^fe^ *cl^ "^SAX^. * 3' /)« /9/a dJorn^U ICaui irl^Dal ICibrarg KFN575o!a3'i918"'""*'"-*"'^ Bender's manual :Sui fimSS!Sii..P°""^ll an 3 1924 022 870 541 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/cu31924022870541 SPECIAL BOOKS FOB COUNTY OFFICIALS Supervisors, Town Clerks and Village Clerks of the State of New York BENDER'S MAKUAL, 9th Edition $10.00 BENDER'S JUSTICES' MANUAL, 3rd Edition 7.50 BENDER'S HEALTH OFFICERS' MANUAL 2.00 BENDER'S PENAL LAW & CRIMINAL CODE 5.00 BENDER'S TAX COLLECTORS' BOOK FOR SCHOOL DISTRICTS 1.00 BENDER'S VILLAGE LAWS, 6th Edition 6.50 BENDER &. HINMAN'S CONSTABLES' GUIDE 1.50 BIRDSEYE, GUMMING & GILBERT'S CONSOLIDATED LAWS, Second. Edition, 9 volumes 75.00 GUMMING & WEBSTER'S ANNOTATED TAX LAWS, 5th Edition 5.00 FINEGAN'S SCHOOL LAW, 12th Edition 2.00 GILBERT'S ANNOTATED CODE OF CIVIL PROCEDURE. 2nd Ed. 10.00 GILBERT'S CRIMINAL LAW AND PROCEDURE 10.00 GRIFFIN & CURTIS ON CHATTEL MORTGAGES AND CONDI- TIONAL SALES, 2nd Edition 3.00 HUDDY ON AUTOMOBILES, 4th Edition 5.50 JEWETT'S ELECTION MANUAL, buckram, 6.00 paper, 4.50 PARSONS' CODE OF CIVIL PROCEDURE 5.00 RAY ON MECHANICS' LIENS & BUILDING CONTRACTS 5.50 SKINNER'S NOTARIES' MANUAL 2.50 TAX LAW OF NEW YORK 2.00 For sale by all Law Booksellers, or the Publishers, Matthew Bender & Company, Incorporated, Law Publishers, Albany, N. Y. . BENDER'S MANUAL SUPERVISORS', COUNTY AND TOWN OFFICERS' MANUAL CONTAINING THE COUNTY, TOWN. HIGHWAY, GENERAL MUNICIPAL, TAX AND POOR LAWS IN PULL AND ALL OTHER STATUTES OP THE STATE OP NEW YORK, RELATING TO BOARDS OP SUPERVISORS, TOWN BOARDS, COUNTY AND TOWN OPFICERS, AND THE APPAIR8 AND BUSINESS OP COUNTIES AND TOWNS, AS AMENDED TO THE CLOSE OF THE LEGISLATURE OP 1918 WITH DECISIONS, ANNOTATIONS, EXPLANATORY NOTES, CROSS REFERENCES, FORMS, A DIGEST OF FEES OF COUNTY AND TOWN OFFICERS, AND A TIME TABLE SHOWING TIMES WHEN THE DUTIES OF SUCH OFFICERS ARE TO BE PERFORMED BT FRANK B. ^ILBERT OO-EDITOB OF THE CONSOLIDATED LAWS OP WEW TORK, ANNOTATED NINTH EDITION ALBANY, N. Y. MATTHEW BEISTDEK & COMPAITY, INCOEPOEATED, 1918. 11601 Copyright, 1899, By MATTHEW BENDSB Copyright, 1903, By MATTHEW BENDER. Copyright, 1900, By MATTHEW BENDER & CO, Copyright, 1908, By MATTHEW BENDER & CO. Copyright, 1910, By MATTHEW BENDER A CO Copyright, 1912, BY MATTHEW BENDER & COMPANY. Copyright, 1914, Ht MAT'i'HEW BENDER & COMPANY. Copyright, 1916, By MATTHEW BENDER & eWMPAJ-Y, Incorpobated. CopYiuGirr, 1918, By MATTHEW BENDER & COMPANY, Incorpobated. NOTE TO NINTH EDITION. Constant and numerous changes in statutes relative to the powers, du- ties and liabilities of boards of supervisors, county and town oflScers, and concerning the affairs of counties and towns and the districts therein, make it absolutely essential that this manual should be revised at least once in each period of two years. The modification of existing laws and the enactment of new provisions are so numerous, extensive and important that county and town ofiBcers and others interested in county and town matters may not safely rely for guidance on the former edition of this manual. The legislatures of 1917 and 1918 were confronted with many new problems, arising from existing abnormal political and economic condi- tions due to the war, and have enacted laws materially affecting the transac- tion of county and town business. These laws have to do with the legis- lative and administrative powers of boards of supervisors, the construction of public improvements, the financing of all public enterprises, the grant- ing of public aid to the poor and defectives and the raising of money for state, county and town purposes. These laws have naturally been made as amendments of the county, town and general municipal laws, the poor, insanity and state charities laws, the tax law, the highway law, and all other general laws relating to counties and towns. The subjects, scopes and purposes of these laws are so numerous and varied that it would be impracticable to enumerate them. It is enough to assert that they are of such vital importance and of such wide effect as to make a new edition of this manual indispensable at this time. FKANK B. GILBERT. Albany, N. Y., September 2, 19-18. NOTE TO EIGHTH EDITION. Since the last edition of this manual was published in 1914 many important changes in the laws relating to the powers and duties of county and town officers and boards of supervisors have been made by amend- ment of existing laws and the enactment of new laws. The Tax Law and the Highway Law have been materially amended; modifying the pro- cedure and changing or increasing the duties of county and town officers in respect to tax assessments and highway construction and maintenance. There has been a substantial modification of the laws relating to public health, conduct of elections and town meetings, support of the poor and relief of dependent children and widowed mothers, and many other subjects. These changes are of sufficient importance and extent to render it unsafe for public officers and others interested in county and town affairs to depend upon the former edition of this manual as a guide. It has been the policy of the publishers, justified by an experience extending over a period of nearly twenty years, to revise the manual as often as once in two years, so that there may be available for the practical use of those engaged actively in municipal transactions a complete and reason- ably up-to-date collection of statutes, with references, decisions and explanatory notes, pertaining to the administration of county and town governments. This edition is published in accordance with this establshed policy. It is entirely new in some respects, retaining the arrangement and method of treatment of former editions. It is anticipated with confidence that it will be received with favor by those entrusted with official duties in our towns and counties and others interested in municipal matters. r. B. G. Albany, N. Y., October 10, 1916. NOTE TO FIFTH EDITION. Since the last edition of this manual the legislature has enacted a com- plete consolidation of the general laws of the state, known as the Consoli- dated Laws of New York. The effect of this consolidation was to change the numerical order of all sections of the chapters of the General Laws, and to add thereto all general statutes pertaining to the same subject matter. The result is that the Town Law, County Law, Highway Law, Tax Law, Poor Law, and other laws relating to town and county business and affairs are entirely different in form from those laws as they existed when the former edition of this manual was published. This is in itself sufficient to justify the publication of a new edition. But since the last revised edition was published in 1908 many important changes in these laws have been made. New methods of county and town administration have been adopted. Many duties and powers have been added to those already possessed by county and town officers. On this account the publi- cation of a new edition has become an absolute necessity. We have inserted in this edition a great many laws which were not in- cluded in the former editions. We have referred to all the recent decisions of the court in their proper places. Many new forms have been adopted. We have endeavored by many cross references to aid the officer in his search for all the law on the subject which interests him. The explanatory notes at the beginning of all the important chapters will indicate concisely the important duties of county and town officers. They are for the purpose of explaining in simple language the scope and extent of the powers and duties of town and county officers. This is a new feature, which it is hoped will prove valuable. P. B. S. Albany, N. Y., November 1, 1910. NOTE TO THIRD EDITION. The second edition of this manual was published in the summer of 1903. Since that time many important amendments to the laws relating to the rights, powers, duties and liabilities of town and county oflScers have been enacted, and a number of controlling judicial decisions have been rendered bearing upon those laws. A glance at the table of the laws of 1904, 1905 and 1906 which have been included in this edition will indicate the constant changes affecting the administrative laws of towns and counties. This new edition is published in pursuance of the purpose to prepare and publish a revised edition of this manual at least once in three years. It is believed that town and county officers will find this revised edition of the manual useful if not absolutely essential. F. B. G. Albany, September 1, 1906. PREFACE. The purpose of this manual is to present in a logical manner all the laws of the state pertaining to the transactions of county and town businef;s, and the rights, powers, duties and liabilities of boards of supervisors and county and town officers. As is indicated by the table of contents, the manual is divided into parts, and each part again subdivided into chapters. This arrangement permits of a careful and scientific classification of the laws relating to the topics under consideration. In the chapters devoted to the exclusive powers and duties of the several county and town officers, cross references are made in their proper con- nection to other parts of the manual, where other duties are prescribed in connection with those of other officers. These references join together the several laws, and parts of laws, so that all the powers and duties of the several officers may be readily ascertained. The editorial notes and citations of authorities, containing frequent extracts from judicial opinions, are included in foot notes, so that the law as enacted by the state legislature may be clearly distinguished. The manual is based upon statute law, for the reason that county and town rights and obligations, and the powers and duties of county and town officers, are of statutory origin. The notes are to aid in the interpretation and application of these statutes and are, therefore, properly subordinated "to them. A large number of appropriate forms are appended, with references to them by number in connection with the statutes under which they are to te used. A schedule of the general laws and other statutes contained in the manual is inserted immediately after the table of contents, for the purpose of showing readily the pages where the several sections of such laws and statutes can be found. This manual contains all the general laws and statutes pertaining to counties and towns, the administration of their affairs and the powers and duties of their officers. Statutes relating to any one county or town officer cannot be considered without reference to other officers, because their power's and duties are interlaced and dependent, the one upon the other. "For instance, a county board of supervisors cannot act intelligently upon a PREFACE. matter pertaining to the Jiighway system without a knowledge of the duties of highway commissioners. It may safely he said that a county or town officer who is familiar with the requirements of his office, must also know, to a certain extent, the rights and duties of other officers. It fol- lows that a complete guide for the use of any one or more county or town officers must contain all the statute law of the state generally applicable to all of such officers. The chief aim has been to make this manual easy for use by county and town officers, who may be business men but not lawyers, and, there- fore, not learned in the law. In accomplishing this purpose it would be strange if its value to lawyers has been lessened. The statute law is included as it is; the explanatory notes and comments may be taken at their actual worth; they are the result of the careful and conscientious labor of the editor, who has had a somewhat extended experience in the consideration of the state statutes. Albany, N. Y., September 1, 1903, FRANK B. GILBERT. CONTENTS. PART I. COUNTIES; BOARDS OF SUPERVISORS. Chafteb. page, I. Counties as corporations 1 II. Organization, meetings and proceedings of board of super- visors 8 III. Audit by board of supervisors; county charges ii IV. General powers of boards of supervisors r publication of session laws; removal of county buildings; other powers 51 V. Boards of supervisors as boards of county canvassers S3 VI. Clerks of boards of supervisors 94 PART II. COUNTY OFFICERS; JAILS AND PRISONERS; LOAN COMMISSIONERS; COUNTY HOSPITALS. Chapter. page. Vll. County treasurer 99 VIII. County comptroller; county auditors 118 IX. County clerk ^ 125 X. District attorneys, county attorneys, county judges and surro- gates 136 XI. Sheriff and coroners; powers and duties 152 XII. County jails 174 XIII. Civil prisoners; jail liberties 189 XIV. Coi-ofler's inquest 199 XV. United States deposit fund ; loan commissioners 205 XVI. County hospital for tuberculosis 216 XVI-A. Local boards of child welfare 223a XVII. Provisions generally applicable to county officers 224 V VI coJSTi!;:s"rs. PART III. TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Chapter paoe. XVIII. Towns ; erection and alteration 232 XIX. Town meetings 242 XX. Town officers; election and terms 280 XXI. Town officers; eligibility, oaths of office, undertakings, vacancies, resignations 297 XXII. Supervisor as town officer; general duties 320 XXIII. Duties of town clerk generally 335 XXIV. Justices of the peace; general duties as town officers; police jus- tices in certain towns 346 XXV. Compensation of town officers ; miscellaneous provisions as to town officers 352 XXV-A. Transactions of town business in certain towns adopting pro- visions of Article VI-A of Town Law 358b XXVI. Town houses; lock-ups; town cemeteries; pounds 359 XXVII. Local improvements 369 PART IV. TOWN BOARD. Chapteb. page. XXVIII. Auditing of town accounts; town charges; town finances 371 XXIX. Licenses by town boards ' 400 XXX. Fire protection; water, light and sewer systems; sidewalks 410 XXXI. Other powers and duties of town boards; garbage 436 XXXII. Town board as local board of health 439 XXXII-A. Duties of town officers in respect to vital statistics 462a XXXII-B. Parks and playgrounds in certain towns 462q PART V. Chapteb. XXXIII. XXXIV. XXXV. XXXVI. XXXVIl XXXVIII. XXXIX. XL. PAGE. Taxable property and place of taxation 463 Mode of assessment 508 Assessment of special franchises 547 Duties of boards of supervisors as to assessments and taxation; equalization of assessments 656 State tax depai'tment; equalization hy state board; appeals from supervisors 572 Collection of taxes 579 Sales by county treasurer for unpaid taxes and redemption of lands 'Old 613 Mortgages of real property within this state 621 COIsTKNTB. Vll PART VI. DIVISION FENCES; STRAYED ANIMALS; DOGS. Chaptee. page. XLI. Division fences; duties of fence viewers 635 XLII. Strayed animals doing damage; duties of fence viewers 644 XLIII. Dogs, duties of town and county officers relative to 651 PART VIL RELIEF OF POOR. Chapter. page. XLIV. Superintendent of the poor; alms-houses 666 XLV. Alms-houses; powers of state board of charities 684 XLVI. Support of the insane, idiots and epileptics 689 XLVII. Education and support of the blind and the deaf and dumb 705 XLVIII. General powers and duties of overseer of the poor in respect to relief of poor ". 712 XLIX. Settlement and place of relief of poor persons 727 L. Support of bastards 743 LI. Support of poor persons by relatives; absconding parents or husband 754 Lit. Relief of veteran soldiers, sailors and marines 767 LIII. The state poor 772 LIV. Distinction between town and county poor and other miscel- laneous provisions relating to the poor 779 Chapteb. LV. LVI. LVII. LVIII. LIX. LX. LX LXI. LXII. LXIII. LXIV. LXV. LXVI. LXVII. LXVIII. PART VIII. HIGHWAYS AND BRIDGES. PAGE. Definitions and classification 786 Department of highways 791 District or county superintendents 801 Town superintendent; general powers and duties 808 Highway moneys ; state aid 850 State and county highways 875 A. Improvement of highways with federal aid Maintenance of state and county highways 900 Laying out, altering and discontinuing highways; private roads.. 906 Bridges ^^^ Ferries ^^^ Miscellaneous provisions 961 Saving clauses; laws repealed; when to take effect 974 Duties of boards of supervisors as to highways and bridges 97& Railroads crossing highways 991- vm CONTENTS. PART IX. SCHOOLS; DUTIES OF TOWN AND COUNTY OFFIOERS. Chaptee. page. LXIX. Schools and school moneys, duties of town and county officers in respect thereto 1001 LXIX- A. Farm schools in counties 1025a LXX. Gospel and school lots 1026 PART X. JURORS. Chaptee. LXXI. Grand and trial jurors; commissioners of jurors. PAGE. . 1029 PART XI. PROVISIONS RELATING TO COUNTIES AND TOWNS. Chaptee. page. LXXII. Actions by and against town and county officers 1043 LXXIII. Town and county finances and property 1057 LXXIV. Penal provisions applicable to towns and county officers 1082 LXXV. Miscellaneous provisions ; weights and measures 1087 LXXV.-A. Forests ; prevention of fire 1090e LXXVI. Fees of county and town officers 1091 PART XII. TIME TABLE FOR TOWN AND COUNTY OFFICERS. TABLE OF LAWS. •SHOWING PAGES OF THIS MANUAL WHERE SECTIONS OF LAWS MAY BE FOUND. Law. Page. L. 1876, ch. 331, § 2 710 L. 1884, ch. 275, §§ 1, 2 711 L. 1894, ch. 93, § 1 711 L. 1897, oh. 269, §§ 1-3 953 4, 5 954 L. 1899, ch. 441, § 1 1036 2, 3 1037 4-7 :... 1038 8-10 1039 11-13 1040 14-17 1041 L. 1911, ch. 634, §§ 2, 3 211 Code Giinl Procedure, §§ 100, 101 164 102, 103 165 108 168 109 169 110, 111 189 118 192 127 193 131, 132 186 133, 134 192 138, 139 187 140-142 188 149 194 150 195 151-155 196 156, 157 198 159 197 934..., 345 1925 1048 1926, 1927 1056 1928-1930 1056a 1931 lOS&b 3144-3147 348 3313 1041 3314, 3315 1042 Code Criminal Procedure, § 25 182 132 347 Law. Page. Code Criminal Procedure, § 222-d 182 229-a 1029 229-b-229-d 1030 229-f 1031 229-g 1031 229-r 1031 773 199 774 203 775-777 200 778-781 201 782-787 202 788 203 789-a 203 790 203 838, 839 745 899 759 900, 901 760 914 755 915, 916 756 917 757 918, 919 758 920 759 921 760 922 761 923-925 762 926 763 Agricultwal Law, § 90 461 131 652 132 652 133, 134 653 135, 136 654 138 655 139 656 139-a-139-l 657-664 Civil Rights Law, § 22 192 Oonservation Law, § 52 1090h 53 10901 54 1090] 55 10901 56 1090m 60. 1090e 62 1090h 62-a 1090f ii 193 665 X)V TABLE OF LAWS. Law. Page. Constitution. Art. 3, §§ 26, 27 10 Art. 6, § 17 346 Art. 8. § 10 1066 County Law, § 3 1 4 2 5 4 6 7 10 11 10-a 15 10-b 16 11 17 12... 26, 53, 349 13 1065 14 1069 16 66 16 563 17 21 18, 19 21b 20 66a 21 68 22 69 23 18 23-a 20b 24 27 25 35 26 21d 27 22 28-30 23 31 69 32 70 33, 34 71 35 235 35-a 236a 35-b 236b 36, 37 237 38 74 39, 40 80 41, 43, 44 81 45 216 40 219 47 219a 48 219c 49, 49a 220 49-b, 49-c 221 49-d 222 49-e 222 50 94 51 96 53 97 54 98 61 979 62 981 63 983 64 982 65-67 984 68 985 Law. CoiDili/ Law, Paci:. § 70 !"S(i 71, 72 ilS« 73-76 llSil 77-80 990 90 17r> 91, 92 17S 93 180 94, 95 181 96, 97 182 98, 99 183 100, 101 184 110 651 HI 652 112, 113 653 114 654 115-118 65.") 119-122.. •65ti 123, 124 657 125 658 126, 127 65!) 128 660 129 661 130-132 662 132a, 133 663 134 664 135, 136 665 140 100 141 103 142 104 143, 144 lOS 145, 146 109 147, 148 110 149, 151 Ill 152 112 153 113 160 120 161 127 162 129 163 130 163-a 130 164 131 165 132 166, 167 133 168 134 169 131 180 154 181 150 182 157 183 174 184 158 TABLE OF I.AWS. XV Law. Page. County Law, § 185 160 186, 187 161 188, 189 162 190, 191 163 192 163, 203 193, 194 164 195 169 200 137 201 139 202, 203 140 204, 20-5 143 210 82, 144 215, 216 124 220 668 221 671 230 145 281 146 232 147 233 151 234 118 235 119 236 121 237, 238 122 239, 239a 123 240 37, 191 241a 21 242 50 243 224 244 144, 225 245 225 246 226 2-47 227 248 144 Domestic Relations Law, §§ 13, 14 342 15 343 16, 19 345 20 135 Education Loajo, §§ 123, 124 1015 138, 139 1016 140 1015 340 1021 341 1022 360 1013, 1026 361, 362 1027 363 1008 364 1009 365 1010, 1013 380, 381 1017 382, 383 1019 Law. Page. Education Law, § 388 1020 389, 390 1021 414 1016 427-429 591 430, 431 592 433 ■ 1022 434, 435 1023 430-438 1024 490, 491 1002 492 1003 493 1004 494, 495 1006 496-498 1007 499-501 1008 520 1010 521-523 1011 524, 525 1027 526-528 1028 610, 611 1025a 612, 613 10251) 614, 615 1025c 616-618 1025d 619, 619a 1025e 619b 1025f 850 1011 851-853 1012 855-857 1025 971, 972 705 975 706 977, 978 709 979, 980 710 991-993 707 I0O4-1006 708 1007 709 Election Law, § 127 273 128 274 302 293 311 294 312 295 316, 318 271 319 272 332 275 ?40 276 341 277 342 27R 393-395 278 396, 419 279 430 84 431, 4:32 85 XVI TABLE OF LAWS. Law. Page. Election Law, § 433 86 437 88 438 90 439 92 iieneral Business Law, § 11 1088 12 1089 13 1090 15, 16, 16a 1090a 16b, 17 1090b 17a-17c 1090o 18, 18a 1090d 32 402 60, 61 407 62-64 408 Oeneral Municipal Law, § 3 1065 4 1043 5 1058 6 1059 7 1060 8 1061 9 1062 10 1063 11 1064 12 1065 13 592 14 1072 15 1073 16 1071 17, 18 1074 19, 20 1075 21 1081c 22-29 1081 51 1045 52 1069 53-55 1070 70, 71 1076 72 436 72a 438j 74 1078 77 , 436 77a '. 437 77b 437 78 1079 80 408 81 403 85 405 85a 405 Law. Page. General Municipal Law, § 86b 1081d 87 782 88 1081c 90 1081(1 120 438a 120a-120b 438b 148, 149 223a 150-152 223b 153 223d 154, 155 223e Highway Lom, §§ 1, 2 788 3 789 10, 11 792 12, 13 793 14 794 15 795 16 797 17 798 18 793 19-21 799 22 800 23-25 800a 30-32 802 33 803 40 289, 810 41 289, 811 42 289, 812 43 290, 812 44 290, 813 45, 46 814 45a 814 47 815 48 821 49 822 50 824 51 824a 52 824b 63, 53a, 54 827 55 828 56, 57 829 58, 59 830 59a, 60 832 61 833 62, 63 835 64, 65 836 66, 67 837 68 838 69-71 839 72, 73 840 TABLE OF LAWS. XVII Law. Page. Highway Law, § 74 842 75 843 76, 77 844 78, 79 845 80 846 81, 82 847 90 853 91 855 92 856 93 857 94 861 95, 96 862 97 863 97a 865 98 865 99, 100 866 101 867 102, 103 868 104, 105 869 106, 107 871 108-110 873 111 874 120-122 877 123, 124 878 125 879 126, 127 880 128, 129 881 130 882 131 885 132 887 133, 134 888 135 889 136, 137 890 137a 892 138 892 138a 894 139, 140 894a 141 894b 141a 894d 142 894f 142a 894i 143 894g 144, 145 894h 146 894i 147 894j 148^ 149 894k 149a, 150 8941 151, 15Z 895 153 896 154, 165 897 156-159 898 16a 899 161-168 899 170 900 170a 901 170b, 170c 901 171 902 172, 172a 903 Law. Page. Highway Law, §§ 173, 174 904 175, 176 , 905 177-179 905a 180 905b 190 907 191 908 192 911 193 912 194 915 195, 196 917 197-199 919 200 921 2:01, 202 924 203, 204 925 205 927 206 928 207, 208 929 209, 210 930 211 931 212-215 932 216-219 933 220-224 934 225, 226 935 227-229 936 230, 231 937 232-234 938 235, 236 940 237-239 941 240 942 250 945 251-253 947 254 948 255 949 256 950 257, 258 951 259-262 952 262a 953 263 954 264, 265 965 266 9o6 267, 268 957 269 957 269a-269j 957a 270 958 271-274 959 320 9G1 320a 963 321-324 963d 325-327 964 328, 329 965 329a, 330 966 331, 332 967 333 969 334-336 970 337-340 971 341, 342 972 343, 344 973 xviii TABI.E OF LAWS. Law. Page. Law. Highway Law, Penal Law, § 343 973 §1 350, 351 974 352-354 ilT.T 355 976 356, 357 977 Insanity Law, § 82 689 84 690 85 691 86 692 87 603 88 697 94 698 Judiciary Law, §§ 400, 401 166 402-405 167 406-409 168 500-502 1032 503 1033 Poor Law, 505 1035 I 506 1036 509-512 1035 546 1033 Legislative hair. § 48 66d Lien Law, §§ 232, 233 339 234 341 238 340 Liquor Tax Law, § 10 114 11 116 Memhership Corporations Law, § 77 1087 171 487 197 409 Military Law, § 115 167 Penal Law, § 1791 185 • 1820-1822 1082 1820a 1082 1823-1826 1083 1829 1083 1830 1084 1832-1834 1084 Page. 1835-1836 1I1S.5 1838 17:^ 1839 172, 19S 1840 173 1841 108.-) 1848 107 1852, 1853 348 1854-1856 349 1859 1087 1860-1862 135 1863, 1864 36 1865 1085 1866 1086 1867 114 1868 1086 1869 l.-i.-) 1870 612 1872 :ir 2321 .-)411 3 (i71 4 67.". 5, 6 676 7, 8 677 9, 10 678 11, 12 (IT:- 13 680 14 681 20 714 21, 22 716 23 717 24 718 25 719 26 720 27 722 28 724 30 72.-. 40 729 41 731 42 732 43, 44 734 45 73.-. 46. 47 73li 48, 49 737 50, .51 7:iS 52 740 53 741 54. f)-) 742 50 682 57 781 TABLE OF LAWS. l-AW. Page. Law. Poor Law, § 60 744 61 745 62, 63 746 64^67 747 68 748 69 749 70, 71 750 72, 73 75: 74 752 80 767 81 768 83, 84 771 85 771a 86, 87 771c 90 772 91, 92 773 93-95 774 96-98 775 ' 99, 100, 101 77C 102, 103 777 104 778 115, 116 685 117, 118 686 119-121 687 130 763 131, 132 764 133-135 765 136, 137 766 138 779 139 780 140 781 141 724 142 680 143 716 146 782 Prison Law, §§ 340-344 191 347 178 348, 349 185 351 186 352, 353 187 354 186 355 192 356 187 357, 358 193 359 194 360 193 Public Health Laic, § 20 442 20a 443d 21 443d Public Bealth Law, § 21a ... 21b .. , 21e ... 25 .... 26 . . . . XIX Page;. 447 448 450 450 453 27, 28 457 29, 30 458 31 454 32 456 34 459 35 459 36 461 36a 452 37 461 340, 341, .342 725 370-394 462a Public Officers Law, § 3 .... 5 .... 11 ... 12 . .. 15 ... 30 . .. 301 284 312 313 314 316 33, 34 229 35 230 35a 231 36 315 Railroad Laic, § 89 991 90 992 91 994 92 996a 93, 94 996b 95 1000 96, 97 1000a State Charities Law, § 17 703, 784 68 700 69, 70 70Oa 94, 109 701 110 702d HI 703 387 785 450, 451 783 452 784 State Finance Law, § 81 ... 82 ... 83 ... 208 206 207 XX TABLE OF LAWS. Law. Page. Law. Page. Tax Law, §§ 84, 85 207 §§ 47, 48 554b 86 208 49 555 87, 88, 89 , . . . 209 50 558 90, 91 210 50a, 51 559 92 211 52, 53 560 54, 55 561 55a 566 56 561 56a 563 57 566 58 567 59 568 60, 61 570 62 571 69 583 69a, 70 584 70a 585 70b 611 71 ; . . . 585 72 589 73 590 74 594 75 595 76, 77 596 78, 79 600 80-82 601 83 602 84 603 85 605 86, 87 606 88 807 88a, 89 608 90-91 609 92 610 Tax Law, § 2 465 3 471 4 472 5, 6 488d 7 489 8 492 9 496 10 497 11 499 12 500 13 503 14 505 15 506 16 488 17 48&b 20 512 21 513 21b 520 22 521 23 522 24 522a 24a 522b 24b-24d 522c 24e 522d 24f, 24g 523 25, 26 525 27 525 28 526 29 527 93,94 611 100 613 150 614 151 615 151a 616 152 616 153-154 617 39 543 l.i.n-157 618 40 544 158, 159 619 41 545 170 572 42 546 170a-170c, 171 573 171a, 171b 575 172, 173 576 45d 554 l"3a 577 45e, 45f 554a 174 ' 578 175 578a 30-33 528 34 533 35, 36 535 36a 537 37 537 38 541 44 549 45 552 45a-45c 553 46 554a TABLE OP LAWS. xxi Law. Page. Law. Page. Tax Law, Tovm Law, § 176 578b §§ 5Q, 51 260 176a 578c 52-54 261 177 578d 55 262 177a, 178 578e 56 287 222 116 57, 58 262 237 116 59,60 263 240 116 61 264 250 621 62-64 265 251 622 65 266 252, 253 623 66 268 254 624 67 260 255 625 68 270 256 626 69 261 257, 258 627 80 281 259 628 81 299 260 629 82 282 261 633 ■ 83 301 262 633 84 315 263 634a 85 352 264 634c 86, 87, 87a 354 297 541 88 303 298 597 90 . , 355 299 598 91 356 301, 302 599 92 33(i 303-305 604 92a 338 306 595 93 339 307 589 94 288 96, 97 338 98 320 Town Law, 99 326- § 2 233 100 304 10 395 xoi 305 11 393 102 284 12 396 103 286 13 311 104, 105 288 105a 289 106 305 107 384 107a 384 31 239 107b 384a 82, 33 240 108 355 34 241 110 368 40 244 111 307 41 :: 246 112 290 *^ „,, 113, 114 307 42,43 247 ^^^' g^g 44 282 jjg 310 45 252 117 292 46 253 118 293 47 254 . .121 356, 637 4g "" . 255 122 349, 356 49 .'. 258 123 350 14 318 15 306 30 238 XXll TABLE OF LAWS. Law. Toivn Law, Page. § 124 3.51 125 358 127 358a 129 431 130 318 131 374 132 376 133 377 133a 382 135 437 136 397 136a 399a 137 399 138 396 138a 397 139 399a 140 438j 141 398 142 358b 142a 358a 143 358b 144, 145 358e 146 358d 147 358e 148, 149, 149a 358f 149b, 149c 358g 149d 358h 149e 358i 150, 151 391 152, 153 392 154 393 155 390 156, 157 393 170 388 171 384b 175 386 176 390 177 382 190-195 1080 210 401 211 402 212-214 404 215 405 216-218 406 219 407 230 425f 230a 426a . 231 426b 323-235 427 Law. Tovm Law, Page. 236, 237 428 238-241 429 242, 243 430 244 431 250 432 251, 252 432 253 433 254 434 255 435a 260 425b 261, 261a 420c 262, 262a, 263 425d 264 425e 270, 271 415 272-276 416 277-280 417 281 414c 282-285 418 286, 287, 287a, 288... 419 288a-290 420 291-296 421 297, 298 422 299 423 300-305 424 310 411 311-313 412 313a, 313b 413 314 413 314a 414 314b, 314c, 315 414a 316, 317 414b 320-322 438a 330 362 331, 332 363 334 364 335-337 365 340 359 341, 350 361 342-348 462q 351, 352 362 360 637 361 638 362, 363 639 364, 365 640 366, 367 641 368 642 369 643 380 644 TABLE OF LAWS. jLxiii Law. Page. Law. Page. Town Law, Transportation Corporations Law, § 381 645 § 81 414d 382-384 646 141 486 385-388 647 389, 390 648 Village Law, 391-393 649 §§ 2, 3 331 394, 396 650 4-6 332 410 296, 367 7-9 333 411 296, 367 23 334 412 367 420-422 369 423, 424, 430 370 PART 1. COUNTIES J BOARDS OF SUPERVISORS. CHAPTER I. COUNTIES AS CORPORATIONS. EXPLANATORY NOTE. Powers of Counties as Corporations. A county is a corporation. It is described as a municipal corpora- tion (Gen. Munic. L. § 2), but its liabilities for the negligent acts of its officers are not thereby extended. The main object of declaring a county to be a municipal corporation was to permit it to sue and be sued as a county, rather than as formerly in the name of the board of supervisors. Section 4 of the county law expressly requires actions and special proceedings by and against a county to be in the name of the county, and further provides that all contracts by or in behalf of the county, shall be deemed to be in the name of the county. This section does not do away with the necessity of presenting claims against the county, to the board of supervisors for audit, although this question may not be considered as settled, in view of some of the authorities to the contrary. Prior to the enactment of the section referred to it was settled law that there must be a presentation of the claim to the board of supervisors for audit before an action would lie against the county. This section was evidently not intended to change the rule. Section 1. County a municipal corporation. 2. Actions and contracts in corporate name. 3. Disposition of property, apportionment of debts and collection of judg- ments on alteration of boundarj'. 4. County liable for injuries caused by defective highways and bridges. § 1. COUNTY A MUNICIPAL COBFOBATION. 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 affairs conferred upon it by law. [County Law, § 3; B. C. & G. Cons. L. p. 696.] 1. A municipal corporation is defined in the General Municipal Law, sec. Si, as Including a county, town, city and village, and in sec. 3 of the General Corporation Law it is provided that " a municipal corporation includes a county. 2 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 4. § 2. 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 officers or agents authorized to contract in its behalf, or to enforce any liability created, or duty enjoined upon it, or upon any of its officers or town, school district, village, city and any other territorial division of the state estahlished by law with powers of local government." Effect of declaring county a municipal corporation. The above section of the County Law, making a county a municipal corporation, has not changed the rule as to the liability of counties for the neglect of county officers to per- form their official duties. Albrecht v. County of Queens, 84 Hun, 399; 32 N. Y. Supp. 473. In this case it was held that the county was not liable for the negli- gent construction of a bridge, because of which an injury was occasioned to the plaintiff. The court said : " The theory on which cities and villages are held to a liability different from that of a town or county is not merely that they are corporations, but that they obtain upon the request of their citizens valuable franchises, and that in consideration therefor they undertake to perform with fi- delity their charter obligations. This may be a fiction, as the legislature can in- corporate a city without the consent of the inhabitants, but nevertheless, the principle is too well settled in the law to be ignored. This principle is not ap- plicable to counties, which, while the statute may make them municipal corpora- tions, are something more than such. They are political divisions of the state so recognized in the constitution, and beyond the power of the legislature to abro- gate. The state doubtless can impose upon counties liability for the neglect of county officers to perform local duties. But we think no such intent should be in- ferred from the mere fact that in the general revision of the law relating to counties they are declared to be municipal corporations." See, also, Godfrey t, County of Queens, 89 Hun, 18; 34 N. Y. Supp. 1052; Ahern v. County of Kings, 89 Hun, 148; 34 N. Y. Supp. 1023; New York Catholic Protectory v. Rockland County, 159 App. Dlv. 455, 144 N. Y. Supp. 552, affd 212 N. Y. 311. The Court of Appeals, in the case of Markey v. County of Queens, 154 N. Y. 675, 686; 49 N. E. 71, holds a similar view as to the effect of the above section. Judge Gray, in writing the opinion of the court, says: " I think that the principle of our decision must necessarily be this; that as the counties of this state were bodies corporate for certain specific purposes, before the enactment of the County Law of 1892, now that they are declared thereby to be municipal corporations, their liability for corporate acts is no further enlarged than what may be clearly read in or implied from the statute. Their becoming municipal corporations in name imports no greater liability, because, by the third section of the law, their liability for injuries is confined by the language to that which was existing. The liability remains as it was, neither greater nor less. No new duty or burden has been imposed upon counties, in respect to the main- tenance of bridges over navigable boundary streams; the duty, which always existed for public purposes and for the public benefit, is continued. The work of maintaining the bridge in question was properly charged upon the county; because it could be more advantageously performed by them than by the towns. Towns themselves were not liable for damages arising from defective highways and bridges until by an act of the legislature in 1881, the liability which formerly rested upon the commissioners of highways was transferred to them. If it was necessary, in order that towns might be made liable in private actions, that there should be such legislation. It is necessary, i think, that there COUNTIES AS CORPORATIONS. 3 County Law, § 4. 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 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, § 4; B. C. & 6. Cons. L., p. 697.] should be some express legislation, in order to impose the liahility upon a county which did not previously exist. The object of the County Law of 1892, in my judgment, in declaring the county a municipal corporation, was in ord«r that it might be sued as a legal entity in such cases where, previously, actions were maintainable only in the name of the board of supervisors." In the case of Hughes v. County of Monroe, 147 N. Y. 49; 41 N. B. 407, it was held that the doctrine that where power is granted to a municipal corporation as one of the political divisions of the state, not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for non-user, nor for mis-user, by the public agents, is applicable to counties, which prior to the County Law were not municipal corporations, but were political divisions of the state, and at most only quasi corporations. It will be seen by an examina- tion of the case of Markey v. County of Queens above cited, that this doctrine has not been changed by the enactment of the above section declaring a county to be a municipal corporation. Municipal corporations engaged in a public duty as instrumentalities of the state are not liable for neglect or misfeasance; the one exception is where it is doing the act for its own benefit; hence county is not liable for acts of officers of penitentiary. Alamango v. Supervisors of Albany Co., 25 Hun, 551. For same rule applied to cities, see Smith v. City of Brooklyn, 76 N. Y. 506, city not liable for acts of firemen; Ham v. Mayor, 70 N. Y. 459, city not liable for acts of officers of department of public instruction. Liability for defects in bridges. — A county is not liable for damages sus- tained by reason of defects in a bridge required to be maintained by the county; distinction between liability of municipal corporation vested with power for own benefit and that of counties and towns as political divisions organized for exercise of power of state considered. Ensign v. Supervisors of Livingston Co., 25 Hun, 20. Damages caused by mob. — An action does not lie at common law against a municipal corporation for damages caused by a mob; but the legislature may impose such liability. Davidson v. Mayor, 27 How. Pr. 342, 25 Super Ct. 230. 2. Action by and against a county. The object of the above section is to permit actions to be brought by or against a county as a legal entity in such cases where, previously, actions were maintainable only in the name of the board of supervisors. Markey t. County of Queens, 154 N. Y. 675; 49 N. E. 71; New York Catholic Protectory v. Rockland County, 159 App. Div. 455, 144 N. Y. Supp. 552, aff'd 212 N. Y. 311. Corporate capacity is conferred upon each county in the state to sue and be sued, to purchase and hold lands within its limits for the use of its inhabitants; to make contracts and possess personal property, and to dispose of and regulate the use of its corporate property; and all suits and proceedings by and against a county in its corporate capacity are directed by the above section to be in the name of the county. In the case of People v. Ingersoll, 58 N. Y. 1, the right of counties to protect their property and to enforce their rights has been ex- haustively discussed. In view of the importance of this case it may be well to 4 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 5. § 3. DISPOSITION OF PROPERTY, APPOINTMENT OF DEBTS AND COLLECTION OF JUDGMENTS ON ALTERATION OF BOUND- ARY. When a county is divided or its boundary changed, its real prop- erty shall become the property of the county, within whose limits it lies after the change. The personal property and debts of such county, shall quote the following language from the opinion of Judge Allen (p. 28): " Coun- ties are public, as distinguished from private corporations, and they are political as auxiliaries to the government of the state, and they are trustees of the people, the inhabitants within their boundaries. . . . They are trustees inly of the property held for public use. They are not the guardians and pro- tectors of private and individual interests or property of the citizen. They may not intervene by action to protect or redress the individual citizen in jespect to wrongs or injury to his person or property. Their power as well IS duty is restricted to the protection and preservation of property possessed Dy them in their corporate capacity. This trusteeship and corporate power has X pecuniary and fiduciary relation, ^extends to and embraces not only the tangible property of the corporation, but the franchises and powers conferred for raising moneys and other means for the support of the local government ind the use of the inhabitants of the county, and the means realized from the franchises and powers conferred. ... In political and governmental mut- ters the municipalities are the representatives of the sovereignty of the state and auxiliary to it; in other matters relating to property rights and pecuniary obligations, they have the attributes and the distinctive legal rights of private corporations and may acquire property, create debts, and sue and be sued, as other corporations; and in borrowing money and incurring pecuniary obli- gations in any form, as well as in the buying and selling of property within the limits of the corporate powers conferred, they neither represent nor bird the state." In this case it was attempted to maintain an action brought by the people of the state for the recovery of money realized from the sale of county bonds in excess of the amount authorized by statute, and fraudulently diverted from the county treasury. It was held that the legislature has the power to direct by what agency claims against a county shall be ascertained and adjusted, and by what officials the bonds of a county authorized to be issued to provide means of payment therefor, shall be attested and issued; but the bonds, when issued, are the bonds of the county for which its credit and revenue are pledged. The debt is a debt of the county and not of the state, and the moneys realized upon the bonds are the moneys of the county and not of the state; and when stolen or procured by fraud from the county treasury the county alone can maintain an action to recover the same, subject, however, like other municipal rights, to the control of the legislature. Where no discretion is vested in the supervisors, but they refuse to perform a clear duty, mandamus not an action will lie; the latter may be maintained only where the duty is that of the county, not of the board. Boyce v. Super- visors, 20 Barb. 294. See also People v. Supervisors, 3 How. Pr. (N. S.) 241. "When the county treasurer misapplies taxes collected from a town for a special purpose, an action for money had and received is maintainable by the town against the county. Pierson v. Supervisors, 155 N. Y. 105. See also Hill v. Supervisors, 12 N. Y. 52; Strough v. Supervisprs 119 N. Y. 212; Crowninshield v. COUNTIES AS CORPORATIONS. 5 County Law. § 5. 