented to tovrn meeting and filed in the office of to'wn 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 auch report to the board of super- visors, including and adding thereto, the amount of bonds issued, and the amounts and interest paid, since the date of the report up to the day and date of his term of ofiBce, duly attested before a justice of the peace of his town, and which Town and County Finances and Property. 618a report shall be filed in the town clerk's oflBce of the town, subject to the inspection, by an elector thereof. [Town Law (L. 1890, oh. 669), § 213.] g 28. Tovm board to cancel bonds and coupons trhich 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 tlie annual town meeting; and a record thereof shall be filed, signed by the board, in the ofiSce of the clerk of the town. [Town Law (L. 1890, ch. 569), § 214.] § 29. To'wn 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 indebtedness 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 pu blic auction 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 618b Town and County Offioebs' Manual, them at the lowest rate of interest. Such bonds shall be consecutively numbered from one to the highest number issued and the town clerE 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, ch. 57.] Penal Provisions Applicable to Officers. 619 CHAPTER L. Pbnal provisions applicable to town and county officers. Section 1. Acting in public office without having qualified. 2. Bribery in executive office. 8. 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 offioial 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 tuAda and falsification of public accounts by public officers. 10. Public officers not to be interested in contracts. § 1. Acting in public office Trithout having qualified. A person who executes any of the 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. [Penal Code, § 42, as amended by L. 1893, eh. 692.] 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 inter- ested in maintaining the validity of such acts. [Idem, § 43.] § S. 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 punishable by imprisonment in a state prison not exceeding ten years, or by fine not exceeding five thousand dollars, or by both. [Penal Code, § 44.] 620 Town and County Officebs' Manual. An executive officer, or person elected or appointed to an executive 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 capacfty, shall be influenced thereby, is punishable by imprisonment in a state prison not exceeding ten years, or by a fine not exceeding five thousand dollars, or by both ; and in addition thereto forfeits his office and is forever disqualified from holding any public office under this state. [Idem, § 45.] § 3. Prevention of officers from perfornxance of duties. A person who attempts, by means of any threat or vio- lence, to deter or prevent an executive officer from perform- ing any duty imposed upon such officer by law, is guilty of a misdemeanor. [Penal Code, § 46.J A person who knowingly resists, by the use of force or violence, any executive officer, in the performance of his duty, is guilty of a misdemeanor. [Idem, § 47.J § 4. Taking unlavrful fees or re-wards for doing or omitting to do official acts ; taking fees for services not rendered. A public officer or a deputy, clerk, assistant or other sub- ordinate 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 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 authorized by law for doing or omitting to do any official act, or for per- forming or omitting to perform, or for having performed or omitted to perform any act whatsoever directly or indirectly relating to any matter in respect to which any duty or dis- cretion is by or in pursuance of law imposed upon or vested in him, or may be exercised by him by virtue of his office, or appointment or employment, or hia actual relation to the matter, shall be guilty of a felony, punishable by imprison- Penal Pkovisions Applicable to Officers. 621 ment for not more than ten years or bj a fine of not more than four thousand dollars, or both. [Penal Code, § 48 ] An executive officer who asks or receives any emolument, gratuity or reward, or any promise of any emolument, gratuity or reward, for omitting or deferring the perform- ance of any official duty, is guilty of a misdemeanor. [Idem, § 49.] An executive officer who asks or receives any fee or com- pensation for any official service which has not been actually rendered except in cases of charges for prospective costs, or of fees demandable in advance in the cases allowed by law, is guilty of a misdemeanor. [Idem, § 50. J § 5. Corrupt bargains for appointmenta to office. A person who gives or offers to give any gratuity or reward, in consideration that himself or any other person shall be appointed to a public office, or to a clerkship, deputation, or other subordinate positions, in such an office, or shall be permitted to exercise, perform or discharge any prerogatives or duties, or to receive any emoluments of such an office, is guilty of a misdemeanor. [Penal Code, § 52.J A person who asks or receives, or agrees to receive, any gratuity or reward, or any promise thereof, for appointing another person, or procuring for another person any appoint- ment to a public office or to a clerkship, deputation or other subordinate position in such an office, is guilty of a misde- meanor. If the person so offending is a public officer, a conviction also forfeits his office. [Idem, § 53. J § 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 appoint- ments or perform any of its duties, is guilty of a misde- meanor, and a conviction for the same forfeits his office and 622 Town and County Officers' Manual. disqualifies him forever from holding any office whatever under this state. [Penal Code, § 54.] A grant, appointment, or deputation, made contrary to the provisions of either of the last two sections is avoided and annulled by a conviction for the violation of either of those sections, in respect to such grant, appointment or deputation, but any official act done before conviction, in unafifected by the conviction. [Idem, § 55.J § 7. Wrongful intrusion into public o£Bce ; officer refusing^ to snx^ render to successor. A person who willfully intrudes himself into a publio office, to which he has not been duly elected or appointed, or who, having been an executive or administrative officer, willfully exercises any of the functions of his office, after his right so to do has ceased, is guilty of a misdemeanor. A person who, having been an executive or administrative officer, wrongfully refuses to surrender the official seal, or any books or papers, appertaining to his office, upon the demand of his lawful successor, is guilty of a misdemeanor. § 8. Neglect of public officer to perform duties of his office. A public officer, or person holding a public trust or employment, upon whom any duty is enjoined by law, who willfully neglects to perform the duty, is guilty of a misde- meanor. This and the preceding section do not apply to cases of official acts or omissions, the prevention or punish- ment of which is otherwise specially provided by statute. [Penal Code, § 11 7. J § 9. Misappropriation of public funds and falsification of publie 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 governm9at of this state, or of any bureau or fund created by law, in which the people of this state are directly Penal Provisions Applicable to Officers. 623 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 per- son not entitled thereto, without authority of law, any money so received by him as such officer, clerk or deputy, or other- wise; or, 2. Knowingly keeps any false account, or makes any false entry or erasure in any account of, or relating to, any money 80 received by him ; or, 3. Fraudulently alters, falsifies, conceals, destroys or obliterates any such account; or, 4. Willfully 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 willfully disobeys any provision of law regulating his official conduct, in cases other than those specified in that section, is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars, or imprisonment not exceed- ing two years, or both, [Idem, § 471. ] § 10. Public officers not to be interested in contracts. A public officer, or school officer, who is authorized to sell or lease any property, or to make any contract in his official capacity, or to take part in making any such sale, lease or contract, who voluntarily becomes interested indi- vidually in such sale, lease or contract, directly or indirectly, except in cases where such sale, lease or contract, or pay- ment under the same, is subject to audit or approval by the superintendent of public instruction, is guilty of a misde- meanor, f Penal Code, § 473.] 624 TowK AND County Officbes' Manual. CHAPTER LI. Fees of town and county offioebs. SEOnON 1. Fees and compensation of supervisors. 2. Of town clerks. 8. Of assessors. 4. Of collectors. 6. Of highway commissioners and overseen. 6. Of overseers of the poor. 7. Of justices of the peace. 8. Constable's fees. 9. Of town auditors. 10. Of election officers. 11. Of sealer of weights and measures. 12. Of pound masters. 13. Of county clerks. 14. Of sheriffs. 15. Of coroners. 16. Of county treasurer. § 1. Fees and compensation of supervieora. a. As town officers. The following are town charges: Compensation for duties performed, generally, per day [Town Law, § 178, ante, p. 429.] $3 00 For each day's services in the formation, alteration or dissolu- tion of school districts [Consolidated School Law, tit. 6, § 5, ante, p. 477] 1 60 For services as railroad commissioner, such sum as shall be fixed by the town board [L. 1889, oh. 402, § 5, post.] Supervisor can charge town for expenses necessarily incurred for the use of the town [Town Law, § 180, sub. 2, ante, p. 425], b. Aa county officers. The following are county charges : Compensation while attending sessions of the board of supers visors, or while actually engaged in investigations or other duties committed to them by the board (except in the coun- ties of Albany, Broome, Columbia, Erie, Oneida, Onondaga, Westchester and Richmond, in which counties provisions are made for compensation by special act), per day [County Law, § 23, ante, p. 501] 4 00 Mileage for once going to and from place where session of board is held, per mile [County Law, § 23, ante, p. 601] 08 Copying assessment rolls, as follows : For first 100 written lines, each line 08 Fees op Town and County Oppicees. 625 For second 100 lines, each line $ 09 For each written line in excess of 200 [County Law §, 33, ante, p. 501] 01 Extending tax roll, for each line extended [County Law, § 23, ante,p. 501] 01 Supervisors while in attendance upon duties, five miles or mora from the place of meeting of the board, are entitled to thei actual expenses [County Law, § 23, ante, p. 501] gS. Of town clerks. The following are town charges : Compensation for services performed for the town, each day [Town Law, § 178, ante, p. 439] 8 00 For services performed in the formation, alteration or dissolu- tion of school districts, each day [Consolidated School Law, tit. 6, § 5, anfe, p. 477] 1 60 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- tionalsale OS For entering the same 06 For searching for each paper [Lien Law (L. 1897, ch. 418), S§ 94,114.] 06 For filing and entering bond of school tax collector, chargeable to school district [Consolidated School Law, tit 7, § 80 ] ... . 26 Fees for records. Town clerks are required to search the files, papers, records and dockets of his oflBce and make transcripts thereof upon demand, and are entitled to the same fees there- for as county clerks [Code Civil Procedure, § 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 08 For a copy of an order, record or other paper entered or filed in his office, per folio 08 For a certificate other than a paper for the copying of which he is entitled to a fee [Code Civil Procedure, § 3304.] 25 Strayed animals. For recording notice, for each strayed animal [Town Law, § 131, ante, p. 181] 10 % 8t Of assessors. Compensation, chargeable to towns, for each day's services for the town in completing assessment [Town Law, § 178, ante, p. 439] '. 9 00 As fence viewers, compensation for services performed in set- 40 626 Town and County Opficers' Manual. tling disputes as to all questions submitted to them, per day [Town Law, § 104, ante, p. 175] $1 60 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, g 125, ante, p. 183] 75 §4. Of collectors. Fees on all taxes paid within thirty days from date of notice of receipt of assessment roU, on amount less than $3,000. ... 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, g 81, ante, p. 158] 3 per cent. Fees 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. 190] 100 § 6. Of high^ray commissioners and overseers. a. Highway commissioners. Compensation, for each day's services for the town [Town Law, §178, anfe, p. 439] 3 00 Fees as fence viewers, see assessors, ante. b. Overseers of highv>ays. For each hour employed in executing the duties of his oiHce in excess of the amount assessed against him for highway labor [Highway Law, § 24, aute, p. 292] „ 12^ § 6. Of overseers of the poor. Compensation chargeable to town for each day's service [Town Law, § 178, ante, p. 429] 2 00 § V. Of justices of the peace. Compensation, chargeable to town, for services rendered, per day [Town Law, § 178, aiite, p. 429] 8 00 ft fees in civil actions. In an action brought before a justice of the peace. For a summons 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 I 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 Fees of Town and County Officers. 