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 on each county, according to such apportionment. Any judgment recovered previous to such division, or after such division in proceedings instituted previous thereto, in the County Court or before Supervisors, 124 N. Y. 583; People v. Supervisors, 136 N. Y. 281; Woods v. Supervisors, 136 N. Y. 403; Kilbourne v. Supervisors, 137 N. Y. 170. Maintenance of a farm in connection with an almshouse held to he for the use and benefit of county; and an action will lie against the county for pollution of a stream caused by fertilization of lands of such farm. Lefrois v. County of Monroe, 24 App. Div. 421, 48 N. Y. Supp. 519. Where an illegal tax is collected an action for money had and received will lie against the county; no demand is necessary when it is done with knowledge of its officers; nor need the claim be submitted for audit. Newman v. Super- visors, 45 N. Y. 676. Where a claim against a county is based upon a wrong committed by or attributable to it, the claimant is not bound to submit It to the board of super- visors for audit, but he may bring an action thereon direct against the county. Kilbourne v. Supervisors, 137 N. Y. 170. It is intended to provide a remedy against the county for such cause of action, and no other, as could not be presented to and allowed by board of supervisors as a county charge. Brady v. Supervisors, 10 N. Y. 260. Supervisors may maintain action for moneys fraudulently drawn from county treasury by a public officer. Supervisors of New York v. Tweed, 13 Abb. (N. S.) 152. But they cannot audit accounts not legally chargeable to their county; the payment of an account so audited is not a voluntary payment and county may maintain an action for the recovery of the moneys paid. Supervisors v. Ellis, 59 N. Y. 620. Where money was deposited by the decedent with a county treasurer in lieu of bail unlawfully required by a justice of the peace, an action will lie in behalf of the decedent's administrator against the county to recover such amount. This is so although the justice of the peace who fixed the bail was without authority to bind the county, upon the theory that the money can be traced to the county and the county has appropriated and received it for its benefit, thereby creating a liability to respond to the true owner. Sutherland v. St. Lawrence County, 42 Misc. 38, 85 N. Y. Supp. 696, revd. on other grounds, 101 App. Div. 299, 91 N. Y. Supp. 962. Property of county. — The board of supervisors possess no corporate powers and therefore the property of the county is vested in the county and not in the board. People v. Bennett, 37 N. Y. 117. See also Newman v. Supervisors, 45 N. Y. 676. Effect of section, upon audit. — It has been held that this section is not intended to do away with the necessity of submitting claims for audit to the board of supervisors, and is only intended to change the law in respect to ac- tions for or against the county which were formerly commenced in the name of the board of supervisors. Erhard v. Kings County, 36 N. Y. Supp. 656. But this case seems to have been overruled by the case of Kennedy v. County of Queens, 47 App. Div. 250; 62 N. Y. Supp. 276, in which the court holds in effect, 6 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 5. any justice of tke peace may be collected by execution to be issued to the sheriff of the county where such judgment shall have been rendered, ov to a constable thereof, as the case may require, who shall execute the same as if such division had not been made; and such judgments may be revived and the like proceedings had thereon, as if such county had not been divided. [County Law, § 5 ; B. C. & G. Cons. L., p. 699.] § 4. COUNTY LIABIE FOB INJURIES CAUSED BY DEFECTIVE HIGHWAYS AND BRIDGES. When, by law, a county has charge of the repair or maintenance of a road, highway, bridge or culvert, the county shall be liable for injuries to person or property sustained in consequence of such road, highway, bridge or culvert being defective, out of repair, unsafe, dangerous or obstructed existing because of the negligence of the county, its officers, that the failure of the legislature to re-enact in the County Law, sec. 4 of tit. 4, ch. 12, pt. 1 of the Revised Statutes, which provided that " accounts for county charges of every description shall be presented to the board of supervisors of the county to be audited by them," and declaring counties to be municipal corporations, and authorizing actions to be brought by and against them in the names of such counties, was for the express purpose of permitting the maintenance of an action against a county without first presenting the claim upon which the action is based to the board of supervisors for audit. The court said: "While it is true that sections 12 and 24 of the County Law, together with the other provisions thereof relating to the audit of accounts by the board of supervisors are not free from confusion, and a consistent system has not clearly been worked out, nevertheless it is reasonably clear that the revisers and the legislature intended to abolish the absolute requirement that accounts for county charges of every description must be presented to the board of supervisors to be audited by it, and to leave it optional with claimants on such accounts either to present them for audit to the board of supervisors and obtain voluntary payment by the county of the amounts allowed on such audit, or, without such preliminary presentation for audit to bring an action against the county in the name of the county ' in like cases as natural per- sons.' By this construction of all the provisions of the County Law relating to the subject before us, an orderly system for the judicial determination and enforce- ment of claims by and against counties is established. The claimant may present his account for audit and voluntary payment, and may still compel audit by mandamus or have the proceedings reviewed by certiorari, or, at his option, he may at once bring action and have the amount of his claim originally determined by the courts, and, if successful, have payment thereof enforced by judgment and the remedies thereon." The court in this case deemed the case of Freel v. County of Queens, 9 App. Div. 186; 41 N. Y. Supp. 68, modified and affirmed in 154 N. Y. 661, as a, conclusive authority on the question. In this case a judgment was rendered in favor of the plaintiff upon a contract made by him with the supervisors for the improvement of highways. The Appellate Division on appeal reversed the judgment. The Court of Appeals modified the judgm€nt of the trial term as to the amount and affirmed the judgment as modified. The question as to the right to maintain the action against the county was not raised by the defendant, but it is difficult to believe that the case is not impliedly, at least, an authority in favor of the right of the claimant to sue the county as a corporation. The question whether a claim must be presented to the board of supervisors for audit before an action will lie thereon against the county, seems to have been settled by the Court of Appeals in the case of New York Catholic Protectory v. Rockland County, 212 K. Y. 311, affg. 159 App. Div. 455. In this ease the Court of Appeals held that a person having a claim against a county may either sue directly upon it or present it to the board of supervisors for audit. If the latter course is pursued and the board of supervisors refuse to audit it, two courses are still open, one to compel an audit by mandamus, the other to bring an action directly against the county. But if the board of supervisors pass upon a claim and disallow it, either in whole or in part, the sole remedy is to review the determi- nation, if erroneous, by certiorari. In the case of Albrecht v. County of Queens, 84 Hun 399; 32 N. Y. Supp. 473, which arose subsequent to the enactment of the County Law, the court said: COUNTIES AS CORPORATIONS. 7 County Law, § 6. agents or servants. A civil action may be maintained against the county to recover damages for any such injury; but the county shall not be liable in such action unless a written claim for such damages, verified by the oati, of the claimant, containing a statement of the place of resi- dence with reasonable certainty, and describing the time when, the particular place where and the circumstances under which the injuries were sustained, the cause thereof and, so far as then practicable, the nature and extent thereof, shall within three months after the happen- ing of the accident or injury or the occurrence of the act, omission, fault or neglect out of which or on account of which the claim arose, be served upon the county clerk or chairman of the board of supervisors. ]^o action shall be commenced upon such claim until the expiration of three months after the service of such notice. [County Law, § 6, as added by L. 1917, ch. 578.] " From the earliest period in the history of the state to the present it has been necessary to present claims against the county to- the board of supervisors for audit. With some unimportant exceptions dependent on special statutes, or where the claim was liquidated by the existence of a, county obligation for a specific sum, suits could not be maintained against the county for claim or county charges. The remedy was by mandamus to the board of supervisors. If the claim was fixed by law so as to involve no discretion, a mandamus would lie to audit it at a specific amount. If the claim required the exercise of discretion or judgment, the audit was conclusive unless reversed on review, and could be attached col- laterally. By sec. 12, sub. 2, of the County Law, the same power is vested in the board of supervisors to annually audit all accounts against the county. If the plaintiif has a claim against the county it must be submitted to the board of supervisors." But in the case of New York Catholic Protectory v. Rockland County, 159 App. Div. 455, affd. 212 N. Y. 311, it was held that there is no per- emptory statute requiring a contract obligation of a county to be submitted to the board of supervisors for audit. A claimant has an option either to submit his claim to the board, or to sue directly. If he once exercises his option and presents his claim for audit, he may not thereafter sue direct, but his remedy is by mandamus or certiorari. . , , , , i, i j. i- In Taylor v Mayor, etc., 82 N. Y. 10, it seems to be held that a presentation of the claim to the board of supervisors is a condition precedent to any proceedings *^ro"mer casesVe're unanimously to the effect that where the claim is one that should be presented to the board of supervisors for audit, no action will lie against the county thereon. Taylor v. Mayor etc of New York, 82 N^ Y. 10; As V. Knapp, 5 N. Y. 65; People ex rel. Sutliff y. Superv^ors, 74 Hun 251, 26 N Y. Supp. 610; People ex rel. Bevins v. Supervisors 82 Hun 298 31 N. Y. Supp 248; Adams V. Supervisors of Oswego Co 66 Barb 368; McClure v^ Su^rvisors of Niagara Co., 50 Barb. 594; People v. Barnes 114 NY 317; People V Supervisors, 2 Abb. (N. S.) 78; People v. Supervisors of Delaware 45 N. Y. 19^ A Lmplaint, in an action against a county, which alleges that the plaintiff resented its claim to the board of supervisors of the defendant, and that the fatter "did as plaintiff is informed and believes . wholly disallow said rtim " states no cause of action, for the reason that the determination of the boa^' of supervisors is conclusive in the action. New York Catholic Protectory v?^cklanTcounty (1914), 212 N. Y. 311, distinguishing Kennedy v. County of '^SroLti'''and'l*taemeBt of claims. People ex rel. E^nedict v. Supervisors, 24 HmiT3 The board of supervisors having power to settle and albw a claim ^n, Sentallv to such powers, waive the statute of limitations Woods v. Super- visors 136 NY 403. ^ Board of supervisors may compromise and settle a judgment rXered bythem as incidental to their power to sue. Supervisors v. Bowen, 4 ^ Borrotr money, the power to. is nxit inherent in a board of supervisors. Parker v. Supervisors, 106 N. Y. 392. v. COUNTIES; BOARDS OF SUPERVISORS. Explanatory note. CHAPTER II. ORGANIZATION, MEETINGS AND PROCEEDINGS OP BOARDS OP SUPERVISORS. Board a Constitutional Body. The county board of supervisors is created by the constitution. It cannot therefore be abolished by act of the legislature. The legislature may determine by law as to the election and terms of members of the board and may confer powers upon it. Board, how Constituted. The board of supervisors is composed of the supervisors of the several towns and wards of cities in the county. Each supervisor must be elected, except where in the case of a \'acancy the office may be filled by appointment ; in towns by the town board and in cities as provided by charter. Although elected by towns and cities, supervisors are for some purposes deemed county officers. Meetings of Board. Each board is required to hold at least one meeting each year. It may hold special meetings from time to time, on the call of the clerk, when requested by a majority of its members. All meetings are to be public. Meetings may be adjourned to specified times in the same manner as meetings of other parliamentary bodies. A majority of all the members of the board constitutes a quorum. This is a statutory requirement and cannot be changed by a rule of the board. The number required to constitute a quorum is not changed because of vacancies in the board. Organization of Board. The board should organize at its annual meeting, although there is nothing in the law which prevents the organization holding over for the terms of the members of the board. The law requires the election of a clerk, but says nothing about a chairman. The organization of the board consists of the election of a chairman, a clerk, and the adoption ORGANIZATION, MEETINGS AND PROCEEDINGS. 9 Explanatory note. of necessary rules regulating the conduct of the business of the board. The duties of the chairman should be prescribed by the rules. The board may provide for the appointment and fix the compensation of such officers and employes as may be necessary. The rules usually determine the number and membership of stand- ing committees. Special committees may be created as necessity re- quires. It is usual to provide that committees shall be appointed by the chairman. Compensation and Mileage. Supervisors are entitled to compensation at the rate of four dollars for each calendar day's attendance at the sessions of the board, except in those counties where special acts have been passed fixing a different rate. They may receive the same compensation for services on com- mittees or other business, performed at a time when the board is not in session. Such services must be performed under some lawful direction of the board. Voluntary services or unauthorized services should not be paid for. Mileage at the rate of eight cents per mile for once going and coming from each session will be paid. If the , services are special and performed while the board is not in session, at a distance of five miles or more from his residence, the supervisor must be paid his actual expenses. Acts and Resolutions. The law is specific as to the form of acts and resolutions of the board. Each act or resolution should have a title expressing briefly the contents thereof, followed by a reference to the statute giving au- thority to pass such act or resolution. A failure to correctly specify the statute will not nullify the act or resolution, but care should be taken to conform with the requiremenets of the law. Each act or resolution, which is legislative in its nature, should be published " within six weeks after the close of the session." See County Law, § 17, post. This does not mean that every resolution must be certified and published ; it does not apply to ordinary proceedings of the board. Section 1. Constitutional provisions respecting supervisors. 2. Boards of supervisors; meetings and organization. 3. Penalty for failure of supervisor to perform official duties. 10 OOUKTIES; BOARDS OF SUPERVISORS. Constitution, Art. 3, §§ 26, 27. Seotiow 4. Compensation of supervisors as members of the board of supervisors; copying assessment-roll. 4a. Compensation of supervisors in certain counties. 4b. Compensation of supervisors and assessors in attending tax meetings. 5. Acts and resolutions of boards of supervisors; form and contents; adoption; publication. 6. Publication of acts of board. 7. Proceedings of board of supervisors to be printed and distributed; contents. 8. County records, boards of supervisors to have general charge of; copies may be made for public use; cost of copies. 9. Witnesses and county and town officers may be examined by board; books and papers may be inspected. 10. Powers of committee of board of supervisors as to hearings and examinations. 11. Adjournment of hearing or examination by board or committee; dis- charge of persons arrested for failure to appear. 12. Filing and enforcement of undertaking given under preceding section. § 1. CONSTITTITIONAI, PROVISIONS RESPECTING SUPERVISORS, Section 26 of article 3 of the Constitution provides that: "There shall be in each county, except in a county wholly included in a city, a board of supervisors, to be composed of such members and elected in such manner and for such period as is or may be provided by law. In a city which includes an entire county, or two or more entire counties, the powers and duties of a board of supervisors may be devolved upon the municipal assembly, common council, board of aldermen or other legis- lative body of the city." ^ Section 27 of article 3 of the Constitution provides that : " The legis- lature shall, by general laws, confer upon the boards of supervisors of the several counties of the state such further powers of local legislation and administration as the legislature may, from time to time, deem expedient." ^ 1. Special act relating to Nassau connty. The proviBions of sec. 5 of L. 1898, oh. 588, that " the supervisors of the said towns of Oyster Bay, North Hempstead and Hempstead, elected at the annual town meetings held in 1898. shall constitute and are hereby declared to constitute the board of supervisors of the said county of Nassau," is not in contravention of the above section of the constitution, in that it undertakes to appoint a board which the constitution says must be elected. It merely prescribes what town supervisors shall con- stitute the county board of supervisors, all of them being officers elected in their respective towns to act, not only in town affairs, but as members of the board of supervisors of the county to which the town belongs. Matter of Noble, 34 Apn Div. 55 ; 54 N. Y. Supp. 42. 2. Po'wers conferred npon supervisors by legislature. The legislature may in its discretion interpose any check or limitation upon the powers of super- visors which it may deem reasonable, and where under their delegated powers a. board of supervisors adopts a resolution removing a county seat from one town to another a tax paver's action will not lie to restrain such removal. Stanton V. Board of Supervisors. 48 Misc. 415, 96 N. Y. Supp. 840. The board of supervisors of a county is vested with such powers of local legis- lation and administration as are conferred upon it by the legislature. Its power is co-extensive with the power expressly granted to it or wliich is necessarily or reasonably implied from the powers so expressly conferred. Wadsworth v. Board of Supervisors (1916), 217 N. Y. 484. ORGANIZATION, MEETINGS AND PROCEEDINGS. |x County Law, § 10. § 2. BOARDS OF STTFEBVISOBS; MEETINGS AND ORGANIZATION. The supervisors of the cities and towns in each county, when lawfully convened, shall be the board of supervisors of the county.^ They shall An act authorizing boards of supervisors to make local laws for the protection of shell fish is constitutional, Smith v. Levinus, 8 N. Y. 472; Hallock v. Domlny, 7 Hun, 52; as is an act authorizing a board of supervisors to fix the salary of a county treasurer. Board of Supervisors of Seneca County v. Allen, 99 N. Y. 532; 2 N. E. 459. Limitation of powers. Supervisors derive their powers from the State legislature, and the exercise of such powers must in all things be confined to those which are conferred by law and enumerated in the statute conferring them. Thus, a board of supervisors, cannot create the office of county attorney for a prescribed term. Vincent v. County of Nassau, 45 Misc., 247, 92 N. Y. Supp. 32. The legislature may, by special act deprive a board of supervisors of the right to build a court house. People ex rel. Commissioners v. Supervisors, 170 N. Y. 105, affid. 68 App. Div. 650. Statutes, conferring powers of local legislation upon boards of supervisors, do not authorize the supervisors of Cattaraugus County to alter the salary of the surrogate of that county. Spring v. Wait, 22 Hun, 441. Power to lay out highways. While the legislature is prohibited from passing a local bill laying out, opening, etc., highways, it may confer such power on boards of supervisors, Town of Kirkwood v. Newbury, 122 N. Y. 571, 576; 26 N. E. 10; People ex rel. Morrill v. Supervisors, 112 N. Y. 585; 20 N. B. 549. Leg- islature may authorize boards of supervisors to lay out highways. Matter of Church, 92 N. Y. 1; see Roberts v. Supervisors of Kings, 3 App. Div. 3S6, affd. 158 N. Y. 673; Hubbard v. Saddler, 104 N. Y. 223. And build bridges. Town of Kinderhook v. Newbury, 122 N. Y. 571, affg. 45 Hun, 323. And borrow money to erect such bridges. Barker v. Town of Oswegatchie, 41 St. Rep. 821. Certiorari will not lie to review acts of boards of supervisors under power conferred by the legislature for such acts are legislative in their character. People ex rel. O'Connor v. Supervisors, 153 N. Y. 370; People ex rel. Trustees V, Supervisors of Queens, 131 N. Y. 468; People ex rel. Morrill v. Supervisors of Queens, 112 N. Y. 585, affg. 48 Hun, 324; People ex rel. Wakely v. Mclntyre, 154 N. Y. 628. 3. Office of supervisor is elective and legislature cannot appoint. Williams v. Boynton, 147 N. Y. 426, affg. 71 Hun 309, 25 N. Y. Supp. 60. Provision of Con- stitution, Article 3, § 18, prohibiting legislature from passing local bill pro- viding for election of supervisors, does not apply to city supervisors. People ex rel. Clancy v. Supervisors, 139 N. Y. 524. Supervisors though elected by the towns are for some purposes deemed county officers. Godfrey v. County of Queens, 89 Hun, 18, 34 N. Y. Supp. 1052. Supervisors of new county. — It is proper for the legislature to provide that the board of supervisors of a new county be composed of the duly elected supervisors of the towns that make up such county; though the board is a county organization, its members are chosen by the several towns respectively, and individually they are classed as town ofF.cers. Matter of Noble, 34 App. Div. 55, 54 N. Y. Supp. 42 (1898). 3. Power of board as to qualification of its members. When the question which settles the right of the claimant to the ofiice of supervisor of a town 12 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 10. meet annually, at such time and place as they may fix, and may hold special meetings at the call of the clerk, on the written request of a majority of the board, and whenever required by law.'* A majority of the board shall constitute a quorum.s They may adjourn from time to time, and their meetings shall be public. At the annual meeting they shall choose one of their number chairman for the ensuing year. In the event of a vacancy occurring in the office of chairman by reason of death or expiration of term of a supervisor, they may at a special meeting of the board called for such purpose, choose one of their number chairman to serve until the next annual meeting. In a county in which the biennial town meet- has been substantially passed upon in his favor by the Court of Appeals, and he has received the certificate of election and has qualified, and has been awarded by the court, as acting supervisor, the custody of the books in the possession of his predecessor, the county board of supervisors has no power to determine a contest as to his seat and exclude him therefrom, and its illegal action in so doing will be set aside. People ex rel. Bradley v. Board of Supervisors, 69 Hun, 406; 23 N. Y. Supp. 654. Where, after a supervisor had been declared elected and a certificate was given to him, a right of mandamus was granted directing the board of can- vassers to make a re-canvass and count certain paster ballots for h's opponent, which was done, and the latter declared elected, it was held that the board of supervisors had no authority to determine that the former was entitled to his seat in the board. Williams v. Boynton, 71 Hun, 309; 25 N. Y. Supp. 60; affd., 147 N. Y. 426, in which case the Court of Appeals held that the supervisor who was seated by the board had no authority whatever to act as a member thereof. He had no right to vote, and a resolution which required his vote for its passage was never legally passed. 4. Meetings of board. The supervisors are required to meet annually, and may hold special meetings from time to time; their neglect to perform a duty required to be performed at the annual meeting, cannot nullify the statute; they or their successors are bound to do what was required, and may be com- pelled to do so by mandamus. People v. Supervisors of Chenango, 8 N. Y. 317, 330. Supervisors are required to meet annually, but they may hold special meetings, and adjourn from time to time People v. Stocking, 50 Barb. 573. Resolutions. The board acts for the county by resolution, as an organized body, and the action of the individual supervisors, although unanimous, would not bind the county. Hill v. Supervisors of Livingston Co., 12 N. Y. 52, 63. 5. Quorum of board. Whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, a majority of all such persons or officers at a meeting duly held at a time fixed by law, or by any by-law duly adopted by such board or body, or at any duly adjourned meeting of such meeting, or at any meeting duly held upon reasonable notice to all of them, may perform and exercise such power, authority or duty, and if one or more of such persons or officers shall have died or have become mentally incapable of acting, or shall refuse or neglect to attend any such meeting, a majority of the whole number of such persons or officers shall be a quorum of such board or body, and a majority of the quorum, if not less than a majority of the whole number of such persons or officers may perform and exercise any such power, authority or duty. Any such meeting may be adjourned by a less number than a quorum. A recital in any order, resolution or other record of any proceeding of such a meeting that such meeting had been so held or adjourned, or that it had been held ORGANIZATION, MEETINGS AND PROCEEDINGS. ^3 County Law, § 10. ings are held at a time other than the general election they may choose one of their number chairman at a special meeting of the board called for such purpose. In the absence of the chairman 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 suc- cessor is appointed ; and shall fix his compensation.^ They may compel the attendance of absent members at their meetings, make rules for the upon such notice to the members, shall he presumptive evidence thereof. General Construction Law, sec. 41. All questions may he determined by a majority of those present. People ex rel. Hawes v. Walker, 23 Barb. 304. The provision of the statute declaring that a majority of the supervisors of any county shall constitute a quorum for the transaction of business cannot be altered by a rule of the board. People ex rel. Burrows v. Brinkerhoff, 68 N. Y. 259. The number necessary to constitute a quorum remains the same even though there be vacancies in the board. Erie R. Co.' v. City of Buffalo, 180 N. Y. 192, 197. 6. Clerk of board. The powers and duties of the clerk of the board of super- visors are prescribed by art. 3 of the County Law. See post, p. 94. It is cus- tomary for the clerk of the previous board of supervisors to call the board to order for the purpose of organization, and to hold office until his successor is elected. 7. The rules of board. By the above section a board of supervisors is authorized to pass rules regulating the business of the board. When it adopts a rule by which it intends to reserve the right to review and reconsider its action at any time before final adjournment, a reconsideration of its action upon the Sheriff's claim, before issue of a certificate allowing it, is valid; and when, upon such reconsideration, the board indicates the specific items which it has dis- allowed or reduced, the error, if any, resulting from the fact that the previous audit indicated no such items but only the whole amount at which the bill was audited, is cured. People ex rel. Caldwell v. Supervisors, 45 App. Div. 42; 60 N. Y. Supp. 1122. Appointment of committees. It is customary for boards of supervisors, and bodies of like character, to divide their membership into committees, to whom is given the special charge of the various matters brought before them for examination, and to report to the full board. These committees are the hands and eyes of the board itself. It would be utterly impossible for each and every member to make a special examination for himself of all the matters that are brought before the board, and of each item in bills presented to it. It is not only the customary way, but it is a legal way of discharging their duties. See People ex rel. Caldwell v. Supervisors, 45 App. Div. 42; 60 N. Y. Supp. 1122. Each board of supervisors should appoint its committees for the transaction of its own business. A committee has no authority to act after the expiration of the term of office of its members. Rept. of Atty.-Genl., Feb. 14, 1912. One who continues to act as chairman of the board of supervisors after his suc- cessor has qualified and entered upon the discharge of his duties is not entitled to the per diem compensation provided to supervisors by statute for attendr ance upon sessions of the board or for committee work. Rept. of Atty.-Genl. (1911), Vol. 2, p. 693. Rules and order of business. The rules as adopted in the several counties vary somewhat in their form and in the language used. The following rules are in force by adoption of the board of supervisors of the county of Chemung, and will be found complete and effective: 1. The snnual meeting of the board of supervisors shall he held on the Monday after general election, at 10 a. m. 2. The clerk of the last board shall call the members to order, and they by a majority of their number, shall select a chairman, who shall preside at such meeting, and at all other meetings during the year. In case of the absence of the chairman at any meeting, or in case of a special meeting of such board before the annual meeting, the members present shall choose one 14 CXDUNTIES; BOARDS OF SUPERVISORS. County Law, § 10. conduct of their proceedings,' and impose and enforce penalties for the violation thereof, not exceeding fifty dollars for each offense. [County Law, § 10, as amended by L. 1910, ch. 279 ; L. 1911, ch. 250, and L. 1912, ch. 193; B. C. & G. Cons L., p. 701. J of their members aa a temporary chairman; and in all eases of the absence of a quorum, the members present shall take such measures as shall be necessary to procure the attendance of absent members. The following standing committees shall be appointed by the chairman at the commencement of each annual session. First. — On Equalization. — ■ Eleven members whose duty it shall be to report on equalization of assessments. Second. — On Poor House and Superintendent's Report. — Five members who shall consider all claims arising from the support of the poor house or the poor of the county. Third.^ On County Officers' Accounts. — Three members who shall consider and examine the accounts of the county judge, surrogate and sheriff. Fourth. — On County Clerk and District Attorney's Accounts. — Three members who shall consider and examine the accounts of the county clerk and district attorney. Fifth. — On County Treasurer and Coroners' Accounts. — Three members who shall consider and examine the accounts of the county treasurer and coroners. Also the condition of the U. S. deposit fund and the accounts of the commissioners. Sixth. — On Coroners' Jury Script and Physicians' Accounts. — Three members who i^all examine and consider the accounts of the psysioians' and coroners' jury script. Seventh. — On County Claims. — Three members who shall examine and report on all claims against the county, from any source, not properly brought before either of the preceding committees. Eighth. — On Town Accounts. — Three members who shall examine all town ac- counts, and recommend the appropriations required for highway purposes, poor accounts and town audits. Ninth. — On Justices' and Constables' Accounts. — Three members who shall examine and report all claims of justices and constables against the county. Tenth. — On Special Legislation and Erroneous Assessments.— Three members to whom shall be referred all matters relating to erroneous assessments and taxation. Eleventh. — On Miscellaneous Accounts. — Five members who shall consider and recommend the appropriations required for the payment of the state tax, and other town and county charges. They shall also make a report of the assessments of corporations as found in the several assessment rolls. Twelfth. — Grand Jury. — Three members to whom shall be referred all matters relating to grand jury. Thirteenth. — On Military Affairs. — Three members to whom shall be referred all claims against the county, arising under the military code of the State of New York. Fourteenth. — Assessment Rolls and Footings. — Three members who shall verify the footings of assessment rolls. Fifteenth. — Supervisors' Accounts. — Three members to whom shall be referred the accounts of the supervisors. Sixteenth. — On County Officer's Bonds. — Three members to whom shall be referred all matters pertaining to the bonds of county officers. ORGANTZATIOK, MEETINGS AND PEOCEEDmoS. 15 County Law, § 10-a. Quarterly meetings. The board of supervisors in any county may, "by resolution, determine to hold, in addition to the annual meeting, four regular quarterly meetings on the second Monday of the months of February, May, August and jSTovember. If such resolution be adopted the board of supervisors may transact at any such meeting all 3. Such special committees may be appointed as the board may consider neces- sary, all of which shall be appointed by the chairman, and consist of three mem- bers, unless otherwise specially ordered by the board. 4. Upon the members being called to order, the minutes of the preceding day shall be read, to the end that any mistake shall be corrected, unless such reading shall be waived by the board. 5. At each session the order of business shall be: 1. Reading of the minutes. 2. Presentation of petitions and communications. 3. Resolutions, motions and notices. 4. Report of select committees. 5. Report of standing committees, e. Unfinished business. 7. Special order of the day. 6. The chairman shall preserve order and decorum, and shall decide all questions •of order, subject to an appeal by the board. He shall have the right to name any member to perform the duties of the chair, but such substitution shall not extend beyond the next adjournment. 7. The chairman shall, in all cases, have the right to vote, and when the vote is equally divided, including his vote, the question shall be lost. 8. Every member, previous to his speaking, shall arise from his seat and address himself to the chair. 9. When two or more members arise at once, the chairman shall name the mem- ber who is first to speak. 10. No member shall speak more than once on any question, or in any case, until every member choosing to speak shall have spoken; nor more than twice without the leave of the board. 11. A member called to order shall immediately sit down, unless permitted to explain. If an appeal is taken from the decision of the chair, the board shall decide the case without debate, and the question shall be stated by the chair to be : " Shall the decision of the chair stand as the judgment of the board 1 " 12. Persons not members of the board may, by consent, be permitted to speak in regard to matters pending before the board. 13. Every person present when a vote is stated from the chair shall vote thereon, unle^as excused by the board, or unless he is directly interested in the question, in which case, if he choose, he shall be excused from voting. 14. No motion shall be stated, debated or put unless it is seconded. When a motion is seconded it shall be stated by the chairman before debate, and any motion shall be reduced to writing if the chairman or any member desire it. 15. After a motion is stated it shall be in possession of the board, but may be withdrawn at any time before the decision or amendment. 16. If the question in debate contains several distinct propositions, any member may have the same divided. 16 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 11. business that may come before it, including the audit of accounts and charges against the county which have been presented to the board and which shall have then accrued. Whenever a board of supervisors of any county shall have audited any account, claim or demand against the county at a meeting other than the annual meeting of the board, it shall certify the aggregate of all sums so audited and allowed to the county treasurer of the county. Any such board of supervisors may, concurrently with such certification or any time thereafter, authorize the county treasurer to borrow upon the faith and credit of the county a sum of money sufiicient to pay the aggregate amount of thie accounts so audited and allowed at any one or more of the meetings so held. No such loan shall be negotiated for a longer period than twelve months. [County Law, § 10-a, as added by L. 1917, ch. 119. J Regular meetings; Ontario county. The board of supervisors of the county of Ontario may by resolution determine to hold in addition to the 17. When a question is under debate no motion shall be received unless on the previous question, to postpone it indefinitely, to adjourn it to a certain day, to lay it on the table, to commit it or to adjourn the board. 18. A motion for the previous question, to lay the question on the table, to com- mit it until it is decided, shall preclude all amendments and debate of the main question, and the motion to postpone a question indefinitely, to adjourn to a certain day, until it is decided, precludes all amendments to the main question. 19. The previous question- shall be as follows: "Shall the main question, be put?" 20. A motion to adjourn the board shall always be in order, and be decided without debate. 21. The name of the member ofTering resolutions shall be entered on the minutes. 22. The ayes and nayes upon the question shall be taken and entered upon the minutes, if required by any member. 23. Select committees, to whom references are made, shall, in all cases, report a state of facts, with their opinion thereon, if required by the board. 24. Xo motion for reconsideration shall be in order, unless on the same day or the day following that on which the decision proposed to be reconsidered took place, nor unless one of the majority shall move such reconsideration. A motion to recon- Bider being put and lost, shall not be renewed, nor shall any subject be a second time reconsidered without unanimous consent. 25. No standing rule or order shall be rescinded, suspended or changed, or any additional rule or order added thereto, unless by unanimous consent without one day's notice being given of the motion thereof, and no motion to that effect shall be in order without such notice. 26. The board shall hold two regular sessions daily — the morning session and the afternoon session — and all of the general business of the board shall be transacted at these sessions when first convened, and all the members shall be present unless excused. When the general business before the board of that session shall be disposed of the chairman shall announce the board adjourned for committee labor, and no further business shall thereafter be done until next session. ORGANIZATION, MEETINGS AND PROCEEDINGS. 17 County Law, § 11 annual meeting such regular meetings not exceeding one in each month as they may determine. If such resolution be adopted such board of supervisors may transact at any such meeting all business that may come before it, including the audit of accounts and charges against the county which have been presented to the board, and which shall have then accrued, and whenever such board shall have audited any account, claim or demand against the county at any such regular meeting, it may direct payment thereof by order drawn by the clerk of said board upon the county treasurer of the county, and may authorize the county treasurer to borrow upon the faith and credit of the county a sum of money sufficient to pay the aggregate amount of the accounts so audited and allowed at any one or more of the meetings so held. No such loan shall be negotiated for a longer period than twelve months. [County Law, § 10-b, as added by L. 1918, ch. 389.J § 3. PENALTY FOB FAILURE OF STJFEBVISOB TO PERFORM OF- FICIAL 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 refuf^al or neglect to perform any other duty required of him by law, he shall for every such offense forfeit a like sum to the tovra..' [County Law, § 11 ; B. C. & G. Cons. L., p. Y03.J 27. Every motion or resolution before the board shall lie over until the next day, if BO demanded by any member, and any member necessarily absent may, at the first session after he shall learn of the adoption of any motion or resolution, have a right to move a, reconsideration of the same. 28. At each annual session the chairman of the board shall, before the close of the said session appoint four members of the board who, together with himself as chairman, shall constitute a committee on all buildings and grounds belonging to the county. Said committee shall have charge and supervision of all the county buildings for the ensuing year, with power to make repairs which may become necessary during the adjournment of the board. 8. Penal provision. Section 1841 of the Penal Law provides that, "A public officer, or person holding a public trust or employment, upon whom any duty is enjoined by law, who wilfully neglects to perform the duty, is guilty of a misdemeanor. This and the preceding section do not apply to cases of official acts or omissions, the prevention of punishment of which is otherwise specially provided for by statute." The penalty imposed by the above section may, therefore, be exclusive of any punishment for a misdemeanor under this section of the Penal Law. Liability for Neglect. The supervisor, by voting against allowing a claim which 18 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 23. I 4. COMPENSATION OF SXTPEKVIORS AS MEMBERS OF THE BOARD OF SUPERVISORS; COPTING ASSESSMENT-ROLI^. 1. For services of supervisors, except in the counties of Albany, Allegany, Broome, Cattaraugus, Cayuga, Clinton, Columbia, Dutchess, Orange, Erie, Essex, Franklin, Hamilton, Herkimer, Montgomery, Niagara, Oneida, Onondaga, Otsego, Eensselaer, Rockland, Saratoga, Schenectady, Steuben, Suffolk, Ulster, Warren, Wyoming and West- chester, each supendsor shall receive from the county compensation at the rate of four dollars per day, in Broome county at the rate of five dollars per day, in Essex county at the rate of eight dollars per day, in Cayuga county at the rate of six dollars per day and in Warren county at the rate of six dollars per day, for each calendar 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. [Subd. 1 amended by L. 1918, ch. 285.] the statute imperatively requires the board to allow, subjects himself to the above penalty; so any supervisor who shall neglect or refuse to perform any duties which are or shall be required of him by law, as a member of the board, whatever may have been the motive which influenced him, is liable to the penalty. Morris v. People, 3 Denio, 381. And where a board neglected to raise money for the erection of public buildings, which money they were required by law to raise, the super- visors were held liable, although previous boards had been guilty of the same neglect. Caswell v. Allen, 7 Johns. 63. Where a supervisor is charged by statute with an absolute and certain duty, in the performance of which an individual has a special interest, he is liable to an action if he refuses to perform it, and he is not relieved from the consequences of his disobedience because it is prompted by an honest belief upon his part that the statute is unconstitutional. Clark v. Miller, 54 N. Y. 528; Hoover v. Burkhoof, 44 N. Y. 113. Removal from office for wilful misconduct or neglect of duty. See Matter of Hoag, 145 App. Div. 889, 129 N. Y. Supp. 775. g. Compensation of supervisors as town officers. See Town Law, sec. 85. The constitution provides that the board of supervisors shall not grant any extra compensation to any public officer, servant, agent or contractor. See Constitution, art. 3, sec. 28. Compensation for services on committees. A custom of the board to allow its members five dollars per diem for services of its members on committees cannot be shown; nor can it be proved that the services were worth that much; the statute is conclusive and does not allow supervisors to pay themselves out of the county funds as upon a quantum meruit. Supervisors of Richmond v. Van Clief, 1 Hun 454. Mileage. — Supervisors are not entitled to mileage for each day's actual attend- ance at regular or special meetings, but only for once going and returning. Wallace v. Jones, 122 App. Div. 497, 500, 107 N. Y. Supp. 288. A supervisor is not entitled to charge for services or mileage while serving upon a committee of the board of supervisors during the session of the board, because the statute provides that unless the compensation is specially provided he is pro- ORGANIZATION, MEETINGS AND PROCEEDINGS. 19 County Law, § 23. 2. In the county of AUeganj each supervisor shall receive from the county compensation at the rate of five dollars per day for each calen- dar day's actual attendance at the sessions of the board of supervisors and mileage at the rate of eight cents per mile for once going and return- ing every week during any regular or special session of such board from his place of residence to the place vsrhere any such session of the board is held. 2-a. In the counties of Cattaraugus, Wyoming and Otsego each supervisor shall receive from the county compensation at the rate of six dollars per day for each calendar day's actual attendance at the sessions of the board of supervisors and mileage at the rate of eight cents per mile for once going and returning every week during any regular or special session of such board from his place of residence to the place where any such session of the board is held. [Subd. 2-a, added by L. 1918, ch. 285,J ' 3. In the county of Franklin each supervisor shall receive the mile- age above provided and a per diem compensation for attending sessions of the board, and for committee work when the board is not in session, to be fixed by the board of supervisors at not to exceed eight dollars per day. [Subd. 3, added by L. 1917, ch. 527.] 3-a. In the county of St. Lawrence each supervisor shall receive from the county the mileage above provided, an annual salary of three hun- dred and fifty dollars, six 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 while the board is in session, and, hibited from receiving other compensation than his per diem allowance and mileage for his attendance during the sessions of the board. Board of Supervisors v. Ellis, 59 N. Y. 620; Van Sicklen v. Supervisors, 32 Hun 62. Special acts relating to salaries of supervisors. In Albany county, see L. 1871, ch. 887, as amended by L. 1875, ch. 497, and L. 1908, ch. 445; L. 1884, ch. 368, § 11, as amended by L. 1906, ch. 5. In Columbia county, see h. 1889, ch. 488, as amended by L. 1909, ch. 89. In Dutchess county, see L. 1898, ch. 134. In Erie county, see L. 1876, ch. 231, as amended by L. 1879, ch. 195, L. 1888, ch. 364, L. 1892, ch. 485, L. 1893, ch. 620, L. 1895, ch. 174, L. 1898, ch. 487, L. 1907, ch. 407, and L. 1909 chs. 129, 543. In Montgomery county see L. 1900, ch. 194, as amended by L. 1906, ch. 76. In Oneida county, see L. 1876, ch. 250, which was superseded in effect by L. 1901, ch. 34. In Onondaga county, see L. 1906, ch. 10, as amended by L. 1916, ch. 180. In Oswego county, see L. 1897, ch. 290, as amended by L. 1915, ch. 92. In Rensselaer county, see L. 1857, ch. 331, § 1, as amended by L. 1875, ch. 560. In Schenectady county, see L. 1887, ch. 722, as amended by L. 1904, ch. 64. In Westchester county, see L. 1902, ch. 342, as amended by L. 1905, ch. 42, and L. 1910, ch. 91, in effect superseding L. 1894, ch. 563. 20 COrVTIES; BOARDS OF SUPERVISORS. County Law, § 23. if such, investigation or duty require his attendance at a place away from his residence, his actual expenses incurred therein. Such per diem compensation and expense allowance shall be in lieu of the per diem compensation and expense allowance provided for by subdivision eight. [Subd. 3-a, added by L. 1918, ch. 285.] 4. In the counties of Hamilton, Herkimer, Niagara, Eockland, Saratoga, Schenectady and Steuben each supervisor shall receive an annual salary, in the county of Herkimer of two hundred and twenty dollars and the mileage hereinbefore prescribed, in the county of Hamilton of one hundred and twenty dollars and his reasonable travel- ing expenses actually and necessarily incurred in once going and return- ing from his residence to the place where the sessions of the board shall be held, by the most usual route, for each regular and special session, in the county of Niagara of four hundred dollars, in the county of Rock- land of four hundred dollars, in the county of Saratoga of five hundred dollars, in the county of Schenectady of five hundred dollars and in the county of Steuben of one hundred and fifty dollars, in lieu of any per diem compensation. [Subd. 4, amended by L. 1918, ch. 285. J 5. In the counties of Dutchess and Orange each supervisor shall receive an annual salary from the county of one hundred and fifty dol- lars and also mileage at the rate of ten cents per mile for going and returning, once in each week during the annual session of the board of supervisors and when the board is sitting as a board of county can- vassers, by the most usually traveled route, from his residence to the place where the sessions of the board shall be held, and in addition thereto compensation at the rate of four dollars per day and mileage as hereinabove provided for each special session of the board which he attends; such compensation and mileage to be paid by the county treasurer on the last day of the annual session in each year. 6. In the county of Suffolk each supervisor shall receive an annual salary of one thousand dollars for all services to the county for board meetings and committee work, in lieu of any per diem compensation. He shall be reimbursed by the county for actual expenses to and from board and committee meetings. 7. In the county of Ulster each supervisor shall receive an annual salary from the county of three hundred and fifty dollars, and also mileage at the rate of eight cents per mile for going and returning once in each week during the annual session of the board of supervisors, and when the board is sitting as a board of county canvassers, and once in going and returning to and from each special session by the most usually traveled route from his residence to the place where the session ORGANIZATION, MEETINGS AND PROCEEDINGS. 20a County Law, § 23. of the board shall be held, and in addition thereto he shall receive from the county while actually engaged in any investigation or other duty which may legally be committed to him his actual expenses, and such salary, mileage and expenses shall be audited and paid as other county charges ; and such compensation shall be for any and all services which such supervisor shall render to the county and in lieu of all per diem compensation, except that each supervisor may be allowed for his ser- vices in- making a copy of the assessment-roll and extending taxes as hereinafter provided. 8. Each supervisor, except in the counties of Albany, Allegany, Broome, Clinton, Columbia, Dmtchess, Orange, Erie, Eranklin, Mont- gomery, Niagara, Oneida, Onondaga, Eensselaer, Saratoga, Schenectady, Suffolk, Ulster, Warren, Wyoming and Westchester may also receive compensation from the county at the rate of four dollars per day, and in Broome county at the rate of five dollars per day, and in the county of Franklin at a rate not exceeding eight dollars per day to be fixed by the board of supervisors, and in Clinton county at the rate of six dollars per day, and in Warren county at the rate of six dollars per day, and in Wyoming county at the rate of six dollars per day, while actually engaged in any investigation or other duty which may be law- fully committed to him by the board, except for services rendered when the board is in session and, if such investigation or duty requires 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. [Subd. amended by L. 1918, chs. 49, 285.] 9. Each supervisor in the counties of Dutchess, Orange and Alle- gany shall also be entitled to receive in addition to the compensation hereinabove provided, to be paid in the same time and manner, com- pensation 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 of supervisors of his county, together with his actual expenses incurred therein. 10. N"o other compensation or allowance shall be made to any super- visor for his services, except such as shall be by law a town charge, except that in the counties of l^iagara, Hamilton, Herkimer, Saint Lawrence, Schenectady and Saratoga each supervisor, while hereto- fore or hereafter actually engaged in any investigation, or in the per- formance of any other duty, which shall have been legally delegated to him by the board of supervisors, except when the board is in session, shall be entitled to receive in addition to the compensation herein- before provided, his actual expenses incurred therein. 20b COUNTIES; BOARDS OF SXJPERVISORS. County Law, § 23. 11. The board of supervisors of any county, except Saratoga and Suffolk 'counties, 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 tax actually extended by him on the tax-roll, and, if there be more than one item of tax on a line of the tax-roll, one cent for computing and extending the total of such items. 12. 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 tax-roll for delivery to the collector compensation at the rate of one-half the compensation authorized for making a copy of the assessment and tax- rolls.'" 13. In the county ofSuffolk the extension and copying of the tax- rolls shall be performed by clerks and be a town charge. 14. In the county of Ontario each supervisor shall receive from the county compensation at the rate of five dollars per day for each calendar day's actual attendance at the sessions of the board of supervisors, and mileage at the rate of eight cents per mile for once going and return- ing every week during any regular or special session of such board, from his place of residence to the place where any such session of the board is held, by the most usual route. [Subd. 14, added by L. 1918, ch. 307.] [County Law, § 23, as amended by L. 1910, ch. 279, L. 1911, ch. 554, and L. 1912, ch. 34, L. 1913, chs. 254, 355, L. 1914, ch. 357, L. 195, ch. 332, L. 1916, ch. 426, L. 1917, ch. 527, and L. 1918, chs. 49, 285, and 307 ; B. C. & G. Cons, L., p. 724.] § 4a. COMPENSATION OF SUPERVISORS IN CERTAIN COUNTIES. In any county of the state having not more than four towns each supervisor, including any now in office or hereafter elected, shall receive from the county for all services in any official capacity, except services 10. Extending assessment rolls. — The process of ascertaining the amount of the tax by multiplying the assessed value by the rate and setting it down in the column iis provided by section 58 of the Tax Law, is the extending of the line. Where a, supervisor extends special taxes on the same line with the general tax, each exten- sion of a special tax constitutes a new line for the purpose of ascertaining hia com- pensation. Pearsall v. Brower, 120 App. Div. 584, 105 N. Y. Supp. 207. A line on an assessment-roll is one straight row of words and figures between the margins of the page, necessarily and properly a part of the roll. Smith v. Hedges (1918), 223 N. Y. 176. A taxpayer's action to recover, on behalf of a county, money allowed by its board of supervisors under this section to a supervisor for copying written lines of the assessment roll of his town, and extending certain lines of the tax rolls, based on the claim tliat defendant was allowed, and paid for more lines than he had in fact copied and extended, is maintainable, and the audit of the board of supervisors is not conclusive. Smith v. Hedges (1914), 87 Misc. 439, 150 N. Y. Supp. 899, affd. 169 App. Div. 115; rev'd on other grounds (1918), 223 N. Y. 176. ORGANIZATION, MEETINGS AND PROCEEDINGS. g]^ County Law, §§ 241a, 17. exclusively for the town in which he is elected or a district or subdivi- sion thereof, an annual salary of three thousand dollars, and his actual and necessary expenses while performing services for the county, in lieu of all per diem or other compensation, fees, allowances, percentages and mileage. Any such supervisor shall receive from the town in which he shall have been elected, for all services performed for the town or any district or subdivision thereof, an annual salary of two thousand dollars, and his actual and necessary expenses while performing services for the town, in lieu of all other per diem or other compensation, fees, allow- ances, percentages and mileage. In any such county, the foregoing pro- visions shall be controlling, notwithstanding section twenty-three or any other provision of this chapter or any provision of the town law or any other statute. Percentages and fees payable by law to such supervisor on account of duties relating to the affairs of the county shall belong to the county. Percentages and fees payable by law to such supervisor on account of duties relating to the affairs of the town or of any district or subdivision thereof shall belong to the town. [County Law, § 23a, as added by L. 1917, ch. 586.] § 4b. COMPENSATION OF SUPERVISORS AND ASSESSORS IN AT- TENDING TAX MEETINGS. Supervisors, in addition to the compensation provided by section twenty-three of this chapter, and tovm assessors, shall be entitled to receive compensation at the rate of four dollars per day for each calendar day actually and necessarily spent in attending a meeting within the county held for the purpose of conference with the state board of tax- commissioners or a member of such board, and mileage at the rate of eight cents per mile by the most direct route from his residence, in going and returning from the place within the county where such meeting is held. Such compensation and mileage shall be a county charge. [County Law, § 24:1a, as added by L. 1911, ch. 51.] § 5. ACTS AND RESOIiUTIONS OF BOARDS OF SUPERVISORS; FORM AND CONTENTS; ADOPTION; PUBLICATION. Every act or resolution of the board shall require for its passage the assent of a majority of the supervisors elected, unless otherwise required by law.^^ Every act or resolution of such board in the exercise of its II. As to power of majority. See Note, ante p. 12. In a county in which there were eighteen supervisors the board, by a vote of those present at a meeting, passed a resolution for the removal of the co.unty seat, ten voting in favor of the resolution and eight against it. One of the ten had no authority to act as supervisor, not even de facto; it was held that there was not a majority of those elected voting in favor of the resolution and that it waf not carried, and further, that the purpose of such resolution cci-ld not be effected notwithstanding an attempted ratification by the legislature. Williams v. Boynton. 71 Hun 309; 25 N. Y. Supp. 60. 21a COUNTIES; BOARDS OF SUPERVISORS. County Law, § 17. legislative powers shall have a title prefixed, concisely expressing it;; contents, followed by a reference to tJie law or laws confeiTing the authority to pass the act or resolution, the number of votes, both for and against its passage, and when the assent of any supervisor is re- quired that such assent was given ; ^^ and all acts or resolutions so passed shall be numbered in tbe order of their passage and certified by the chairman and clerk, and within six weeks after the close of each session, such resolution shall be published in the newspapers in the county 12. For form of resolutions adopted by boards of supervisors, see Forms, Nos. I and 2, post. Resolution authorizing the issue of county and town bonds, see County Law, sec. 14, post. Form of resolution to acquire bridge pursuant to statute, see Matter of Saratoga Lake Bridge Co. v. Walbridge, 140 App. Div. 817, 124 N. Y. Supp. 468. Resolution changing location of county buildings in corformity with the vote of the electors of the county is not within the meaning of this section. This section applies only to resolutions which become final and complete solely by the action of the board. Stanton v. Supervisors of Essex County, 112 App. Div. 877, 98 N. Y. Supp. 159 (1906). Validity of resolution. A board of supervisors has no power except suoh as is vested in it by legislative enactment. Whenever power is so vested in a board and the legislature prescribes the manner in which such power shall be exercised, every substantial requirement or condition in regard to such exercise, beneficial to any citizen, must be observed and carefully complied with, or the action of the board cannot be sustained. Barker v. Town of Oswegatchie, 10 N. Y. Supp. 834. If the board of supervisors has full power to do an act, its performance of such act is not rendered illegal by a mistake in a recital in its resolution as to the source of its power even if the alleged source of its power to do such an act is a repealed statute. Matter of Rockaway Park Improvement Co., 83 Hun 263; 31 N. Y. Supp. 386. The resolution in question in this case was for the purpose of creating a fire district outside of an incorporated village under sec. 38 of the County Law, post, p. 74. The resolution referred to an act authorizing the board to create such a district which was repealed by the County Law and its provisions re-enacted with modification in such sec. 38 of the County Law. As to effect of failure to elect a commissioner of elections by a majority vote, see People ex rel. Woods v. Flynn, 81 Misc. 279. If the board of supervisors has no seal, the lack of a seal which the statute ORGANIZATION, MEETINGS AND PEOCEEDINGS. gib County Law, §§ 18, 19. appointed to publish the session laws of the legislature.'' [County Law, § 17, B. C. & G. Cons. L., p. 720.J § 6. PUBLICATION OF ACTS OF BOARD. All acts passed "by the boards of supervisors of the several counties of this state, shall be published in two newspapers representing respectively the two principal political parties into which the people of the counties are divided, after such manner, and at such compensation as the several boards of supervisors may provide, the same to be a county charge, payable in the manner provided in section forty-eight of the legislative law for the publication of local laws enacted by the legislature, provided that the rate of compensation shall not be less than the rate fixed by said section for the publication of laws of a local nature, enacted by the legis- lature. [County Law, § 18 ; B. C. & G. Cons. L., p. 721.] § 7. PROCEEDINGS OF BOARD OF SUPERVISORS TO BE PRINTED AND DISTRIBUTED; CONTENTS. Each board of supervisors shall cause as many copies of the proceed- ings of its sessions as it m'ay 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, for the members of the board and other town and county officers and for public distribution. At least three copies of such printed volume shall be forwarded to and filed in each tovsm clerk's ofiice and in the county clerk's office. In counties containing cities of the first class, and in may direct to be affixed to the certificate to the resolution, does not impair its validity. People ex rel. Masterson v. Gallup, 12 Abb. N. C. 64; 65 How. Pr. 108; affd., 96 N. Y. 628. Even though a resolution ta acquire a bridge pursuant to a special act should ihave complied with this section, requiring a title and enacting clause and a publication, the county, after having become seized of the bridge property, must pay the purchase price. Matter of Saratoga Lake Bridge Co. v. Walbridge, 140 App. Div. 817, 126 N. Y. Supp. 468. 13, Publication o£ resolutions. — The provision of this section, which directs all acts as resolutions passed by the board of supervisors to be published, has oic COUNTIES; BOARDS OF SUPERVISORS. C!ounty Law, § 19. counties containing three cities of the third class, the publication of the proceedings of the board of supervisors may be ordered to be made in a daily newspaper, the work to be done by contract, let to the lowest bidder, after an opportunity to bid therefor has been given to the proprietors of all the daily newspapers printed in the English language in said county ; such bid may include the printing and binding in pamphlet volumes of such number of copies of the proceedings of such board as may be re- quired, and also the printing of pamphlet copies thereof for the use of the members of said board at its sessions. Such printed proceedings shall contain a summary statement of all bills against the coimty, 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 otherwise, its county laws, combined with suit- able forms and instnictions thereunder, and reports of committees and county officers filed with it.^* no reference to the ordinary proceedings of the board, but only to such as are legislative in their character, and within the scope and authority of section 27 pf article 3 of the State Constitution. Kingsley v. Bowman, 33 App. Div. 1, 53 N. Y. Supp. 426. Tlie words, "such resolution shall be," in the last sentence were added by the consolidation of 1909. Resolation as evidence. Section 941 of the Code of Civil Procedure pro- vides that: "An act, ordinance, resolution, by-law, rule or proceeding of the common council of a city, or the board of trustees of an incorporated village, or of a local board of health of a city, town or incorporated village, or of a board of supervisors, within the state, may be read in evidence, either from a copy thereof, certified by the city clerk, village clerk, clerk of the common council, clerk or secretary of the local board of health, or a clerk of the board of super- visors; or from n volume printed by authority* of the common council of the city, or the board of trustees of the village, or the local board of health of the city, town or village, or the board of supervisors." 14. Daily publications not authorized prior to amendment of former law by act of 1899, Kingsley v. Bowman, 33 App. Div. 1, 53 N. Y. Supp. 426. ORGANIZATION, MEETINGS AND PROCEEDINGS. 2 Id County Law, § 26. Whenever the proceedings of the board- of supervisors of any county are printed in a volume by authority of the board of supervisors, the volume so printed, and duly certified by the chairman and clerk of the said board of supervisors to be a true record of such proceedings, shall be and constitute the book of records of the said board. [County Law, § 19, as amended by L. 1913, ch. 256, and L. 1916, ch. 606 ; B. 0. & G. Cons. L., p. 721.] § 8. COUNTY RECORDS, BOARDS OF SUPERVISORS TO HAVE GEN- ERAI. CHARGE OF; COPIES MAY BE MADE FOR PUBLIC USE; COST OF COPIES. Such boards shall have the general charge of the books and records of the county, subject to the legal rights of the officers using or having cus- tody of the same, and shall provide for their safe-keeping." 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 Use of union label. — ^The requirement by a board of supervisors advertising for bids for the printing of its journal that a union label be used by the printer is unlawful and against public policy as tending to create a monopoly by restrict- ing competition to a special class of printers. People ex rel. Single Paper Co. Co. Limited v. Edgeoomb, 112 App. Div. 604, 98 N. Y. Supp. 965. 15. Manual custody unnecessary. — The officer charged with the care of books and records need not have manual custody of the same, and the court will take judicial notice that he acts through subordinates. People ex rel. McGinnis v. Palmer, 6 App. Div. 19, 39 N. Y. Supp. 631. Indexing county records; compensation. — The board of supervisors has no authority in the absence of a special statute authorizing them to do so, to authorize the oounty clerk to make new indexes of the county records for additional compensation, or to compromise a claim for payment under a contract to make such indxea. Wadsworth v. Board of Supervisors, 217 N. Y. 484, rev'g 139 App. Div. 832, 124 N. Y. Supp. 334. 22 COUNTIES; BOARDS OF SUPERVISORS. County Law, §§ 27, 28. made and certified for the public use; and it shall be their duty to cause the same to be made and certified whenever bj' reason of age or exposure, or any casualty, the same shall be necessary. Any officers making such transcripts or copies shall be paid such sum therefor as may be just; but such payment shall not exceed a sum to be certified by the county judge, or a justice of the supreme court of the judicial district, as reasonable therefor. Such board of supervisors shall not accept and pay for any such services, until the work shall be examined and approved as to its manner and form of execution, by such judge or justice: nor shall any board of supervisors order any such work to be done until such judge or justice, after an examination, shall certify that such work is necessary for the security and safety of the public records. ^° [County Law, § 2(1; B. C. & G. Cons. L., p. 727.] § 9. W^ITNESSES AND COUNTY OFFICERS MAY BE EXAMINED BY BOARD; BOOKS AND PAPERS MAY BE INSPECTED. Any such board may require the attendance of witnesses and may examine any person as a witness upon any subject or matter within its jurisdiction, or examine any officer of the county, or a town therein, in relation to the discharge of his official duties, or to the receipt or disburse- ment by him of any moneys, or concerning the possession or disposition by him of any property belonging to the county, or to use, inspect or examine, any book, account, voucher or document in his possession or under his control relating to the affairs or interest of such county or town.^'= [County Law, § 27; B. C. & G. Cons. L., p. 728.] 16. Subpoena and examination of witnesses. For form of subpcena, see Form No. 3, post. By the above section and section 28 of the County Law immediately following power is conferred upon the board of supervisors or a committee thereof to require the attendance of witnesses upon subjects within the jurisdiction of the board and to send for persons and papers. In the case of Matter of Superintendent of the Poor, 6 App. Div. 144; 39 N. y. Supp. 878, it was held that neither the Supreme Court nor a judge of that court can punish as for a contempt a disobedience of the command of the subpoena. The court said: "A person who falls to obey a sub- poena is made liable for the damages sustained by the party aggrieved, and $50 in addition thereto, which may be recovered by action. (Code Civ. Proc, sees. 853, 855.) By section 855 of the code it is provided that in case a person Is duly subpoenaed by a board of committee, and falls to attend in obedience thereto, any judge of the court, upon proof by affidavit o* the failure to attend, must issue a warrant to the sheriff commanding him to apprehend the defaulting witness and bring him before the body before whom his attendance was required, and by section 856, if the person subpoenaed by such a body refuses, without reasonable cause, to be examined or to answer any legal or pertinent question or to produce a paper or book he may be committed to jail by a judge upon proof of such facts, there to remain until he submits to do the act which he was required to do, or is discharged accord- ing to law. But no provision of the code authorizes the punishment of such ORGANIZATION, MEETINGS AND PROCEEDINGS. 23 County Law, §§ 28-30. § 10. POWERS OF COMMITTEE OF BOARD OF SUPERVISORS AS 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, the chairman of such committee shall possess all the powers herein given to, and imposed upon the chairman of the board of supervisors. The chairman of any committee appointed by a board of supervisors is authorized to administer an oath to any person presenting an account or claim before such committee to be audited, as to services rendered and the correctness of such claim. [County Law, § 28 ; B. C. & G. Cons. L., p. 728.] § 11. ADJOURNMENT OF HEARING OR EXAMINATION BY BOARD OR COMMITTEE; DISCHARGE OF PERSONS ARRESTED FOR FAILURE TO APPEAR. Such board or committee may adjourn from time to time, and such committee may hold meetings in pursuance of such adjournments, or on call of the chairman thereof, during the recess, or after the iinal ad- journment of the board of supervisors; but where a warrant shall have been issued as provided by section eight hundred and fifty-iive 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 was issued shall be arrested, he may, in the discretion of the judge who issued the warrant, be discharged from custody, upon entering into an iindertaking to the county, with two sureties to be approved by such judge, to the effect that he will appear and submit to an examina- tion 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, § 29; B. C. & G. Cons. Lt, p. 728.] § 12. FILING AND ENFORCEMENT OF UNDERTAKING GIVEN UNDER PRECEDING 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 board or committees, shall be paid into the treasury of the county. [County Law, § 30; B. C. & G. Cons. L., p. 729.] a witness for a contempt. These provisions of the code establish the presert practice, whereby a person may be compelled to attend before an inferior legislative body and give his testimony upon matters within its jurisdiction." 34 COUNTIES; BOARDS OF SUPERVISORS. Explanatory note. CHAPTER III. AUDIT BY BOARD OF SUPERVISORS ; COUNTY CHARGES. EXPLANATORY NOTE. Audit by Board. One of the most important functions of the board of supervisors is the audit of claims against the county. " Audit " means to hear and examine; it includes both the allowance and rejection of a claim. In auditing a claim the board exercises a judicial discretion. In making an audit the board must ascertain if the claim is properly chargeable against the county, settle the amount of the claim, and allow it as thus settled. If a claim is not a county charge the board has no power to pay it. The audit of a claim not properly chargeable against the county, is null and void, and its payment may not be compelled. In auditing a claim the board may, either itself, or by a committee of its members, take evidence, examine witnesses and books and papers. The board should act fairly and should allow the claim if there is sufficient evidence to justify it. If the claim is based upon a statute which fixes the amount, the board has no discretion. If no f)riee is so fixed, or such price is not based upon a contract, the board may exercise its discretion as to the amount to be paid. The final audit must be made by the full board, although the ex- amination of accounts may be referred to a committee. Where possible all accounts must be itemized. In such cases the various items must be either allowed or disallowed. The courts have held that a person who presents a bill for audit consisting of several items is entitled to the judgment of the board on each item". (83 App. Div. 51, 82 K Y. Supp. 504). It will not do for the board to merely cut down the gross amount of an itemized claim, without determining the particular items disallowed or reduced. The rule is that the acts of a board of supervisors in auditing bills which are proper county charges, in the absence of fraud and collusion, are final and conclusive. There may be no review by the courts, if the board acts within its jurisdiction and in good faith. Where an account has been rejected by one board it cannot be allowed by a subsequent board. Where a claim has been reduced and AUDIT BY BOARD; COUNTY CHARGES, 35. Explanatory note. then allowed by one board, a subsequent board has no power to audit the claim anew at the full amount. The acts of one board pertaining to the allowance, reduction or rejection of claims presented to it are binding upon all subsequent boards. Forms of Accounts. Accounts must be made out in items and verified by the claimant. The statute requires this; without compliance with the statute the account may not be audited. Form N"o. 4 gives the proper form of an itemized and verified account against a county. If the account is not in proper form it should be returned by the clerk to the claimant. Each account should be numbered by the clerk at the time and in the order of its presentation. A memorandum, showing time of pres- entation, name of claimant, and if assigned, the name of assignor and assignee, should be entered in the proceedings of the board. The clerk must designate upon each account audited, the amount allowed, the item or amount disallowed, and deliver to any person on demand a certified copy of any account filed in his office. The board may by rule make additional regulations as to the keep- ing and rendering of accounts of county and tov(Ti officers, and the presentation and audit of bills presented to the board. County Charges. The statutes prescribe the claims which are chargeable against a county. The county cannot be made liable for any claim unless the act upon which the claim was based was authorized by express pro- vision of statute. Any expense necessarily incurred by the board in protecting the interests of the county, may be chargeable to the county; but the act of the board must be based upon statutory authority. Services rendered by an officer which are beneficial to the county may be paid for, even if no provision be made by statute for such pay- ment; but probably not, if such services were gratuitous and without authority of law. If a county is required to provide property for the use of its officers, the expense attached to the furnishing and main- tenance of such property is a proper county charge. The moneys necessary to pay coimty charges are to be raised by tax levied by the board upon the taxable property in the several towns 26 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12, subd. 2. and cities in the county. Taxes are levied as provided in § 58 of the Tax Lav7. See chapter XXXI, " Unties of supervisors as to taxation." Where necessary the board may authorize the borrowing of money to meet the payment of county charges. See County Law, §. 12, subd. 6, post, p. 55. Section 1. Power of board of supervisors to audit accounts and charges against the county. 2. Accounts to be itemized; verification; may be disallowed in part; accounts to be numbered. 3. Board may make additional requirements as to accounts. 4. Penal provisions respecting the unlawful audit and presentation of accounts against municipalities. 5. County charges. 6. County charges, how raised. § 1. POWER OF BOARD OT SUPERVISORS TO AUDIT ACCOUNTS AND CHARGES AGAINST THE COUNTY. The board of supervisors shall " Audit all accounts and charges against the county, and direct annually the raising of sums necessary to defray them in full." ^ [County Law, § 12, sub. 2; B. C. & G. Cons. L., p. 704.] 1. Audit defined. The term " audit" means to hear and examine; It includes both the adjustment or allowance, and the disallowance or rejection of an account. People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. B. 609; Morris V. People, 3 Den. 381, 391; Matter of Murphy, 24 Hun, 592, affd., 86 N. Y. 627; People ex rel. Read v. Town Auditors, 85 Hun, 114, 32 N. Y. Supp. 688. The verb ■■ audit " as here used, means simply to examine, to adjust, and it clearly implies the exercise of judicial discretion. People ex rel. Hamilton v. Super- visors, 35 App. Dlv. 239, 54 N. Y. Supp. 782. The term includes both the allowance and rejection of a claim, and also the allowance of a claim in part and its rejection in part. People ex rel. Andrus v. Supervisors, 106 App. Div. 381, 94 N. Y. Supp. 1012. What constitutes an audit. The duty of a board of supervisors in auditing and allowing accounts is: (1) To examine and determine whether an account is properly verified; (2) to see if it is properly chargeable against the county; (3) to settle or fix its amount; (4) to allow it as thus settled; (5) to provide means for its payment. People ex rel. Sherman v. Supervisors, 30 How. Pr. 173. Jurisdiction of board. Boards of supervisors, in auditing and allowing accounts, are limited to the powers conferred upon them by statute. People ex rel. Merritt v. Lawrence, 6. Hill, 244; Chemung Canal Bank v. Supervisors, 5 Denio, 517. And when they transgress these limitations, their acts are void. If, for example, a board should audit a claim which was plainly not a county charge, its determination would be void for the reason that county charges only are within its jurisdiction. Osterhoudt v. Rigney, 98 N. Y. 222, 233. As was said in the case of Board of Supervisors v. Ellis, 59 N. Y. 620, 624 : " A board of supervisors has no power to audit and allow accounts not legally AUDIT BY BOARD; COUNTY CHARGES. 2t County Law, § 24. § 2. ACCOUNTS TO BE ITEMIZED; VERIFICATION; MAY BE DIS- AIjLOWED in PART; ACCOUNTS 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 chargeable to their county; and if it attempts to do so, it Is an act in excess of jurisdiction, done without power to make it valid, and is null and void. It may be disregarded by other ofiftcers of the county, and is not binding and conclusive upon another board." Claims which need not be audited. — A claim for money illegally collected as taxes and paid into the county treasury is not a county charge which the statute intended should be audited. Newman v. Supervisors of Livingston Co., 45 N. Y. 676. See also Ross v. Supervisors of Cayuga Co., 38 Hun, 20. Claims which have their origin in torts need not be presented to the board for audit. McClure v. Supervisors of Niagara, 50 Barb. 594. See also Howell v. City of Buffalo, 15 N. Y. 512. The bonds and notes of a county, issued for loans authorized by law, are not open accounts for county charges which must be presented for audit. Parker v. Supervisors of Saratoga Co., 106 N. Y. 392. Effect of legislative enactments. — Legislature may direct the board to assess the costs and expenses of a suit brought by direction of the voters of a town by the highway commissioners on the town. Town of Guilford v. Supervisors, 13 N. Y. 143. See also People, ex rel. Morrill v. Supervisors, 112 N. Y. 585; People ex rel. Outwater v. Green, 56 N. Y. 466. Local act (1900, ch. 277, § 6) providing for the payment of the proceeds of bonds, issued for the acquisition of certain property within a county, upon the order of the board of supervisors, is entirely in accord with provisions of this subdivision. People v. Neff, 191 N. Y. 210, affg. 122 App. Div. 135, 106 N. Y. Supp. 747. Rules of the board cannot operate to change the provisions of the statute as to auditing. People v. Supervisors, 22 How. Pr. 71, affg. 21 How. Pr. 322. Board acts judicially. In the settlement of disputed claims, or in the audit and allowance of county charges, a board of supervisors acts judicially where the subject of the claim is within its jurisdiction. People ex rel. Canajoharie Nat. Bank v. Supervisors, 67 N. Y. 109, 114. In this case the court said: " The acts which can in any aspect be regarded as judicial, and therefore final and conclusive until reversed, had respect solely to the amounts at which claims under an act should be audited and allowed. Had they been left to determine also whether these claims were or were not county charges, their decision of that question might have been claimed to be judicial and in the nature of a judgment; but the functions of the supervisors, judicial in their character, being limited to ascertaining and determining the amount or amounts, which, when ascertained and determined, the legislature had directed to be raised by tax and paid as other county charges are provided for and paid, a repeal of the acts making the claims a county charge, does not reverse any judgment or judicial determination of the board of supervisors in respect to any matter referred to them." In other words, the board does not act judicially in determining whether or not a claim which is clearly declared by statute to be a county charge is binding upon the county. See, also. People v. Supervisors of Livingston, 26 Barb. 118; Supervisors of Onondaga v. Briggs, 2 Denio, 26; Cupervisors of Chenango v. Birdsall, 4 Wend. 453; Bank of Staten Island v. City of New York, 68 App. Div. 231, 74 N. Y. Supp. 284. In exercising the power to audit, the board acts judicially and its action may be reviewed by cerMorarl. New York Catholic Protectory v. Rockland County, 159 App. Div. 455. 28 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 24. items and accompanied with an affidavit that the items of such account? are correct, and that the disbursements and services charged therein have Where it is doubtful and rests upon disputed evidence, whether a claim is a proper county charge the determination is committed to the discretion o£ the board. Osterhoudt v. Rigney, 98 N. Y. 222, 232. Power to audit is a judicial act, and the board is not liable for an erroneous, determination. Chase v. Saratoga Co., 33 Barb. 603; Osterhoudt v. Rigney, 98. N. Y. 222; People v. Stocking, 50 Barb. 573; Weaver v. Davendorf, 3 Den. 117; People ex rel. Brown v. Supervisors, 3 How. Pr. (N. S.) 241; People ex rel. Kelly V. Haws, 21 How. Pr. 117; Supervisors of Onondaga v. Briggs, 2 Denio 26. While in a very largely qualified sense the action of the board is quasi- judicial, it is not so in the sense that an erroneous and improper audit is incapable of correction by the board. People ex rel. Hotchkiss v. Supervisors,. 