627 For hearing an application for a commission to examine one or more witnesses $ CO 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 S5 For a venire 25 For empanelling and. swearing a jury 85 For hearing the plaintiff's evidence, where the defendant does not appear 25 For the trial of a demurrer S5 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 a judgment 26 For a copy of any paper for which a fee is not expressly pre- scribed law, for each folio $ 06 For an execution, or the renewal of an execution 25 For making a return upon an appeal from a judgment 2 00 For an order, directing an action or a special proceeding to bo continued before another justice 25 For services when associated with another justice, in any case where a fee therefor is not expressly prescribed by law, for each day actually spent 2 00 2. In a special proceeding, or an action not brought before a Justice of the peace. For a warrant, in case where a fee therefor is not expressly prescribed by law 25 For a warrant for the apprehension of a person charged with being the father of a bastard 60 For indorsing a warrant, issued from another county 25 For services when associated with another justice, in any case where a fee therefor is not expressly prescribed by law, for each day actually spent 8 00 For a precept or other mandate, whereby a special proceeding is commenced, in a case where a fee therefor is not specially prescribed by law 26 For a view of real property, in a case where it is required by law 60 For a warrant of attachment to an-est a deliquent juror or witness 26 For drawing, signing and depositing with the clerk, a minute or record of conviction of such a juror or witness, or of any person for contempt, in any case where a fee therefor is not specially prescribed by law 80 For an execution upon such a conviction before him 2S 628 Town and County Officers' Manual. For drawing, copying and certifying a bond, an unjiertaking, a recognizance or other written security, and filing tiie same with the county clerk or other officer with whom it must be filed $ 86 For a warrant of commitment for any cause ..•. 25 For a subpoena, including all the names inserted therein 30 For a precept to notify a jury 00 For empanelling and swearing a jury 20 For empanelling and swearing a jury in proceedings to alter or lay out a highway 2 00 For hearing the matter, concerning which a jury is called .... 00 For receiving and entering the verdict of the jury, and the order, if any, thereupon 26 For any service for which a fee is not expressly allowed by this subdivision, and for which, if rendered in an action before a justice, a fee is allowed by the first subdivision of this section, the fee allowed in such an action for the same service. For taking the deposition of a witness, upon an order made, or commission issued, by a court of record of the state, or a court in another state or territory, or a foreign country, for each folio 10 For making the necessary return and certificate thereto 60 For taking an affidavit or administering an oath [Code Civil Procedure, § 3322] 10 Fees in criminal cases. For administering an oath 10 For drawing an information 25 For taking a deposition of a witness on information 20 For issaing a warrant of arrest 26 For endorsing a warrant from another county 20 For each day's necessary attendance upon the hearing or ex- amination of the accused 1 00 For every necessary adjournment of the hearing or examina- tion 23 For a warrant of commitment 26 For a subpcena, including all the names inserted therein , 25 For each copy of a subpcena for service 10 For filing each paper required by law 06 For furnishing copies of papers in any proceeding, at the rate per folio 03 For each order or certificate 23 For drawing an undertaking of bail 25 For taking an acknowledgment [L. 1866, ch. 692, § 3, as amended by L. 1884, ch. 188] 26 Oorurts of special sessions, fees of justice. For a venire ,. 26 For swearing each witness on the trial..... JO Forswearing a jury 20 For swearing a constable to attend jury 10 For a subpoena, including all names inserted therein 25 Fees op Town and County Officers. 629 For a trial fee, per day $100 For receiving and entering verdict of jury. 25 For entering sentence of court US For warrant of commitment 35 For record of conviction and filing same 76 But all such charges in any one case shall not exceed five dollars, unless such court continue more than one day ; in such case the costs of such additional day may be added thereto. For return to any writ of certiorari, to be paid by the county. . 9 00 For services in bastardy proceeding, per day [L. 1866, ch. 692, §4] 8 00 No magistrate in a criminal proceeding shall charge or be allowed for more than six subpoenas in any one criminal case, nor shall any board of supervisors allow any charge for issuing or serving any subpoena in any criminal case or proceeding issued or served on behalf of the defendant. [L. 1845, ch. 180, § 18, and see Town Law, §§ 164, 165, ante, pp. 427, 438.] § 8. Constable's fees. Jji civil actions. 1. In an action brought before a justice of the peace, or In a justice's court of a city : For serving a summons SB For serving a summons and executing an order of arrest 1 00 For serving a summons and levying a warrant of attachment. . 1 00 For serving a summonsand aifidavit and executing a requisi- tion, in an action for a chattel 1 00 For serving an order directing the action to be continued be- fore a justice other than the one before whom it is pending and for attending before the latter 60 And in addition if he so attends with a person in his custody . . 60 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 after 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 2S 630 Town and County Officees' Manual. 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 50 Where witnesses, not exceeding four, are subpoenaed by any person other than a constable, the fee therefor is, each 10 8. In a spetfial 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 aotually 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 a 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 50 And in addition if he so attends with a person in his custo'l'- . 50 For arresting and commiting any person, pursuant to prowtst* 1 00 For subpcenaing each witness, not exceeding four 8S 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 Civil Procedure, § 3323J. In erimina'. cases. For serving a warrant 75 For each mile traveled, going and returning 10 For taking a defendant in custody on a writtimus 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, goii^g and re- turning 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 Fees of Town and County Officees. 631 For taking charge of a jury during their deliberations $ 60 For attending ajiy court, pursuant to a notice by the sheriflE, per day 2 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. 693, § 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. II, tit. 8, § 4, in part.] §9. Of town auditors* Compensation. In towns of less than twelve thousand inhabitants, for each day, not exceeding ten in any one year 8 00 In towns of more than twelve thousand inhabitants, for each day, not exceeding thirty in one y^ar [Town Law, § 176, ante, p. 431] 8 00 { 10. Of election ofiBcers. 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 a 00 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. 253, ante, p. 439]. § 11. Of sealer of weights and measures. Fees, payable by person for whom services were rendered : For reading and marking every beam 10 For sealing and marking measures of extension, per yard, not exceeding 10 For any one measure 60 For sealing and marking every weight 05 For sealing and marking liquid and dry measures for, each measure 10 He shall receive a reasonable compensation for making weights and measures conform with the standards in bis possession [Domestie Commerce Law, § 16, post}. 632 Town akd County Ofhcbes' Manual. § IS. Of pound masters. Fees: For keeping in the pound each horse or mule, not exceedins perday f 60 For keeping each head of cattle, not exceeding per day 25 For keeping each other beast, not exceeding per day [Town Law, g 133, ante p. 186] 15 For taking into the pound and discharging therefrom any horse, mule or head of cattle 15 For taking into pound and discharging therefrom any other beast [Town Law, § 179, ante, p. 430] 10 I 13. Of county clerks. Fees generally. A county clerk is entitled, for the services specified, except where another fee is allowed therefor by special statutory pro- vision, to the following fees to be paid in advance : 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 ... 05 For a copy of an order, record or other paper, entered or filed in his office, for each folio 08 For filing a transcript, and making an entry as prescribed in section 1258 of the Code of Civil Procedure 13 For issuing an execution upon a judgment, a transcript whereof, or of the docket of which, has been filed in his office, to be paid by the party at whose request the execution Is issued, and to be collected by the sheriff in addition to the Bum due upon the judgment 60 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 85 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 86 For affixing and indexing a notice of foreclosure of a mortgage as prescribed in section 8390 of the Code of Civil Procedure. . 26 For entering a minute that a mortgage has been foreclosed. ... 10 For filing and entering a satisfaction of an assignment of a judgment 13 For filing and entering the bond of a collector or other officer authorized to receive taxes 13 For searching for a bond 06 For entering a satisfaction thereof 13 For sealing any paper when required ; li For filing and docketing notice of a mechanic's lien 10 Fbes of Town and County Ofpiceeb. 633 For filing and entering specifications and all other papers re- $ lating to a lien against a vessel 25 For filing any paper required by law to be filed in his office, other than as expressly provided for in this section 06 For filing any paper deposited with him for safekeeping 06 For seaohing 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 t-he sufficiency of the sureties of a sheriff 60 For attending upon the canvassing of votes, given at an elec- tion 8 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 For notifying the governor that any person has taken an oath of oi&ne, 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 authorized to keep a ferry 25 But the county clerk is not entitled to any fee, under this section, tot 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 Civil Procedure, § 3304.] Fees as clerk 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. 80 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 . 06 Where, on an appeal from a judgment or order, a party shall present to the clerk a printed copy of the judgment or order 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 01 For a certified transcript of the docket of a judgment 12 634 Town and County Officers' Manual, For filing a transcript and docketing or re-docketing a judg- $ ment thereupon 00 For all services, upon the filing of a declaration of intention by an alien to become a citizen, including the oath or aflBrma- tiou, 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 Civil Procedure 12 3301,3303.] 60 Fees in criminal eases. (Chargeable to county.) For swearing a witness 06 For entering or respiting a recognizance 13i For calling and swearing a jury 19 For entering a sentence in the minutes kept by him 12^ For every certified copy thereof, and for a transcript thereof for the secretary of state 13^ 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, oh. II, tit. 8. § 6] 03 Otherfees. 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.] 60 For registering county bonds, for each bond [General Muni- cipal Law, § 9. J 35 For registering each physician 1 00 When registered in another county S5 For registering each dentist 1 00 When registered in another county 25 For registering each veterinary surgeon 100 When registered in another county. [Public Health Law, §§ 149,150,163,181.] 35 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 100 For each additional name of a partner beyond two 10 For a certified copy of certificate of partnership [Partnership Law(L. 1897, ch. 420), § 20.] 60 § 14. Of sheriffs. Fees generally : For service of a summons, for each person served 1 00 For going and returning, each mile 06 For levying a warrant of attachment 1 00 (Additional compensation may be allowed in the discretion of the court.) For making and filing a description of real property or an in- ventoiy of personal pi'operty attached, for each f elio 2S Fees op Town and County Officers. 635 For each necessary copy thereof, for each folio $ 13 For copy of mandate, summons, complaint, affidavit or other paper served by him, for each folio 12 Calendar fee 60 (But not more than $1.50 can be charged in one action.) For notifying jurors to attend writ of inquiry, to try the validity of a claim to personal property, etc., for each juror notified 25 For attending a jury in such a case S 00 For receiving and entering execution 50 For mileage upon an execution, for each mile, going 10 For collecting money upon an execution, warrant of attach- ment, &c. , on amount collected up to $250 2^^ per cent. On residue of amount 2 per cent. (Additional compensation in certain cases is in the discretion of the Oourt. Code Civil Procedure, § 3307, sub. 8.) For advertising sale of real or personal property by virtue of an execution, warrant of attachment, &c 3 00 If it is stayed or settled before sale 1 00 For duplicate certificates of sale of real property on an execu- tion, per folio 2S For drawing and executing a conveyance of real property 2 00 (The sheriS is entitled to printing fees for publication of a notice of sale of real property.) For returning any mandate 13 For certified copy of an extension and the return of satisfac- tion thereof 25 For posting and publishing the notice of sale, selling and con- veying real property by virtue of or direction in a judg- ment, the like fees as for the same services upon an execu- tion. But in an action to foreclose a mortgage the sheriff's entire compensation cannot exceed 50 00 For taking a bond for the liberties of the jail 1 00 For taking any other bond or undertaking 60 For a certified copy of a bond or undertaking 25 For executing a mandate requiring him to put a person into possession of real property and removing the person in pos- session 1 60 For each person committed to prison in an action or special proceeding 1 00 For attending before an officer for the purpose of surrendering a prisoner, or receiving into custody a prisoner surrendered in exoneration of bail 100 For attending a view, for each day 2 00 For traveling, going and returning, for each mile 08 For bringing up a prisoner upon a writ of habeas corpus 1 50 For traveling to and from the jail, each mile 12 (And also his necessary expenses incurred because of such writ.) 636 Town and County Officbrs' Manoai.. For any services which may be lendered by a constable, other f than those herein specified, the same fees as a constable for like services. (See Fees of constdbles, ante.) For notifying constables to attend a court, for each constablo notified SO For attending a term of court, which he is required by law to attend, for each day [C!ode CivU Procedure, § 3307] 8 00 Fees in proceedings for foreclosure of liens on vessels. For serving warrant i 1 00 For return of same 1 00 Necessary sums paid by him for the expense of keeping the vessel in custody, not exceeding, per day [Code Civil Pro- cedure, § 3439, as added by L. 1897, ch. 419] % 60 Fees in criminal proceedings. (County charges.) For every person committed to prison 87} For every prisoner discharged from prison 87} For summoning a grand jury for a (court of oyer and terminer or general sessions), now supreme court or county court. ... 