65 N. Y. 222. Where the amount of services is undisputed and where the rate of compensa- tion is established by law or undisputed contract so that an unquestionable duty exists that the board pay the claim, then the board cannot evade this duty by saying that the board is a quasi-judicial tribunal. People ex rel. Morrison v. Supervisors, 56 Hun, 459, 10 N. Y. Supp. 88, aftd. 27 N. Y. 654. See also Matter of Murphy, 24 Hun, 592, affd. 86 N. Y. 627; People v. Supervisors of Cortland, 58 Barb. 139. When board may exercise discretion. Such boards have no discretion where the salary of an officer is fixed by law and made a county charge. The amount as so fixed concludes the board in its action. Morris v. People, 3 Denio, 381; People V. Stout, 23 Barb, 338; People v. Supervisors of Cortland, 58 Barb, 139; 40 How. Pr. 53. In passing upon claims where no price has bee^ agreed upon, and in auditing claims for legal and other services where no price is fixed by statute, and no sum has been fixed upon by contract as compensation for such services, the board may exercise its discretion in fixing the amount; and where it acts in good faith in auditing and allowing the claim, its action will not be reviewed. People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196; People v.. Supervisors of Albany Co., 12 Wend. 257; People v. Supervisors of Otsego Co., 51 N. Y. 407; People v. Supervisors of Dutchess Co., 9 Wend. 508; People v. Supervisors of Cortland Co., 58 Barb. 139; 40 How. Pr. 53. When the law has declared that certain claims shall be a debt of the county,, then the supervisors cannot reject the claims upon the idea that they are not valid and legal claims against the county; but if they admit all the facts, upon which the claims are legally founded, they must audit and allow them. But where any of the facts material to the existence of the claim are disputed, then the point arises at which their judicial discretion is called into exercise, and they cannot be compelled by mandamus to decide this question in any particular manner. People ex rel. Benedict v. Supervisors of Oneida,, 24 Hun, 413. Power of audit cannot be delegated. The final audit should be by the board as a whole. The examination of accounts may be made by a 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. Hagadorn, 104 N. Y. 516; 10 N. E. 891; Bellinger v. Gray, 51 N. Y. 610;. Town of Salamanca v. Cattaraugus Co., 81 Hun, 282, 30 N. Y. Supp. 790. AUDIT BY BOARD; COUNTY CHARGES, 39 County Law, § 24. been in fact made or rendered, or are necessary to be made or rendered It seems that where the board exercises governmental functions, the whole body must act; but, when it acts as a mere business corporation, it may delegate the mechanical and physical work to its agents. People ex rel. Vaugh v. Supervisors, 52 Hun, 446, 5 N. Y. Supp. 600. Manner of auditing. A legal and proper auditing of an account requires an examination of the items of which it is composed, and the allowance or disallowance of them accordingly as they shall be found correctly or incor- rectly, charged both in law and in fact. The board must examine each bill in detail and allow or disallow the various items. It would be no proper or just audit of an account made up of numerous items to allow a gross sum instead of considering and passing upon the items. People ex rel. Johnson V. Supervisors of Delaware Co., 45 N. Y. 196; People ex rel. Thurston v. Board of Auditors, 20 Hun, 150, affd. 82 N. Y. 80; People ex rel. Drummond v. Supervisors of Westchester Co., 82 N. Y. Supp. 504 (App. Div., 2d Dept., May 28, 1903). A person who presents a bill for audit consisting of several items is entitled to the judgment of the board on each item. People ex rel. Drum- mond V. Supervisors, 83 App. Div. 51, 82 N. Y. Supp. 504. For instance, where a claim is presented by a county officer for services performed by him for which he is entitled by statute to a certain per diem compensation, specifying the number of days employed by date, and the particular duty or service performed on each day, and charging for each day so employed the compensation allowed by law, the board would not be justified in allowing a gross sum without specifying the particular items in the account which are disallowed. See People ex rel, Thurston v. Board of Auditors, 82 N. Y. 80, in which case the Court of Appeals says: " If (in allowing such a claim at a gross sum), they rejected no specific day or days, but allowed them all to stand, then they violated the statute rate of com- pensation. But if, as they claim, they reduced the number of days as a whole without disallowing any specific one, they did not audit the account at all; they merely guessed at the result and offered a compromise. Within the range of their discretion they are sufliciently powerful. The courts may not dictate their conclusion, but may justly require that they arrive at one in a just and intelligent way, and with some reasonable respect for the possible rights <5t the creditors. In this case the board of auditors, instead of passing on the relator's bill, and allowing or disallowing the items accord- ing to the facts and the law, assumed the right to allow what they pleased, without disputing the facts on the one hand or the law on the other. In other words, acting on the theory that the commissioners were costing the town too much, the auditors cut down the gross amount of the bill to their own arbitrary standard, without regard to the right or wrong of a single item presented for their judgment. It is well to regard economy, but it is better to do fair and complete justice. . . . The amount to be allowed has in no manner been dictated by the courts. That is the duty of the auditors. But they must perform that duty by passing specifically upon the separate charges, so that both claimants and the people may know what has been done. Their conclusion must be, not an arbitrary guess at a gross, sum, but an actual audit of the several charges presented." In the case of People ex rel. Sutliff v. Supervisors of Fulton, 74 Hun, 251; 26 N. Y. Supp. 610, a sheriff's bill contained numerous items for board of prisoners at the county jail, and for various fees for services performed by 30 COUNTIES; BOARDS OP SUPERVISORS. County Law, § 24. at that session of the board, and stating that no part of the amount the sheriff and his agents in respect to such prisoners. The board passed a resolution auditing and allowing the bill at a greatly reduced gross sum without specifying the items rejected. The court said: "They must pass upon the items, and should so discharge their duties in that regard that the relator will be able to know which items were allowed and which were dis- allowed. It may not be necessary for the board in their decision to pass upon each item of relator's bill separately. For instance, if they should disallow all " turnkey's " fees and all " tub " fees, it would be sufficient to so declare without specifying each item. If they should allow the number of weeks' board claimed, but should reduce the price it would be sufficient to merely state the price per week allowed. But in some way the board should pass on and allow or disallow the items of the relator's bill, and in such a way that it may be known what the determination in fact was as to each item. This may cause much trouble, but It seems necessary under the statute and decisions." Audit of claim for services. — In reference to charges for services for which no fixed or definite sum is prescribed as a compensation ihe board is vested with a discretion, and may allow such sum as they deem just. In auditing and allowing this class of accounts they act judicially, and no proceedings can be had against them, or against the county, for an erroneous determination in relation to their acts. Chase v. County of Saratoga, 33 Barb. 603; People v. Stocking, 50 Barb. 573; 32 How. Pr. 48; People ex rel. Sherman v. Supervisors of St. Lawrence Co., 30 Hoy^. Pr. 173. A board of supervisors in passing on a claim for services may act upon In- formation acquired apart from any formal hearing. Thus, they may consider letters received from clerks of other counties stating the rates paid by them for similar services. People ex rel. McHenry v. Board of Supervisors, 140 App. Div. 759, 126 N. Y. Supp. 153. Where a board of supervisors lias received a. claim against a county based on <]nant)im meruit for services of a physician in making post-mortem examinations, and has acted upon it by allowing it in part and reducing the amount, the claim- ant cannot disregard the audit and sue tlie county eo nomine for the entire amount of his claim. Such an audit is final and reviewable only by certiorari. Foy v. County of Westcl.ester. 60 App. Div. 412, 6!) N. \. Supp. 887, affd. 168 N. Y. 180. Tl\e audit by a board of supervisors, having jurisdiction over the matter of a claim for services rendered the county, at a reduced amount, is, in the absence of fraud or collusion, final and conclusive, and cannot be attacked collaterally in an action brought by an as^ignc■e of tlie claimant, even though the bnard of supervisors erroneously allowed on plausible grounds items which were not a proper county charge. The rule of res adjudiinta applies to such an audit. Bank of Staten Island V. City of New York, 68 App. Div. 231, 74 N. Y. Supp. 284, affd. 174 N. Y. 519. Supervisors must audit salary of an officer as fixed by law. People v. Stout, 23 Barb. 388 (1856). See People v. Haws, 21 How. Pr. 178. But see People V. Supervisors, 12 How. Pr. 204. Attorney's services. — Claim for services by an attorney assigned to defend a prisoner is not a charge on the county, and in the absence of statutory authority the board is powerless to audit same. People v. Supervisors of Albany, 28 How. Pr. 22. A claim for attorney's services rendered to the board is a county charge and must first be presented for audit. Brady v. Super- visors of N. Y., 10 N. Y. 2C0. Charges for legal services to county excise board were required to be presented to supervisors for audit; and mandamus will lie if board refuse to AUDIT BY BOARD; COUNTY CHARGES. 31 County Law, § 24. audit such claim if legally chargeable to county. People v. Supervisors of Delaware, 45 N. Y. 196. See also People v. Supervisors, 14 Barb. 52. A claim by an attorney, assigned to defend a poor person, indicted for murder In the first degree, for the services of an interpreter, apparently rendered prior to the trial, should not be allowed by the county, where it appears that a similar item has been paid for the services of an interpreter at the trial in the interest of the defense, and the papers do not show that the additional item claimed was necessary and proper. Although an order has been granted in such an action requiring the stenographer to furnish from day to day a transcript of his minutes to the attorney assigned for the defense, the expense incurred is not chargeable to the county. Matter of Kenney v. Prendergast (1912), 153 App. Div. 325. Affidavit as to value of services. Where a claim for services rendered, presented to a hoard of supervisors for audit, which board has authority to exercise its judgment in reference to the amount to be allowed, is sustained only by the affidavit of the claimant, the board is not compelled to accept his statement, although it is uncontradicted, but may award such sum as in its judgment seems proper compensation for the services. Matter of Lanehart, 32 App._ Div. 4; 52 N. Y. Supp. 671. Hearing evidence as to claims. In all cases where auditing officers are Tested with the right to exercise their discretion in determining the amount to be paid, it is a matter of fair dealing that the claimant should be given an opportunity to be heard in his own behalf, and to furnish evidence if he so desires. People v. Supervisors of St. Lawrence Co., 30 How. Pr. 173. But the board cannot be compelled to receive evidence in regard to an account where such evidence could not affect its decision. People ex rel. White v. Supervisors of Clinton Co., 20 N. Y. Supp. 273; 48 N. Y. St. Rep. 457. And the hearing of counsel in favor of a claim presented for audit, and the writing out of the stenographer's minutes taken at a hearing before a committee, is within the discretion of the board and cannot be compelled. People ex rel. Sutliff v. Supervisors of Pulton Co., 74 Hun, 251; 26 N. Y. Supp. 610. Examination of claims. In investigation of a claim the board of supervisors are not the protectors of the county, but are bound to stand impartial between claimant and county; they are made by statute the judges of what is justly due. The claimant may claim opportunity to be heard, to produce witnesses and cross-examine witnesses; the county likewise should have a right to be represented. A record of all evidence should be kept so that it may be pre- pared to return its proceedings for review on certiorari. People ex rel. Bliss v. Supervisors, 39 St. Rep. 313, 15 N. Y. Supp. 748. See also People ex reli White V. Supervisors, 48 St. Rep. 3, 20 N. Y. Supp. 273, holding that board has reasonable discretion as to reception of evidence. Where the claimant has failed to observe the statutory requirement as to proof, the board can either reject the bill altogether or allow what they consider fair compensation. People v. Webb, 21 N. Y. Supp. 298. The board cannot audit a claim barred by the statute of limitations. Woods T. Supervisors of Madison Co., 136 N. Y. 403. Audit, how far conclusive. In the case of Martin v. Supervisors of Greene Co., 29 N. Y. 645, it was held that after a claim against a county has been presented to the board of supervisors for allowance, and has been examined and passed upon by that board, the amount determined to be actually and justly due declared, and its payment provided for in the mode prescribed by law, no action will lie against the county, to recover the same claim, upon the ground that the decision of the board was erroneous in respect to the amount actually and legally due to the plaintiff. The rule is that the acts of a board of audit, within its jurisdiction, in the absence of fraud and collusion, are final and conclusive, and cannot be questioned in a collateral proceeding. Whether a claim is a proper county charge, in a case where it is doubtful and rests upon disputed evidence, and what amount shall be allowed, when not fixed by statute, are questions which the statute commits to the board, and however much it may err in judgment on the facts, so long as it keeps within its jurisdiction and acts -in good faith, its audit cannot be overhauled, but ia final both to the claimant and all taxpayers. Osterhoudt v. Rigney, 98 N. Y. 32 COUNTIES; BOARDS OP SUPERVISORS. County Law, § 24. 222, 232. And see People v. Supervisors of Livingston, 26 Barb. 118; People ex rel. Vaughn v. Supervisors, 52 Hun, 446; 5 N. Y. Supp. 600. The audit of the board Is In the nature of a judgment. People ex rel. McDonough v. Super- visors of Queens, 33 Hun, 305, 307. When the question whether a charge made by a county clerk is a valid county charge Is dependent upon a question of fact to be determined by the board of supervisors, the audit and allowance of the claim by the board, In the absence of fraud or collusion, is conclusive in the claimant's favor. Where the law- fulness of a charge made by a county clerk does not depend upon any such question of fact, but the charge is unlawful on its face, It is not aided in any respect by the audit thereof; and the association of such illegal claims with claims which are lawful in an audited bill does not serve to P'rotect the former from attack notwithstanding the audit. People t. Sutherland (1912), 207 N. Y. 22. Certificate of audit is conclusive against the county. People ez rel. Central Nat. Bank v. Fitzgerald, 54 How. Pr. 1. If claimant accepts payment of claim as audited, he is estopped. People ex rel. O'Mara v. Supervisors, 40 N. Y. St. Rep. 238, 16 N. Y. Supp. 254. The audit and allowance of an account by the board is conclusive of the right of the claimant to recover it Brown v. Green, 46 How. Pr. 302, aftd. 56 N. Y. 476. See also People ex rel. Kelly v. Haws, 21 How. Pr. 117. The prior audit by the town board of an account against the town is conclusive, and cannot be reversed or reviewed by the board of supervisors. McCrea v. Chahoon, 8 N. Y. Supp. 88. But a claim against a county is not made legal by its audit by the board of supervisors. People ex rel. Tracy v. Green, 47 How. Pr. 382. As to conclusiveness of audit, see, also. Supervisors of Onondaga v. Briggs, 2 Denio 26; People v. Stout, 23 Barb. 338. The fact that a sheriff's account has been illegally audited by » board of super- visors does not prevent the recovery of the amount paid in an action against the sheriff. Franklin County v. Henry, 148 N. Y. Supp. 627. The validity of the claim, notwithstanding audit by a board of supervisors may be attaclced in a taxpayer's action if it appears that the board exceeded its jurisdiction. Smith v. Hedges, 169 App. Div. 115, 154 N. Y. Supp. 867. In this case it was held that the fact that some part of the claim was within the jurisdiction of the board did not make conclusive the audit of another part of the cl^im which was without the jurisdiction of the board. But where the charges audited and allowed are in their legal nature proper charges, then the audit and allowance is conclusive as to the performance and extent of the work on which the charges are based. This case was reversed on appeal by the Court of Appeals, 223 N. Y. 176, on the ground that the audit was illegal. The reasonableness of the amount of a bill for costs and expenses in a proceeding before the governor for the removal of a sheriff is a question purely for the board of supervisors to determine when they make their audit. Gavin v. Supervisors of Rensselaer (1916), 93 Misc. 284, 157 N. Y. Supp. 973. Reconsideration of audited claims. — Where a claim has been considered, audited and allowed by a board of supervisors, but not actually paid, said board may reconsider its action and reaudit the account. The fact that the claim as audited was assigned prior to the reconsideration thereof by the board of supervisors does not change the situation, as the assignee acquired no gi'eater right than the assignor had and must be presumed to have known that the board had power to reconsider its action and reaudit the claim. Matter of Equitable Trust Co. v. Hamilton (1917), 177 App. Div. 390. Audit of rejected accounts. An account rejected by a board upon its merits cannot be audited by a subsequent board. Osterhoudt v. Rigney, 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 subsequent board. People ex rel. Mason v. Board of Supervisors, 45 Hun 62. The board may properly re- ject a claim which lias been audited and rejected by the board of a previous year. People ex rel. Andrus v. Supervisors, 106 App. Div. 381, 94 N. Y. Supp. 1012. After alleged erroneous audit by board of supervisors, an action will not lie for the recovery of a larger sum. Martin v. Supervisors, 29 N. Y. 645. See also Chase v. County of Saratoga, 33 Barb. 603, 3 How. Pr. (N. S.) 241. Review by certiorari. Where a claim presented to the board is of such a character that the board is vested with authority to exercise its judgment in AUDIT BY BOARD; COUNTY CHARGES. 33 County Law, § 24. respect thereto, and requires a determination based upon conflicting testimony and inferences arising therefrom, whatever right of review exists must be by certiorari, and mandamus is improper. Matter of Ijanehart, 32 App. Div. 4; 52 N. Y. Supp. 671. In the case of People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. E. 609, it was held that not only does an auditing board possess discretionary and judicial power, but its jurisdiction over claims which are properly submitted to it is original, and its decision thereon is conclusive until modified or reversed by another court in the manner prescribed by law, that is, in proceedings by certiorari. See, also. People ex rel. Hamilton v. Supervisors of Jefferson Co., 35 App. Div. 239 ; 54 N. Y. Supp. 782. Where services have been rendered by a physician in making post-mortem examinations, the compensation for which is a county charge, and the claim has. been presented to and audited by the board of supervisors, the audit is final; and while the amount of the audit may not be the value of the services, and may present a case for review by certiorari, no cause of action therefor arises against the county. Foy v. County of Westchester, 168 N. Y. 180; 61 F. E. 174, aflfg. 60 App. Div. 412 ; 69 N. Y. Supp. 887. Certiorari will lie to review an erroneous determination of the board of super- visors as to a claim declared by the legislature to be just; after such review, if board still refuse to allow the claim, further remedy by mandamus will be given. . People V. Supervisors, 51 N. Y. 442. Mandamus to compel audit. If audit is refused or amount is arbitrarily reduced, remedy is by mandamus. Matter of Lanehart, 32 App. Div. 4, 52 N. Y. Supp. 671; but if claim requires exercise of discretion and a determination based upon con- flicting evidence, remedy is by certiorari. Id. And see also People ex rel. Hamil- ton V. Supervisors of Jefferson, 35 App." Div. 239, 54 N. Y. Supp. 782; People ex rel. Plumb v. Supervisors of Cortland, 24 How. Pr. 119; People ex rel. Martin v. Earl, 47 How. Pr. 458; People ex rel. McAleer v. French, 119 N. Y. 502; Vedder v. Superintendent, 5 Den. 564; Albrecht v. County of Queens, 84 Hun 399, 32 N. Y. Supp. 473; New York Catholic Protectory v. Rockland County, 159 App. Div. 455. Where a board have once considered a claim and audited and allowed it at a certain sum, the claim being one where they have the right to exercise a discre- tion in determining the amount, a mandamus cannot issue to compel them to audit the claim anew and allow it at a greater amount. People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196. The action of a board of supervisors in rejecting or alleging a claim presented to it is judicial, and to some extent discretionary; it cannot be reversed for any cause by a subsequent board; it is conclusive as to the proper form and details of the claim presented; and although a peremptory mandamus may issue, com- pelling the board to act, it .cannot direct it how to decide. People ex rel. Brown V. Supervisors of Herkimer, 3 How. Pr., N. S., 241. The board of supervisors being vested with jurisdiction to audit all claims legally chargeable to the county, the law imposes upon them the duty of acting on all such claims legally presented to them; and if they refuse to act upon a valid claim, they may be compelled to act by mandamus. People ex rel. Johnson v. Supervisors of Delaware Co., 45 N. Y. 196; People ex rel. Hall v. Supervisors of New York, 32 N. Y. 473. A claim presented to » board of supervisors, who permitted their session to expire without taking any action upon it, is to be regarded as rejected, for the purpose of mandamus to compel the board to act thereon. People ex rel. Aspinwall v. Supervisors of Richmond Co., 20 N. Y. 252. Where the supervisors of a county have neglected to perform any duty required of them at their annual meeting they may be compelled by mandamus to meet again and perform it. They cannot by their neglect nullify a statute imposing duties upon them. People ex rel. Scott v. Supervisors of Chenango Co., 8 N. Y. 317. The rejection of a claim by a board of supervisors on the ground that the county is not liable therefor, may be reviewed by mandamus as well as by writ of certiorari. People ex rel. Smart v. Supervisors, 66 App. Div. 66, 72 N. Y. Supp. Where a question of fact is to be determined by the board of supervisors, the board has the right to decide, and mandamus will not lie; but where no such question exists and the amount of the claim is undisputed, so that on the facts a clear, unquestionable duty exists that the board pay the claim, then the board may be co^npelled by mandamus to perform its duty. People ex rel. Morrison v. 34 COUXTIES; BOARDS OF SUPERVISORS. County Law, § 24. 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 such account shall be numbered from one Supervisors, 56 Hun 459, 10 N. Y. Supp. 88, affd., 127 X. Y. 654. See also People V. Supervisors of St. Lawrence Co., 30 How. Pr. 173. Wliere the supervisors refuse to allow a legal cliarge, the court may instruct and guide them in the execution, of their duty by mandamus and compel them to admit the claim as a county charge without controlling the exercise of their judgment and discretion as to the amount to be allowed. Hull v. Supervisors of Oneida, 19 Johns. 259. See also People ex rel. Bliss v. Supervisors of Cortland, 39 N. Y. St. Rep. 313, 15 N. Y. Supp. 748; People v. Supervisors of Otsego Co., 51 x\. Y. 401. If a board of supervisors refuses to act upon or allow or disallow a claim, the remedy of the claimant is hj' writ of mandamus. If a valid claim against a county is not allowed at a proper amount, the remedy of the claimant is by writ of certiorari to review the audit. Matter of Equitable Trust Co. v. Hamilton (1917), 177 App. Div. 390. When the board refuses to examine the accounts, for some cause other than errors or want of proof as to the items, it may be compelled to proceed with tlie examination and audit. People v. Supervisors of N. Y., 21 How. Pr. 322. To entitle creditor to mandamus to compel board of supervisors to assess against a town a judgment recovered against its highway commissioners, it must be established that the judgment is one the town is precluded from disputing. Peo- ple ex rel. Everett v. Supervisors, 93 N. Y. 397, affg. 26 Hun 185. If the board has acted on the subject matter and exercised its discretion by allowing but part of an account, though it be less than that certified by a justice of the supreme court, mandamus will not lie. People ex rel. Ayres v. Supervisors, 14 Barb. 52. Where the board has passed upon the whole claim on its merits and has exer- cised its judgment in good faith, mandamus will not lie to compel board to allow a greater amount; where the board has not acted upon each item of the claim and arrived at its decision in a systematic way it may be required to do so by mandamus. People ex rel. O'Mara v. Supervisors, 40 N. Y. St. Rep. 238, 16 N. Y. Supp. 254. 2. For form, of accounts against county, see Form No. 4, post. The form and verification of accounts against towns and counties is also pre- scribed by sec. 175 of the Town Law, post. 3. Presentation of accounts in other counties. In Albany County the presenta- tion and audit of accounts against the county by the board of supervisors would seem to be controlled by L. 1881, ch. 283. In Rensselaer county it is provided by L. 1901, ch. 124, as amended by L. 1904, ch. 217, that the board of supervisors shall meet annually between general election day and the fifteenth day of December following for the purpose of examining and auditing accounts against the county, and transacting other business. This act also provides for the presentation of claims and regulates their audit by the board. Sufficiency of presentation. The board of supervisors may insist upon a com- pliance with the provisions of the above section. It is not the duty of the board to audit accounts not made out in items and verified as required by the statute. People v. Supervisors of Monroe County, 18 Barb. 567. And the refusal of the board to audit a claim which was not presented in the form prescribed by statute will not be reviewed by the court. People ex rel. Johnson v. Supervisors of Dela- ware County, 9 Abb. Pr. N. S. 416. And in this case it was also held that neither the report of a committee of the supervisors, setting forth the itemized claim nor a similar report made by the claimant as a public officer, can be regarded as a presentation of the claim for the purpose of audit. If an account is not properly verified it should be returned to the claimant with notice, so that he may appear and correct it. People ex rel. Sherman v. Super- visors of St. Lawrence County, 30 How. Pr. 173. An affidavit stating that the services claimed for were performed (but not stating that they were rendered for the county), and that no part of the claim had been paid by the board AUDIT BY BOARD; COUNTY CHARGES. 35 County Law, § 24. upwards in the order of presentation, and a memorandum of tlie 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, § 24; B. C. & G. Cons. L., p. 726.] § 3. BOARD MAY MAKE ADDITIONAL REQUIBEMENTS AS TO AC- COUNTS. Boards of supervisors may make such additional regulations and re- quirements, not in conflict with law, concerning the keeping and rendering of official accounts and reports 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, § 25 ; B. C. & G. Cons. L., p. 727.] or any one on their behalf, is not a sufficient veriiication. People ex rel. Cagger v. Supervisors of Schuyler County, 2 Abb. Pr. N. S. 78. All claims against the county must be itemized before they can be audited, and a charge for " traveling expenses," and " incidentals," is not sufficiently specific to comply with the requirements of the statute. Matter of Pinney, 17 Misc. 24; 40 N. Y. Supp. 716. And where a claim is presented to the board of supervisors for expenses and disbursements by the board of health of a city, but the accounts presented are in gross sums, being the total amounts paid to various persons, without any items whatever, it was held that the accounts are not sufficiently itemized to entitle them to be audited by the board. People ex rel. Board of Health v. Supervisors of Monroe County, 18 Barb. 567. The fact that the claimant has presented informal bills to the board for audit is not a reason for absolutely rejecting the claim and thus deprive him of that which may be honestly and fairly due him. In a disposition to be just the right to amend will readily be suggested. By permitting an amend- ment the claimant could present his claim in the form and manner prescribed hy the statute, and then the board of supervisors could examine and pass upon the various items embraced therein, doing justice to all parties. People ex rel. Mason v. Board of Supervisors of Wayne County, 45 Hun, 62. Account must state that the services were necessarily rendered. People ex rel. Toohey v. Webb, 50 St. Rep. 46, 21 N. Y. Supp. 298. As to criminal offense of fraudulent presentation of claim, see People v. Bragie, 88 N. Y. 585, aftg. 10 Abb. N. C. 300. 4. The clerk of the 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 demand a certified copy of any account on file in his office. County Law, § 50, sub. 5, post, p. 96. The withdrawal of an account is not necessary for the purpose of correct- ing informalities and defects contained therein. Notwithstanding the above provision of the statute a claimant should be given leave to amend such an account. People ex rel. Mason v. Board of Supervisors, 45 Hun, 62. 36 OOXJNTIES; BOARDS OF SUPERVISORS. Penal Law, §§ 1863, 1864. § 4. PENAL PROVISIONS RESPECTING THE UNLAWFUL. AUDIT AND PRESENTATION OF ACCOUNTS AGAINST MUNICIPAL- ITIES. Unlawfully auditing and paying claims. A public officer, or person holding or discharging the duties of any office or place of trust under the state, or in any county, town, city or village, a part of whose duties it is to audit, allow or pay, or take part in auditing, allowing or paying claims or demands upon the state, or such county, town, city or village who knowingly audits, allows or pays, directly or indirectly consents to, or in any way connives at the auditing, allowance or payment of any claim or demand against the state or such county, town, city or village, which is false or fraudulent, or contains charges, items or claims, which are false or fraudulent, is guilty of felony, punishable by imprisonment for a term not exceeding five years, or by a fine not exceeding five thousand dollars, or by both.= [Penal Law, § 1863; B. C. & G. Cons. L., p. 4050.J A person who, being or acting as a public officer or otherwise, by wilfully auditing or paying, or consenting 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, converting, dis- posing 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 exceeding five times the amount or value of the money or the property converted paid out, lost or disposed of by means of the act done or abetted by such person, or by both such imprisonment and fine. The amount of any such fine when paid or collected, shall be paid to the treasury of the corporation or body injured. A conviction under this section forfeits any office held by the offender, and renders him incapable thereafter of holding any office or place of trust. A transfer in whole or part of any deposit with any bank or other de- 5. Fraud cannot be based upon an excessive charge. Peopl^ v. King, 19 Misc., 98, 100, 43 N. Y. Supp. 975. Indictment charging official with presenting a fraudulent claim to an auditing board for allowance and also with corruptly auditing a claim is void for duplicity. People v. Stock, 21 Misc. 147, 47 N. Y. Supp. 94. But an indictment of one count describing both crimes is not invalid. People v. Klipfel, 160 N. Y. 371, affg. 37 App. Div. 224, 55 N. Y. Supp. 789. Indictment of a deputy com- missioner of city works for certifying fraudulent bills. People v. Fielding, 36 App. Div. 401, 55 N. Y. Supp. 530, revd. 158 N. Y. 542. As to sufficiency of indictment, see People v. Coombs, 158 N. Y. 532, affg. 36 App. Div. 284, 55 N. Y. Supp. 276; People v. Miles, 123 App. Div. 862, 108 N. Y. Supp. 510. AUDIT BY BOARD; COUNTY CHARGES. 37 Penal Law, §§ 1864. 1872. pository, or of any credit, claim or demand upon such depositary, whereby the right, title or possession of the owner or holder of such deposit, or of any custodian thereof, is impaired or affected, is a conversion thereof under this section [Penal Law, § 1864; B. C. & G. Cons. L., p. 4050.] Fraudulently presenting bills or claims top ublie 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 ac- count, writing or voucher, or any bill, account or demand, containing false or fraudulent charges, items or claims, is guilty of a felony. [Penal Law § 1872; B. C. & G. Cons. L., p. 4053.] § 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;^ 6, The chapter here referred to is the County Law, and the intent of the above subdivision is to make all charges incurred pursuant to the provisions of the County Law county charges. County charges generally. To determine what are county charges refei • ence must be made in each case to the statute authorizing the incurring of the charge. The county cannot be made liable for any claim unless the act upon which the claim was based was authorized by express provision of statute. As was held in the case of People ex rel. Hadley v. Supervisors of Albany County, 28 How. Pr. 22, to charge a county with a claim for services or expenses incurred, there must be some statutory authority authorizing them to be rendered or incurred, or directing their payment. Without this the board of supervisors cannot be compelled by mandamus to audit the claim. As to audit of claims against the county, see County Law, § 12, subd. 2, ante. 7. What are " necessary expenses " must Inevitably depend upon circum- stances, and it is a flexible term. The district attorney is invested with much latitude and discretion in determining what expenses are necessary. In the performance of the responsibility with which he is charged in the prosecu- tions of crimes within his county, he is required to exercise his judgment as to the wisdom of employing experts and as to other expenses to be incurred in any given case. The expense of employing a civil engineer, to malie an expert investigation as to whether a contractor building State and county roads was properly performing his contract, is a proper charge against the county. People ex rel. Koetteritz v. Board of Supervisors (1911), 148 App. Div. 392. The district attorney may employ private detectives t6 aid him in his duties without authority of the board of supervisors, and the expense thereof is a proper charge against the county. People ex rel. Watts v. Niagara County, 170 App. Div. 334, 156 N. y. Supp. 148. Expenses in criminal actions. The duty of prosecution for criminal offenses committed in a county devolves upon its district attorney, and as incidental thereto, he has the power to do' that which is essential to such prosecution. All expenses necessarily incurred by such officer in the performance of such duty, or the exer- cise of the power, are a county charge. The duty embraces whatever is essential to bring a criminal to trial as well as the proceedings on trial; and so, if he is in a foreign jurisdiction, it includes efforts to effect his arrest and custody for the purpose of extradition, in order that he may be brought within the jurisdiction of the court. People ex rel. Gardinier v. Supervisors of Columbia County, 134 N. Y. I; 31 N. C. 322; see, also, Matter of Pinney, 17 Misc. 24; 40 N. Y. Supp. 716. 38 COUNTIES; BOARDS OF SUPER^aSORS. County Law, § 240. 3. The compensation of the county officer'^, their subordinates and assistants, which are payable by the county ; ^ Accounts of district attorney for expenses. A district attorney, wlio incurs expenses in connection with criminal actions or proceeding's arisinj? In his county, should, when presenting his bill to the board of supervisors, specifically state therein the nature of such expenses so that the board may determine whether they were expenses necessarily incurred by him within the meaning of the above subdivision. A board of supervisors may properly refuse to allow a bill containing items for " expenses " to and at different places within the county on certain dates, Where none of the items states the nature of the expenses and only a portion of them specify the matter in connection with which the expenses were incurred. Matter of White, 51 App. Div. 175; 64 N. Y. Supp. 726. Expense of prosecution for illicit traffic in intoxicating liquors by the district attorney, under the metropolitan police act, is a, county charge. People v. Super- visors of New York, 32 N. Y. 473. But see People ex rel. Kelly v. Haws, 21 How. Pr. U7. Expense of prosecutions under the Liquor Tax Law. Eept. of Atty. Genl. (1902) 342. Expert witnesses. The above subdivision has been held to embrace within its terms the expenses necessarily incurred by a district attorney in procuring the attendance of medical experts at the trial of an indictment for murder. People ex rel. Tripp v. Supervisors, 22 Misc. 616, 50 N. Y. Supp. 16. Although a charge for the employment of an expert in making tests and giving evidence upon the trial of an indictment for murder is authorized, without the consent of the board of supervisors first obtained, a claim for services so rendered is subject to the adjudication of such board, and that body is not concluded by a contract entered into between the district attorney and the expert, by which the compensation of the latter is fixed. People ex rel. Hamilton v. Supervisors, of Jefferson County, 35 App. Div. 239, 54 N. Y. Supp. 782. See, also. People ex rel. Sherman v. Supervisors of St. Lawrence County, 31 How. Pr. 173; People ex rel. Bliss v. Supervisors, 39 St. Rep. 313, 15 N. Y. Supp. 748. The district attorney may and if necessary should employ expert testimony in be- half of the people before a commissioner appointed by the governor to conduct a hearing on an application for executive clemency, and the expense of same is a county charge. Tompkins v. Mayor, 41 App. Div. 536, 43 N. Y. Supp. 878. It is the duty of the district attorney to procure the services of expert witnesses where necessary, and the amount paid them will not affect the regularity of the trial. People v. Montgomery, 13 Abb. (N. S.) 207. A district attorney has power under this section to obligate his county to pay a reasonable sum for the services of an expert witness in a criminal trial, Although the witness' bill is subject to review and audit by the board of super- visors and although the board is not bound by any specific sum which the dis- trict attorney had agreed to pay, it must audit a reasonable sum. People ex rel. Manley v. Board of Supervisors (1911), 148 App. Div. 584, 132 N. Y. Supp. 868. The costs of a commission in lunacy, pursuant to the provisions of the chapter of the Code of Criminal Procedure, relating to an inquiry into the insanity of the defendant, before or during trial or after conviction, are a charge upon the county in which the comriiission shall have been executed. The commissioners are entitled to such compensation for their services as the court may direct. Code Crim. Proc, § 662a, as added by L. 1903, ch. 129. 8. Compensation of county officers. Unless otherwise provided by statute the compensation of county treasurers, district attorneys and superintendents of the poor is fixed by the board of supervisors, and the board also fixes the number, grade and pay of the clerks, assistants and employees in such offices. See County Law, § 12, sub. 5, post, p. 54. Board of supervisors cannot provide compensation for a clerk in a county ofiice. People v. Gallup, 30 Hun, 501, affd. in 96 N. Y. 628. Salary of stenog- rapher in surrogate's ofEce in New York a county charge. Munson v. Mayor, etc., of New York, 57 How. Pr. 497. AUDIT BY BOARD; COUNTY CHARGES. 39 County Law, § 240. 4. The compensation of the criers of the courts of record within the county for attendance thereat, and also traveling fees, at the rate of five cents per mile, for going to and returning from the place of attendance .^ [Thus amended bj L. 1910, ch. 34.] 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 j^" • Supervisors may employ person to take charge of county oflBces, and the expense incurred thereby is a legal county charge. Conway v. Mayor, etc., of New York, 6 Daly, 515. Salaries of police justices of city of New York are county charges and payable by county as contingencies. People v. Edmonds, 19 Barb. 468. Where no provision has been made for payment of a person entitled to monthly payments for services rendered the county, discounts by a bank on his bills issued to raise the money cannot be made a county charge. People ex rel. Johnston v. Supervisors, 43 Hun, 385. 9. Court Criers. The crier appointed by the county judge of each county, except Kings and Erie, to be crier for the courts of record held in his county is entitled to a compensation to be fixed by the board of supervisors and to be paid as prescribed by law, except in the county of Westchester where the com- pensation of such crier shall be fixed by the county judge, not to exceed the sum of one thousand two hundred dollars a year to be paid in equal monthly pay- ments by the treasurer of Westchester county in full compensation for all ser- vices rendered by him, and except in the county of Queens where the compensa- tion of such crier shall be the sum of one thousand eight hundred dollars a year, to be paid in equal monthly payments and to be a county charge. Judiciary Law, § 365, as amended by L. 1910, ch. 34, and L. 1911, ch. 566. The salary of the criers appointed for Erie county by the justices of the supreme court residing in Erie county together with the county judge, of Erie county, in pursuance of section one hundred and sixty-nine of this chapter, shall be fixed by the justices of the supreme court residing in Erie county, or a majority of them; and when so fixed shall be paid in equal monthly payments by the treasurer of Erie County in full compensation for all services rendered by said criers. (Judiciary Law, § 366, as amended by L. 1910, ch. 15. Except as provided in the preceding sections of the Judiciary Law, the compensation of court criers is fixed by the above subdivision. 10. Compensation of sherifE. In all counties except those where by statute the office of sheriff is made salaried, the fees which the sheriff is authorized to charge for his services belong to him. For list of statutes making office of sheriff salaried, see post, p. 155. For list of fees chargeable by sheriff for services performed by him, see ch. 71, post. The accounts of the sheriff for receiving prisoners into and discharging them from jail, and for their board while confined therein, are properly county charges. The liability of the county extends not only to such official services in cases strictly criminal, but includes also quasi criminal offenses, such as violations of city ordinances, the only distinction being that in the latter case instead of the statutory fee, the board of supervisors have power to fix the compensation. People ex rel. Van Tassel v. Supervisors of Columbia County, 67 N. Y. 330; Ross v. Supervisors of Cayuga County, 38 Hun, 20. iO COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. 6. Compensation allowed by law to constables for attending courts of record, and the compensation allowed by law to constables and other officers, for executing process on persons charged with a felony; for ser- vices and expenses in conveying such persons to jail; and for the service of subpoenas issued by the district attorney and for other services in re- lation to criminal proceedings and support of prisoners in iransit, for which no specific compensation is prescribed by law, and which are not a town charge, as prescribed by article eight of the town law ; but no charge for issuing or serving any subpoena in any criminal action or proceedings issued or served 'on behalf of a defendant shall be allowed, unless other- wise ordered by the court in which the action or proceeding was pending ;" Where prisoners are confined in a county jail, under authority of a village charter providing that persons arrested In the village by the local police may be detained therein until a police justice be found, not exceeding twenty-four hours, the expense of their support in the jail is a county charge which should be allowed the sheriff at a reasonable rate. People ex rel. Gray v. Board of Supervisors, 89 App. Div. 152, 85 N. Y. Supp. 284. In the absence of a statute, the expense for stationery furnished to a sheriff is not a county charge. People ex rel. Brown v. Greene, 46 How. Pr. 302; 2 T. & C. 23. Expenses of sheriffs in transporting convicts to State prison in compliance with the orders of the court, should be audited by the board of supervisors. Kept, of Atty.-Genl., Dec. W, 1910. 11. Compensation of constables for attending oonrts. Section 3312 of -th« Code of Civil Procedure, provides as follows: "A constable or a deputy sheriif is entitled, for attending a sitting of a court of record', pursuant to a notice from the sheriff, to » fee for each day's actual attendance, in any county in the state, to be fixed by the board of supervisors thereof, and mileage as allowed by law to trial jurors in courts of record. Such fees must be paid by the county treas- urer, upon the production of the certificate of the clerk, stating the number of days that the constable or deputy sheriflf attended. If a constable or deputy sherifiF attending a sitting of a court of record pursuant to a notice from the sheriff is unable to reach his home upon the day he is excused from attendance, he shall be entitled to compensation for an additional day, and the clerk shall certify accordingly upon satisfactory proof of such fact by affidavit. But the provisions of this section shall not be applicable to the counties of Kings, New- York and Erie. All other acts or sections of acts conflicting herewith are hereby repealed." For fees of constables for services rendered in criminal proceedings as prescribed by Code Crim. Pro., § 740b, see post, ch. 71. Wben a to-nrn charge. The fees of a constable in criminal proceedings or actions tried before a magistrate of the town where the offence is charged to have been committed are a charge against such town. See Town Law, sec. 171, post. Conveyance of prisoners. The provisions of the above subdivision relating to the compensation of constables for services and expenses in conveying criminals to jail and for other services in relation to criminal pToceedirifjs should be construed in connection with section 171 of the Town Law, post. In the case of People ex rel. McGrath v. Supervisors of Weschester County, 53 Hun 157 ; 6 N. Y. Supp. 153, it was held that the account of a constable for fees and expenses in conveying to the penitentiary prison- ers convicted and sentenced in a court of special sessions in his town was a town and not a county charge, so that a refusal of the board of super- visors of the county to audit it as a county charge was proper. But see People ex rel. Bancroft v. Supervisors of Orange County, 18 Hun 90. Fees of eon- AUDIT BY BOARD; COUNTY CHARGES. 41 County Law, § 240. 7. The expenses necessarily incurred in the support of persons charged ■with, or convicted of crimes, and committed to the jails of the county;" 8. The sums required by law to' be paid to witnesses in criminal actions and proceedings;^^ ■ stable for killing dogs a county charge. Matter of Town of Hempstead, 36 App. Div. 321, 335, 55 N. Y. Supp. 345. The fees of sheriffs and other officers for the transportation of convicts to state prisons and houses of refuge are Axed by statute and are to be paid by the state. Prison Law, §§ 12, 322. Compensation for conveying juvenile delinquents. It is provided by the County Law, § 12, subd. 20, that: "The board of supervisors shall annually fix and determine the compensation to be allowed and paid to officers for the conveyance of juvenile delinquents to the houses of refuge and state industrial schools, and no other or greater amount than that so fixed and determined shall be allowed and paid for such service." 13. Contract^ with sheriffs. The board of supervisors is authorized by sec. 12, sub. 15, post, p. 59, to contract with the sheriff of the county for the board, maintenance and care and custody of prisoners committed to the county jail of his county. Prior to the insertion of this subdivision in section 12 it was held that the board of supervisors had no power to make a contract to pay to the sheriff a fixed weekly rate for the board of each prisoner, determined with- out regard to the expense incurred. People ex rel. Caldwell v. Supervisors of Saratoga County, 45 App. Div. 42; 60 N. Y. Supp. 1122. It would seem under the ruling in this case that where a contract had not been made with the sheriff for the board of the prisoner, that the sheriff would only be entitled to reimbursement for the moneys actually expended by him in boarding the prisoners. A civil prisoner confined in jail under an execution or for a contempt is to be supported at the expense of the county if he makes oath before the sheriff, jailer or deputy jailer that he is unable to support himself during his imprisonment. See Code Civ. Proc, sec. Ill, and County Law § 240, subd. 19, post, p. 47. People ex rel. Tracey v. Green, 47 How. Pr. 382. 13. Fees of witnesses in criminal actions. The following sections of the Code of Criminal Procedure relate to fees of witnesses in criminal actions: § 616. A witness in behalf of the people in a criminal action in a court of record is entitled to the same fees and mileage as a witness in a civil action in -the same court, payable by the treasurer of the county upon the certificate of the <;lerk of the court, stating the number of days the witness actually attended and the number of miles traveled by him in order to attend. Such certificate shall only be issued by the clerk upon the production of the affidavit of the witness, stating that he attended as such either on subpoena or request of the district attorney, the number of miles necessarily traveled and the duration of attendance. An officer in any state department who attends as a witness under this section in his official capacity, or in consequence of an official action taken ty him, and who receives a fixed sum in lieu of expenses, or who is entitled to receive the actual expenses incurred by him in the discharge of his official duties, is not entitled to the compensation herein provided. § 617. In any such action, the court may also, in its discretion, by order, direct the county treasurer to pay a reasonable sum, to be specified in the order, to any witness attending in behalf of the defendant, not exceeding the amount payable to a witness in a civil ■ action in the same co\irt. Upon the 42 COUNTIES; BOARDS OP SUPERVISOES. County Law, § 240. 9. The moneys necessarily expended by any county officer in executing the duties of his office in cases in which no specific compensation for such services is provided by law/* including the expense of printing the copies production of the order or a certified copy thereof, the county treasurer must pay the witness the sum specified therein, out of the county treasury. 14. Moneys necessarily expended by county officers. By this subdivision the necessary expenditures of a county officer in the discharge of his. oflficial duties, not otherwise specifically provided for, are made a legitimate county charge. In the case of People ex rel. Hall v. Supervisors of New York, 32 N. Y. 473, 475, the court said: " The import of the words * necessarily expended ' Is .jufficiently evident, wlien we consiaer the purpose for which they were inserted, and the nature of the subject to which they aie applied. They relate not to the necessity of payment as between the officer and the party to whom it is made, — which would be satisfied, perhaps, by nothing short of the power of legal compulsion, — but to the necessity of the expenditures having reference to what is due to the public and the law, in the efficient and faithful discharge of official duty. . . . Expenditures are to be deemed necessary within the plain intent of the statute, when, as in the present case, they are not only needful and proper — as contra distinguished from such as are needless and improvident — but also reasonable, appropriate and customary in the discharge of the particular official duty." The expenditures which are made by the statute a charge against the county are not limited to those of which payment can be recovered by civil action against the officer. This proposition is the result of the reasoning of the court in the above case. But the expenditures of the officer must have been made by the officer in the performance of duties which are for the benefit of the county alone. People ex rel. Kelley v. Hawes, 12 Abb. Pr. 192; 21 How. Pr. 117. The expense incurred by a superintendent of the poor in the employment of counsel to conduct proceedings in bastardy, the direct object of which is to indemnify the county and protect it from loss, may be allowed to the super- intendent as an expense necessarily incurred by him in the performance of his duties. Neary v. Robinson, 98 N. Y. 81, 85. See also People v. Supervisors of Delaware Co., 45 N. Y. 196. The County Law does not make the personal expenses of a superintendent of the poor a county charge and they are not a proper charge unless the board of super- visors has expressly so provided in fixing the compensation of the superintendent Strong V. Williams (1915), 167 App. Div. 714, 153 N. Y. Supp. 175. Section 3 of L. 1898, ch. 588, establishing the county of Nassau, wJiich provides that the sheriff of the county shall receive an annual salary of not more than $2,500, and that all fees for his services shall be paid into the county treasury, does not prevent the sheriff from receiving, under the above subdivision, traveling expenses necessarily incurred in the execution of process delivered: to him. People ex rel. Wood v. Denton, 41 App. Div. 386; 58 N. Y. Supp. 722. And an expenditure by the county clerk of Kings county in arranging papers which were scattered and mixed by reason of the fall of a large number of cases in his office, without fault on his part, was held to be a proper county charge. Worth v. City of Brooklyn 34 App. Div. 223; 54 N. Y. Supp. 484. ' Services. In the discharge by a, county officer of the duties of his office, it is evident that he will often be compelled to expend moneys for the per- formance of services which he is not required by law to personally perform. The above subdivision refers to disbursements necessarily expended for such services, and not money paid for work which it is his duty to himself perform. ilatter of WaVsh v. Supervisors of AlKany Co., 20 App. Div. 489; 47 N. Y. Supp. AUDIT BY BOARD; COUNTY CHARGES. 43 County Law, § 240. of the calendar for a term of the supreme court held within the county, or of the county court, and including in any county where the duties of county judge and surrogate are performed by the same officer, except in the county of Herkimer, the actual and necessary expenses of such officer and his clerk, incurred in holding court, by authority of the board of super- visors, at a place or places other than the county seat or place of residence of such office or clerk. 10. All items of coroner's compensation and the accounts of the coroners of the county for such services as are not chargeable to the person employ- ing them ;^° 11. The accounts of the county clerks, for the services and expenses incurred under the law respecting elections, other than for militia and town officers j^*^ 13. The sums required to pay the bounties authorized by resolution of the board of supervisors for the destruction of wild animals and noxious weeds, unless the supervisors, by resolution, direct that any such bounties shall be town charges. 13. The compensation of the members of the board of supervisors;^' 14. The charges and accounts for services rendered by justices of the 35. In this case it was held that section 3280 of the Code of Civil Froceaure providing that: " Each clerk of the court must perform all duties required of him, in the course and practice of the court, without fee or reward except as expressly prescribed by law," was not repealed by the subsequent enactment of the above subdivision, and that therefore a county clerk is not entitled to have allowed to him by the board of supervisors as a county charge moneys which he naid to his assistants for assorting and arranging jury slips. Re-indexing county records. — Unless authorized by special statute, boards of supervisors have no power to make a contract to pay a county clerk for re-index- ing deeds and mortgages recorded in the office of such clerk. Wadsworth v. Super- visors of Livingston County, 217 N. Y. 484, 112 N. E. 16. 15. Fees of coroners, generally. As to recovery of value of services from county, see People ex rel. Cosford v. Supervisors of Niagara Co., 15 N. Y. Supp. 680; 38 N. y. St. Rep. 964. But coroners cannot employ an expert to make a chemical analysis of the remains of a deceased person, or of other substances in connection with the cause of his death. Doremus v. Mayor, etc., 6 Daly, 121. The expense incurred by the district attorney for such a purpose would be a proper county charge. See sub. 2 of the above section, ante p. 37. A board of supervisors cannot audit an account unless he presents a statement of property and money found on the body of a deceased person, as provided by Code Crim. Proc, sec. 788, post, p. 203. 16. Election expenses. The expense of printing and delivering official ballots, sample ballots and cards of instructions, poll books, tally sheets, return sheets for inspectors and ballot clerks, and distance markers, at an election where no town meeting or village election is held at the same time is a charge upon the county. If a town meeting or village election is held at the same time as a general elec- tion the expense is to be apportioned by the county clerk upon the county, town and village. See Election Law, § 318, as amended by L. 1918, ch. 323; § 319, as amended by L. 1915, ch. 678, and L. 1918, ch. 323; Jewett's Election Manual, 1918. Cost of printing election ballots. — ^A claim presented by the county clerk for the printing of election ballots should be audited by the board of supervisors; but said board cannot be compelled by certiorari to audit such a bill at the same amount as they allowed on a prior audit. People ex rel. Newburg News P. & P. Co. v. Board of Supervisors, 140 App. Div. 227, 125 N. Y..Supp. 105. 17. Compensation of members of boards of supervisors. See County Law, sec 23, ante, p. 17. 44 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. peace in the examination of felons, and in other criminal proceedings as mentioned in section one hundred and seventy-one of the town law, when not otherwise provided for;^* 15. The expenses necessarily incurred, and sums authorized by law, or bj' the board of supervisors, pursuant to law, to be raised for any county purpose ;^° 18. As to fees of justices in criminal actions and proceedings, see Town Law, sec. 171, post, and notes thereunder. 19. Expenses for any county purpose. This subdivision seems to authorize generally the charge against the county of any expense necessarily incurred hy the board of supervisors in protecting the interests of the county. But no such charge will exist unless the act. In connection with which the expense was in- curred, was authorized and done pursuant to statute. People ex rel. Hadley v. Supervisors of Albany Co., 28 How. Pr. 22. See also People v. Supervisors of Nisgara, 78 N. Y. 622. Authorized by law. The legislature has power to fix a maximum amount to be paid for a county improvement as it has to fix an exact amount. People ex rel. McSpedon v. Haws, 21 How. Pr. 178. No court can audit a claim against a county, or order it paid, unless authorized by statute. Matter of Tinsley, 90 N. Y. 231. Boards of supervisors cannot bind their counties by an act not within the limits of the express powers conferred upon them by statute; they cannot allow a claim on any notions' of their own as to its equity. Chemung Canal Bank v. Supervisors of Chemung, 5 Den. 517. Audit by the board of supervisors of a claim does not have the legal effect of making it a county charge; what are county charges are fixed by law, and when the board determines the amount thereof, their fiat is conclusive inasmuch as they act judicially. People ex rel. Tracy v. Green, 47 How. Pr. 382. Expenditures for a survey of railroads and corporate property are not a county charge. Rept. of Atty. Genl. (1902) 278. Highway expenses. The common-law rule that the care and repairs of roads is a charge against the county does not obtain In this state. Unless authorized by statute highway expenses are not chargeable against the county. People ex. rel. Slosson v. Board of Supervisors, 116 App. Div. 844, 102 N. Y. Supp. 402. Contingent expenses. Services rendered by an officer specially for the benefit of the county, if there is no specific provision of law for payment, constitute a part of the contingent charges of the county, to be audited by the board. Bright v. Supervisors of Chenango Co., 18 Johns 242; Doubleday v. Supervisors of Broome Co., 2 Cow. 533; Brady v. Supervisors of New York Co., 2 Sandf. (Super. Ct.) 460; affd., 10 N. Y. 260. But it would be otherwise where it appears to have been the intention of the legislature that no compen- sation should be made. Mallory v. Supervisors of Cortland Co, 2 Cow. 531. Discount allowed to a bank by an employee of a county on discounting a claim for services is not a county charge. People ex rel. Johnson v. Super- visors of Ulster County, 43 Hun, 385. Buildings and other county property. The expense of equipping and fur- nishing a county jail is a county charge. Schenck v. Mayor, etc., of New York, 67 N. Y. 44. The necessary expenses incurred in keeping In repair and in a condition for use, the court rooms which the county is required to provide, or AUDIT BY BOARD; COUNTY CHARGES. 45 County Law, § 240. 16. The reasonable costs and expenses in proceedings before the gov- ernor for the removal of any county officer upon charges preferred against him, including the taking and printing of the testimony therein f any other property of the county, are county charges. People ex rel. McSpedon V. Stout, 23 Barb. 349; 13 How. Pr. 314. Conrt rooms and furniture. It is provided by section 42 of the County Law, as amended by L. 1913, ch. 394, and L. 1915, ch. 443, that: "Except where other provision is made therefor by law, the board of supervisors of each county must provide each court of record, appointed to be held therein, with proper and con- venient rooms and furniture, together with attendants, fuel, lights, telephone, I>osfage and stationery suitable and sufficient for the transaction of its business. If the supervisors shall neglect so to do, the court may order the sheriif to make tlie requisite provision; and the expense incurred by him in carrying the order into effect, when certified by the court, is a county charge." In the case of people ex rel. Westbrook v. Supervisors of Montgomery County, 34 Hun, 599, it appeared that the board of supervisors of Montgomery county had provided a proper and convenient room for the use of the surrogate in the county court house at Fonda, and refused to provide one at Amsterdam when requested so to do by the surrogate. Thereupon the surrogate made an order for his otBce at Amsterdam, and directed the sheriff to furnish 'a suitable office and furniture therefor at that place. Upon an application to compel the board of supervisors to pay the rent and expenses thereby Incurred, it was held that as the board had provided a proper office and furniture, it could not be compelled to pay for any other. Court expenses. As there are contingent expenses necessarily incurred in the holding of courts, for which there is no express statutory provision, and as the board of supervisors must provide a fund to be placed in the hands of its county treasurer " to pay such contingent expenses as may become payable fromtime to time," it necessarily follows that a court held in a county must determine what is a lawful and proper charge upon such fund. People ex rel. Cole V. Supervisors of Greene Co., 15 Abb N. C. 447; 2 How. Pr. N. S. 483; affd., 39 Hun, 299. 20. Removal of county offices. Section 1 of art. 10 of the constitution provides that the governor may remove a sheriff, county clerk, district attorney and register within the terms for which he shall have been elected, giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense. Sections 33 and 34 of the Public Officers' Law, provide for the removal by the governor of a county treasurer, county superintendent of the poor, coroner or register of a county. The costs and expenses of proceedings for the removal of county officers by the governor, are by the above subdivision made a county charge. Such costs and expenses include counsel fees in the prosecution of the charges. People ex rel. Benner v. Supervisors of Queens County, 39 Hun 442. And in this case it %yas also held that the attorney general may employ special counsel to prosecute the charges, and the expense of such employment is a county charge under the statute. Sucli costs are a county charge although the proceedings were instituted by the presi- dent of a taxpayers' association, who appeared as an individual complainant. People ex rel. Smart v. Board of Supervisors, 66 App. Div. 66, 72 N. Y. Supp. 568. In auditing and allowing the costs and expenses incurred in proceedings for the removal of a county officer the board of supervisors may, when a claim is pre- sented therefor, examine the items thereof and determine whether or not such costs and expenses were reasonable, and whether or not they were necessarily incurred. People ex rel. Benedict v. Supervisors of Oneida County, 24 Hun 413. 46 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. 17. All judgments duly recorded against a county ; ^^ 18. All damages recovered against, or costs and expenses lawfully in- curred by a county officer in prosecuting or defending an action or pro- ceeding brought by or against the county, or such officer, fur an official act done, when such act was done, or such action or proceeding was prosecuted or defended pursuant to law, or by authority of the board of supervisors; and any such damages so recovered, or costs and expenses incurred by any such officers, for any act done in good faith in his official capacity, without any such authority, may be made a oountv charge by a majority vote of all the members elected thereto.^" A district attorney who has Successfully met the charges against him in a pro- ceeding before the Governor for his removal from office is entitled to charge to the county his expenses for counsel fees and various disbursements incurred in the defense and tlie supervisors will be required to audit the claims. Said statute, being purely prospective and not retroactive, is constitutional and does not involve a grant of the public monevs of a municipality in the aid of a private individual. People ex rel. Gagan v. Purdy (1916), 173 App. Div. 350, 159 N. Y. Supp. 246. Expense of prosecution resulting in removal of sheriff; when counsel fees are county charge. The reasonable expense of residents of a county in employing counsel to prosecute before the Governor a proceeding voluntarily brought by them, resulting in the removal of a sheriff from office upon the ground that he was unfit to discharge his duties, is an expense for a county or public purpose within the meaning of this section and the board of supervisors of the county will be required by mandamus to audit such claim as a county charge. It seems, tltat if the accusation against such officer were frivolous or not presented in good faith, the expense of the prosecution would not be a county charge, and that the audit thereof would be a gift and within the prohibition of section 10 of article 8 of the State Constitution. People ex rel. Nash v. Board of Supervisors (1914), 164 App. Div. 89, 149 N. Y. Supp. 572. The reasonable costs and expenses incurred by a sheriff in the successful defense of charges made to the Governor against him in a proceeding for his removal from office are legal county charges, and when his claim therefor has been duly allowed and audited by the board of supervisors a taxpayer's action will not lie to recover the money paid pursuant to such audit. Gavin v. Supervisors of Rensselaer (1916), 93 Misc. 264, 157 N. Y. Supp. 973, affd. 157 App. Div. 973, 159 N. Y. Supp. 1114. There is no greater objection to the payment of the costs and expenses incurred by a public officer in defending himself against charges of misconduct than tliere is to the payment of costs and expenses incurred in the prosecution of such charges, and the board of supervisors may properly allow such charges. Ciavin v. Board of Super- visors (1917), 221 N. Y. 222, affg. 174 App. Div. 900. But this rule only applies where the officer has made a successful defense against the charges. People ex rel. Moss V. Board of Supervisors (1917), 178 App. Div. 716. 21. Judgments against a county. Section 70 of the General Municipal Law, post, provides that wnere a final judgment has been recovered against a municipal corporation and the execution thereof is not stayed, the treasurer of such corpo- ration shall pay such judgment upon the production of a certified copy of the docket thereof. 22. Payment of counsel fees. Since a board of supervisors has authority to in- stitute proceedings in behalf of the county, the fair charges of the attorneys and counsel employed by them in such proceedings are a legal demand against the county, although the board may misjudge in regard to the county having a, cause of action in a particular case. Gillespie v. Broas, 23 Barb. 370. The district attorney of any county in which a capital or other criminal action is to be tried, may, with the approval of a county judge, employ counsel to assist him on such trial; and the costs and expenses thereof are a charge upon the county. See County Law, sec. 204, post, p. 143. Superintendents of tue poor may employ counsel and their compensation is a county charge. Neary v. Robinson, 98 N. Y. 81. Costs in equalization proceedings. The board of supervisors may employ counsel to defend its equalization, and the expense thereof is a contingent charge against the county. People v. City of Kingston, 101 N. Y. 82, 06. Costs in action against county treasurer. The amount of a judgment for costs against a county treasurer, in a proceeding to review the action of such officer in refusing to issue a liquor tax certificate is a proper charge against the county. Report of Attorney-General, 1913, Vol. 2, p. 532. AUDIT; BY BOARD; COUNTY CHARGES. 4.7 County Law, § 240. 19. In any county, if a prisoner, actually confined in jail, makes oal.i Expense of toim litigation not county cliarge. The expenses of a litiga- tion, arising out of the action of a town in assessing a railroad at a rate fixed and directed by the Board of Supervisors, are not a county charge; an agreement by the Board of Supervisors to pay them is ultra vires and cannot be enforced by the town. People ex rel. Sweet v. Board of Supervisors of St. Lawrence Co., 101 App,. Div. 327, 91 N. Y. Supp. 948. Ijiability for injuries. Though a county have the duty of maintaining a bridge, it is not liable to a person sustaining an injury by reason of neglect of this duty; the right of action must have been given by statute. Ensign v. Supervisors of Livingston Co., 25 Hun 20. Other county charges. Statutes imposing certain obligations upon county officers frequently expressly provide that the expenses incurred shall be a county charge. The above section of the County Law is general in its purpose and includes as charges against the county all claims which have been by such statutes declared to be county charges. Reference should be made to the various chapters and eections of this work relating to the powers and duties and liabilities of county officers for the purpose of determining what may be declared as proper county charges. It may be well, however, in this connection to cite a few special statutes in which claims for services and expenses are specially prescribed to be county charges. By L. 1899, ch. 700, it was provided that any county official who shall have been successfully defended in proceedings to remove him from office might present a claim for his expenses in such proceedings and have the same audited and allowed by the board of supervisors. But in the case of Matter of Strauss, 44 App. Div. 425; 61 N. Y. Supp. 37, and Matter of Jensen, 44 App. Div. 509; 60 N. Y. Supp. 933, this act was declared unconstitutional, since the county being under no legal or moral obligation to pay such a claim, it was in the nature of a gift to the claimant. Special deputy attorney-general, assigned by attorney-general, when Tequired by governor, to prosecute specified criminal charges, is to be paid by county. See Executive LawJ § 62, subd. 2, as amended by L. 1911, eh. 14. Deputy so assigned may not compel payment of compensation until the amount thereof has been fixed by the attorney-general. People ex rel. Osborne v. Westchester Co., 168 App. Div. 765, 154 N. Y. Supp. 266. County Detective. By L. 1897, ch. 62, as amended by L. 1900, ch. 62, and L. 1911, ch. 598, the county judge of a county containing a population of not less than one hundred and twenty-five thousand inhabitants, and adjoining a county con- taining a population of not less than one million inhabitants, may appoint a county detective for such county. This act would seem to apply only to the counties of Westchester and Queens. The compensation of a county detective appointed there- under is made a, county charge. Costs and compensation of counsel in murder cases. Where services are ren- dered by counsel assigned to defend a person indicted for an offense which is punishable by death, the court in which the defendant is tried may allow such counsel his expenses, and also reasonable compensation for his services not exceed- ing the sum of $500, which allowance is a charge upon the county in which the indictment is found, to be paid out of the court fund. See Code Crim. Proc, sec. 308, as amended by L. 1918, ch. 242. Where the defendant is convicted of a crime the clerk of the court in which the conviction was had shall within two days after a notice of appeal shall be served upon him notify the stenographer that an appeal has been taken whereupon the stenographer shall within ten days after receiving such notice deliver to the clerk of the court a copy of the stenographic minutes of the entire proceedings of the trial certified bj' the stenographer as an accurate transcript of such proceedings. Such copy shall be filed by the clerk in his office and stall constitute the minutes of the court of the trial and be in- cluded in the judgment-roll as provided by section four hundred and eighty-five of this act. The expense of such copy shall be a county charge, payable to the stenographer out of the court fund upon the certificate of the judge presiding at the trial. See Code Crim. Proc, sec. 456. 48 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 240. before the sheriff, jailer, or deputy-jailer, that he is unable to support stenographers' fees. A court stenographer is entitled to his fees for minutes furnished to the district attorney or attorney-general in a criminal ease, which fees are a county charge and must be paid by the county treasurer like other county charges. Judiciary Law, § 303, amended by L. 1912, eh. 202. The board of supervisors of each county must provide for the payment of the sums chargeable upon the treasury of a county for the salary, fees, or expenses of the stenographer or assistant stenographer; and all laws relating to raising money in a county by the board of supervisors liereof, are applicable to those sums. Snpreme Court stenog^raphers in second district. Judiciary Law, section 161, subdivisions 3 and 3a provide that: "Each justice of the supreme court for the second judicial district, who does not reside in the county of Kings, may appoint, and may at pleasuire remove, a, stenographer, and such justices, or a majority of them, may also appoint, and at pleasure remove, two additional stenographers. The justices of the supreme court residing in the county of Kings, or a majority of them, may appoint, and at pleasure remove, a typewriter operator for the purpose of copying their minutes, and doing any other confidential work which may be required by said justices or the clerk of the court. The salary or compensation to be paid to such typewriter operator shall be fixed by said justices, and the expense thereof shall be raised with the annual tax levy as a county charge." Judiciary Law, section 309, subdivisions 1 and 2, provide that: " The stenog- raphers appointed pursuant to section one hundred and sixty-one of this chapter, by the justices of the supreme court, residing in the county of Kings, shall sev- erally attend, as directed by the respective justices appointing them, the terms .of the appellate division and trial and special terms of the supreme court, in the county of Kings. Each of the stenographers appointed pursuant to said section one hundred and sixty-one, by the justices of the supreme court for the second judicial district, who do not reside in the county of Kings, must attend as directed by the justice appointing him the trial and special terms of the supreme court held in the counties of Suffolk, Queens, Nassau and Richmond, or either of them, and, when not thus officially engaged, the stated terms of the county court, in each of those counties." Salary of stenographer. Section 316 of tbe Judiciary Law, subdivision 2, as amended by L. 1910, ch. 180, and L. 1913, ch. 491, provides that: "Each stenographer appointed as prescribed in section one hundred and sixty-one of this chapter, by the justices of the supreme court for the second judicial district who do not reside in the county of Kings, shall receive an annual salary to be fixed by such justices not exceeding three thousand six hundred dollars. To make up and pay the salaries specified in this subdivision, the board of super- visors of each of the counties in said district must annually levy, and cause to be collected, as a county charge, a. proportionate part of the sum necessary to pay the same, to be fixed by the comptroller of the state, in accordance with the amount of the taxable real and personal property in each county, as shown by the last annual assessment-roll therein. The treasurer of each county must pay over the sum so raised, to the comptroller of the state, who must thereupon pay the salary of each stenographer, in equal quarterly payments, under the direction of the justice making the appointment." Conrt stenographers in other districts. Section 161 of the Judiciary Law, as amended by L. 1910, ch. 60, and L. 1916, ohs. 128, 344, provides that: 1. In addition to the stenographers appointed under special laws, the justices of the supreme court, or a majority of them, for each judicial district, excepting the first, second, third, fifth, seventh, eighth and ninth, shall appoint, and may at pleasure remove, three stenographers. 2. The justices of the supreme court, residing in the county of Kings, or a majority of them, may appoint and may at pleasure remove, sixteen stenographers. 3. Each justice of the supreme court for the second judicial district, who does not reside in the county of Kings, may appoint, and may at pleasure AUDIT BY BOARD; COUNTY CHARGES. ,j- County Law, § 240. himself during his imprisonment his support is a county charge. This remove, a stenographer, and such justices, or a majority of them, may also appoint, and at pleasure remove, two additional stenographers. 3-a. The justices of the supreme court residing in the county of Kings, or a majority of them, may appoint, and at pleasure remove, a typewriter operator for the purpose of copying their minutes, and doing any other confidential work which may be required by said justices or the clerk of the court. The salary or compensation to be paid to such typewriter operator shall be fixed by said justices, and the expense thereof shall be raised with the annual tax levy as a county charge. 4. The justices of the supreme court, or a majority of them, for the third, judicial district, shall appoint, and, may at pleasure remove, four stenog- raphers of the supreme court for such district. 5. Each of the justices of the supreme court assigned to hold special terms in the third and fourth judicial districts for the hearing of contested motions, and the trial of issues of fact and law, may appoint and at pleasure remove a stenographer. 6. The justices of the supreme supreme court, or a majority of them, for the fifth and seventh judicial districts, respectively, shall appoint, and may at pleasure remove, five stenographers of the supreme court for each of such districts. 7. The justices of the supreme court for the eighth judicial district shall appoint, and may at pleasure remove, eleven stenographers of the supreme court for such district. 8. The justices of the supreme court for the ninth judicial district, or a majority of them, may appoint the stenographers of said court, the number of said stenog- raphers not to exceed the number of all the justices in said district. The present stenographers of the supreme court for such district, and those who may hereafter be appointed, shall hold office until removed by the said justices. Judiciary Law, section 309, subdivisions 3 and 4, provide that: "Each of the stenographers appointed pursuant to said section one hundred and sixty-one by the justices of the supreme court, for the ninth judicial district, must attend, as directed by the justice appointing him, the trial and special terms of the supreme court held in the counties of Westchester, Putnam, Dutchess, Orange and Rock- laind, or either of them, and when not thus officially engaged, the stated terms of the county court in 'each of those counties. Each of the stenographers appointed pursuant to said section one hundred and sixty-one, by the justices of the supreme court for each judicial district except the first, second and ninth, shall attend such special and trial terms of the supreme court in his judicial district as be shall be assigned to attend by the justices of the supreme court, or a majority of them, for such district." Salary of stenographers. Judiciary Law, section 313, as amended by L. 1910, ch. 180, and L. 1913, ch. 491, provides that: "Each of the stenog- raphers appointed by the justices of the supreme court pursuant to subdivisions one, four, six, seven and eight of section one hundred and sixyt-one of this chap- ter shall receive an annual salary of three thousand six hundred dollars, to be paid by the comptroller of the state in equal quarterly payments, upon the certificate of a justice of the supreme court of the judicial district for which he shall have been appointed. To provide the means to pay such salary, the comptroller of the state shall, on or before the first day of November in each year, fix and transmit to the clerk of the board of supervisors in each of the counties in said district a statement of the sum to be raised by such board of supervisors, in accordance with the amount of taxable real and personal property 50 COUNTIES; BOARDS OP SUPERVISORS. County Law, § 242. subdivision shall also apply to the county of Xevv York. [Sub. 19 added by L. 1909, ch. 16.J 20. The expense of the publication of notices of appointment of terms of the county court is a county charge. [Sub. 20 added by L. 1909, ch. 16.] 31. The fees of a county clerk or of the clerk of any court of record for making and certifying a copy or copies of any record, document or paper, when ordered so to do by the state comptroller, pursuant to section four of the state finance law, shall be a charge upon the county where such records, documents or papers are recorded or filed. This subdivision shall also apply to the county of New York. [Sub. 21 added by L. 1909, ch. 16. County Law, § 240; B. C. & G. Cons. L., p. 825.] § 6. COUNTY CHARGES, HOW RAISED. The moneys necessary to defray the county charges of each county shall be levied on the taxable property in the several towns therein, in the manner prescribed in the general laws relating to taxes; and in order to enable the county treasurer to pay such expenses as may become payable from time to time, the, board of supervisors shall annually cause such sum to be raised in advance in their county, as they may deem necessary for such purpose.-^ [County Law, § 242 ; B. C. & G. Cons. L., p. 830.] in each of said counties as shown by the last annual assessment roll therein. The boards of supervisors in each of such counties shall annually levy and cause to be collected In such county and to be paid over to the county treasurer thereof, the sums fixed by the comptroller to hi raised by such board of supervisors and such county treasurer shall pay such sum to the comptroller of the state for the payment of said salaries." Expenses. Judiciary Law, section 314, as amended by L. 1910, ch 180, pre Tides that: " Bach of the stenographers specified in the last siection is also entitled to payment of his actual and necessary expenses, while attending court, including stationery, and ten cents for each mile for his actual travel, between the place of holding each term and his residence, going and returning, or from term to term, as the case may be. The amount thereof must be paid apon the certificate of the judge holding or presiding at the term by the treasurer of thb county where the term is held, from the court fund, or the fund from which Jurors are paid. But mileage shall not be computed beyond the bounds of the judicial district, except where the usual line of travel, from one point to another within that district, passes partly through another judicial district. Judiciary Law, section 164 provides that: " The amount to which the stenographers of the supreme court are entitled for expenses, as prescribed In section three hundred and fourteen of this chapter, must be certified by the judge holding or presiding at the term." Levy for county charges must be made by the board of superrlsors. Chemung Canal Bank v. Supervisors of Chemung, 5 Den. 517; People ex rel. Downing V. Stout, 23 Barb. 338. GENERAL POWERS OP BOARDS OF SUPERVISORS. gj Explanatory note. CHAPTER IV. GENERAL POWERS OF BOARDS OF SUPERVISORS ; PUBLICATION OF SESSION LAWS ; REMOVAL OF COUNTY BUILDINGS ; OTHER POWERS. EXPLANATORY NOTE. General Powers of Board. Generally speaking boards of supervisors only have the powers con- ferred by the statute. Their powers are limited to those so conferred. If they act beyond statutory limitation their acts are void, the same as where the legislature exceeds the powers conferred by the consti- tution. There will be eases where the acts of boards do not come within the expressed language of a statute, but will nevertheless be sustained because within the implied powers conferred by such statute. In other words, as expressed by the court of appeals in the case of People ex rel. Wakely v. Mclntyre, 154 :N'. Y. 628, 49 JST. E. 70, boards of supervisors, in the exercise of the legislative powers con- ferred upon them by the constitution, are not confined in their action to the bare letter of the statute, but may in the exercise of a sound dis- cretion, act under powers that are to be fairly implied. However this may be, some statute must be found either expressly or impliedly authorizing the act sought to be accomplished. It will be noticed that many of the powers conferred upon boards of supervisors are specified and declared in § 12 of the County Law. Of course, this section is not inclusive of all powers to be exercised by such boards. References are made in many statutes, pertaining to many subjects, giving boards certain powers and duties. Many of these statutes are contained in this chapter, but many more of them will be found in chapters covering the subjects to which they relate. It will not be necessary in this preliminary note to explain the general powers conferred by § 12 of the County Law. The section itself must be considered, together with the cases construing the provisions of that section. It may be appropriately suggested that this section is the most comprehensive of those laws conferring powers upon boards of supervisors, and it will be found necessary to constantly refer to it. 52 COUNTIES; BOARDS OF SUPERVISORS. Explanatory note. I>esignation of Newspapers. One of the duties of a board of supervisors, fruitful of much con- troversy and litigation, is the designation of newspapers for the publi- cation of session laws and concurrent resolutions. All general laws, and all local laws affecting the county, are to be published in the newspapers designated. Two newspapers are to be designated, one by the members of the board representing the majority party, and one by the members representing the minority party. It is not the politics of the member which controls his right to vote for the newspaper. If he was elected on a prohibitionist or independent ticket he cannot vote on this question with the republicans because he believes in the prin- ciples of, and is affiliated with, the republican party. It is the party which he represents and by which he was elected which determines his right to vote for the designation of a newspaper for the publication of session laws. The paper designated must be recognized throughout the county as representing the party for which it is designated. A paper which has not fairly and for a number of elections advocated the election of the ticket nominated by either one or the other of the parties is not entitled to designation. If there is only one party represented in the board, the paper last designated by the other party, is to con- tinue to publish. Section 1. General powers of boards of supervisors. 