10 00 For serving a warrant or performing any other duty which may be performed by a constable, the same fees as are allowed by law to a constable for such service. (See Fees of constables, ante.) [R. S. pt. FV, ch. n, tit. 8, § 1.] Fees for conveying conmcts to state prison or penitentiary. (Charge- able to state.) For conveying one convict to a state prison or penitentary from, for each mile actually traveled SO For conveying two convicts, for each mile so traveled 86 For conveying three convicts, for each mile so traveled 40 For conveying four or more convicts, for each mile so traveled, for each oonvift 18 For the maint. >,ice of such convict while on the way to a state prison or penitentiary, per day 1 00 But not exceeding for every thirty miles of travel [L. 1897, ch. 128] 1 00 The account, certified and attested as provided in the preceding section, shall be audited by the comptroller, and paid out of the treasury, unless otherwise provided. All the convicts who shall be sentenced to imprisonment in the same state prison, or to the same house of refuge, at one session of a criminal court, shall be transported at the same time, unless said court shall expressly direct otherwise. [L. 1847, oh. 497. §§ 4, 6.] § 16. Of coronersa Fees upon inc[u-est. The coroners in and for the State of New York, except In the conn* ties of New York and Kings, shall be entitled to receive the following compensation for services performed, chargeable to the county : Mileage to the place of inquest and return, per mile 10 Summoning and attendance upon jury 8 00 Fees op Town and County Officers. 637 Viewing body $5 00 Serving of subpoena, per mile traveled 10 Swearing each witness 16 Drawing inquisition for jurors to sign 1 00 Copying inquisition for record, per folio .... 20 But such officers shall receive pay for one copy only. For making and transmitting statement to board of super- visors, each inquisition 50 For warrant of commitment 1 00 For arrest and examination of offenders, fee shall be the same as justices of the peace in like cases. See Fees of justices of the peace, ante. [L. 1&7J, ch. tSS, § IX as amended by Ij. 874, 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 as 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 taking inquisition (except for one day's ser- vice 8 00 For performing the requirements of law in regard to wrecked vessels, for each day and fractional part thereof 800 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 800 For taking deposition of injured person in extremis [L. 1873, oh. 888, § 1, as amended by L. 1874, ch. 535.] 100 Fees of coroner as 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. 833, § 3, as amended by L. 1874, ch. 535.] 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 connty 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 juror? 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.] 638 Town and County Officbes' Manual. § 16. Of county treasurer. Fees as to moneys paid into court. For receiving money paid into court, upon the sum so re- ceived i per cent. For paying out the same, upon the sum so paid out i per cent. For investing money, pursuant to the direction of a court, upon the sum invested, not exceeding two hundred dollars ^percent. And upon the excess, over two hundred dollars i per cent. For receiving the interest upon an investment, and paying the same to the person entitled thereto, upon the interest so re- ceived and paid [Code Civil Procedure, § 3321] i per cent. Fees as administrator. For receiving and paying out all sums not exceeding one thous- and dollars 6 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 Civil Procedure, §§ 2668, 2730] 1 per cent. Fees for receiving and paying over taxes. The county treasurer may retain on all taxes paid and accounted 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 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 fifyty thousand dollars 5 per oent. On the next fifty thousand dollars ; 8 per cent. On all additional sums [Taw Law, § 237] 1 per cent. I 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 oent. In counties containing a city of the third class 2 per oent. In aU other counties, except those containing a city of the first olass [Ldquor Tax Law, § 14] Sper cent Miscellaneous Provisions. 639 CHAPTER LII. MiSOBLLANBOUS PROVISIONS; WEIGHTS AND MEASURES. Section 1. Town meeting may transfer duties of railroad commissioners to supervisor ; bond of supervisor. 2. Supervisor may cause dead bodies to be removed from one ceme- tery to another. 5. Neglect of town clerk to return names of constables. 4. Duties of state superintendent of weights and muaoaies. 6. Copies of standard weights and measures. 6. County sealer; duty of supervisors. 7. Town sealer. 8. Weights and measures to be sealed ; fees. 9. Delivery of standards to successor in office. § la Town meeting may transfer duties of railroad commissioners to supervisor ; bond of supervisor. Town meeting may vote upon proposition. Every town in which railroad commissioners heretofore appointed or elected under the 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 commis- sioners, 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 pre- scribed 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, § l.J Bond of supervisor to be filed. Within twenty days after the passage of such resolution 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 herinafter provided, and conditioned for the faithful per* 640 Town and County Officrrs' Manual. formance of the duties of railroad commissioners transferred to him under said resolution, and the payment over accord- ing to law of all moneys coming into his hands by reason of such transfer; such bonds also to be approved as to form and suflSciency of sureties by the county judge of the county in which said town is located. [Idem, § 2. J Copy of bond to be served on railroad commissioners ; rail- road commissioners to transfer moneys and property. Forthwith, upon the filing of such bond as aforesaid, the town clerk of the town shall indorse upon copies of such bond to be pro- vided 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 supervisor shall serve such copies and certificate upon the railroad commissioners respectively, and there- upon it shall be the duty of such railroad commissioners to pay over to such supervisor all moneys remaining in their hands as railroad commissioners of such town, and to deliver all books, papers and 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 sufiBcient 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 commis- sioner by the statute and proceedings under and by which they were appointed, and shall be subject to all the duties imposed upon such commissioner by such statute, and all securities and evidences of debt transferred by said commis- sioners 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 indorsement as supervisor, in the same manner and to the same efifect as if indorsed by said railroad commissioners. [Idem, § 3.] Penalty of bond to be fixed by town board. The board of town auditors shall meet for the purpose of fixing the penalty of Miscellaneous Pbovisions. 641 the bond of said supervisor, as provided in the second sec- tion of this act, at the ofiBce of the town clerk within ten days after the town meeting at which the resolution herein- before 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 two of this act, said board of town auditors shall take into consideration the amount of moneys likely to come into the hands of such supervisor 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, conditioned 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, § 4.J Compensation of supervisor. For the performance of the additional duties devolved upon him under the provisions of this act, such supervisor shall be entitled to a reasouable compensation, to be fixed by the board of town auditors of such town. [Idem, § 5.J § S. 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 cemetery 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 per- sons consent to such removal. The owners of such ceme- teries may remove the remains of deceased persons interred therein to any cemetery within such town, or to some ceme- tery designated by the persons who are next of kin of such 41 642 Town and County Officers' Manual. 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 § 8. Neglect of to^^n clerk to returnnames of constables* A town clerk who willfully 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 teu dollars. [Penal Code, § 161.J § 4. Duties of state superintendent of trelghts and measures. The state superintendent of weights 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 belonging 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 adjustment as may be necessary, and, as often as once in ten years, compare the same with those in his possession, and he shall have a general supervision of the weights and measures of the state. [Domestic Commerce Law (L. 1896, ch. 376), § 11. J § 5. Copies of standard iveights and measures. The state shall have a complete set of copies of the origi- nal 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 necessary in the comparison and adjustment of the county standards. He shall cause all the city and county standards to be Miscellaneous Provisions. 643 impressed with the emblem of the United States, the letters "N. Y.," and such other device as he shall direct for the particular county. [Domestic Commerce Law (L. 1896, ch. 376), § 12.] § 6. County sealer ; duty of supervisorsa There shall be a county sealer of weights and measures in each county, who shall be appointed by the board of supervisors and hold office during the pleasure of such board. He shall take charge of and safely keep the county stand- ards, 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 standards 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 there- with, and the expense thereof shall be paid by such town. [Domestic Commerce Law (L. 1896, ch. 376), § 13.] § 7. 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 pleasure. He shall take charge of and safely keep the town standards and see that the weights, measures and all apparatus used in their town which are brought to him for that purpose, conform to the town standards. [Domestic Commerce Law (L. 1896, ch. 376), § 14.] § 8. Weights and measures to be sealed ; feesa 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 bis posses- sion, he shall seal and mark such weights and measures with the appropriate devices. 644 Town and Cotjnty Oppiceks' Manual. 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, [Domestic Commerce Law (L. 1896, ch. 376), § 16.] g 9. Delivery of standards to successor in office. Whenever the state superintendent of weights and meas> ures resigns, is removed from ofiSce or removes from the city of Albany, or when any city, county or town sealer resigns, is removed from oflSce or removes form the city, county or town in which he has been appointed or elected he shall deliver to his successor in oSice 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 ofiSce such beams, weights and measures. In case of refusal or neglect to deliver such standards entire and complete, as in this sec- tion requried, 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 Bucb action shall be retained by the person so recovering, and the other shall be applied to the purchase of such stand- ards as may be required in his office. [Domestic Gommeroe Law (L. 1896, oh. 376), § 17.J INDEX. A. Abandoned highways Page when deemed •..•• 850 description of , to be filed • •• 860 Abatement of highway tax, for planting shade trees • 803 on account of watering trough • 803 for removal of fence to prevent snow drift ...•• 825 for erection of street lamps ••• 326 for use of wide tires • 326 Absconding parents or husband seizure of property of, for support of children or wife S54 warrant for 254 overseer may seize property 255 proceedings, &o 255-258 Abstracts of accounts against county, to be published 617 Accounts against towns, of town officers, town board to receive •• 418 statement of, to be filed •.... 418 auditing, meeting of town board for •• 418 certificate of rejection or allowance of •- 418 tobefiled 419 to be delivered to supervisor • 419 to be laid before board of supervisors 419 to be made in items 423 verification of •• 422 of justices of the peace in criminal matters 426 names of persons, and amounts, abstract of 480 against counties, presentation of, in certain counties 488 to be itemized and verified 4S9 unlawful presentation of • *%» 491 (645) 646 Town and County Officbrs' Manual. Accounts [Continued) Tags audit, imlawfvil, a misdemeanor 493 to be filed and pi-eserved • 616 amount audited and items disallowed, to be designated . . . 