2. Legalization of informal acts of town meeting or village election. 3. Session laws, designation of newspapers for publication of. 4. Publication of session laws and concurrent resolutions; expense of publication. 5. Session law slips to be forwarded by county clerks to clerks of towns, villages and cities. 6. Newspapers designated to publish election notices and official notices. 7. County buildings, location of may be changed; petition for change beyond boundaries of village or city. 8. Action of board upon presentation of petition for change of loca- tion. 9. Submission of question of removal of county buildings to vote of people. 10. After destruction of poor-house, petition for change of site. 11. Board may establish fire district outside of an incorporated vil- lage; fire commissioners; levy of taxes for fire protection. 12. Effect of incorporator of village within limits of fire district. GENERAI, POWERS OF BOARDS OF SUPERVISORS. 53 County Law, § 12. 13. Soldiers' monument, board of supervisors may appropriate moneys for the erection of. 14. Temporary loans; issue of obligations therefor. 15. Establishment of county laboratories. 16. County attorney. § 1. GENERAI. POWERS OF BOARDS OF SUPERVISORS. The toard of supervisors shall :^ 1. County property. Have the care and custody of the corporate property of the county.^ 1. General powers of board. The constitution (art. Ill, sec. 27), empower* the legislature by general laws to confer upon boards of supervisors of the counties such further powers of local legislation and administration as it may from time to time deem expedient. Such boards are legislative bodies, in many respects of limited powers; but where they have jurisdiction, they may act for the county precisely as the legislature may act for the state. If they act without juris- diction their acts are void, the same as is the action of the legislature when in violation of any provision of the constitution. People ex rel. Hotchkiss v. Super- visors of Broome Co., 65 N. Y. 222. The board of supervisors of a county is vested with such powers of local legis- lation and administration as are conferred upon it by the legislature. Its power is co-extensive with the power expressly granted to it or which is necessarily or reasonably implied from the powers so expressly conferred. Wadsworth v. Super- visors of Livingston (1916), 217 N. Y. 484, 112 N. E. 161. The acts of a board of supervisors within their statutory powers are legis- lative and not judicial, and they cannot be reviewed by certiorari. People ex rel. O'Connor v. Supervisors of Queens County, 153 N. Y. 370; 43 N. E. 790; People ex rel. Village of Jamaica v. Supervisors of Queens, 131 N. Y. 468; 30 N. E. 488. Boards of supervisors, in the exercise of the legislative powers conferred upon them by the constitution, are not confined in their action to the bare letter of the statute enacted to carry out the constitutional provisions, but may, in the exercise of a sound discretion, act under powers that are to be fairly Implied. Within the limits of the powers constitutionally delegated by the legislature, each board is clothed with the sovereignty of the state, and is authorized to legislate as to all details precisely as the legislature might have done in the premises. Woods v. Supervisors, 136 N. Y. 403; People ex rel., Wakely v. Mclntyre, 154 N. Y. 628, 49 N. B. 70. In this case Bartlett, J., said: " The evident Intent of the framers of the constitution in permitting the legis- lature to delegate certain of its powers to the local boards was to carry out a public policy which assumes that the interests of a particular locality are best subserved by those who are familiaf with its affairs. It would be quite impossible for a board of supervisors to properly legislate in regard to local affairs, if it were not at liberty to resort to those implied powers, within the limits of its jurisdiction, vested in the legislature of the state." But, as was remarked by Parker, Ch. J., in the case of Weston v. City of Syracuse, 158 N. Y. 274, 287, while it is true that a board of supervisors is clothed with the sovereignty of the state to legislate as to all details, within the limits of its delegated powers, " there are many duties devolved upon boards of supervisors by the legislature which are not legislative in character, but are administrative, and In some cases quasi judicial in nature, and not at all impressed with the character of sovereignty." 2. County property. As to change in the location of county buildings, see County Law, sec. 31, post, p. 69. Records of conveyances in the office of the county clerk are not county property, and even if so regarded, the board is 5J: COUNTIES; BOARDS OP SUPERVISORS, County Law, § 12. 2. Audit. Audit all accounts and charges against the county, and direct annually the raising of sums necessary to defray them in full.s 3. ToTin charges. Annually direct the raising of such sums in each town aa shall be necessary to pay its town charges.* 4. Taxes. Cause to be assessed, levied and collected, such other assessments and taxes as shall be required of them by any law of the state." .">. Have power to fix the amount and the time or manner of payment of the salary or compensation of any county oflScer or employee, except a judicial officer or an officer or employee of a county tuberculosis hospital and the term of office and mode of appointment, number and grade of any appointive county officer and of the clerks, assistants or employees in any county office, except an officer or employee of a county tuberculosis hospital, notwithstanding the provisions of any general or special law fixing the amount of such salary or compensation or the time or manner of payment thereof, or fixing the term of office or pro- viding for the mode of appointment, number or grade of any such county ofBcer or of the clerk, assistants or employees in any county office, or vesting in any other board, body, commission or officer authority to fix such term of office, or the amount of such salary or com^pensation or the time or manner of pay- ment thereof or to provide for the mode of appointment, number or grade of such officers or of the clerks, assistants or employees in any county office; and the power hereby vested in the board of supervisors shall be exclusive of any other board, body, commission or officer, except the authorities of a county tuberculosis hospital, notwithstanding any general or special law. The salary not authorized by the above subdivision to purchase new indexes for such con- veyances, as such subdivision does not apply to the acquisition of new property. People ex rel. Welch v. Nash, 3 Hun, 535; aftd. 62 N. Y. 484. But in the case of Schenck v. Mayor, etc., of New York, 67 N. Y. 44, it was held that a board of supervisors has power to purchase, by virtue of its general and incidental powers, supplies to equip the county jail. A county owning a farm is subject to the same care in its management as is imposed on other owners of real estate, and hence is liable for nuisance thereon. Lefrois v. County of Monroe, 24 App. Div. 421, 426, 48 N. Y. Supp. 519. Board cannot lease premises' for an armory except in compliance with state military code. Boiler v. New York, 40 Super. Ct. 523. 3. Audit of claims against the county, see preceding chapter. 4. Town charges, what are. See Town Law, § 170 post. Audit of claims against the town, by the town board, see Town Law, sec. 133, post, and notes thereunder. Appeal from audit by town board of fees in criminal proceedings to board of supervisors, see Town Law, sec. 177, post; and as to fees of officers in criminal proceedings, see Town Law, sees. 107, 171, post Accounts against towns to he itimized and verified, see Town Law, sec. 175, post. Abstracts to be made by town auditors of accounts audited against a town, and presented to board of supervisors. See Town Law, sec. 155, post. The supervisors are re- quired to cause the amounts specified in the certificates of the auditors to he levied upon the towns, and they cannot review or reverse the action of the auditors. Osterhoudt v. Rigney, 98 N. Y. 222, 234. Duty to levy. Supervisors are required to cause the amounts specified in the certificates of the town auditors to be levied upon the town, and they cannot reverse or review the action of the auditors. Osterhoudt v. Rigney, 98 N. Y. 222, 234. When towns are divided, board cannot be compelled to levy until debts are apportioned. People ex rel. McKenzie v. Supervisors, 30 Hun, 148. Judgments against towns. Board cannot be compelled by mandamus to levy the amount of a judgment against a highway commissioner upon the property of the town. People ex rel. Everett v. Supervisors, 93 N. Y. 397, affg. 29 Hun, 185. It is the duty of the board of supervisors to provide for the payment of judgments against the town and mandamus will lie upon their neglect to do so. People ex rel. Grouse v. Supervisors, 70 Hun, 560, 564, 24 N. Y. Supp. 397. 5. Purpose of tax. The legislature may delegate to a county board of super- visors the power to erect a bridge and to assess a tax on particular towns for the payment thereof. Town of Kirkwood v. Newbury, 122 N. Y. 571, affg. 45 Hun, 323. As to building and maintenance of bridges, see Huggans v. Riley, 125 N. Y. 88. A county is not bound to levy a tax for the default of a county treasurer, until all remedy against him personally has been exhausted. Nat. Bank ol Ballston Spa v. Supervisors. 106 N. Y. 488. GENEEAL POWERS OF BOARDS OF SUPERVISORS. 55 County Law, § 12. or compensation of an officer or employee elected or appointed for a definite term shall not be increased or diminished during such term.' [Subd. amended by L. 1911, ch. 359, L. 1913, ch. 742, and L. 1914, ch. 358.] 5-a. Fix the amount of the undertakings required by law to be executed by the clerk, district attorney and the superintendent of the poor of the county. [Subd. added by L. 1914, ch. 63.] 6. May borroiv money. Borrow money when they deem it necessary, for the erection or alteration of county buildings, and for the purchase of sites there- 6. Compensation of officers. The constitution (Art. Ill, sec. 28), provides that a board of supervisors shall not " grant any extra compensation to any public officer, servant, agent or contractor." In the case of People ex rel. Masterson v. Gallup, 65 How. Pr. 108 ; 12 Abb. N. C. 65, it was held that a resolu- tion of the supervisors of Albany county giving a clerk to the coroners of such county did not violate this constitutional provision. But the Court of Appeals held in this case on appeal that the board was not authorized by the above subdivision of this section of the County Law to appoint such clerk, since such subdivision applies only to those officers which by pre-existing law were en- titled to a clerk. See .96 N. Y. 628; affg. 30 Hun, 501, but reversing the case above cited. When a district attorney Is assigned a fixed salary, it is in lieu of all other compensation, and he is not entitled to more on account of a new duty imposed upon him. People v. Supervisors, 1 Hill, 362. A board of supervisors may not increase the compensation of its memhers for services performed by them. Report of Attorney-General (1912), Vol. 2, p. 584. The county treasurer is himself entitled to the fees allowed by law for re- ceiving and paying state taxes to the state comptroller, and the board has no power whatever over those fees. Supervisors of Monroe v. Otis, 62 N. Y. 88. Unless otherwise expressly provided by law the fees of a county treasurer on account of state taxes belong to him. Supervisors of Seneca v. Allen, 99 N. Y. 532. See, also. People ex rel. Lawrence v. Supervisors, 73 N. Y. 173. It was intended by the revision of the statutes in the County Law that the county treasurers in those counties where, at the time of the enactment of such law, such treasurers were salaried officers, that they should be retained as such, and that the salary and compensation which the board of supervisors had fixed for them should be in full of all compensation allowed them for every official duty pertaining to their office, including their services for the collection and paying over of state, school and court moneys. People ex rel. Conine v. Steuben Co., 183 N. Y. 114. A county treasurer whose salary and compensation has, pursuant to the provisions of this section, been fixed by the board of supervisors " at the sum of $1,500, and, in addition all fees allowed by law " is not entitled to retain the fees and commissions for collecting and paying out bank taxes and court and trust funds, as provided by section 24 of the Tax Law and section 3321 of the Code respectively, or for preparing conveyances of property sold for taxes, as provided by section 154 of the Tax Law, but must account therefor. Report of Attorney-General (1912), Vol. 2, p. 258. An additional allowance for clerk hire during the term of any county treas- urer necessarily increases his compensation and is unauthorized. Report of Attorney-General, March 7, 1912. Court attendants, — Where a board of supervisors passed resolutions empowering the sheriif to appoint " tliree court officers " and authorizing the superintendent of the court house and annex to appoint " ten laborers " at three dollars per day, thereby providing an. equivalent of thirteen court attendants which the sheriff of said county was entitled to appoint under Laws of 1910, chapter 243, it was proper to recognize only the court attendants selected by the sheriff, because the amendments to the County Law did not divest the sheriff of his power of appoint- ment. Halligan v. Runkle (1916), 174 App. Div. 497, 160 N. Y. Supp. 42. County superintendent of highways. — ^A board of supervisors has the absolute and exclusive right to appoint a county superintendent of highways and to fix his salary and provide for the payment of his necessary expenses, although said salary at the time of the appointment exceeds the salary stated in the notice pub- lished by the commission for the competitive examination of candidates. Mac- Donald V. Ordway (1916), 219 N. Y. 328, revg. 174 App. Div. 518. Superintendent of poor. — Personal expenses of a superintendent of the poor are 56 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 1-2. for, on the credit of the county, and for the funding of any debt of the county not represented by bonds, and issue county obligations therefor, and for otier lawful county uses and purposes ;7 and authorize a town in their county to borrow money for town uses and purposes on its credit, and issue its obligations therefor, when and in the manner, authorized by law.s [Subd. amended by L. 1915, ch. 106.] 7. Animals and weeds, destruction of. Make such laws and regulations as they may deem necessary for the destruction of wild and noxious animals and weeds within the county .» 8. Fi3h and game. Provide for the protection and preservation, sub- ject to the laws of the state, of wild animals, birds and game, and fish not a county charge unless the board of supervisors has expressly so provided in fixing his salary or compensation. Matter of Strong v. Williams (1915), 167 App. Div. 714, 153 N. Y. Supp. 175. Uerks and deputies. Board can only fix the number, grades and pay of clerks in county offices required by statute to have such clerks and deputies. People ex rel. Masterson v. Gallup, 96 N. Y. 628. And see People ex rel. Bacon v. Super- visors of Kings Co., 105 N. Y. 180, affg. 33 Hun 373. Amendment of igii authorizes boards of supervisors to prescribe or fix the mode or manner in which those authorisied by law to appoint clerks, assistants and employees in county offices should exercise the power and does not confer upon boards of supervisors the power themselves to make such appointments. Sheldon V. MacArthur, 73 Misc. 575; 133 N. Y. Supp. 194, afl"d. 148 App. Div. 908. Employment of attorney. A board of supervisors may employ an attorney and counsel as the necessity arises, but it cannot appoint an attorney to act for a term of one year at a yearly salary payable in quarterly installments, and thus prevent their successors from exercising the right to change counsel. Vincent v. County of Nassau, 45 Misc. 247, 92 N. Y. Supp. 32. But see County Law, § 210, post, p. 81, as to employment of county attorney. 7. County bonds. As to limitations of indebtedness of county, aiid resolutions authorizing the issue of obligations, see County Law, sees 13, 14, post. As to mu- nicipal bonds generally, see General Municipal Law, sees 3, 5, 12, post. Highway and bridge bonds. Boards of supervisors to authorize issue of bonds by towns for highways and bridges, Highway Law, § 97, post. County or town may borrow money to pay for county's and town's share of cost of construction of county highway. Highway Law, § 142, post. Funded debt includes all county indebtedness embraced within or evidenced by a, bond, the principal of which is payable at a time beyond the current fiscal year of its issue, with periodical terms for the payment of interest, and where provision is made for payment by the raising of necessary funds by future taxation and the quasi pledging, in advance, of the county revenue. People ex rel. Peene v. Carpenter, 31 App. Div. 603, 52 N. Y. Supp. 781. 8. Town bonds. This subdivision vests generally in the board of supervisors the power to authorize a town to issue its bonds for the raising of money for a town purpose. If bonds are to be issued for the construction, repair or discontinuance of a highway, for the repair or rebuilding of a highway or bridge destroyed by the elements or otherwise, or for the repair or rebuilding of a bridge condemned by the State highway commission, or for the purchase of road machinery, application should be made as provided in section 97 of the Highway Law, as amended by L. 1914, ch. 202, and L. 1915, ch. 322. See also Highway Law, § 97a, as added by L. 1917, ch. 565. The above subdivision is sufficiently broad to empower the board to authorize a town to raise, by the issue of bonds, funds necessary to acquire lands adjacent to a town hall. Jamaica Sav. Bank v. City of New York, 61 App. Div. 464, 70 N. Y. Supp. 967. As to power of board to authorize a town to bond itself for the erection of a bridge, see Barker v. Town of Oswegatchie, 41 N. Y. St. Rep. 821, 16 K. Y. Supp. 727. Action of board legislative. The action of the board in directing issue of bonds for the improvement of a highway is purely legislative, and cannot be reviewed on certiorari. People ex rel. Trustees of Jamaica v. Supervisors, 131 N. Y. 468 (1892). As to resolution authorizing issuance of bonds by a town, see County Law, § 14, post. 9. Noxious weeds. Town meetings may also provide for the destruction of noxious weeds. Town Law, § 43, subd. 5, post. Removal of noxious weeds and brush within the highways, Highway Law, § 54, as amended by L. 1911, ch. 151. GENERAL POWERS OP BOARDS OF SUPERVISORS. 57 County Law, § 12. and shell-fish, within the county; and prescribe and enforce the collection of penalties for the violation thereof.'" 9. School commissioner districts. Divide any school commissioner's district within the county which contains more than two hundred school districts, and erect therefrom an additional school commissioner's district, and when such district shall have been formed, a school commissioner for the district shall be elected in the manner provided by law for the election of school commissioners.'^ 10. Opening and closing of county offices. Fix and regulate the time of opening and closing the county offices daily, except Sundays and holi- days, where such time is not fixed by law.'^ 11. Contracts with penitentiaries. Contract, at such times and upon such terms as the board may by resolution determine, with the authorities of any other county for the reception into the penitentiary of such county, and the custody and emplowment at hard labor therein, of any person convicted within their county of any offense, other than a felony, and sen- tenced to imprisonment in a county jail, or penitentiary, for a term ex- ceeding sixty days." 10. Tish. and game. The Forest, Fish and Game Law (now Conservation. Law), has regulated the taking of fish and game within the several counties of the state. That act doeg not authorize hoards of supervisors to adopt local laws for the protection and preservation of fish and game. The legislature having specially legislated on this subject, the board of supervisors cannot override such, legislation. People v. Fish, 89 Hun, 163, 34 N, Y. Supp. 1013. The boards of supervisors of Nassau and Suffolk may respectively pass laws regulating and controlling the taking of fish and shell-fish in arms of the sea and fish bait from public lands of such counties, and prescribe what violations thereof shall be punishable as misdemeanors and to impose penalties, the same to be enforced under the provisions of article three of this act. (Conservation Law, i 334, as added by L. 1912, ch. 318.) 11. School commissioner districts. By L. 1910, chap. 607, the office of school commissioner was abolished and a district superintendent of schools sub- stituted therefor. This act takes effect January 1, 1912. The board of super- visors must divide the county into supervisory districts on the 3rd Tuesday of April, 1911. See Education Law, § 381, post. 13. Hours of closing county offices. As to business hours in office of county clerk, see County Law, sec. 165, post, p. 130; in office of sheriff, see County Law,, sec. 184, post, p. 155. Holidays and half holidays shall be considered as Sunday for all purposes relating to the transaction of business in the public offices of the state, and of each county. Public Officers' Law, sec. 62. 13. Form of contract with a penitentiary of another county, see Form No. 5, post. Contracts. Board of supervisors cannot contract with the authorities of a penitentiary for the support of felons. Commissioners of Charities v. Super- visors, 64 Hun, 195. 18 N. Y. Supp. 883. 58 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. 12. Actions on undertakings. Cause an action to be brought upon the undertaking of any county officer, whenever a breach thereof shall occur.^* 13. County buildings; acquisition of lands. Purchase, lease or other- wise 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, construct, any necessary buildings 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 ; to select such name as they may deem proper and appropriate for the alms-house of such county and thereafter to designate such alms-house by the name so selected; and Contracts for keeping prisoners; notice to be published. It is provided by the Prison Law, § 320, as follows: It shall be lawful for the several boards of supervisors in the several counties of this state to enter into an agreement with the board of supervisors of any county having a penitentiary therein, or with any person in their behalf by them appointed to receive and keep in the said penitentiary any person or persons who may be sentenced to confinement therein by any court or magis- trate, in any of the said several counties in this state, for any term not less than sixty days. Whenever such agreement shall have been made, it shall be the duty of the said several boards of supervisors of the several counties aforesaid, to give public notice thereof, specifying in such notice the period of the continuance of such agreement, which said notice shall be published in such newspapers, printed in said several counties, not less than two, and for such period of time, not less than four weeks, as the several boards of supervisors of said several counties shall direct. 14. Actions on undertakings. The word " undertaking " includes an official bond. General Construction Law, sec. 27. As to the force and effect of an official undertaking of a county officer, see County Law, sec. 247, post. The sureties on the bond of a county treasurer are not exonerated by any neglect or malfeasance of the supervisors in passing upon his accounts. The bond is not conditioned for, and the law does not guarantee such an examina- tion. Supervisors of Monroe v. Otis, 62 N. Y. 88. The condition of a treasurer's bond that he should faithfully discharge his duties, involves the obligation of making correct reports, conforming to the requirements of the statute, and the failure so to do is a breach of this condition. Supervisors of Tompkins Co. V. Bristol, 99 N. Y. 316. 15. Acquisition of real property. A county, If unable to agree with the owners, may acquire title to real property by condemnation. See General Municipal Law, sec. 74, post. Proceedings for the acquisition of real property by condemnation, see Condemnation Law, Code Civ. Proc, sees. 3357-3382. The board of supervisors can take and hold a fee in lands for county build- ings. And a town which conveys for this purpose, for a nominal consideration, cannot, on a subsequent removal of the county seat, maintain an action to GENEEAL POWERS OF BOARDS OF SUPEUVI'SORS. 59 County Law, § 12. sell, lease or apply to other county use, the sites and buildings, when a site is changed ; to sell, and for a proper consideration to convey, all of the title and interest of the county in and to any land or property owned by the county but not in actual use by the county ; and if sold, apply the proceeds to the payment for new sites, buildings and improvements.^' [Subd. amended by L. 1917, ch. 304.J 14. Jury districts. To make one or more jury districts and to make such regulations in respect to the holding of the terms of courts as shall be necessary by reason of such change. 15. Contracts for hoard of prisoners.'^'' [Subd. repealed by L. 1917, ch. 352.J 16. Tax to enforce Game Law. To raise by tax a sum not exceeding one thousand dollars in any year, except in the county of Erie and in said county a sum not to exceed four thousand dollars in any year to aid in carrying out the provisions of the forest, fish and game law. [Subd. amended by L. 1909, ch. 477.] 17. Sheriff salaried office in Chautauqua county. The board of super- visors of Chautauqua county shall have power to determine that a sheriff thereafter elected in such county shall receive a salary instead of fees, and may fix such salary, or if the sheriff of such county shall thereafter be made a salaried office to determine that a sheriff thereafter elected shall receive the fees prescribed by law, as compensation for his services, instead of his salary. In case the office of sheriff of such county is made a salaried office, in pursuance of this subdivision, the sheriff shall collect all fees and perquisites to which he is entitled, in pursuance of law, except such as are payable by the county, and shall at least once in each month pay enjoin a sale of the lands. Trustees of Havana v. Supervisors of Schuyler Co., 5 T. & C. 703. 16. Erection of buildings. As to removal of county buildings, see County Law, sees. 31-33, post, p. 69. Under the power conferred upon the board by the above subdivision it is not necessary that the board should purchase a site and then erect a building thereon. If the county owns real estate with an appro- priate building thereon, it may appropriate a part of such building to be used as a jail. Roach v. O'Dell, 33 Hun, 320, aftd., 99 N. Y. 635. The supervisors of the county of Steuben have authority under this sub- division to erect a courthouse in the city of Hornellville and to appropriate money therefor. Special action by the supervisors does not change the county seat from its present location in Bath. Lyon v. Board of Supervisors, 115 App. Div. 193, 100 N. Y. Supp. 676. Power to borrow money. Board is given power to borrow money for erec- tion of county buildings and purchase of sites^ and issue of obligations therefor. Ghiglione v. Marsh, 23 App. Div. 61, 48 N. Y. Snpp. 604. 17. Existing contracts with sheriffs in oiKce on May 3, 1917, providing for board of prisoners not affected by repeal; see L. 1917, ch. 352, § 4. 60 ■ COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. the same to the county treasurer, and such fees and perquisites shall become part of the general fund of the county.^' 18. Other powers and duties of boards of supervisors. 1. ToiDns and town meetings. As to the erection of new towns and the alter- ation of boundaries of towns by the board of supervisors, see County Law, sec. 35, post. (For the pages of this Manual where sections of laws may be found, see Schedule of Laws, following table of contents.) The board of supervisors may by resolution fix a time for holding biennial town meetings, see Town Law, sec. 40, post. 2. Registration of dogs; taxation. The board of supervisors may fix and impose a tax on dogs, see County Law, sec. 110, post. The board of supervisors may regulate the registration of dogs within the county, see County Law, sees. 128-136, post. 3. Taxation. As to the duties of the board of supervisors in relation to the assessment of bank shares, see Tax Law, sec. 24, post. The board of supervisors must add to the tax on a tract of land belonging to a non-resident the expense of making a survey of such tract as authorized by Tax Law, sec. 31, post. As to the equalization of assessments by boards of supervisors, see Tax Law, sec. 50, post, and as to the appointment of commissioners of equalization by the boards of supervisors, see Tax Law, §S 51-53, post. As to the duties of the board in relation to the assessment of non-resident real property, see Tax Law, sees. 54, 55, post. As to the correction of errors in assessment-rolls by boards of supervisors,, and the reassessment of property illegally assessed, see Tax Law, sees. 56, 57,. post, and the County Law, sec. 16, post. As to the levy of taxes by the board of supervisors, see Tax Law, sec. 58, post. As to appeals from the equalization of boards of supervisors by a town, to the state board of tax commissioners, see Tax Law, sees. 175-178, post. The board of supervisors is required to annex to the tax roll of each town a warrant under the seal of the county, signed by the chairman and clerk of the board, commanding the collector to collect from the several persons named in such roll the several sums mentioned therein. As to the completion of such warrant, see Tax Law, sec. 59, post. 4. Relief of poor. The board of supervisors may determine the number of county superintendents of the poor and may oppoint superintendents when a vacancy shall occur in the office, see County Law, sec. 220. The board of super- visors may appoint one of the superintendents of the poor to act as keeper of the alms-house, see Poor Law, sec. 4, post. The board must cause money to be raised for the support of the poor, see Poor Law, sec. 11, post. The board may make rules and regulations respecting the temporary relief of the Poor, see Poor Law, sec. 13, post. The board shall cause the amount estimated by overseers of the poor and appropriated by the town board to be raised in each town, see Poor Law, sec. 27, post. The board shall charge to the town liable for the support of poor persons, the expenses of such support, when the overseer of the proper town fails to- remove such person, see Poor Law, sec. 45, post. GENERAL. POWERS OF BOARDS OF SUPERVISORS. 61 County Law, § 12. 18. The board of supervisors of each county may raise by tax on real The board may abolish the distinction between town and county poor, see Poor Law, sec. 138, post. The board shall provide for the proper burial of indigent soldiers, sailors and marines, Poor Law, sec. 84, post; and shall provide proper head stones for the graves of such soldiers, sailors and marines. Poor Law, sec. 85, post. The board shall audit the accounts of the Syracuse State Institution for Feble-Minded Children for support of children sent thereto, see State Charities Law, sec. 70, post; and also accounts for the support of epileptics at Craig Colony, see State Charities Law, sec. 109, post. 5. Highways and bridges. As to the duties of boards of supervisors in respect to highways and bridges generally, see chapter LXVII, post. For duties of the board of supervisors as to the construction of state and county highways, see Highway Law, sees. 123-128, 131, 134-142, 148-155, post. As to state- ment of clerk of board of supervisors to state comptroller and commission as to amount of highway taxes levied upon towns, see Highway Law, sec. 100, post. As to appointment of county superintendent, see Highway Law, sec. 30, post. As to duties of board of supervisors in respect to levy of taxes upon towns for highway and bridge purposes, see Highway Law, sees. 90-96, post. As to duties of board of supervisors in respect to the construction and maintenance of certain bridges, see County Law, sec. 63, post; and as to duties of the board in relation to bridges over boundary lines of towns, see Highway Law, sees. 250-262, post. Application must be made to the board of supervisors by turnpike corporations for laying out the highway of such corporation, and the board is required to appoint commissioners for such purpose, see Transportation Corporations Law, sees. 123, 124, post. The board may acquire the rights and franchises of turnpike and plank road corporations, see Transportation Corporations Law, § 139, post, p. 795. 6. School commissioners. The board of supervisors may increase the salaries of school commissioners (now district superintendents of schools), see Education Law, § 389, post. Oifice of school commissioner abolished by L. 1910, ch. 607, in effect January 1, 1912. 7. County Officers. The board of supervisors may appoint a temporary surro- gate, see Code Civ. Proc, sec. 2492, post. The board may create the ofSce of surrogate in counties containing a certain population, see County Law, sec. 231, post. Surrogates are required to report to the board of supervisors, see Code Civ. Proc, sec. 2501, post, p. 146. The board may authorize the appointment of assistant district attorneys in certain counties, see County Law, sec. 202, post. The board of supervisors may appoint a jail physician for each jail in the county, see Prison Law, § 348. The board of supervisors may abolish the office of railroad commissioners in the several towns in the county, see General Municipal Law, sec. 16, post. The board of supervisors may fix and determine the salaries of coroners, see County Law, sec. 191, post. Coroners are required to render to the board of supervisors a statement of prop- erty found on the person of the deceased before the accounts of such coroners for their fees and compensation can be audited, see Code Crim. Proc, sec. 788, post. 62 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. and personal property, subject to taxation in such county, not more than five thousand dollars, to be expended in the repair and construction of sidepaths in such county. The county treasurer of each county where such sum has been raised shall place the same to the credit of the sidepath fund, provided by section four, chapter one hundred and fifty-two of the laws of eighteen hundred and ninety-nine as amended by chapter six hundred and forty of the laws of nineteen hundred, and it shall be ex- pended and paid out according to the provisions of said last named chapter. 19. Whenever a judgment has been rendered in the court of claims in favor of any county against the state of New York, and the time to appeal therefrom has expired or the attorney-general has issued a certificate that there has been no appeal and that no appeal will be taken by the state from such judgment, the board of supervisors of such county may sell, assign, transfer or set over such judgment to the comptroller, who may purchase the same as an investment for the various trust funds of the state or canal debt sinking fund, or to any person, firm, association or corporation desiring to purchase such judgment, for a sum not less than the amount for which same was rendered with accured interest, but no judgment so acquired by the state shall be deemed merged or satisfied thereby. And such board of supervisors may designate and authorize its chairman and clerk, the treasurer of the county and the attorney of record procuring the entry of such judgment, or any or either of them to execute in the name of the county and deliver to the party purchasing such judgment the necessary release, transfer or assignment required in law to complete such sale, setting over, transfer or assignment. 8. County jails, work houses and houses of detention. The board of super- visors may provide for the labor of prisoners confined in county jails, see County Law, sec. 93, post. Such board may establish and maintain work houses, see County Law, sec. 100, post. It may provide houses of detention for the safe and proper keeping of women and children convicted of crime and of persons detained as witnesses, see County Law, sec. 99, post. 9. Miscellaneous duties. As to the duties of the board in relation to the preparation of grand jury lists, see Code Crim. Proc, § 229a, post. As to pro- visions relating to the adoption of an official seal by the board of supervisors, see County Law, sec. 245, post. A hospital, camp or other establishment for the treatment of patients suffering from pulmonary tuberculosis cannot be established in any town unless the board of supervisors of the county and the town board of the town shall each adopt a resolution authorizing the establishment thereof, and describing the limits of the locality in which the same may be established, see Public Health Law, sec. 319, as ap-erded by L. 1916, ch. 291. County hospital for tuberculosis, establishment and maintenance, see County Law, §§ 45-49e, post. GENERAL POWERS OP BOARDS OF SUPERVISORS. 63 County Law, § 12. 20. The board of supervisors shall annually fix and determine the com- pensation to be allowed and paid to officers for the conveyance of juvenile delinquents to the houses of refuge and state industrial schools, and no other or greater amount than that so fixed and determined shall be allowed and paid for such service. 21. The board of supervisors shall have power to direct the payment, by justices of the peace, of all fines and penalties imposed. and received by them, to the supervisors of their respective towns, on the first Monday in each month, and to direct justices of the peace to make a verified report of all fines and penalties collected by them to the board of town auditors of their respective towns on the Tuesday preceding the annual town meet- ing. Upon such payment as herein prescribed to the supervisor of any town, he shall immediately pay over such part of such fines and penalties to any person or corporation who shall be entitled to receive the same by virtue of any statute, special or otherwise. The residue of such amount shall be applied to the support of the poor of such town. This subdivision shall not apply to the county of Kings. 22. The board of supervisors may contract with the sherifE of their county, or the jailer of the common jail therein, for the support and maintenance of such persons as may be confined in such jail upon any writ or process in any civil action or proceeding in the nature of a civil action. Such sheriff or jailer shall attach to all bills rendered for such support and maintenance, a list, under oath, of the number and names of the persons to whom such support and maintenance was furnished, and the length of time each person was so supported. This subdivision shall not be construed as repealing any present provisions of law relating to the care, custody, support or maintenance of such prisoners in the counties of Kings and Monroe. 23. The board of supervisors of a county in which a law library is maintained by the state shall, upon the request of a judge of the court of appeals who resides therein, provide and maintain for his use, suitable and commodious offices, approved by him. In case of the refusal or neglect of such board of supervisors to provide and maintain such offices the expense of the same pursuant to the judiciaiy law shall be a county charge. 23a. The board of supervisors of any county may appropriate and make available for the home defense committee of the county such amount as it may deem proper to defray the disbursements of the com- mittee, to be paid out by the county treasurer on the order of the treas- urer of such committee out of any moneys of the county available there- for; but this subdivision shall not be operative longer than the expira- tion of six months after the close of the present war. [Subd. added by L. 1917, ch, 525.J 64 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. 24. The board of supervisors of any county, except Kings, Queens, Livingston, Monroe, Cortland, Westchester and Onondaga, may, in their discretion, provide for the employment of a stenographer for the county court thereof, and said board of supervisors must fix his compensation and provide for the payment thereof in the same manner as other county expenses are paid. [Subd. amended by L. 1915, ch. 91.] 25. The board of supervisors of each county must provide for the pay- ment of the sums, chargeable upon the treasury of the county, for the salary, fees, or expenses of a stenographer or assistant stenographer; and all laws relating to raising money in a county, by the board of supervisors thereof, are applicable to those sums. 26. The board of supervisors of any county may, on the application of any city of the third class, village, town, school district, water dis- trict, lighting district or fire district in the county, authorize such municipality or district by referendum vote thereon, to raise moneys or issue the bonds or other obligations of such municipality or district, to run for such period of time not exceeding fifty years, as the board of supervisors may prescribe, for paving the streets, roads and high- ways and constructing sidewalks within such municipality, and any public municipal or district improvement, and to raise moneys by local taxation for the redemption of such bonds or obligations; to extend or diminish municipal or district boundary lines; to widen, extend, limit or diminish the area occupied by streets, roads and highways ; and to establish, increase or lower stated salaries of local officials. Nothing in this subdivision, however, shall operate to abridge the right or power now possessed by any such municipality or district, under any general or special law, whether heretofore or hereafter enacted, to perform any of the acts which such municipality or district might perform without authority from such board ; but the provisions of this subdivision shall be liberally construed to enable municipalities and districts, with the authority of the board of supervisors, to exercise their legitimate munic- ipal or district functions without special recourse to the legislature, [Subd. 26, added by L. 1910, ch. 141, and amended by L. 1913, ch. 351.J 27. The board of supervisors of any county in which there is a so- ciety for the prevention of cruelty to children may from time to time appropriate and pay for the support and maintenance of such society from county funds available therefor, such sums as it may deem proper and may raise moneys for such purposes by tax on real and personal property within the county. The moneys thus applied shall be paid to the board of directors of such society and by it expended for corporate ' purposes, but the board of supervisors may, in its discretion, prescribe GENERA!, POWERS OF BOARDS OF SUPERVl'SORS. 65 County Law, § 12. rules and regulations governing such expenditures and require the sub- mission of reports of the disbursements of the corporation and the ap- proval by the board of supervisors of accounts to be paid from moneys thus appropriated. [Subd. 27 added by L. 1911, ch. 545.] 