617 abstract of, to be published 617 of coroner, audit of 669 Actions electors at town meeting to direct prosecution of 21 special town meeting for raising money for prosecuting or defending 83 by and against towns, in name of towns 432 for trespass on town lands 432 against school officers 483 expenditures of town moneys, investigation into 697 waste, against municipal officers to prevent 698 illegal acts of town and county officers, to prevent 698 by or against county, in corporate name 616 Agent assessment of 114 of non-resident, to make statement of debts • 116 Alms-houses superintendent of the poor to provide and repair 198 to establish rules for government of 198 appointment of officers of 198 purchase of furniture, food and materials for 199 prescribe rate of allowance for bringing persons to 199 keepers of, appointment of 198, 201 powers of 199 pestilence or contagious disease in 203 register of, contents 206 record of inmates to be kept as prescribed by state board of charities 206 relief of poor person in, removal of, by overseer 210 removal of poor person to, expense of to be paid to overseer by county treasurer 212 removal of poor person to, order on county treasurer for ex- pense of 212 support of poor persons in ' 212 discharge of poor persons from 212 children not to be committed to, as vagrants, &c 289 mother and bastard, when to be removed to 250 erection and repair of 487 Indbx. 647 Alteration Page of boundaries of town by board of supervisors 3 application for 8 disposition of town property 4 Animals See Strayed animals. electors at town meetings may direct destruction of wild S3 may provide for impounding 33 laws and regulations respecting destruction of wild 486 Appeals from equalization of assessments to state tax commissioners. . . 133 proceedings upon 184 determinations of state board 184 costs on, to be fixed by state board 135 to county court, from decisions of county court as to settle- ment of poor persons, &c 384 from assessment of highway labor, by non-residents 398 Application for submission of propositions at town meetings 81 for holding town meetings in election districts S5, 86 Apportionment of school moneys, see School moneys; Library moneys. Assessment See Taxation; Assessment-roll; Assessors. deduction, not allowed for indebtedness fraudulently con- tracted 90 when made to occupant of real property 94 of corporate stock of corporations 97 deduction of value of real property 97,98 of stockholders of banks 99 of state lands in forest preserve 105 correction of , by comptroller 106 not valid until approved by comptroller 106 of shares of bank stock 107 deduction of value of real property 108 of individual banker 1 08 notice of, to banks 108 of agent, trustee, guardian or executor 114 of property omitted from assessment-roll in preceding year. . . . 115 of debts owing to non-residents ,' 115 hearing of complaints relating to 118 648 Town and County Officehs' Manual. Aasessment (Continued) Page apportionment of, by county court 120 proceedings upon 120 collector to correct assessment- roll upon order of court. . . . 120 equalization of, by board of supervisurs. (See Equalization.) 125 of rents reserved, review of, by board of supervisors 129 correction of , by board of supervisors 129 erroneous, refund of money on account of 130 property omitted because of, to be included in succeeding assessment'roll 181 tff highway labor, commissioner of highways to make 29') list to be copied by town clerk 297 appeals by non-residents 298 credit to persons living on private road 299 on lands not owned by occupant 299 tenant may deduct 299 persons or property omitted by assessors 800 new, when insufficient • 800 ABSessment-roU assessors to prepare 103 copy of to be filed with state comptroller, if town contains lands in forest preserve 105 real property of non-resident, how designated in Ill surveys and maps made by supervisor 113 corporations, how assessed on 112 property omitted, when to be included 115 completion of, notice to be posted 117 correction of by collector, upon order of county court 120 verification of, by assessors , 121 inspection of, when completed and verified 122 notice when and where may be made 122 to be delivered to supervisor 122 errors in, correction of by board of supervisors 129 property erroneously omitted from, to be included in subse- 181 quent 131 extension of, by board of supervisors 183 fees for copying 603 Assessors elected at biennial town meeting 10 termof office of 11 elected in 1898 and 1899 13,13 oaths of o£Qce 42 failure to execute 43 may divide tax district 103 to ascertain taxable property and names of owners 103 how to prepare assessment-roll 103 Index. 649 ors (ContintuS^ Page statements of banks to 106 of indmdual bankers 108 to notify banks of assessments 108 statements of corporations to be delivered to 109 penalty for omission to make 110 real property of non-residents, how designated Ill to notify supervisor to make maps and surveys of 113 to complete assessment-roll before August 1 117 notice of completion of assessment-roll to be filed 117 to bear complaints on grievance day 118 proceedings on hearings 118 verification of assessment-rolls, by 121 notice of completion and filing of assessment-roll for inspection 133 to apportion valuation of railroad, telegraph, telephone or pipe &e company among school districts 133 apportionment to be filed with town clerk 133 town clerk to furnish certified statement of apportionment to school trustees 133 to use forms prescribed by state tax commissioners. . 133 penalty for failure to perform duties 133 petition to board of supervisors for correction of errors in assessment-roll 139 fence viewers, duties, as (see Fence viewers i Fences, division).,, 171 dogs, names of owners to be annexed to assessment-roll ........ 189 duties of, under act providing state aid for improvement of highways 896 compensation of 439 jury lists, duties of, as to...' 460 Assistant district attorney appointment of 644 powers of 644 in Erie, Monroe and Bensselaer counties 645 Audit See Accounts ; Toum board ; Auditors. of town accounts, meeting of town board for. 413 by town auditors 419 form of , subject to 433 verification of, before 433 appeals, to board of supervisors, in case of accounts of justices and constables 433 ty hoard of supervisors 485 term defined 487 jurisdiction of 488 of rejected accounts 488 power cannot be delegated 483 unlawfully, a misdemeanor 49S of accounts of coroners 669 illegal', order restraining ...:..... 693 650 Town and County OFFiCBRa' Manual. Auditors, town See Tovm board ; Audit ; Accounts. Page term of office of , elected in 1 898 and 1899 13 oathof office 42 when to be elected 4^9 number and term of office of 419 audit of accounts by -. 419 not to hold other town office 419 temporary appointment of 420 compensation of 421 vacancy, in office, how filled 431 discontinuance of office 421 B. Ballot clerks qualifications SO appointment of • 81 Ballot macliiiies useof attown meetings 88 Ballots for vote on propositions submitted at town meetings 83 attown meetings, how formed S3 town clerk to furnish ; how prepared 83 Bankrupt goods; license for sale of 438 supervisor to issue 488 fees, to be fixed by town board 488 Banks assessment of shares of stock in 09 individual, place of taxation of capital 101 statement of financial condition to be made to assessors lOd contents of 107 form prescribed by state tax commissioners • 101 penalty for failure to make 107 lists of stockholder may be inspected by assessors lOT shares of stuck, how assessed 108 deductions 108 Individual, to report to assessors 103 designation of for d&posit of county funds (see County funds),, 620 Barbed -wire use of, for division fences 177 Index. 651 Bastards Page removal of mother, penalty for 243 support of mother 243 definition of 244 liability for support of 244 mother and child ) oor persons 244 to be supported as poor persons 245 proceedings in case of removal of mother of 244 mother and child not to be removed without her consent 246 overseer to notify superintendent, when mother and child liable to be supported by county 245 mother and, superintendent to provide for until taken charge of by superintendent, to be supported by overseers . . i 246 overseers to support whether chargeable or not 246 moneys received by overseers from parents, for support of .... 247 when chargeable to county 248 settlement of, disputes concerning 248 proceedings when chargeable to another town 249 support of, order of supervisor for 250 compromise with father of 261 Bicycles substances in highways injurious to 859 are deemed carriages 363 entitled to free use of highways 863 commissioners of highways not to pass certain ordinances relative to 863 Births registration of, local boards of health to supervise 453, 453 Boards of supervisors new towns, erection of , by 2 to designate time and place of holding first elections in . . . 2 boundaries of towns, may fix 2 application for, how made 8 resolution fixing, to be filed in office of secretary of state. . 3 town meetings, may fix time of holding 8 equalization of assessments by 126 may appoint commissioners for 126 may change descriptions of non-resident real property 128 may review assessment of non-resident owners of rents re- served 139 correction of errors in assessment-roll by 129 may correct manifest errors in assessment 130 refund of moneys erroneously collected 131 property erroneously omitted from assessment-roll to be in- cluded in subsequent roll 131 200 652 Town and County Ob>ficees' Manual. Boards of supervisors {Continmid) levy of taxes by •• 133 extension of taxes upon assessment-roll 132 receipts of taxes, to furnish 163 taxes on dogs, to impose 188 superintendent of the poor, may appoint 195 undertaking of, to be approved by 198 limitation of amount to be expended by superintendent of the poor town poor, amount expended for, to be added to tax levy 805 county poor, amount necessary for, to be raised 205 rules and regulations respecting temporary relief of poor 207 support of poor person to be charged to proper town 231 poor children, to take action as to 240 county and town poor, distinction between, may abolish 240 burial of indigent soldiers, sailors or marines .'. 263 headstones for graves of soldiers, sailors or marines 263 eovMty roads xystem, m&j si^oyt 809 designation and maps of 809 upon adoption of, county engineer to be appointed 809 to raise money for construction and maintenance of 810 to designate amount to be expended on 810- bonds to be issued for construction of. 810 application of proceeds of 811 arrearages for highway labor, to be levied by 819 Itridges, may aid towns in construction and repair of 369 over town line, levy of taxes upon towns for repair or re- building «f 875 may change location of 881 private, authorize construction of 881 destroyed by elements, provide for construction of 882 intersected by boundary lines, apportionment of expense of construction and maintenance 883 county share of expense to be paid to commissioners 883 outside of town, may authorize construction of 883 over county lines, to provide for maintenance of 884 county highways and bridges, duties as to 879 bridges and highways, may authorize towns to borrow money on account of 885 bonds issued for, how paid 886 streets and avenues outside of city limits in certain counties .. 887 survey of highways, may cause commissioners to make 888 toll rates, may regulate 888 highways in counties of o^'er 300,000, powers as to 389 non-resident highway taxes, appropriation of 890 vdde tire, may pay laws respecting use of 891 abandoned turnpike, plank or macadamized roads, may provide for use of 891 improvement of highways, resolution for, under state aid act. . 89? Befarda of supervisors (ConUrmed) Page resolution to be transmitted to state engineer 892 application for laying oiat turnpike roads 401 when to be made 401 hearing of 402 Commissioners to lay out turnpike roads 403 powers and duties of commissioners 403 to levf upon town, amounts of certificates allowing town accountjs 419 amount of indebtedness of towns on account of highways 433 BOhool commissioners, districts established by 478 .salary of, may increase 478 allowance for expenses of 478 meetiings of 484 members, penalty for failure to perform duties 485 jwwers of, generally 485 county property 485 audit of accounts 485 ■town charges, direct raising'moneys for 485 .taxes, assessment of 486 'SalarieS'Of county officers 486 -may borrow naoney 48S animals and weeds 486 fish and game.. 486 iSohuol commissioner "districts . 486 ^lountHy offices, opening and closing 487 penitentiaries, contracts with 487 'Undertakings, actions on 487 county buildings 487 jury districts 487 acts and resolutions of, how passed 495 -lorm and contents ^ , 495 to be published , 495 proceedings of, to be printed 49S newspapers for printing of session laws, how designated , 496 election notices, designation of newspapers for 601 compensation of members of 601 assessment-roll, allowance for copying 603 county records, to have charge of 502 copies of, may be made for publi ,,use ., . . 503 witnesses, examination of 603 committee of , powers of 603 adjournment of hearing by 604 warrant to compel attendance of witnesses 604 undertaking of witnesses upon ,.., 604 county buildings, change of location of .SQ5 action of, upon presentation of petition 605 Bdldi ers' monumeilts, appropriations for 606 canvass Of vdtes by • 607 654 Town and County Officbks' Manual. Boards of supervisors (Contirmec^ Page board of canvasseis, organization as (see Canvassers, county boardsof) 607 clerks of, general duties 616 to record proceedings of board 616 entries of resolutions 516 Tote of members, to record 516 accounts, file and preserve 616 audited and allowed, amount to be designated 617 papers and books, open to inspection 617 proceedings to be transmitted to state library .... 517 tax rolls, prepared by. 617 abstracts of accounts 517 indebtedness of county, town, village, city and school dis- trict to be reported to comptroller 519 statement of taxes against railroads, telegraph, telephone and electric light lines 519 penalty for failure to make report 520 undertaking of county treasurer, may require additional 622 surrogate's clerk, may authorize appointment of 647 surrogate, may appoint person to act as 548 may create office of 648 houses of detention for women, children and witnesses 577 work-houses, may establish 578 seals of • 593 Actions by, in official capacity 601 how designated in summons 603 issue of obligations by town and county officers, to authorize. . 610 county sealer of weights and measures, may appoint 643 Bonds of state or municipal corporation, when exempt from taxation. 84 county, for construction and maintenance of county roads. . . . 811 town, for highways and bridges 886 for erection of county buildings 486 mumcipaZ, how paid 605 retirement of, by new issue 606 how issued 607 registry of 607 coupon converted into registered 608 defects, not invalidated by 608 railroad, reissue of lost or destroyed 614 of towns, outstanding, supervisor to report 617 when paid, town board to cancel 618 Boundaries of towns, fixed by board of supervisors 9, 8 disposition of town property upon alteration of 4 debts of, how to be apportioned 6 Indbz. 655 Bonntlea Page on wolves and panthers .... 64 Bribery of executive offlceis 619 Bridges special town meeting for raising money for 23 repairs, commissioner to cause to be made 268 damaged or destroyed, commissioners may expend more than sum raised for repair 277 extraordinary repairs, audit of claims for 278 toll, commissioners of highways to examine 280 notice to repair 280 injuries to, treble damages for 358 breaking, town not liable for, if by wagon and load of over four tons 359 to be maintained at expense of towns 358 over boundary lines of towns, joint liability 368 over county lines, county to contribute 868 county aid to towns for construction and repair of 869 over town line, joint contracts for 370 refusal of commissioner of one town to rebuild or repair. . 371 action to recover amount expended by one town for benefit of others 371 application to rebuild or repair 373 order of supreme court requiring commissioners to rebuild or repair 373 commissioners may institute proceedings to compel repair or rebuilding of 374 order of court compelling commissioners to rebuild or re- pair S75 report to town board of proceedings taken 375 levy of taxes upon town for repair or rebuilding 375 appeals from order compelling repair or rebuilding 876 costs of proceedings 876 refusal to repair after notice 876 payment to person repairing 376 driving faster than a walk over 377 notice to be posted 377 penalty for violation 877 iron, certificate of state engineer as to completion of, accord- ing to contract 377 county, board of supervisors may construct, repair or abandon 879 change of location of, or construction, board of supervisors may authorize 381 destruction of by elements, board of supervisors may provide for construction of 889 656 Town and County Officbes* Manual. Bridges (Continued) ^age intersected by town and county lines, apportionment of ex- pense of repair or construction 883 county's share to be paid to commissioners ■ . . . 883 outside of town, board of supervisors may authorize oonstruo- tion of 888 over county lines, board of supervisors to provide for mainte- nance of -. S84 town bonds on account of 886 Briers in highways, to be destroyed .....•...•• 823 overseers to notify owners to remove. ••• 828 Brush inldghways, to be destroyed overseers to notify owners to remove.. Burial of indigent soldiers, sailors and marines S68 duties of local board of health as to 467 permits to be issued by local board 457 Burial g^ronnds See Cemeteries, trustees of , when elected S5 powers and duties of «. 25 to lay out lots 26 saleof lots by 26 when to belong to town ,.. 26 exemption of , from execution and taxation. 81, 84 laying out highways through », 845 a CaavasB of votes cast at town meetings 88 when town meetings are held in election districts 85 at time of general elections 89 ■tatements of, by inspectors, to be delivered to county board of canvassers .' 608 correction of clerical errors 609 statements of county board of canvassers , 610 Correction of errors in 609 transmission of , to secretary of state 613 Judex. 657 CanTassers, county board P^O board of supervisors to act as c .....•• 607 county clerk, secretary of 507 meetings of ., 607 delivery of statements of canvass by inspectors 608 clerical errors in statements, correction of 609 statements of canvass made by 610 correction of errors in 609 transmission of, to secretary of state 613 decision of, as to persons elected ... 613 to be written and filed in office of county elerk 613 Carriages meeting to turn to right S61 owners of public, liable for acts of drivers 863 tarn defined > 863 iCemetevies iSee Burial grounds. town, not to be sold or divided when boundaries of town axe altered 4 property of, exempt from taxation 89 streets or roads not to be laid out through 89 CharitiLble cerpora/tions exenipldons of property of, £rom taxation............ 8S {fharities, state 'board of reports of superintendents of the poor to SOS records of inmates ^f alms-housea, forms prescribed by, ....... SQ6 tihattel uortsrages to-be-filed in office of town cleric 70 feestheKafer 71 IChlldren settlement of, as poor persons.. ........ ..................... 223 poor, when not to be committed to alms-house........... .... 239 support of, in 'families and chairitable institutions. ........ 239 may be compelled to support parents 258 parents, .abandoning, seizure .... 88 Husband absconding, seizure of property of, for support of wife or children 254 warrant for 255 overseer may seize property of 253 proceedings, etc S65-358 678 . Town and County Officers' Manual. I. Idiots Paga superintendents of the poor to provide for supi)ort of 203 Impounding strayed animals doing damage 181 owners to be notified 182 duties of pound masters respecting 186 Injunction staying oollection of taxes, extends time of collection 164 Injuries to highways, actions for 284 to highways and bridges, treble damages for , 358 Inquest coroner's, jury to be summoned for 666 witnesses to be subpoenaed 666 compelling attendance 666 verdict of jury 567 testimony to be written and filed 667 Insane poor person, support of by relatives 258 Inspectors of election elected at biennial town meeting 10 term of office of 11 appointment of additional 18 qualifications of 20 when to act at town meetings 84 duties of, when town meetings are held at time of general election 80 must be able to read and write 41 Insurance corporations certain property belonging to, exempt from taxation 88 of town and county property 016 Intemperate drivers not to be employed 863 Intoxicated drivers of public carriages, to be discharged 862 Index. 679 J. Jail limits See Jails. Page Jail liberties See Jails. Jails erection of 487 support of prisoners in, a county charge 4:94 sheriff to have custody of 573 rooms in, number of 673 prisoners in, how kept 573 food for 674 employment of 574 commitments and discharges, records to be kept 575 United States, to be received 575 calendars of names of 576 not indicted, to be discharged 576 service of papers on 579 removal of in case of emergency 580 who may visit 578 physician, appointment of 578 liquors in 579 designation of, in another county 580 modification or revocation of 581 jail liberties, effect on 581 revocation of 683 civil prisoners in, how long confined 683 support of 684 sick, removal of 686 limits, how established 587 in certain counties 687 boundaries, how designated 588 going beyond, an escape 590 liability of sheriff for escape 690 liberties, civil prisoners, when entitled to 588 prisoner committed for contempt, confinement 691 Judgment audit of, against town for defective highway 285 Jurors to determine necessity for private road. See Private roads. . , . 853 lists of, to be made by supervisor, town clerk and assessors. . . . 460 duplicate to be made and filed 463 proceedings where county clerk does not receive 463 trial, qualifications of 460 who are disqualified , 461 exemptions from service 463 returned, to serve for three years 463 680 Town and CounI-y Opficess' Manual. Jurors (Continued) Page coroner's, number of •• 665 to be sworn •• 666 verdict of 567 coroner to report names of 570 fees 670 Jury districts establishment of, by board of supervisors 487 Jnstices of the peace elected at biennial town meeting 10 term of office of, elected in 18a8 and 1899 13 number of 14 term of 14 ballots for election of 14 in new towns, number elected 15 certificate of election of 16 presiding officers of town meetings 28 to maintain order at town meetings 28 canvass of votes by, when town meetings are held in election districts 89 when town meetings are held at time of general election. . 89 special constables, appointment of , by 89 oath of office. See Oaths of office 42,46 failure to execute 43 undertaking, form and contents 46 certificate of taking, filed with county clerk 46 official acts legalized, upon failure ro take oath or give under- taking 47 term of, when appointed to fill vacancy 57 copy of appointment to be filed in office of county clerk 67 fires in wood, duties as to 61 duties of , as fire wardens 64 as to bounties on wolves and panthers 64 election and appointment of, constitutional provisions 74 term of office of 74 removal of 74, 85 books of, when to be deposited with town clerk 75 when to be demanded by town clerk 78 not to buy demands for purpose of commencing suit 76 forfeiture of office for ^ a.... 4.. 77 vicious dog, may order to be killed j 194 accounts of, respecting the poor, settled by superintendent. . . . 199 accounts of, in criminal matters » j . 428 when town or county charge ^ i . .. 427 appeals from audit of, to board of supervisors » . . . 488 compensation of ; t 1 . . 429 feesof t'i6 Ikdbx. 681 Justices of the peace (Contirmed) Fage services of, in examination of felons, a county charge 494 coroners, when to act as 570 fees of 571 Xiand defined for use in tax law 78 owners may permit to lie open 173 lying open, owners may enclose upoq notice 173 Iievy of taxes by boards of supervisors 131 Ziibrary moneys apportionment of 466, 467 disbursement of , by supervisor 475 Liquor tax law county treasurer, dutiesof, under 630 compensation of, onaccountof 632 Liquors in jails .*..••.• 679 Loan commissioner not eligible to ofSoe of supervisor 41 Location of county buildings, change of 605 petition to board of supervisors for 605 submission to vote of county 606 Lock-ups town meeting may provide for erection of 25 use of 85 Lot payment of tax upon part of ...*•• 163 Lots subdivision of lands into, for taxation, abandonment .« 134 Lunatics superintendent of the poor to provide for support of S09 682 Town and Countt Offioebs' Manual. M. Hachmes, voting Page purchase of, by towns 37 Marines relief of poor. (See Veterans.) Uarriage certificates to be filed in oiBce of town clerk ••••••• 73 fees therefor •« • 72 marriages registration of , local board of health to supervise 453, 45o Harried ^omen settlement of. as poor persons 22i: when determined by that of parents 227 Mile stones erection of, by commissioners of highways 271 application for 271 turnpike companies to erect • ••...••• 273 Ministers property of , exempt from taxation 86 Misappropriation of public moneys , 023 Mobs liability of county for damages done by 616 Mother of poor children, when compelled to support S68 Munioipal corporations property of, exempt from taxation 81 bondsof 84 temporary loans, when to make 603 bondsof, retirement of 606 how issued 607 registry of 607 coupon converted into registered 608 Uyers* automatic ballot cabinet use of, at town meetings , 87 Indbx. 683 N. Non-resident lands Bags lists of to be made by commissioner of highways 894 Non-residents doing business in state, place of taxation 01 lands of, when taxed as 94 real property of, how designated in assessment-roll Ill surveys and maps of, made by supervisor 113 debts owing to, assessment of IIS real property of, board of supervisors may change description of. 128 ovTners of rents reserved, review of assessment 139 debts due to, enforcement of collection of taxes upon 148 warrant to be issued to sheriff 148 return of warrant by sheriff 149 appeals by, from assessment of highway labor 298 notice to perform highway labor, to agents 813 highway taxes, appropriation of, by board of supervisors 300 Nuisances town meetings may abate 2S removal of , by local board of health 455 recovery of expense 455 judgment a lien 455 sale of premises to satisfy lien 456, 456 examinations into complaints as to, by local boards 459 O. Oath of office of town officers , 43 failure to execute 43 form of 43 town officers may execute 44 justice's act legalized upon failure to take 47 validation of official acts before filing 64 of county officers 694 Obstruction of highways, penalty for 866 commissioners to notify owners to ^ 866 Officers acting as public, without having qualified 619 bribery of executive 619 prevention of performance of duties of 620 taking unlawful fees 620 appointments, corrupt bargains for 621 grants of rights to make 621 wrongful intrusion into office of 623 684 Town and County OF^FiCJtKs' Manuau Officers (Continued) Page neglect to perform duties 622 misappropriation of funds 628 contracts, not to be interested iu 623 Orchards laying out highways through 842 order of county court for 842 confirmation of order by appellate division 843 Overseers of highways commissioners to appoint 870 warn taxpayers to work highways 270 road machines, contract for purchase of , 273 gravel beds, acquisition of 275 general duties of 289 snow, removal of, from highways 290 penalties for failure to perform duties 291 commissioner to prosecute for 291 compensation of 292 list of taxable inhabitants to be delivered to town clerk 294 assessment-roll of highway labor to be delivered to 297 may add names to 297 new assessment, when highway labor assessed is insuflBoient . . 800 certificate of anticipation of highway taxes, because of side- walks 304 transfer of 305 performance of highway labor, notice for 318 notice, how served on corporations 318 to agents of non-residents 813 to be filed in ofi5ce of town clerk 818 to require teams and implements 316 excuse omissions to pef orm highway labor 310 list of persons not performing highway labor 817 accounts of, to be rendered to commissioners 819 contents of 819 weeds, brush and briers in highways, to notify owners to re- move 823 abatement of tax for erection and maintenance of street lamps. 