28a. The board of supervisors of any county may from time to time appropriate and pay out for the general improvement of agricultural conditions and for the support and maintenance of county farm bureaus to conduct demonstration work in agriculture and home economics and for the employment by said bureaus of county agricultural agents and tome demonstration agents, and for any other purpose which the board of supervisors shall deem proper and which, in its judgment, will en- courage and promote the general improvement of agricultural condi- tions therein, such sums as it may deem proper, and may raise money for such purpose by a tax on real and personal property in the county. The board of supervisors may by resolution, duly passed, direct the county treasurer to pay out moneys from such appropriation upon the order of the treasurer of the county farm bureau association upon pre- sentation to him, the said county treasurer, of an order drawn by the treasurer of the said county farm bureau association upon such fund, in payment of claims for which said organization is liable, approved by the president of said organization, such order to be accompanied by a statement of the items for which such charge or claim is made, and duly verified, and such order when paid shall be a sufiicient voucher in the hands of said county treasurer for his authority to pay out such moneys, and the board of supervisors may froni time to time by resolution make -any further conditions or restrictions in the disbursements of such iunds as it may deem proper; provided that this money shall be ex- pended under an agreement to be entered into between the farm bureau -county association of farmers supporting the work and the state leader of county agents, for the co-operative management of said farm bureau and the proper supervision of said county agricultural agent and home demonstration agent ; and provided that the co-operative relations there- in established shall continue until either party to the agreement shall notify the other party that it wishes to terminate the agreement. Such a notification shall be in writing and shall be served at least six months preceding any action taken to annul the agreement. After receiving such notice co-operative relationships between said parties shall cease at the expiration of the six months' period of notice providing reconsider- ation or request for continuance is not made by the party issuing noti- fication of desire to continue work under the provisions of this agree- ment. On or before the first day of October in each year and at any other 65a COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. time when requested by the board of supervisors . the oiBcers of such farm bureau association shall report in writing to the board of super- visors a detailed statement of its work and transactions for the year ending September thirtieth, and for any other period which the board of supervisors may request and in such form as said board may direct. There shall be annually appropriated out of any moneys in the treas- ury not otherwise appropriated, for the purpose of assisting in the or- ganization and contributing toward the support of county farm bureaus in the various counties of the state the sum of six hundred dollars ($600) per annum for each county in the state which shall qualify as required by this section, provided, however, that no such bureau shall be entitled to receive any money so appropriated unless the county in which the same is organized shall appropriate through its board of supervisors or otherwise raise and provide at least eighteen hundred dollars per annum for the support and maintenance thereof; and in addition there shall be annually appropriated such sums of money as may be necessary for the proper and necessary supervision thereof. The general supervision of the co-operative agricultural extension and development work herein provided for shall be under the joint direc- tion of the commissioner of agriculture and the dean of the New York state college of agriculture through a representative to be known' as state leader of county agents, mutually agreed upon, and they are hereby authorized to make rules and regulations for the organization and con- duct of such county farm bureaus, and the moneys appropriated pursu- ant to this subdivision shall be paid by the state treasurer on the war- rant of the comptroller on vouchers and certificates approved by the commissioner of agriculture. [Subd. 28a added by L. 1917, ch. 281, and amended by L. 1918, ch. 301.J 29. The board of supervisors of any county may from time to time appropriate and pay out for the general improvement of agricultural conditions in said county such sums as it may deem proper, and may raise money for such purpose by a tax on real and personal property in the county. The moneys so raised may be used in the employment of a person or persons to give free agricultural advice in said county and for any other purpose which the board of supervisors shall deem proper and which, in its judgment, will encourage and promote the general improve- ment of agricultural conditions therein. [Sud. 28 added by L. 1912, ch. 35, and renumbered 29 by L. 1917, ch. 106.] 29. Where by statute a county is required to cause to be raised and paid moneys for the support and maintenance of any person or persons in any state charitable institution which otherwise would be a charge against and payable by the towns and cities of such county, or where a GENERAL POWERS OF BOARDS OF SUPERVl'SOKS. 65b County Law, § 12. coun'ty officer, or board, is required to incur expenses for supplies or services, which are required to be apportioned to the towns and cities of such county, the board of supervisors of such county may audit and pay claims therefor and cause the amounts thereof to be raised by tax levy and collected in the same manner and at the same time as state and county taxes are levied, assessed and collected in said towns and cities. [Subd. 29 added by L. 1912, ch. 148.] 30. The board of supervisors of any county in which there is a so- ciety for the prevention of cruelty to animals may from time to time appropriate and pay for the support and maintenance of such society from county funds available therefor, such sums as it may deem proper and may raise moneys for such purpose by tax on real and personal property within the county. The moneys thus applied shall be paid to the board of directors of such society and by it expended for corporate purposes, but the board of supervisors may, in its discretion, prescribe rules and regulations governing such expenditures and requiring the submission of reports of the disbursements of the corporation and the approval by the board of supevisors of accounts to be paid from moneys thus appropriated. [Subd. 27 added by L. 1911, oh. 663, renumbered 28 by L. 1912, ch. 148, and renumbered 30 by L. 1917, ch. 106.J 32. The board of supervisors of any county in which there are moneys in the county treasury consisting of revenues received under the pro- visions of chapter six hundred and forty of the laws of nineteen hun- dred, repealed by chapter three hundred and thirty of the laws of nine- teen hundred and eight, may provide by resolution that such moneys shall be expended for the repair and improvement of side-paths, in the various towns of the county, under the direction of the county superin- tendent of highways, so far as the same may be sufficient therefor, upon side-paths leading from each city or town, in an amount to be specified in the resolution, equal to the portion derived from the revenues col- lected under such chapter therein. The moneys to be thus applied shall be paid to the county superintendent of highways by the county treas- urer in the same manner as other county funds which are ordered paid by the board of supervisors; but all orders or warrants therefor shall refer to such fund as the side-path fund. [Subd. added by L. 1912, ch. 194, and renumbered 32 by L. 1917, ch. 106.J 3'3. The board of supervisors shall have power to, and may, provide a fund for the payment in advance of audit of properly itemized and veri- fied bills for the expenses of the district attorney lawfully and necessar- ily incurred in the prosecution of criminal actions or proceedings aris- ing in his county, and, by resolution, authorize the county treasurer to apply said fund in payment of such bills on the approval of the district 65c COUNTIES; BOARDS OF SUPERVISORS. County Law, § 12. attorney endorsed thereon; said bills so paid to be transmitted to the clerk of the board of supervisors and audited by it at its next regular session held subsequent to their payment. The district attorney and any claimant receiving payment as aforesaid shall be jointly and sev- erally liable for any item or items contained in a bill so paid in advance of audit which shall be disallowed and rejected by the board of super- visors upon final audit, to be recovered in an action brought by the board of supervisors in the name of the county. [Subd. 29 added by L. 1912, ch. 235, and renumbered 33 by L. 1917, ch. 106.] 34. The board of supervisors are authorized to contract for telephone service and for the lighting, heating and maintenance of county build- ings, and to provide the method and time of payment for the same, or it may provide a fund for payment in advance of audit of such bills, and by resolution authorize the county treasurer to apply such fund to the payment of duly itemized and verified bills for such purposes, on the approval endorsed thereon of its proper committee of the proper county officer having charge thereof ; such bills so paid to be transmitted to the clerk of the board of supervisors for final audit as provided in the next preceding subdivision of this section. The members of any committee, or any officer, approving said bills as aforesaid, and any claimant receiv- ing payment, shall be jointly and severally liable for the amount of any bill or item or items contained in a bill so paid in advance of audit, which shall be rejected and disallowed by the board of supervisors upon final audit, to be recovered in an action brought by the board of super- visors in the name of the county. [Subd. 30 added by L. 1912, ch. 235, and renumbered 34 by L. 1917, ch. 106.J 34. The board of supervisors of the county of Erie shall have power exclusively, and it shall be its duty, to contract annually with one or more undertakers for the care, removal and burial of bodies of persons dying within said county, where there are no known relatives, friends or personal representatives of such deceased in the state liable or willing to become responsible for the expense thereof and for the conveyance and delivery of such bodies to and from the public morgue of such county and the performance of any other acts incidental thereto. Eacli undertaker, with whom such a contract shall be made, shall execute and deliver a bond in such amount, with such sureties and upon such con- ditions as such board shall require. [Subd. 34 added by L. 1917, ch. 289.] 35. The board of supervisors of a coxmty adjoining a city of the first class, shall have the power to appoint a commission of taxpayers, of said county, not exceeding seven in number, who shall serve without com- pensation, to examine the question of the application of the different GENERAL POWERS OF BOARDS OF SUPERVl'SORS. 65d County Law, § 12. laws of the state as applicable to the method of *governmeiit of the county, its population, needs and the advisability of changing the forms or methods of government of the county and its several localities; to investigate the form of government of other counties or cities; within and without the state of 'New York, the method used in the administra- tive, judicial and economic branches of the different municipalities in- vestigated, for the purpose of recommending an improvement in the government and welfare of the people of the county, and to report its investigations, findings and recommendations with all convenient speed to the board of supervisors. Such commission of taxpayers shall have the power to employ counsel, to appoint such assistant or assistants, in- eluding one or more stenographers as the commission may require to aid in such investigation, to fix the salaries of such counsel, assistants and stenographers, to purchase the necessary stationery and equipment. The board of supervisors shall provide rooms for the commission to hold its meetings, and raise and provide the money by taxation or otherwise to pay all expenses necessarily incurred during the investigation by such commission and such counsel, assistants and stenographers as may be employed by said commission. [Subd. 31 added by L. 1914, ck. 324, and renumbered 35 by L. 1917, ch. 106.] 36. The board of supervisors is authorized to provide for the payment of properly itemized and verified bills of district superintendents of schools of the supervisory districts in the county rendered by them for expenses incurred for necessary printing and office supplies, subject to such conditions as the board may prescribe. The board may, by resolu- tion, authorize the incurring of indebtedness for such purposes and when so authorized the bills therefor shall be audited and paid in the same manner as other charges against the county. [Subd. 31 added by L. 1914, ch. 389, and renumbered 36 by L. 1917, ch. 106.J 37. The board of supervisors in any county in which the poor are a town charge may by resolution provide that a soldier, sailor or marine who has served in the military or naval service of the United States and who has received an honorable discharge from service, or his family or the family or any who may be deceased shall be relieved and provided for as a county charge. Application for such relief and the granting thereof shall be governed by sections eighty, eighty-one and eighty-two of the poor law. [Subd. 32 added by L. 1915, ch. 243, and renumbered 37 by L. 1917, ch. 106.J 38. The board of supervisors of any county containing a population of less than two hundred thousand and adjoining a city of the first class may authorize the establishment of a plan for the grades of streets, * So in original. 65o COUNTIES; BOARDS OF SUPERAnSORS. County Law, § 12. avenues and boulevards ; the alteration of such plan of grades, or of any plan thereof, which shall have been established by law ; the laying out, opening, grading, construction, closing and change of line, or of the width of any one or more of such streets, avenues and boulevards or any other streets, avenues and boulevards, within said county, or any part or parts thereof, and of the courtyards, sidewalks and roadways; to provide for the estimation and award of the damages to be sustained, and for the assessment on property intended to be benefited thereby, and fixing assessment districts therefor, the levying, collection and payment of such damages, and of all other charges and expenses to be incurred, or which may be necessary in carrying out the provisions of this sub- division ; the laying out of new or additional streets, avenues or boule- vards according to a general scheme or plan for the improvement of highways in said town, the acceptance by town officers of conveyances of land for public highways, naming and changing of names of streets and avenues within the said county, the opening, laying out, grading, con- etruction, closing and change of line of any street, avenue or boulevard within the county, provided, however, that nothing shall be done here- under in respect or concerning any street, avenue or boulevard situated within an incorporated village, without the consent of the board of trustees of such incorporated village. The provisions, however, for the defraying of the expenses thereof by assessment as herein provided, shall only be exercised on the petition of the property owners who own more than one-half of the frontage on any such street, avenue or boulevard, or on the certificate of the supervisor, justices of the peace, and town clerk of the town in which said street, avenue or boulevard is located, or two-thirds of such officers, that the same is in their judgment proper and necessary for the public interest ; or in case the said street, avenue, or boulevard, in respect to which such action is proposed to be taken, shall lie in two or more towns, on a like certificate of such town officers of each of said towns, or two-thirds of all of them ; provided, however, that before proceeding to make any such certificate, the said officers, or such number of them as aforesaid, shall give ten days' notice by publica- tion in one of the weekly papers of said county and by posting in six public places in said town, or in each of said towns, of the time and place at which they will meet for the purpose of considering the same, at which meeting the public and all persons interested may appear and be heard in relation thereto ; and provided that no such street or avenue shall be laid out, opened or constructed upon or across any lands hereto.- fore acquired by the right of eminent domain, and held in fee for depot purposes by any railroad. [Subd. 32 added by L. 1915, ch, 679, and renumbered 38 by L. 1917, ch. 106.] GENERAL POWERS OF BOARDS OF SUPERVl'SORS. 65 f County Law, § 12. 39. Should the board of supervisors o£ any county containing a pop- ulation of less than two hundred thousand and adjoining a city of the first class at any time deem it for the public interest to acquire title to lands and premises required for any streets, highway or boulevard heretofore or hereafter laid out, widened, altered, extended or otherwise improved, it may acquire the same by dedication, or by condemnation under the condemnation law, provided, however, that no land shall be acquired for any street, highway or boulevard in an incorporated village without the consent of the board of trustees of such incorporated village. Such board may direct, by a two-thirds vote, where no buildings are upon the lands, that the title to any piece or parcel of land lying within the lines of any such street, highway, or boulevard shall be vested in the county upon the date of recovery of such dedication or upon the date of the filing of the oath of the condemnation commissioners as provided in the condemnation law, or upon a specified date thereafter and where there are buildings upon such lands, upon a date not less than six months from the date of the filing of said oath. Thereafter, when the condemnation commissioners shall have taken and filed said oath, upon the date of such filing or upon such subsequent date as may be specified, where no buildings are upon such lands and where there are buildings upon such lands upon the date specified by said board of supervisors either before or after the filing of such oath, the same being not less than six months from the date of said filing, the county shall become and be seized in fee of said lands, tenements, and hereditaments in the said resolution mentioned, that shall or may be so required as aforesaid, the same to be held, appropriated, converted and used to and for such purpose accordingly, in like manner as are other public streets in said county. In such cases interest at the legal rate upon the sum or sums to which the owners, lessees, parties or persons are justly entitled upon the date of the vesting of title in the county as aforesaid, from said date to the date of the report of the commissioners shall be allowed by the com- missioners as a part of the compensation to whicb such ovmers, lessees, parties or persons are entitled. In the other cases, title, as aforesaid, shall vest in the county upon the confirmation by the court of the report of the condemnation commissioners. Upon the vesting of title as herein provided, the county or any person or persons acting under its authority, may immediately, or at any time thereafter take possession of the same, or any part or" parts thereof, without any suit or proceeding at law for that purpose. The title acquired by the county, to lands and premises required for a street, shall be in trust, and such lands and premises appropriated and kept open for, or as part of a public street or high- way, forever, in like manner as the other streets in the county. [Subd. «6 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 15. 33 added by L. 1915, ch. 679, amended by L. 1916, ch. 5, and renum- bered 39 by L. 1917, ch. 106.] 40. The board of supervisors of any county wherein a deputy county treasurer is not now allowed by law to be appointed, may by resolution authorize the appointment of a deputy county treasurer and shall fix his salary. Such deputy county treasurer shall act for the county treas- urer during his absence from the state or his inability to act as such county treasurer, and may act for such county treasurer during his temporary absence from the oiEce when authorized so to do by such treasurer. Such authorization shall be in writing under the hand and seal of such treasurer. [Subd. 40 added by L. 1917, ch. 106.] 41. The board of supen'isors of Ontario county shall have power to and may provide for the payment in advance of audit of properly item- ized and verified bills for the expenses of any county officer necessarily incurred by him in the performance of his duties and for supplies or- dered and purchased by him, not however, exceeding the sum of fifty dollars unless the same is approved by the chairman of the committee having charge the affairs of his office, and may by resolution au- thorize the clerk of the board to draw orders upon the county treasurer in payment of such bills approved by the chairman of its committee on finance or by such other member of the board as it may determine, and certified by the county attorney to be lawful county charges. Said bills so paid to be audited by the board at its next regular session held subse- quent to their payment. The said officer and any claimant receiving payment as aforesaid shall be jointly and severally liable for any item or items contained in a bill so paid in advance of audit which shall be disallowed or rejected by such board of supervisors upon final audit, to be recovered in an action brought by the board of supervisors in the name of the county. Said board may also provide for the payment in advance of audit of the salaries and compensation of the superintendent, nurses and employees at Oak Mount sanatorium, on properly itemized and verified bills therefor, and a pay roll of the same, duly approved by the state civil service commission, in the same manner as other claims hereinbefore mentioned. [Subd. 41 added by L. 1918, ch. 390.] § 2. LEGALIZATION OF INFORMAL ACTS OF TOWN MEETING OR VILLAGE ELECTION. Any such board may, by a two-thirds vote of all its members, legalize the informal acts of any town meeting or village election within such county, and the regular acts of an one or more town or village officers, performed in good faith, and within the scope of their authority. [County Law, § 15 ; B. C. & G. Cons. L., p. 717.] GENERAL POWERS OF BOARDS OF SUPERVISORS. County Law, § 20. § 3. SESSION rAvrs, designation of newspapers fob pub- I.ICATION. The members of tke board of supervisors in each county representing, respectively, each of the two principal political parties into which the people of the country are divided or a majority of such members repre- senting respectively, each of such parties, shall designate in writing a paper fairly representing the political party to which they respectively belong, regard being had to the 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 towns of the county, to publish the session laws and concurrent resolutions of the legislature re- quired by law to be published, which designation shall be signed by the members making it and filed with the clerk of the board of supervisors.^' 19. Number of Totes. Under the act of 1845, ch. 280, containing a provision "that in designating official newspapers eacTi member of the board should vote for one paper, and that the two newspapers receiving the highest number of votes should be designated, it was held that votes cast bearing the names of two newspapers were void, and that at least three votes having only one name on each must be cast to constitute a valid election; i. e., two votes for one paper, and one for another. People ex rel. Del. Vecchio v. Supervisors of Kings Co., 3 Keyes, 630, 3 Abb. Ct. App. Deo. 560. Bepresentatives of political parties. — The. designation is to be made by -majority of supervisors representing the two political parties. People ex rel. Baldwin v. Barnes, 17 App. Div. 197, 45 N. Y. Supp. 356. And should be made annually. Eept. of Atty.-Genl. (1903), 495. A Republican who had been elected supervisor of his town upon the Eepublioan ticket sought a renomination, but was ussuccessful. He was then nominated by the Democrats and placed at the head of the ticket under the regular party symbol of that party. He was elected over the regular Republican candidate. It was held that he was entitled to vote with the Democratie members of the board upon the question of designating a Democratic newspaper for the publication of the session laws. Norris v. Wyoming County Times, 83 App. Div. 525, 82 N. Y. Supp. 322. A city editor of a newspaper, who is not a stockholder in the corporation pub- lishing such newspaper, or otherwise financially interested therein, is not pro- hibited from voting as a supervisor for the designation of such newspaper to pub- lish the session laws. People ex rel. Crowe v. Peek, 88 Misc. 230, 151 N. Y. Supp. S25. The pnrpose to be served by requiring publication of the Session Iiaivs and Concnrrent Besolutions of the Iiegislature is to give to the people of the State early and general notice of their enactment and of the provisions thereof. It is publicity of the laws for general information of the people subject to them that is sought. People ex rel. Utica Sunday Tribune Co. v. Williams, 140 App. Div. 58, 60, 124 N. Y. Supp. 328, afld., 200 N. Y. 585 (Mem.) ; People ex rel. Mayham v. Dickson, 138 App. Div. 606, 123 N. Y. Supp. 110. 66b COUNTIES; BOARDS OF SUPERVISORS Ck)unty Law, § 20. If a majority of the memters of the board representing either of such parties cannot agree upon a paper or shall fail to make a designation of a paper or papers, as above provided, then and in such case, the paper or papers last previously designated 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 contrary to the provisions of this " In testing the question whether a newspaper does in fact fairly represent the principles of a political party so as to make it eligible for designation regard must, as the statute provides, be had, not only to its advocacy of the principles of its party and its support of the state and national nominees thereof, but also to itsi general and regular circulation in the towns of the county in which it is published. If a newspaper is deficient in either of these particulars, and there is another news- paper published in the county which clearly measiu'es up to the full requirements of the statute, it would seem that a designation of the former would not be war- ranted. Such a newspaper may be a type or specimen of a party paper, but it does not fairly represent the party to which it belongs within the plain purpose and intent of the statute." People ex rel. Utica Sunday Tribune Co. v. Williams, 140 App. Div. 58, 60, 124 X. Y. Supp. 328, affd. 200 N. Y. 585 (Mem.). In determining whether a newspaper is eligible to be designated pursuant to this section, for the publication of Session Laws and Concurrent Resolutions of the Legislature, regard must be had not only to its advocacy of the principles of its party and its support of the State and National nominees, but also to its general and regular circulation in the towns of the county where it is published. If a news- paper be deficient in either of these particulars it should not be designated if there be another paper publislied in the county which masures up to the full requirements of the statute. Hence, the designation of a newspaper whose aggregate circulation does not exceed 1,000 copies, and which has no circulation in two of the towns of the county, is of no effect, if there is another paper published in the county, qualified on the grounds of political advocacy which has a circulation of over 11,000 covering all of the towns of the county. People ex rel. Guernsey v. Somers (1912), 153 App. Div. 623. Where one of two Republican papers of equal party loyalty has a circulation of 2,700 within a county and the other has only 900 within the same territory the former should be designated. People ex rel. Mayham v. Dickson, 138 App. Div. 606, 123 N. Y. Supp. 110. The fact that a newspaper has for a long scries of years advocated the principles and policies of a political party, gives it no right to the publication of the Session. Laws, etc., unless it is at the time of the designation fulfilling that role. It seems, that a board of supervisors acting in good faith may designate a newspaper to publish the Session Laws, etc., on behalf of a political party, although such paper has not always been a party organ, in the place of the paper which had always fulfilled this role, but which, upon a particular occasion and in the year just then closing, had coneededly varied its policy and refrained from the support of some of the party candidates. People ex rel. Elmira Advertiser Association v. Gorman (1915), 169 App. Div. 891, 155 N. Y. Supp. 727; App. dismissed, 222 N. Y. (mem.). Failure of the clerk to file the designation until nearly a year after it has been made, does not authorize the selection of the paper last designated. Rept. of Atty. Ocnl., Mch. 1, Iffll. The paper should fairly represent the party for which it is- designated. People v. Supervisors of Monroe Co., 60 Hun 328, 14 N. Y. Supp. 867. Effect of a tie vote, see People v. Supervisors Of Seneca, 18 How. Pr. 461. The members of the board of supervisors are not required to select the news- paper having the largest circulation, but in making the designation of the news- paper the statute requires that they must have regard to its regular and general circulation in the towns of the county. An agreement by the paper designated with other newspapers in the county for the joint publication of the Session Laws, is illegal. People ex rel. Republican and Journal Co. v. McCarthy, 134 App. Div. 761, 119 N. Y. Supp. 387; and see People ex rel. Utica Simday Tribune Co. v. Hugo, 93 Misc. 618, 158 N. Y. Supp. 490. GENERAL POWERS OF BOARDS OF SUPERVISORS. 660 County Law, § 20. eection 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 ^hall have no representative among the members of the board of supervisors, then, and in that event, the newspaper last legally designated in behalf of such party, not having a representative among the members of the board of supervisors, shall be held to be duly desig- nated to publish the laws for that year. The clerk of each board of supervisors as soon as such designation is made shall forward^ to the SeTocatioii of desi^ation. — Members cannot change designation after certifi- cate has been filed with clerk. People v. Supervisors of Monroe, 60 Hun, 328, 14 N. Y. Supp. 867. A valid designation of a newspaper by the board of supervisors, made at any meeting, cannot be revoked. Rept. of Atty. Gen., Jan. 14, 1911. A supervisor may revoke his signature to the designation of a newspaper by delivering to the clerk a written notice to that effect at any time before the clerk has acted upon the designation. The power to designate newspapers under this section is conferred upon the supervisors individually. - People ex rel, Harper v. Roberts, 52 Misc. 308, 102 N. Y. Supp. 1110. Effect of reversal of order in certiorari, — ^A board of supervisors designated a newspaper to publish the session laws and concurrent resolutions. On review of this action by certiorari on behalf of another newspaper, the Appellate Division annulled the designation, whereupon the relator was designated by the board as the official paper. Thereafter the action of the Appellate Division was reversed (199 N. Y. 382) and the relator applied for a mandamus to compel the comptroller to audit its bill for services rendered while it was the official paper under such designation. Held, that since the judgment of a competent court is binding until it is reversed, the relator is entitled to be paid for services rendered until the reversal of the order of the Appellate Division in the certiorari proceeding. People ex rel. Republican & J. Co. v. Lazansky, 208 N. Y. 435, revg. 153 App. 547. Where a new political i>arty, at the last general election, cast the second highest number of votes in a particular county, thus becoming one of the two principal parties into which the people of the county have divided themselves, and yet has no representative In the board of supervisors, and no newspaper which had been previously designated to publish the Session Laws and which could hold over, a contingency arises not provided for in section 20 of the County Law, and it is the duty of the board of supervisors, under its general power, to designate a newspaper representing the principles of the new party to publish the Session Laws, concurrent resolutions of the legislature and its own acts, and it may be compelled to perform that duty by mandamus. People ex rel. Bonheur v. Crist, 208 N. Y. 6. Session laws and eoncnrrent resolutions to be published in same paper,— The purpose of this section is to give publicity and not patronage. Thus, the supervisors of one party have no right to select one paper to publish the Session Laws and another to publish the concurrent resolutions. People ex rel. Hall v. Ford, 127 App. Div. 444, 112 N. Y. Supp. 130. 20. Mandamus to compel clerk to give notice of designation. The board of Md COUNTING; BOARDS OP SUPERVISORS. Legislative Law, § 48. secretary of state a notice stating the name and address of such news- papers as have been selected for the publication within the county of the laws and concurrent resolutions of the legislature, or if there is but one newspaper in such county he shall before the first day of January in each year, forward to the secretary of state a notice stating the name and address of such neiwspaper, and that it is the only newspaper published in the county. [County Law, § 20 ; B. 0. & G. Consol. L., p. 722. j § 4. PUBLICATION OF SESSION LAWS AND OONCURKENT RESOLUTIONS. 1. 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 hereafter two news- papers published ; and in one newspaper in each county w'here but one newspaper is published or may be published; except that in the county of New York they shall be published in four newspapers, two in borough of Manhattan and two in borough of Bronx. 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. 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. [Subd. amended by L. 1911, ch. 97. J 2. 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 of said laws in his office, to each treasurer of the several counties of the state, and to the publisher of each newspaper designated by law to publish the session laws of a general nature, and such as relate to the local affairs therein, for publication in the manner provided for in this supervisors of a county cannot designate newspapers to publish Session Laws for a period exceeding one year. After such designation has once been lawfully made it cannot be revoked. Where the clerk of a board refuses to notify the secretary of state of such designation without good reason, a writ of mandamus will be issued to compel him to perform such duty. Matter of Troy Press Co., 94 App. Div. 514, 88 N. Y. Supp. 115, aiTd. 179 N. Y. 529. Compare People ex rel. Donnelly v. Riggs, 19 Misc. 693, 45 N. Y. Supp. 53, holding that the duty of the clerk is not abso- lutely ministerial, but involves to some extent the exercise of discretion; therefore, mandamus will not lie against him to act in a particular manner. Certioiari will not lie except where the question to be reviewed is clearly of a judicial character. Hence, the determination of the supervisors, representing one of the two principal political parties into which the people of the county are di- vided, or a majority of them, which designates a newspaper to publish the Session Laws and Concurrent Resolutions in an administrative act not reviewable by cer- tiorari. People ex rel. E. & J. Co. v. Wiggins, 199 N. Y. 382, revg. 138 App. Div. 933 and 127 App. Div. 444, 112 N. Y. Supp. 130. The statute does not require the designation of the paper having the largest cir- culation in the coimty but leaves a very large discretion to the board of supervisors, and their acts in this respect are purely administrative and not reviewable. People ex rel. Utica Slinday Tribune Co. v. Hugo (1916), 93 Misc. 618, 158 N. Y. Supp. 490. GENERAL POWERS OP BOARDS OF SUPERVISORS. 67 Legislative Law, § 48. section. It shall be the duty of each treasurer to cause the same to be published in the papers designated for publishing them, within ninety days from date of the receipt thereof by the said publisher; and the whole of every such law which, in the ordinary type of the newspaper in which it is published, would not occupy more than two columns, must be pub- lished in one issue, and when it exceeds such space, shall be published as soon as possible, by occupying such space in each successive issue. The secretary of state shall cause to be stated upon each and every law trans- mitted by him for publication as aforesaid, the exact number of folios con- tained 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 applicable only to the county affected. It shall be the duty of the publisher of each newspaper designated to publish the session laws, to forward to the secretary of state, a marked copy of each general law published in said newspaper 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 legis- lature and published under the provisions of this section. 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 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 provided by law, and he shall also report to the board of supervisors 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 news- papers legally designated to make such publication. 3. The secretary of state shall designate two newspapers in each of the counties of Queens and Eichmond for the publication of session laws re- quired by law to be published, representing respectively, each of the two principal political parties into which the people of such counties are di- vided, on the nomination of the county committee of each of such parties. 4. The secretary of state shall send to each newspaper designated pursu- ant to law, in the order in which they are passed, and as soon as the slips are printed, copies of such concurrent resolutions as are required to be published. Concurrent resolutions proposing amendments to the consti- tution 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, in such a manner, by the use of italics and brackets, as to indicate the new matter added or the old matter eliminated. 5. The charge for such publication of general laws in the newspapers 68 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 21; Legislative Law, § 49. 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 provided in this section, at the fixed rate of thirty cents for each folio of one hundred words. The charge for such publication of laws of a local nature in the newspapers designated 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 this subdivision, at a rate 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. 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 sums as shall be sufficient to defray the expense of publishing the laws of a local nature applicable only to the county effected, in the newspaper designated. G. This section shall not apply to counties in which the publication of the laws provided for in this section is regulated by special provision of law, where the same is inconsistent therewith, but the number of papers in which such laws are directed to be advertised, and the rates of compensation for such publications fixed by such special provision shall not be changed by the provisions of this section. [Legislative Law, § 48 ; B. C. & G. Cons. L., p. 311'!'.] 7. Compensation for publication of local laws. — The charge for the pub- lication of laws of a local nature in the newspapers designated to publish said laws shall be paid by the several counties of the state in which said laws may be published in the manner and at the compensation prescribed by section forty-eight of the legislative law. [County Law, § 21; B. C. & G. Cons. L., p. 723.] GENERAL POWERS OF BOARDS OF SUPERVISORS. gg County Law, §§ 22, 31. § e. NEWSPAPEKS DESIGNATED TO PUBLISH ELECTION NOTICES .4ND OiEIClAL NOTICES. Such boards, except in the coimties 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, § 23 ; B. C. & G. Cons. L., p. Y24.] § 7. COUNTY BUILDINGS, LOCATION OF, MAT BE CHANGED: PETITION FOE CHANGE BEYOND BOUNDARIES OF VILLAGE OK CITT. The board of supervisors may, except in the county of Kings, by a majority vote of all the members elected thereto, fix or change the site of any coimty building, and the location of any county office f' but the site or 21. Designation of more than two newspapers. — An attempt by members of a board of supervisors to designate for the publication of election notices four papers for each of the two principal political parties is void as to all the papers so desig- nated, and a resolution revoking the designation is unnecessary. The compensation to be paid for publishing election notices is not limited by the rates fixed for the publication of the Session Laws. Matter of Ford v. Supervisors, 93 App. Div. 119, 87 N. Y. Supp. 417, appeal dismissed 178 N. Y. 616. In construing this section the identity of the two principal political parties is established by the result of the state election rather than by the outcome of a county or local election. In designating newspapers to publish the election notices the choice should therefore be confined to newspapers representing the parties whose candidates receive the highest number of votes in the last State election. Kept, of Atty. Genl. (1912), VoL 2, p. 379. Publication of determinations and statements of county boards of canvassers as to persons elected should be made only as to county officers, members of assem- bly and county propositions. Rept. of Atty. Genl. (1912), Vol. 2, p. 423. Provisions mandatory. — The provisions of this section relative to the " official canvass " are mandatory and such canvass which is a tabulation of all the votes of the county by election districts, should be published in addition to the publi- cation of the determinations and statements mentioned in section 438 of the Election Law. Opinion of Atty. Genl. (1917), 10 State Dept. Rep. 506. All determinations of the county board of canvassers and the statements upon which they are based, are required to be published in one issue of two newspapers designated by the board of supervisors. The determination may be combined as to all officers elected in the county. Opinion of State Comptroller (1916), 10 State Dept. Rep. 547. 22. Constitutionality.