820 for use of wide tire 826 Overseers of the poor See Poor; Settlement of poor, etc. elected at biennial town meeting 10 term of ofiSce of 11 elected in 1898 and 1899 13 electors of town may determine number of 17 may adopt resolution for appointment of 17 may determine to elect • 18 Index. 685 Overseers of the poor (Contimied) Page when appointed, undertaking of • 17 not to hold other town office •• 18 special town meeting, may make application for 23 qualifications 43 oaths of office 43 undertaking of, form and contents 48 surplus moneys arising from sale of impounded animals, if un- claimed, to be paid to 186 suits by, superintendent to direct commencement 199 accounts of, to be settled by superintendent 109 failure of, to make reports 307 expenses of removal and temporary relief of poor person, when to be paid by county treasurer 313 temporary relief, to apply to supervisor for order for 218 amount to be expended for, limited 313 examine monthly needs of poor 315 accounts to be settled once in three months 315 bills not to be settled unless verified 215 books to be kept by 317 entries to be made in 317 to be laid before town board 317 to be open to inspection at town meeting 217 itemized accounts to be presented to town board 317 to be filed with town clerk 218 statement of accounts of, to be made to town board 230 estimate of expenditures 230 town board to approve of. . .,. 320 to send persons bitten by mad dogs to Pasteur Institute 333 to give notice to overseer of poor of another town to support poor 238 proceedings instituted by, to determine place of settlement. . . . 239 hearings before superintendents 230 effect of failure to support person when notified by another overseer 231 person unlawfully removed, duties as to 336 proceedings upon 237 . denial of improper removal 237 effect of failure to deny 238 to pay to county treasurer town poor moneys when distinction between town and county poor is abolished 241 to notify superintendent whea mother of bastard is chargeable, to county 245 mother and bastard to be supported by, until taken charge of by superintendent , 246 ,to be supported by, whether chargeable to town or not. . . . 246 moneys received by parents of bastard 247 to acc9,unt to board of auditors 247 settlement of bastards, duties of as to 249 order for suppprt of bastard 250 686 Town and County Officers' Manual. O-verseeFs of the poor (Continued) Page removal of bastard to alms-house 250 compromise with father of bastard 361 may apply for order to compel support of poor relatives 253 absconding parents or husband, seizure of property 255 warrant for seizure 256 sale of property seized 25S redemption of property sold 257 compensation of 429 actions by, in official capacity 601 how designated in summons 603 successor, when to be substituted 603 P. Panthers bounties for kHIing....- 64 Parents absconding, seizure of property of, for support of children S54 warrant for seizure of property 254 overseer may seize property 255 proceedings, &o S56-358 Pastner institute persons bitten by mad dogs to be sent to 238 Peddling without a license, town board may prohibit 486 licenses to be issued 486 penalty for, without a license 487 a misdemeanor 437 Penalties to be prosecuted by supervisors 60 imposed on account of dogs, supervisor to collect 194 how applied 194 Penalty for failure of corporation to deliver statement to assessors 110 of assessors to perform duties 123 for neglect to repair toll bridge 280 for failure to perform duty, by overseer of highways 291 commissioners of highways to prosecute for 291 for neglect or failure to work or commute for highway labor. . 816 for idleness or faithlessness in performing highway labor 816 for failure of overseer of highways to present lists of persons not performing labor 819 for injuries to shade trees along highways 860 Index. 687 Penalty {Contintied) Kige for failure of carriage to turn to right 361 for employment of intemperate drivers on highways 863 for leaving horses untied 863 commissioners to recover penalties relative to highways 864 Penitentiaries contracts with, by board of supervisors 487 Pension money property purchased with, taxation of 81 Personal estate defined for use in tax law .............*• 79 Personal property defined for use in tax law ., 79 of corporations, where taxed ., 96 Pestilence in alms-houses, inmates to be removed 203 Physician jail, appointment of , ........u 678 Pipe line companies assessed valuations apportioned among school districts • • 1S3 Place of taxation See Taxation, Plank road corporations property of, exempt from taxation 89 Plank roads See Turnpikes ; Turnpike corporationa ; Toll rates. Plow purchase of, by highway commissioner 972 Poll clerk qualifications of SO appointment of 21 Poor See Alms-houses; Superintendents of the poor; Overseen qf the poor ; Board of supervisors, etc. town meetings may direct sums to be raised for support of . . . . S9 special town meetings to raise money for 28 superintendent of the poor to have superintendence of 198 688 Town and County Officers' Manual. Poop (Continued) Page settlement of, superintendent to settle disputes asto 199 county, relief of, outside of alms-house 200 superintendent may direct overseer to take charge of 203 town, amount expended for, to be apportioned by superintend- ent 204 amount chargeable to towns to be added to tax levy 205 county, superintendent's estimates 205 supervisors to raise money for 205 temporary relief of, rules and regulations 207 relief of, in alms-house, pei'sons to be removed 210 care of , not to be put up at auction 211 removal and temporary relief of, paid by county treasurer .... 213 temporary relief of, order of supervisor directing 213 not more than ten dollars to be expended for relief of, without sanction of superintendent 21S relief of, in counties having no alms-houses 214 order of supervisor for weekly allowance 214 when poor person has no settlement in town or county. . . . 215 town, needs of to be examined monthly by overseer 216 accounts, settlement of, by overseer 216 bills for support of, to be verified , 216 statistics, as to, town board to certify to superintendent 221 accounts of town o£Eicers, relative to 223 settlement, place of , how determined 220 how lost 227 of married women 230, 227 person not to be removed from town 227 to be supported in town or county where he may be 227 settlement of. to be determined by superintendents 229 proceedings for 229 hearings before superintendents 230 effect of failure to provide for support of, when overseer has been notified 281 board of supervisors to charge support of, to proper town 231 county, superintendents to determine who are 231 proceedings for 2S1 county, direction of superintendent as to support of 238 notice of overseer to superintendent as to support of 233 proceedings to determine as to support of 233 decisions of superintendents as to settlement, etc., to be en- teredinbooks •. 288 appeals from, to county court 234 unlawfully enticing or removing from one town to another, a misdemeanor 23S pemon unlawfully removed, how supported 23S notice to overseer of town or superintendent to take enlarge of 288 proceedings upon receipt of notice 287 denial of improper removal 237 Index. 689 Poor {Continued) Page effect of failure to deny 238 action to recover for support, in case of failure to deny. . . . 238 foreign, penalty for bringing into state 239 action to recover penalty 239 children, not to be committed to alms-houses 239 commitment of, to families and charitable institutions. . . . 239 tovni and county, board of supervisors may abolish or revive distinction between 240 overseers to pay town poor moneys to county treasurer. ... 241 money of towns, invested, to be applied to town expenses 243 mother and bastard supported as 244, 245 Xiroceedings in case of removal 244 persons, relatives of, may be compelled to support 258 overseers may apply to court for order 254 Poor persons See Poor. Poand masters electors at biennial town meeting may determine number of . . 21 how elected 27 duties of, respecting animals impounded 186 fees of 430 Ponnds electors at town meeting may establish 23 erection or discontinuance of 27 Priest property of, exempt from taxation 86 Private road credit on assessment of highway labor of persons living on. . .. 299 applicatio& for, to commissioner of highways 353 jury to determine necessity for, time and place of selecting . . . 851 application and notice of time and place to be served on owners 353 jurors, how selected 358 place of meeting of 853 to determine damages SS3 verdict of 854 deduction by, on account of discontinuance or alteration of highway 854 fees of 3S5 verdict of jury and certificate filed 854 damages to be paid before opemiitg... .......... 854 fees of jurors and commissioners paid by applicant 856 44 690 Town and County Oppicbks' Manual. Private road [Continued) Pag« verdict of jury, motion to oonfirm, vacate or modify 866 costs on new hearing, how paid 8™ used for what purpose 856 damages for building additional fences 868 adjournment of proceedings 856 Prisoners See Civil prisoners ; Jails, eto. sheriff refusing to receive 6^4 in jails, to be kept in 678 separation of 673 to be furnished with wholesome food 574 employment of 674 reading matter, to be furnished with • 675 commitments and discharges, records to be kept 675 United States, to be received 675 calendars of names of 67S not indicted, to be discharged 676 unable to pay fine to be discharged 677 Proceedings of boards of supervisors, to be printed 496 clerks to record 616 state library, to transmit copies to 617 Propositions submitted at town meetings, how determined 80 to spend over $500 to be by ballot 80 notice of propositions to be submitted 80 ballot boxes and ballots for votes on 31 vote upon, not requiring ballot, when town meetings are held in election districts 86 Public amusements town boards in certain towns may provide for licensing 480 Public buildings lease of to grand army post 449 Q. Qualification of public officen ........... 43 B. Bailroad commissioner abolish office of, board of supervisors may Oil term of office Oil compensation SU Index. 691 Kailroad commissioiier (Continued) Page oath and undertaking 612 may sell stock or bonds 613 annual report of 613 accounts and loans by 614 reissue of lost or destroyed bonds 614 supervisor, when to act as 639 bond of, when appointed to act as 639 Railroad corporation See Corporations. valuation apportioned among school districts 123 stsltement of amount of tax upon, clerk of board of supervisors to deliver to county treasurer 187 taxes payable to county treasurer 146 taxes upon, in towns bonded for construction, payable to county treasurer 146 Railroads towns may sell stock or bonds of 613 payment of bonds to 613 reissue of lost or destroyed bonds 614 Real estate defined for use-in tax law ,. 78 Real property ' defined for use in tax law 78 when taxed as non-resident 94 Reassessment of unpaid taxes •.... 160 of highway labor, days of not worked 800 Redemption af lands sold for unpaid taxes ....•..«. 167 Relief of poor See Poor. Religious corporations exemptions of property of from taxation 85 dwelling houses and lots < .•.••.......«« 86 Removal of town ofiScers • 66 of county oflScers, expenses of proceeding, a county charge. . . . 494 of county officers, by governor 69S proceedings for, evidence in 69fl order for...... 69fl 692 Town and County Officers' Manual. Repairs Page of highways and bridges, commissionera to cause to be made. . 268 Report of superintendent of the poor to state board of charities SOS failure of ofScer to make, respecting poor 207 Resignation of town officeia 6S Resolutions of boards of of supervisors 495 clerks to make entries of 610 Restrictions not to be imposed by board of supervisors or town board upon non-residents 488 Riots liability of county for damages done by 616 Road machine purohaae of, by highway commissioner 278 payments for, how made 278 purchase of , for town 274 repairs of 274 Sailors relief of poor. (See Veterans.) Sale of property for non-payment of taxes , 149 notice of 142 surplus of proceeds of, settlement of conflicting claims. . . . I44 action by claimant to recover , 144 . 48 of commissioners of highways 47 to file collector's undertaking in oflSce of county clerk 50 general duties of .... 69 to prosecute for penalties 59 receive and pay over moneys 59 account with justices of the peace and town clerk 59 to receive and present townaccounts >.••.. 60 attend meetings of boards of supervisors . 60 cause town surveys to be made 61 fires in woods, duties as to 61 in forest preserve, powers and duties 63 to be protector of lands, in towns containing state lands 62 to be ex officio fire wardens in towns not containing forest ; preserve 63 bounties on wolves and panthers, duties as to 64 corporations, lists of, to be forwarded to state comptroller ..,. j 66 boohs and papers, delivery of, by outgoing 06 proceedings to compel • 66 forfeiture for refusal 66 ▼otesof money to be del jverpd to, by town clerk.,.. .,.. , 68 non-resident real property, to make maps and surveys of ...... . 113 assessment- roU to be delivered to 123 apportionment of assessed valuations among school districts. . . 138 700 Town and Countt Ofpicbks' Manual. Supervisor {Continued) Page appeals for equalization of assessment 183 forms, rules, etc., prescribed by state board 183 proceedings upon 184 supplementary proceedings for collection of unpaid taxes 161 collector's undertaking, prosecution of 156 application of, for extension of time for collection of taxes ... 158 to receive moneys collected on account of dog tax 190 disposition of moneys received 190 to collect penalties on account of dogs 194 order of, for temporary relief of poor person 213 abstract of accounts of overseers of the poor to be reported to ' clerk of the board 233 order of, for support of bastard 260 extraordinary repairs of highways and bridges, certificate of Buditfor 278 statement as to expense of maintaining free bridge to be pre- sented to board 870 town bonds for highways and bridges, duties as to 880 turnpike company, consent to use of highways 400 certificates of town accounts allowed to be laid before board of supervisors 419 compensation of - 429 Statement of indebtedness of town on account of highways to be delivered to board 482 licenses for hawking and peddling, to endorse 430 for sale at retail of bankrupt or damaged goods 438 jury lists, duties of , as to 461 eehool moneys, certificate of apportionment to be presented to. 467 certificate of apportionment to be filed 468 to be paid to 468 to give bond before receiving 46U amount of, in his hands, statement to county treasurer 474 disbursements of 475 union free schools, payments to 470 accounts of, how kept 476 duties towards predecessor in respect to.. 476 payments to successor 476 to report to state superintendent, grants, devises or bequests made for benefit of schools 470 amount of gospel school bonds 472 school districts, to act in alteration or erection of 477 property and effects of, when changed 477 actions against, for failure to perform duties as to schools. .... 488 compensation of, as member of board of supervisors 601 actions by, in official capacity 601 how designated in summons 602 successor, when to be substituted 602 indebtedness of towns, to report 617 duplicate report to be presented to town meeting 618 Index. 701 Sapervisor (Continued) Page railroad commissioner, when to act as 689 bond as, to be filed 639 compensation as 641 removal of dead bodies from cemeteries 641 SnperviBOFs, board of See Board of supervisors. Supplementary proceedings for collection of unpaid taxes 161 Surgeons employment of, by coroners • 670 Surrogate election of 646 vacancy, filled by govei-nor 646 county judge as 647 clerk of : 647 temporary, who to act as 647 board of supervisors may appoint person to act as 648 ' compensation of ••• 648 fees to be reported to board of supervisors 548 office of, board of supervisors may create 648 compensation of 649 howpaid 651 seals of 693 Surveys, town supervisor to cause to be made ••• CO T. Tax on taxable transfers, duties of county treasurer 683 fees of county treasurer 688 Taxable transfers county treasurer, duties of, as to tax upon 683 feesof ^ 688 Taxation property liable to, unless exempt 80 exemptions from 80 property of United States 80 of state • 81 of municipal corporations 81 lands in Indian reservation 81 property exempt from execution • 81 702 Town akd Coukty Officbes' Manual. Taxation (Continued) Pag* property purchased with pension money, when entitled to 81, 82 bonds of state or municipal corporation 84 real property of religious or charitable corporation 85 firemen's associations, real property of 86 dwelling-houses and lots of religious corporations 86 agricultural societies, real property of 86 minister of the gospel or priest, property of 86 vessels engaged in ocean commerce 87 bonds, mortgages, etc., sent into state for collection 87 deposits in savings banks, etc 87 insiirance corporations, certain property of 87 hospital corporations, property of 88 cemeteries, lands and property of 89 plank road or turnpike corporations 89 lands sold or leased by the state subject to 90 deduction of, not allowed for indebtedness fraudulently con- tracted 90 place of, for non-residents doing business in the state 91 of personal property of residents 92 when determined by state board of tax commissioners. ... 92 of real property 94 of real property divided by line of tax district 95 owner may elect in which district 95 place of , of corporations 96 of toll-bridges and turnpike corporations 96 of corporate stock of corporations 97 deducting value of real property 97, 98 of shares of stockholders of banks 99 of capital of individual bankers 101 lot subdivision for, abandonment of 124 Tax commissioners, state appeals to, from equalizations of assessment (see Appeah; Equalization of assessment) 133 forms of petition ; rules relating to 183 proceedings and determination 184 costs to be fixed by 186 Tax district deflnitionof 78 assessors may divide ....^..... ..................a 103 Taxes collection of unpaid, in towns whose boundaries are altered ... 6 false statement relating to, a misdemeanor 124 levy of, by board of supervisors 181 collection of, warrant for 185 notice of collector of time and place of receiving 141 Index. 703 Taxes {Contimied) Page levy upon property of taxpayer for non-payment ..• 143 sale under 142 noticeofsale 142 disposition of surplus upon sale 143 settlement of conflicting claims as to surplus 144 assessed against bank stocks, collection of 145 upon certain corporations, paid to county treasurer 145 upon railroads in towns bonded for construction thereof, pay- able to county treasurer 146 against telegraph, telephone and electric light lines 147 levy upon instruments for 147 return of unpaid, to county treasurer 147 sequestration of property of corporations for 147 on rents reserved, enforcement of 148 payment of, by tenant 148 on debts due to non-residents, unpaid returned to county treasurer 148 warrant to sheriff for collection of 148 return of warrant 149 on personal property of persons moved from county, order of county court directing sheriff to collect 150 Bupplementary proceedings for collection of unpaid 151 tenant paying, may deduct from rental 153 on part of lot, payment of 152 payment of, on state lands in forest preserve 153 unpaid, return of, by collector 153 c ntents of return 153 form of ret'irn prescribed by state tax commissioners 153 Injunction staying collection of, extends time for collection. . . 154 payment of by collector to officers and persons specified in warrant 165 receipts for, to beflled , 165 failure to make 165 levy on property of collector for 165 county treasurer to pay out moneys recovered of col- lector..; 156 extension of time for collection of 157 sheriff to collect, in case of collector's failure to execute under- taking 169 unpaid, on real property, re-assessment of 160 rate of interest upon 160 to be added to tax-roll. 160 county treasurer to be charged with amount of state 161 fees of, on account of state 161 when to pay over stat 161 ■- " proceedings against, for failure to pay over , lea Josses of, for default of county treasurer or collector 163 receipts for payment of 163 obstructing officer in collection of 164 704 Town and County Officers' Manual. 'Taxes (Continued) Fagfl unpaid, of non-residents, when account of to be transmited to oomptroUer 165 sale of lands for, by county treasurer 166 list of lands to be sold and notice of sale to be published. . . 166 redemption Of lands sold for 167 conveyance of lands sold for, if unredeemed 168 list of lands sold for, to be transmitted to comptroller 169 on dogs, boards of supervisors to impose •• 188 rate when not fixed by boards 189 if unpaid, dogs may be killed 189 amount collected to be paid to supervisor 190 fees of collection 190 disposition of 190 when payment of, to be proved 191 for highway purposes, commissioner may cause vote to be taken for additional 376 abatement of, for planting shade trees • 803 on account of watering troughs 805 change of system of 806 when to take e£Fect 807 non-resident, appropriation of, by board of supervisors. . . . 390 school, when owner may pay to county treasurer 483 unpaid, how collected 483 Tax-rolls extension of, by board of supervisors 183 warrants attached to 133 delivery of, to supervisors of tax district 183 collector's warrants to be attached to 135 abstracts of, to be furnished to county treasurer 139 collectors to give notice of receipt of 141 Teams overseers may require to work on highways • , 816 Teleeraph companies See Corporations. assessed valuations apportioned among school districts 128 amount of tax upon, statement of 137 taxes payable to county treasurer 145 enforcement of collection of 147 Telephone companies See Corporations. assessed valuations apportioned among school districts , 182 amounut of tax upon, statement of 187 taxes payable to county treasurer 145 levy upon instruments for failure to pay 147 Index. 705 Venant Page payment of taxes by, deducted from rental 163 may deduct assessment for highway labor :..... 299 Term of o£3ce officer to hold over until successor qualifies . ...•• 13 of town officers elected in 1898 and 1899 13 Title to property trial of, by sheriff 660 Toll bridges place of taxation of 06 commissioner of highways to examine 280 notice to owners to repair 280 penalty for neglect to repair. S80 Toll rates board of supervisors may regulate as to bridges 888, 403 on turnpikes, regulation of 404 Town a municipal corporation 1 comprising what 1 alteration or erection of, by board of supervisors 2 boundaries of, may be altered by board of supervisors 2, 3 application for, how made.... 2,8 ' resolution fixing, to be filed in office of secretary of state. . 2, 8 disposition of property upon alteration of 4 debts of, how apportioned 6 collection of unpaid taxes 6 settlement as to disposition of property and apportionment of debts, how enforced 6 division of, into highway commissioner districts 267 liability of, for defective highways 284 action against commissioner for defect in highways 284 actions by and against, in name of 432 contracts in name of 483 water works, purchase of, by 444, 445 bonds issued for 446 grants, bequests or devises to, for benefit of schools 470 indebtedness of, to be reported to comptroller. •. 619 moneys, expenditures of, investigation into 697 temporary loans by 605 debt not to be contracted except for specific object 605 45 , 706 Town and County Opficbrs' Manual. Town {Contintied) Page bonds, how paid •.....,. .,, 605 retirement of , by new issue 606 town meeting may anthorize issue of 606 how issued 607 registry of 607 coupon converted into registered 608 defects, not invalidated by 608 indebtedness of, limit of 609 obligations of, issue of, authorized by board of supervisors .... 610 judgments against, payment of 615 insurance of property of 616 indebtedness of, supervisor to report 617 bonds and coupons, town board to cancel, when paid. 018 Town boards See Audit ; Accounts, disposition of town property by, when boundaries of towns are altered 4 meetings of, for disposition of property and apportionment of debts in towns where boundaries are altered 6 town meetings, may determine place of holding 8 appointment of overseer of poor by 17 may fix form and amount of undertaking of overseer of poor, when appointed 17 may divide town into election districts 84 sealer of weights and measures, appointment 40, 643 may fill vacancies in town oflSoes 67 books and furniture for town clerks, to be purchased with consent of 70 consent of, for appeals from equalization of assessment 18S to audit certificates of fence viewers as to damages to sheep by dogs 192 temporary relief of poor, to prescribe rules and regulations as to 207 books of overseer of the poor to be laid before 217 accounts of overseer of the poor to be audited 217, 318 approval of estimates of overseers of the poor 220 certify to superintendent of the poor statistics of poor persons 2Si road machine, commissioner may purchase upon approval of 274 stone-crusher, commissioner and, may purchase 274 extraordinary repairs of highways and bridges damaged or destroyed 277 audit of claims for 278 damages caused by defective highways, audit of claims for 285 report of highway commissioners to 285 and commissioners, to determine amount of highway tax under money system 808 lists of persons not performing highway labor, to be returned to board of supervisors 817 Index. 707 Town boards (Continued) Vagt constitution and regular meetings of •.. 416 meetings of, for receiving accounts of town ofScers 418 for auditing accounts 418 town auditors, temporary appointment of 430 audit of accounts of officers in criminal proceedings 437 appeals from to board of supervisors 428 traveling fees for subpoenaing witnesses, when to allow 430 abstract of names of persons whose accounts have been audited 430 highway purposes, may borrow money for , 431 statement of indebtedness created for, to be rendered t» board of supervisors 481 fire companies, outside of villages, may appoint members of. . 434 hawking and peddling, without a license, may prohibit • 436 retail sale of bankrupt or damaged goods, license fees for 438 unlawful restrictions upon non-residents 438 license hacks, vendors, shows, concerts and public amuse* ments 439 decoration day expenses, may vote money for 440 construction of sewers, apportionment of upon property bene- fitted 441 water supply district, may establish 443 water rents, duties of, if town votes to purchase 444, 449 street lighting district, may establish 447 soldiers' monuments, acquisition of lands for 449 lease of public buildings to grand army posts 449 local board of health, to act as 450 notice of membership, to give to state board 451 meetings of 451 to appoint local health officer 451 rules and regulations 451 may impose penalties for violations 453 legistration of births, marriages and deaths 453,453 cost of, a town charge 452, 453 jurisdiction over city or village 453, 454 expenses incurred by, a town charge 454 mandamus against 454, 459 nuisances, may remove 455 recovery of expense i 455 judgment, a lien on premises 465 examination into complaint, as to 459 burials and burial permits, duties as to 457 contagious and infectious diseajses, duties as to 467, 458 Vown charges damages and costs in laying out, alteration and discontinu- ance of highways 846 what are, generally 435 fees of officers in criminal proceedings 427 708 Town and County Officers' Manual. Town charges (Continued) Pagv expenses of registration of births, marriages and deaths 463 of town board of health 454 board of supervisors to direct raising money for •••• 486 Town clerk See Official oaths; Removal; Resignation; Town officers, etc. elected at biennial town meeting 10 term of office of 11 elected in 1898 and 1899 13 clerk of town meetings S8 notice of submission of propositions at towtt meetings to be given by 81 to provide ballot boxes for questions submitted 81 meeting at office of, for canvass of votes, when town meetings are held in election districts 85 oaths of office 43 books and papers, delivery by outgoing 06 proceedings to compel 66 forfeiture for refusal 66 neglect to furnish names 643 custody of records, books and papers 68 minutes of proceedings of town meetings 68 copies of votes of moneys to be delivered to supervisor 68 constables, names of, to be returned to county clerk 68 forfeiture for omission to return 68 purchase of furniture and blank books 70 sign for office of 70 chattel mortgages to be filed in office of 70 marriage certificates to be filed in office of 73 fees therefor.... 73 deputy, appointment of 78 compensation of 73 copies of papers filed with, evidence 1 78 books and papers of justices, when to be filed in office of 76, 76 apportionment of valuations of railroad, telegraph, etc., com- panies among school districts to be filed with 123 , certificate of, to be furnished to school trustees 128 assessment of highway labor, to copy and deUver to overseers of highways 207 compensation of 429 licenses for hawking and peddling, to issue 486 duties of, as to jury lists 460 feesof 626 Town house town meeting may vote money for , 84 sites for, purchase of 24 Index. 709 To^m meetings Page biennial, when held 8 time of holding may be fixed by board of supervisors 8 when held at time of general elections 8 town may vote to change time of holding 9 place of holding, how determined 9 town board may designate, in certain cases 9 when held at time of general elections 9 notice of, not required 27 town officers elected at 10 general powers of 21 may vote money for town house 24 for insurance and repair of town house 24 for construction of lockups 25 trustees of burial grounds 25 epedal, for what purposes called 23 application for by certain town officers, 23 notice of , contents and posting 27 justices of the peace, presiding officers of 27 to maintain order at 28 town clerk to be clerk of 29 duties of 29 duration of 29 challenges of persons oifering to vote at 29 poll list and minutes of proceedings to be filed 30 transaction of business not requiring a ballot 30 questions submitted, how determined 80 to expend over $500 to be by ballot 30 propositions to be submitted, application for 30 notice of, to be given by town clerk 31 ballots and ballot boxes for 31 proclamations of opening and closing polls at , 33 ballots for, how prepared 82, 83 town clerk to furnish S3 incorporated villages, electors of, when not to vote on high- way propositions 33 canvass of votes cast at 83 tJi election districts, electors may determine when to be held in, 34 canvass of votes 35 return to old system 35 vote upon propositions not requiring ballot 36 notice of submission of propositions 37 ballot machines, use of 39 canvass of votes, when held at time of general election 89 bonds, may authorize issue of 606 transfer of duties of railroad commissioner to supervisor 639 Town officers See Supervisors, Town derk, etc.; Undertakings; Cfficiat oaths; Resignation. elected at biennial town meetings 10 710 Town and County Offioess* Manual. Town officers {Continued) Page to be voted for on same ballot as oandidateg for other officers, when town meetings are held at time of general election. ... 10 to hold office until successor qualifies 13 applications by, for submission of propositions at town meet' Ings 81 eligibility of , 41 qualifications of 42 oaths of office ,.., 43 resignation of , to whom made , 65 removal of 66 vacancies, how created 66 appointment to fill, how made 67 omissions of, to be reported by county clerk to district attorney 68 compensation of 439 expenditures of money, investigation into 697 actions against, to prevent waste 698 to prevent illegal act 698 actions by, in official capacity SOI Trees owners may plant along highways 601 abatement of tax for planting shade 803 along highways, to whom belong 860 shade, injuries to 860 falling into highways, penalty for 666 fallen, to be removed S66 Trespass on town lands, actions for 488 Trustee assessment of • 114 Turnpike corporations property of, exempt from taxation ^ 89 place of taxation of 96 to erect mile-stones and guide-boards 273 hoist gates not to be erected by 273 use of highways by, consent of commissioner and supervisor .. 400 application to board of supervisors for use of 401 notice of, and hearing 401 commissioners appointed for laying out roads 403 loute laid out, to be route of road and held by ; 403 commissioners of highways to certify as to 403 compensation of 403 rate of toll, and gates established by 403 exemptions 403 gates, location of 406 proceedings for change of 405 Inbbx. 711 Varnpike corporat'ons {Continue ') Page inspectors of- turnpikes of, commissioners of highways as 408 route, change of 407, 403 Burrender of franchise, how made 4 8 road to revert to town, upon surrender of 408 encroachment of fences upon roads of 409 inspector to order removal 409 dissolution of 410 effect of failure to exercise functions 410 toads abandoned or not worked to become public highways . . . 410 dissolution, towns to pay for lands not originally a highway . . 410 highway labor along roads of 411 Turnpikes See Turnpike corporations. abandoned, board of supervisors may provide for use of 891 rates of toll 404 U. Undertaking* of overseer of poor when ax>pointed, form and amount of, de- termined by town board 18 of supervisor, form and contents 44 ^........ ....» a^. 486 Weights and measures state superintendent of , duties of 648 town sealer of 643 fees for sealing 643 714 Town and County Ofpicees' Manual. Wide tire Page abatement of highway tax, for use of • 828 board of superTisois may regulate use of ••• 891 Witnesses traveling fees for subpcenaing, when allowed by town board . . 480 examination of, by board of supervisors 603 coroner's inquest, subpcena of 668 compelling attendance of • 666 Wolves bounties for killing • 64 Work-honsea board of supervisors may establiah.... • 678 who may visit •... .••••••••..•.••••••• 678 Index. 715 INDEX TO FORMS. A. Aeeonnts Page book of, to be kept b7 overseers of the poor 219 of overseers of the poor to be rendered to town boards or com- mon council 220 of overseers of the poor for moneys received from putative fathers and paid out for support of bastard 247 of town officers, certificate of examinations of 424 presented to town board for audit, affidavit to be annexed to. . 425 of justice of peace against town in criminal matter 427 against county 490 county and town, statement of 618 Agent statement of 116 Application affidavit on, to correct assessment 120 for special town meeting 24 holding town meeting in election districts 86 for exemption from taxation 83 Assessment noticetobank of 108 Assessment-roll completed, notice of filing with clerk 122 and warrant, notice by collector of receipt of 142 B. Bastard accounts of overseers of the poor for moneys received from putative fathers and paid out for support of 246 agreement upon compromise with putative father of 251 Board of supervisors application to for laying out, etc. , of county highway 880 notice of to highway commissioners 880 proof of service of 381 order of, for laying out, etc., of county highway or construc- tion, etc., of bridge.,, 881 716 Town and County Ofpicees' Manual. Board of supervisors (Continued) Page notice of appeal to 429 or committee, subpoena by 603 statement of county clerk to «.. 639 Bonds resolution of board of supervisors authorizing issue of 610 Bridges to be rebuilt or repaired, consent of town board 277 consent of highway commissioners to rebuild or repair 871 affidavit for order to build 873 order of court to rebuild 874 a Calendar for courts, of prisoners confined in jail 676 Certificate of anticipation of highway taxes, assignment to be endorsed on back in case ottransfer 806 Certificate of supervisor and town clerk to be annexed to accounts ....... S79 Commissioner of highways undertaking of 48 account and certificate of 280 list of non-resident lands 294 order of, permitting planting of trees or construction of side- walks 802 Complaint that toll bridge is unsafe , 181 Constable undertaking ot 61 Corporations statement of, to assessors • 110 D. District attorney report of 644 Index. 717 DiTision fence Page certificate of apportionment of 174 notice to build or repair 17A E Exemption from taxation, form of application for 83 Extension of time for collection of taxes, application of supervisor for 168 order of treasurer granting 168 F. Fenoe destroyed by accident, notice to build m. 177 Fence viewers decision of, when transfer of title has been made 173 notice to choose 174 subpoena by 175 appraisement of damages by, for neglect to build or repair division fence 176 notice of sale by 181 meeting, notice to owners of 185 determination by 185 application to 191 H. Eigbway application to lay water pipes in , 883 consent to lay and maintain water pipes in 283 order for laying out or altering, with consent of town board 831 release of damages for, by owners of land 331 order laying out, on release from owners 331 dedication of land for, and release of damages 333 consent of town board to lay out or alter 333 application to lay out 833 to alter 334 to discontinue 834 laid out, altered or discontinued, affidavit of posting and serv- ing notice 888 to be laid out through orchard, commissioner's certificate to the county court for 843 order of county court to lay out 844 abandoned, description of 851 718 Town and County Officbes' Manual. Hn^way (Cmdinued) Page alteration, discontiniiance or laying out of, commissioners for, appointment of 835 order of appointment 8S6 notice of appointment S37 notice of meeting of 887 certificate of , in favor of applicant 880 denying application 340 notice of motion to confirm, etc 341 order confirming, etc., decision of 343 certificate of, to county court, for highway through orchard 843 order of appellate division 344 Hightvay commissioiier going out of office, oath of, on delivery of books, records, etc. . 67 certificate of, to the supervisor 824 notice of, to owner or occupant to remove fences 865 to remove obstruction or encroachment 867 statement of, to supervisor of expenses of bridges 869 of adjoining towns, notice to 871 consent of , to rebuild or repair bridge 871 of adjoining towns, petition of freeholders to rebuild bridge. . . 372 notice to, of motion for order of supreme court directing repair of bridge 873 Highway districts notice of division of town into • 268 Highway labor notice to corporations to perform 813 notice to agent of non-resident ..«. 815 Highway tax application to expend, for sidewalks 803 authority to expend for sidewalks 804 certificate of anticipation 805 certificate of abatement 806 J. Justice undertaking of ....• 46 certification of election of • 16 account of against town in criminal matters 427 N. Jfeglect or omission of duty, certificate of 128 Indbx; 719 Ron-residents Page appeal by, to county court from assessment of highway labor 298 notice to agent of 814 notice to, for highway labor, to be filed in the o£Sce of town clerk 814 0« Oath of o£Sce t formof 48 Overseers of highways ' •- -r, ,^ , . . ■ . new assessment by t ^ 801 return of, to highway conmiissioner 317 annual return of 820 report of to commissioners, of amount expended in cutting weeds 823 Overseer of the poor undertaking of 49 going out of office, oath of, on delivery of books, records, etcb 67 reporter..... 222 accounts of, for moneys received from putative fathers and I paid out for support of bastard 247 Poor person removal of, to the county poor house, order of the overseer of a town for i 211 superintendent's order to pay expenses incurred by overseers previous to removal 212 supervisor's order for temporary relief of 214 expenditure of a greater sum than ten dollars for, sanction of county superintendent for 214 order for supplies to, and verification of accounts for audit. . . . 216 relieved, form of overseer's book showing statistics relating to 218 having residence, notice from one town to another (in a county where the towns are liable to support their own poor), re- ^ quiring the overseers to provide for support of 228 alleged settlement of, notice of overseer of the poor to appear before superintendent of the poor and contest 229 settlement of, decision of superintendents concerning 230 •- subpoena in case of dispute concerning 230 after re-examining on application of overseers, decision of superintendents 282 notice of decision of superintendents as to <....... 234 notice of appeal to county court from decision of superin- tendents of the poor 234 removal of , notice of denial 238 fromatowpi, city or countyj notice of improper removal 887 720 Town and County Offiokks' Manual. Private Foad Page application for .< 863 B. ReUef of poor soldiers, etc., notice of commander of post of Grand Army of the Eepublio as to 261 of veterans, request of officers of Grand Army posts for 263 Statement of agent •• 116 of corporations, to assessors • 110 Strays notice of , for town clerk •• 181 notice to owners of 1B2 Supervisor generial bond or undertaking of 46 going out of 'office, oath of, on delivery of books, records, etc. . 67 report of, to clerk of board of supervisors in towns where all the poor are not a county charge 23? bond of , on account of school moneys • 470 annual report of, of town indebtedness 617 T. Taxation highway, application for change of system of •• 807 Taxes statement of, upon certain corporations 188 unpaid, affidavit to be attached to collector's return of 164 application of supervisor for extension of time for collection of 168 Tax-rolls abstract of 189 Tax sale by collector, notice of ••<•*..•• 144 Tires wide, affidavit of use of •.....«• 827 Toll bridge notice to owners of , to repair....... .••••••• S81 Index. 721 Town auditors Page appointment of , by town board 421 Town board request for special session of, to audit expenses t... 278 commissioners' report to first meeting of ^.„^ 286 commissioners' report to second meeting of 287 appointment of board of auditors by 421 account presented to, for audit, affidavit to be annexed to 425 To'wn clerk going out of office, oath of, on delivery of books, records, eto. . 67 To'wn collector undertaking of 40 Town meeting special, application for 24 notice of 27 in election districts, application for holding 63 Town office appointment to fill vacancy in 58 notice of appointment to 68 Town officers resignation of > 65 accounts of 423 certificate of examination of 424 U. Undertaking general, of supervisor 46 of justice 46 of commissioner of highways 48 of overseer of the poor 49 of town collector 49 of constable 61 W, Warrant of collector 126 Weeds brush and briers, notice to occupant to cut 823 rJPfca^gp^^g^