— The provisions of this section and of §§ 32 and 33 post, as to removal of county buildings and offices from one part of the county to an- other, are not an invalid delegation of the legislative power to the people; the line of demarcation between legislative and administrative functions may not always be easily ascertained, but the deciding upon the site of county buildings i* in its nature administrative and is not strictly and exclusively a legislative power within the meaning of the Constitution. Stanton v. Board of Supervisors, 191 N. Y. 428, affg. 112 App. Div. 877, 98 N. Y. Supp. 1059. Exclusive power to erect county buildings and to fix or change the site is ■vested in the board of supervisors, except where a change in location exceeds one mile, and a submission of the proposition to the electors of the county is not bind- ing on the board. Rept. of Atty. Genl., Apr. 28, 1911. Majority vote.— A resolution to change a county seat must be adopted by a ma- jority vote of the members elected, and a member not legally elected is not to be counted; an act of the legislature attempting to legalize an illegal resolution of the board, locating or changing a county seat, is in violation of article 3, § 18, of 70 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 32. 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 incorpo- rated 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 building 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 news- papers 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 puipose, 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 charities such change is necessary to the proper care of the inmates of such institution ; in which case it shall not be ncesssary to receive or publish the petition hereinbefore provided or to sub- mit the question of change or removal to the electors of such county as provided in sections thirty-two and thirty-three of this chapter; provided, however, that no site or location shall be selected or acquired by such board of supervisors which shall not have been approved by said state board of charities. [County Law, § 31, B. C. & G. Cons. L., p. 729.] § 8. ACTION OF BOARD UPON PRESENTATION OF PETITION FOR CHANGE OF LOCATION. On 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 of a resolution for the removal of the site of the buildings described in such petition, to the site also therein described, or the change of the location of its county offices or any of them, said board shall thereupon direct that such resolution, together with the notice that the question of such removal will be submitted 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 consecu- the Constitution. Williams v. Boynton, 147 N. Y. 426, affg. 71 Hun 309, 35 N. Y'. Supp. 60. See also Trustees of Havana v. Supervisors, 2 Hun 600. New courthouse. — The building of a new courthouse in addition to the two already existing in a county is not a change of location of a county building re- quiring the vote of the electors of the county under this section. Lyon v. Board of Supervisors, 115 App. Div. 193, 100 N. Y. 676. GENERAL POWERS OF BOARDS OF SUPERVISORS. 71 County Law, §§ 33, 34. live weeks immediately preceding such general election. Such resolution and notice shall be published accordingly.^* [County Law, § 32 ; B. C. & G. Cons. L., p. 730.] § 9. SUBMISSION OF QUESTION OF REMOVAL OF COUNTY BUILD- INGS TO VOTE OF PEOPLE. The question of the removal of the site of such buildings, or the change of tb.e location of any such office, shall thereupon 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 con- tinued and used until new buildings upon the new site have been provided and accepted by the board of supervisors. [County Law, § 33; B. C. & G. Cons. L., p. 730.] § 10. AFTER DETRUCTION OF POOR-HOUSE, PETITION FOR CHANGE OF SITE. Whenever any county poor-house or almshouse shall have heretofore been, or shall hereafter be destroyed by fire or otherwise, twelve or more resi- dent freeholders of the county may present to the chairman of the board of supervisors of the county a petition for the change of site of such, county poor-house. If the annual meeting of the board of supervisors is to be held at any time within three months following the presentation of such petition to the chairman, he shall cause the same to be presented to such annual meeting for the consideration and action of such board; but if an annual meeting of the board is not to be held within three months following the presentation of such petition to the chairman, he shall, upon the presenta- tion of such petition to him, cause a special meeting of such board to be convened for the purpose of considering and acting upon such petition. 23. Legislature cannot change location. The legislature cannot pass a private or local bill locating or changing county sites, see Constitution, art. 3, sec. 18. It was held in the case of Williams v. Boynton, 147 N. Y. 426, 42 N. B. 184, that a special act of the legislature which undertakes to vali- date an illegal and wholly unauthorized resolution of the hoard of super- visors, locating or changing a county site, is a local act; and that such act is an attempt to do indirectly what cannot, within the provision of the constitution, be done directly by the legislature, and is therefore unconstitu- tional and void. But see People ex rel. Commissioners v. Supervisors, 36 Misc.. 597, 73 N. Y. Supp. 1098, affi'd 170 N. Y. 105. 72 COUNTIES; BOARDS OP SUPERVISORS. County Law, § 34. Such meeting may be called upon a notice signed by the chairman, directed to the members of the board and stating the time, place and object of the meeting, which shall be served upon each member of the board, either per- sonally or by leaving it at his residence with some person of suitable age and discretion, at least three days before the time when such meeting is to be held, or by mail at least ten days before such time. The chairman shall call such meeting to be held upon some day within thirty days from the time of the presentation of the petition to him. At any such special meet- ing or at any annual meeting at which such petition shall be presented for the consideration and action of the board, the board may by a vote of two- thirds of all the members thereof, determine by resolution, to change the site of any such county poor-house, and to purchase a new site and farm for such county-house and for the support, care and maintenance of the poor of the county, and to sell and convey the old site of the county poor- house and the farm connected therewith.^* The board shall also, by resolu- tion, direct that every such resolution, with a notice signed by the chairman and clerk of the board, that the question of such sale and disposal of the old site and farm, and the purchase of a new site and farm for the county poor-house, and for the support, care and maintenance of the poor of the county, will be submitted to the electors of the county, at the ensuing town meeting to be held in the several towns thereof, shall be published in at least six newspapers published in the county designated by the boards, if there be that number, if not, in all the newspapers of the county, at least one full week immediately preceding such town meeting, and posted for at least ten days before the town meeting in at least six public places in each town in the county. If the annual town meetings of the county are not to be held within three months after the passage of such resolution, the board shall, by resolution, direct that a special town meeting shall be held in each town of the county on a day to be specified therein, at which such ques- tions will be submitted to the electors of the county. Every resolution of the board calling such special town meeting shall be published in at least six newspapers of the county, to be designated by the board, for the period of at least four successive weeks immediately preceding the time when such special town meetings are to be held; or if a less number of newspapers than six are published in the county, such resolution shall be published in all the newspapers thereof. At any annual or special town meeting at which such question shall be submitted to the electors of the county, the vote shall be bv ballot, which shall be in this form : " In favor of the sale 24. rorm of resolution. — Resolution changing the location of county build- ings need not comply with section 17 of the County Law. Stantion v. Super- visors of Essex County. 112 App. Div. 877, 98 N. Y. Supp. 1059. GENERAL POWERS OF BOARDS OF SUPERVISORS. 73 County Law, § 34. and disposal of the present county poor-house site and farm; and of the purchase of a new site and farm " ; or, " Against the sale and disposal of the present county poor-house site and farm, and the purchase of a new site and farm." The ballots shall be provided and delivered by the county clerk of the county ; and the expense thereof shall be a county charge. The officers presiding at such town meeting shall canvass the votes cast thereat and make a correct statement of the number cast in favor of and the num- ber cast against the question submitted, and certify the same in duplicate ; one of which shall immediately be filed in the town clerk's office, and the other of which shall, within twenty-four hours after the conclusion of such canvass, be filed in the county clerk's office. Within twenty-four hours after the statements of the canvass of votes in all the towns of the county shall have been filed with the county clerk, he shall canvass and compile a statement of the whole number of votes cast in the county upon the ques- tion submitted, and of the number cast in favor of and against such ques- tion, respectively, and make and record a certificate of such result in his office; and within twenty-four hours thereafter cause a certified copy thereof to be delivered to the chairman of the board of supervisors, if a majority of the electors of a county voting upon such question at such town meetings shall have voted in favor of the question submitted. The chairman of the board, upon the receipt of the certified copy of such cer- tificate from the county clerk, shall call a special meeting of the board, to be held at some time to be designated by him, not more than thirty days thereafter, and of which meeting notice shall be given to each mem- ber of the board, either personally or by mail, at least ten days before the time of the meeting. If the annual meeting of the board is to be held within such period of thirty days a special meeting shall not be called. At any special meeting of the board, called and convened as herein provided, or at any annual meeting convened within such period of thirty days, such board of supervisors shall have full power and authority to sell and dispose of the site and farin then owned and used by the county for the support, care and maintenance of its poor, and to select, locate and pur- chase a new site or farm for the county poor-house, and for the support, care and maintenance of the poor of the county, and to raise all necessary sums of money upon the taxable property of the county to defray the ex- pense and cost of the purchase of such new site and farm, and to carry out the provisions of this section over and above the amount that shall be realized from the sale and disposal of the old site and farm, and such moneys as may be in the hands of the county treasurer of the county applicable to such purchase. And the board may also, at any such meeting, provide for the erection of a new county poor-house, and other buildings to be used in connection therewith, and for the levy of a tax upon the taxable property of the county, to raise the necessary sums of money to 74 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 38. defray the expense thereof. In case there shall be no chairman of the board of supervisors at a time when any notice required by this section is to be served, or any call of a meeting to be made by such chairman, the clerk of the board of supervisors, if there be one, or, if not, any member of the board of supervisors designated by such petitioners, shall serve the notices and call the meetings required hf this section to be served or called by the chairman. This section shall not apply to Kings county.-^ [County Law, § 34; B. C. & G. Cons. L., p. 731.] § 11. BOARD MAT ESTABLISH FIRE DISTRICT OUTSIDE OF AN INCORPORATED VILI^AGE; FIRE COMMISSONERS; liEVV OF TAXES FOR FIRE PROTECTION. 1. Each board of supervisors may, on the written, verified petition of the taxable inhabitants of a proposed fire district outside of an incorpo- rated village or city, and within the county, whose names appear on the last preceding assessment-roll of the town wherein such proposed fire district is located, as owning or representing more than one-half of the taxable real property of such district, or as owning or representing more than one-half of the taxable real property of such district owned by the resi- dents thereof, establish such district as a fire district.^" Where such pro- posed fire district is situated in two or more counties, the board of super- visors of each county in which a part of such fire district is located, may, by resolution, on the written, verified petition of the taxable inhabitants of that portion of the proposed fire district located in such county, whose names appear on the last preceding assessment-roll of the town or towns in which the proposed fire district is located, as owning or representing one-half of the taxable real property of that part of such proposed fire district located in such county owned by the residents thereof, direct that when a similar resolution is adopted by the board of supervisors of each of the other counties in which such proposed fire district is located. 25. Reference. — This and the preceding section were both taken in part from L. 1885, eh. 160, as amended, and are apparently in conflict with each other. This section is to be followed where it is sought to acquire a new site for an alms- house after the destruction of the old almshouse. 26. Establishment of districts; preliminary petition. The action of the hoard of supervisors in undertaking to establish a fire district in a town, under the above section, is legislative in character and is not rendered subject to review by a certiorari, because the affidavit verifying the preliminary petition does not state that the petition complies with the requirements of the statute that the names attached appear, by the last assessment-roll, to be those of the owners of more than one-half of the taxable real property of the district described. Since the action of the board is legislative in form, they are pre- GENERAL POWERS OF BOARDS OP SUPERVISORS. 75 County Law, § 38. and npon tlie adoption of such resolution by each such hoard, such fire district shall be and be deemed to be legally established. No such dis- trict shall extend in any direction to exceed one mile from the nearest engine or hose or hook and ladder house located within the district, or to exceed three miles from the nearest station at which an automobile fire engine or an automobile chemical engine is maintained within the district. When any two or more fire districts, established as above pro- vided, not within an incorporated village, adjoin each other, the board of supervisors of the county in which said districts are located, may, upon a written, verified petition of the taxable inhabitants of each of said districts whose names appear on the last preceding assessment-roll of the town or towns within which said fire districts are located, as owning or representing more than one-half of the taxable real property of each of said districts, or as owning or representing more than one-half of the taxable real property of each of said districts owned by the resi- dents thereof, consolidate such fire districts ana establish the same into one fire district. The trustees of such fire district hereinafter provided may establish, equip and maintain such engine, hose or hook and ladder houses as they may deem necessary. [Saib. amded. by L. 1914, ch. 381.] 2. When any such fire district has been established or consolidated in the manner above provided, the legal voters thereof may elect not less than three nor more than five residents thereof to be the fire commissioners for a term of five years or such less term as a majority of such voters at the time of any such election may express on their ballots;'''' and may also elect a treasurer in such fire district for a term of three years, who shall be entitled to receive and have the custody of the funds of the dis- trict and pay out the same for the purposes herein provided for, on the order of the fire commissioners, which treasurer before entering on the du- ties of his office, shall give such security as the board or boards of super- visors may require. The first election for such fire commissioners and treasurer shall be called by the clerk of the town within which any such district shall be established, or when any such district is within more than sumed to have determined the preliminary question of fact that the petition was signed by the requisite number of owners of taxable real property; and although such determination may not be final the burden of showing the fact to be otherwise devolves upon those who attack the validity of the action of the board. This may be done in an appropriate action, but not in certiorari pro- ceedings where the issue is not raised. The statutory requirement of a petition is not violated by the circulation and presentation as one petition, of several separate pieces of paper, all expressing the same subject matter, alike except as to the signatures. People ex rel. O'Connor v. Supervisors of Queens County, 153 N. Y. 370; 47 N. B. 790. Cited in Weston v. City of Syracuse, 158 N. Y. 274, 286. Resolution will not be invalidated by recital of repeal statute. Matter of Rockaway Park Imp. Co., 83 Hun, 263, 31 N. Y. Supp. 386. 27. Fire commissioners. — Election of fire commissioners must follow act of board creating fire district. Matter of Rockaway Park Imp, Co., 83 Hun, 263, 31 N. Y. Supp. 386. 76 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 38. one town within the county, or if located in more than one county, by the clerks of such towns jointly and concurrently, within thirty days from the establishment or consolidation of such fire district or dis- tricts, and upon such notice and in the same manner as required for special town meetings. All subsequent elections shall be called in the same manner by the clerk or clerks of the town or towns, not less than thirty days prior to the expiration of the term of office of any such com- missioners or of the treasurer; special elections to fill any vacancies shall be called in the same manner within thirty days after any such vacancy shall occur. 3. Any such district when established or consolidated shall be known by such name as the fire commissioners thereof may adopt at their first meeting for the organization, and thereafter such fire commissioners shall be authorized and empowered to purchase apparatus for the extinguish- ment of fires therein; rent or purchase suitable real estate and buildings or erect, alter or repair buildings, for the keeping and storing of the same ; and to procure supplies of water, and have control and provide for the maintenance and support of a fire department in such district; and shall have power to organize fire, hook, hose, ladder, axe and bucket fire patrol companies ; and to appoint a suitable number of able and respectable inhabitants of said district as firemen and to prescribe the duties of the firemen and the rules and regulations for the government of all com- panies and of the fire department in such district; and who shall have power to make any and all contracts within the appropriations voted by the resident taxpayers of the district for the purpose of carrying out the authorization and powers herein granted. 4. Such fire commissioners may expend in any one year for any or all the purposes above specified a sum or sums not exceeding the total of five hundred dollars, and make a contract for a supply of water for fire pur- poses for a period not to exceed five years, without any appropriation voted therefor by the taxpayers of such district. For the purpose of giving effect to these provisions the fire commissioners are hereby author- ized whenever a tax shall be voted to be collected in instalments for the purposes of carrying out the authorization and powers herein granted, to borrow so much of the sum voted as may be necessary at a rate of in- terest not exceeding six per centum per annum and to issue bonds or other evidences of indebtedness therefor, which shall be a charge upon the district and be paid at maturity ; and such bonds shall not be sold below par ; due notice of the time and place of the sale of such bonds shall be given at least ten days prior thereto ; the payment or collection of the last instalment shall not be extended beyond ten years from the time when such vote was taken. [Subd. 4, amended by L. 1918, ch. 110.] 5. Whenever the fire commissioners in any such fire district shall sub- GENERAL POWERS OF BOARDS OF SUPERVISORS. 77 County Law, § 38. mit a request in writing for an appropriation of any sum of money for the purposes herein authorized, the clerk or clerks of the town or towns in which such fire district shall be located, shall call a meeting of the resident taxpayers of the district for the purpose of voting upon the ques- tion of appropriating such money, such meeting to be called by a notice posted conspicuously in at least two of the most public places in such fire district, at least ten days before the holding of any such meeting, which notices shall state the time, place and purpose of the meeting. At any such meeting such resident taxpayers may appropriate the amount requested by the fire commissioners, or any less amount, and may deter- mine that the sum so appropriated or some part thereof shall be raised by instalments. When any such appropriation is made, or when any amount less than the sum of one hundred dollars shall have been expended by such fire commissioners, as above authorized, the amount appropriated or expended and the amount contracted to be paid yearly for the supply of water for fire purposes, shall be assessed, levied and collected on such district, in the same manner, at the same time and by the same officers as the taxes of the town in which the district is located, are assessed, levied and collected, and when collected shall be paid over immediately by the supervisor of the town to the treasurer of the fire district; and the town shall be responsible for any and all sums so collected until the same shall be paid over to such treasurer.^^ 6. Such fire commissioners shall before the annual meeting of the board of supervisors present to the supervisor of the town or towns in which such fire district is situated an itemized and verified statement in duplicate of the amount expended by them during the preceding year, without an appropriation having been made therefor by the taxpayers of such district. The supervisors shall file one of such duplicates in the office of the town clerk, and one shall be presented by him to the board of supervisors. 7. All meetings of any such district called for the election of officers, or for the appropriation of money, shall be presided over by a resident taxpayer to be designated by the fire commissioners, except that the first meeting after any such fire district shall have been established shall be presided over by a resident taxpayer selected by the legal voters at the meeting; and all elections for fire commissioners and for . treasurer shall be by ballot, in the same manner as is provided for the election of other 28. Women may vote on an appropriation of money for a fire district. Rept. of Atty. Genl. 407. Assessments for fire department purposes. Rept. of Atty. Genl. (1896) 188. Taxation in fire districts in unincorporated villages. Rept. of Atty. Genl. (1899) 356. 78 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 38. town officers. Such meetings shall be open to receive ballots for not less than two hours, which hours shall be stated in the notice. There shall be one inspector to receive ballots and one clerk to record the names of the voters. The chairman, inspector and clerk shall receive the sum of three dollars each for their services as such. 8. The board of supervisors in any county in which any such fire district shall have been heretofore or shall be hereafter established, or, where such fire district is located in two or more counties, the several boards of supervisors of the counties in which a part of such fire dis- trict is located, by resolution adopted in the manner provided for the estab- lishment of such district, may at any time, upon the written verified petition of the taxable inhabitants of any such district, whose names appear upon the last preceding assessment-roll of the town within which such district is located as owning or representing more than one-half of the taxable real property of such district, or as owning or representing more than one-half of the taxable real property in such district owned by the residents thereof, discontinue such district as a fire district, and upon such action being taken by the supervisors, the fire commissioners of such district, where it is wholly within a village incorporated since said district was formed, shall turn over to any fire corporation organized by the trustees of said village all the property thereof, such village to pay all the debts thereof, and in other than such last-named districts the fire commissioners shall proceed to sell the property belonging to such district at public sale; three notices of such sale shall be posted conspicu- ously in three of the most public places in the district, for a period of thirty days prior to the sale, and the proceeds of such sale shall be paid over by the treasurer of the district to the supervisor of the town and the sum so paid over shall be credited to the taxable real property located in such district, in the next succeeding assessment of town taxes, provided, however, that, if there be outstanding any bonded or other in- debtedness of such fire district, the proceeds of such sale shall be used to pay such bonds or obligations as shall then be due, and as to any bonds or obligations which are not due, such part of said proceeds as shall be sufficient to meet such outstanding bonds or obligations at their maturity shall be invested and held by the county treasurer under the supervision of the board of -supervisors as a sinking fund for the redemption of such outstanding bonds pr obligations at their maturity. Provided, however, that if it shall, at any time, be possible to purchase at par or less any of such bonds or obligations, such board of supervisors may cause to be bought in and canceled any such bonds or obligations of the fire district; and if such proceeds of such sale and the income therefrom be not sufficient to redeem such bonds or obligations at their maturity, and to pay the interest thereon, then there shall be levied and collected, in annual GENERAL POWERS OF BOARDS OF SUPERVISORS. 79 County Law, § 38. Instalments, from the district charged with the payment of such bonds or obligations, such a sum as will be sufficient to pay the interest on such bonds or obligations and to redeem them at their maturity. If, however, there shall be any excess collected, such excess shall be paid over to the supervisor of the town, and the sum so paid over to the supervisor shall be credited to the tax- able real property located in such district, in the next succeeding assessment of town taxes. [S^b. amended by L. 1910, ch. 115.] 9. Whenever any portion of any such fire district heretofore or hereafter established shall be incorporated into the corporate limits of any incorporated village or city, the board of supervisors of the county in which such district is located, or where such fire district is located in two or more counties, the several boards of supervisors, by resolution adopted as herein provided for the establishment of such district, shall, upon the written verified petition of more than one-half in assessed valuation of the taxable inhabitants of such in- corporated portion of the fire districts, or upon the written, verified petition of more than one-half in assessed valuation of the taxable inhabitants of such unincorporated portion of the fire district, change the boundaries of such district in such manner as shall exclude such incorporated portion of the district, if the petition be by such taxable inhabitants of the incorporated por- tion, or in such manner as to exclude such unincorporated portions of the district, if the petition be by such taxable inhabitants of the unincorporated parts and: thereafter such excluded portion of the district shall not be entitled to the protection, nor liable to be assessed or taxed for the support of the fire department of such district, and the portion not excluded shall thereupon assume and be liable to pay all the bonded or other indebtedness of said district. [Sub. amended by L. 1910, ch. 115.] 10. Where any two fire districts not within any incorporated village adjoin each other, the boundary line between such districts may be changed by the board of supervisors of the county in which they are located, or, where such fire district is located In two or more counties, by resolution adopted in the manner herein provided for establishing such district, as the case may be, upon a written verified petition of the taxable inhabitants of the portion of the fire district applied to be changed, whose names appear upon the last preceding assessment-roll of the town within which said portion of said fire district is located, as owning or representing more than one-half of the taxable property of such portion of said fire district, or as owning or representing more than one-half of the taxable real property of such portion of said fire district owned by the residents thereof, provided the taxable inhabitants of both said fire dis- tricts and within the county, whose names appear upon the last preceding assessment-roll of the town or towns, owning or representing more than one- half of the taxable property of said district, or as owning or representing more than one-half of the taxable real property of such fire districts owned by the residents thereof, shall consent in writing to such change. 11. Territory not in a city, village or fire district may be annexed to an adjoining fire district as provided in this subdivision. A verified petition for such annexation describing the territory and signed by taxable inhabitants whose names appear on the last preceding assessment-roll of the town wherein such proposed annexed terri- tory is located as owning or representing more than one-half of the taxable real property of such annexed territory or as owning or representing more than one-half of the taxable real property of such annexed territory owned by the residents thereof, may be presented to the commissioners of such fire district. Each person signing the petition shall state opposite his or her name the assessed valuation of lue property assessed to him or her in such territory. Such petition must be verified by at least three persons signing the same to the effect that the petition represents in value more than one-half of the assssed valuation of the property as above described or that it represents in value more than one-half of the taxable real prop- erty of such territory owned by the residents thereof. Such petition must be accom- panied by a resolution of the board of supervisors of the county in which such ter- ritory is situated consenting to such annexation. Upon the presentation of such petition and consent the fire commissioners shall cause a proposition for such annexa- tion to be submitted at a special election.asa If the proposition be adopted, the 28a. Who may vote on question of annexation. Only qualified voters residing in the original fire district are entitled to vote at a special election called for the £0 COUNTIES; BOARDS OF SUPERVISORS. County Law, §§ 39, 40. petition and consent and the certificate of the election shall be recorded ia the book of records of the commissioners of the district. Such annexation shall take effect upon the receipt by the fire commissioners of the certificate of the clerk of the board of supervisors, under the seal of his ofSce, certifying that he has received and placed on file in the office of the board of supervisors an outline map and description of the corporate limits of such fire district as extended, together Vfith the date of filing the same in his office. Such outline map and description shall plainly show and describe the territory annexed. A certificate thereof containing a description of the territory annexed shall, within ten days after such election, be filed by the fire commissioners in the offices of the clerk of the town and of the county in which such annexed territory is situated. [County Law, § 38, as amended by L. 1909, ch. 405; subd. 11, added by L. 1913, ch. 127; B. C. & G. Cons. L. p. 735.] § 12. EFFECT OF INCORPORATION OF VILLAGE WITHIN LIMITS OF FIRE DISTRICT. "Whenever any fire district is located entirely within the corporate limits of two or more villages by virtue of the incorporation of such vil- lages after the establishment of such fire district, and the said villages or either of them has not been excluded from the limits or boundaries of such fire districts in accordance with the provisions of section thirty- eight of this chapter, the town board and the board of fire commissioners of such fire district, shall meet together on the Friday next preceding the annual meeting of the board of supervisors and estimate the amount necessary for the support of the fire department within such fire dis- trict, the purchase, lease and maintenance of suitable real estate and buildings for the keeping and storing of the same for the purchase of the water supply for fire purposes and for the payment of debts and accounts which may have become due and shall certify the same to the board of supervisors of the county, which said estimated amount shall, in the same manner as the expenses of the town are raised, be assessed, levied and collected only from the property within such fire district. The collector shall pay the sums thus collected to the supervisor of the town who shall pay the same to the treasurer of the fire district upon the order of the board of fire commissioners. [County Law, § 39, B. C. & G. Cons. L. p. 740.] § 13. SOLDIERS' MONUMENT, BOARD OF SUPERVISORS MAY AF- PROPRIATE 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 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 so raised shall be expended by direction of the board of supervisors ; but no county ofiicer shall receive any compensa- tion for services rendered pursuant to this section.^' [County Law, § 40; B. C. & G. Cons. L., p. 740.] purpose of annexing territory. Those residing in the territory to be annexed are mere petitioners submitting their requests to the original fire district and can in no way participate in such special election. Opinion of Atty.-Genl., November (1916), 9 State Dept. Rep. 449'. 29. Erection of public monuments. Town Law, § 45, provides that: "It shall be competent for electors of any town, at any regular town meeting at any regular election to vote any sum of money, to be designated by a majority of" all the electors voting at such town meeting or election, for the purposes GENERAL POWERS OF BOARDS OF SUPERVISORS. gj County Law, §§ 41, 43, 44. § 14. TEMPORARY LOANS; ISSUE OF OBLIGATIONS THEREFOR. Whenever moneys are borrowed by a county on temporary loans, pur- suant to a resolution duly adopted by the board of supervisors of such county, in anticipation of the taxes of the current fiscal year and for the purposes for which such taxes are levied, as provided by section five of fhe general municipal law, the notes, certificates of indebtedness or other county obligations issued for the moneys so borrowed shall be signed by the county treasurer and countersigned by the county clerk. The county clerk shall enter in a book in his office, to be provided therefor at the expense of the county, the date of each such note, certificate of indebtedness or other county obligation, the amount for which it was issued, the time when payable, and a general statement as to the resolution of the board of supervisors authorizing the issue thereof. [County Law, § 41, B. C. & G. Cons. L., p. 741.J f 15. ESTABLISHMENT OF COUNTY LABORATORIES. The board of supervisors of any county shall have the power, by the vote of a majority of said board, to establish a county laboratory and to appoint a thoroughly trained and competent county bacteriologist to have charge of such laboratory, and such assistants as may be required. [County Law, § 43; B. C. & G. Cons. L., p. 742.] Such board of supervisors shall have, by like vote, power to fix the compensation of such county bacteriologist and to remove him from office; fix the compensation of such assistants and remove them from office; also to provide any necessary supplies, equipments, and samples not otherwise provided. Such board of supervisors may from time to time make such rules and regulations concerning the duties and liabilities of erepting a public monument within such town in memory of the soldiers of such town or in commemoration of any public person or event; but no debt shall be created nor shall any tax be imposed on any town for such purpose unless the same shall have been voted for by a majority of the legal voters of the town affected, voting at such election. The board of supervisors may legalize the vote of any town for such purpose, and after such vote they may raise or authorize the specified sum or sums of money to be raised for such purpose in any of the modes provided for by law for raising money for towns. All moneys expended by any town for the purposes authorized by this section shall be expended under the direction of the supervisor, town clerk and justices of the peace of such town or a majority of them or by a commissioner or commissioners for that purpose appointed by such town oflScers or by a majority of them. But nothing in this section shall affect the right of the electors to vote on a proposlton heretofore directed to be submitted by a board of super- visors, or the power of a board of supervisors to carry into effect the vote upon such proposition." 82 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 310. of such ofiScers as said board may deem for the best interests of the county. Provided that the board of supervisors of any county having no county bacteriologist may, and such board is hereby authorized and empowered to make a contract with a county having such county bacteriologist and county laboratory, or with a city having a city bacteriologist and city laboratory, for the performance of such services as said board may deem necessary in the interests of public health. [County Law, § 44; B. C. & G. Cons. L., p. 742.] § 16. COUNTY ATTOKNEY. The board of supervisors in any county may appoint a county attorney who shall be removable at its pleasure. The term of office of a county attorney so appointed shall be two years, unless sooner removed, and his salary shall be fixed by tlie board of supervisors and be a county charge. The board of supervisors may, by local law, prescribe the duties of the county attorney, which duties may include the ser\'ices to town boards and town officials when not in conflict with the interests of the county. [County Law, § 210, B. 0. & G. Cons. L., p. 814. J "The board of supervisors in any county may appoint a county attor- ney. The term of oflBce of a county attorney so appointed shall be two years and his salary shall be fixed by the board of supervisors and be a county charge. A county attorney may be removed by the appointing officer for inefficiency, neglect of duty or misconduct in office, but only after notice and an opportunity to be heard. The board of supervisors may, by local law, prescribe the duties of the county attorney, which duties may include the services to town boards and town officials when not in conflict with the interests of the county. [County Law, § 210, as amended by L. 1918, ch. 573 ; B. C. & G. Cons. L., p. 814.] COUNTY BOARDS OF CANVASSERS. 83 Explanatory note. CHAPTER V. BOARDS OF SUPERVISORS AS BOARDS OF COUNTY CANVASSERS. EXPLANATORY NOTE. County Canvass. The powers and duties of boards of supervisors as county canvassers are prescribed by sections 430 to 439 of the Election Law. The pro- ceedings of the board as to the canvass of votes cast at general elections held in the county are declared in such sections. The canvass includes the consideration of statements received from the inspectors of the several election districts in the county, and the determination of the number of votes cast in the county for the candidates for public office and for and against such propositions as may have been submitted at the election. Separate statements are required to be made of the votes cast for electors, state officers, representatives in Congress, members of as- sembly, state senators, county offices and proposed constitutional amend- ments or other propositions. The board is to transmit such statements to the state board of canvassers, except that in the case of votes cast for county officers and offices filled by votes cast in the county or any portion thereof, in which case the board is to decide for the statements before it as to the persons who have been elected. Meetings and Organization of Board of Canvassers. The board of supervisors meets as a board of county canvassers in the county clerk's office on the Tuesday following the election. The board must then elect a chairman. The county clerk acts as the secretary of the board ; in his absence, the deputy county clerk acts as such. Section 1. Organization of county board of canvassers; meetings. 2. Production of original statements and copies thereof. 3. Correction of clerical errors in election district statements. 4. Correction In state or county board of canvassers' statement. 5. Statements of canvass by county boards. 6. Decision of county board as to persons elected. 7. Transmission of statements of county boards to secretary of state and municipal assembly. 84 COUNTIES; BOARDS OF SUPKRVISOES. Election Law, § 430. § 1. ORGANIZATION OF COUNTY BOARDS OF CANVASSERS; MEETINGS.! Tie board of supervisors of each county stall be the county board of canvassers of such county. The county board of canvassers of each county within the city of New York shall consist of the members of the board of aldermen of the city of New York elected as such within the county. The said county boards of canvassers shall also within their respective counties be the city board of canvassers of such city. The county board of canvassers of a county containing a city or cities shall be the city board of canvassers of such city or cities, except that the board of aldermen of the city of Buffalo shall be the city board of canvassers for such city. The county board of canvassers of tie respective counties shall meet on the Tuesday next after each election of public officers held in such county other than an election of town, city, village or district echool officers held at a different time from a general election. The board of county canvassers shall meet at the usual place of meeting of the board of supervisors, except that in a county wholly included in the city of ISTew York such board of county canvassers shall meet at the office of the county clerk. Upon such meeting they shall choose one of their number chairman of such board. In a county having a single commissioner of elections, instead of a board of elections, such commis- sioner shall be the secretary of the board of county canvassers. In a county wholly included within the limits of the city of New York and in a county, if any, in which the general powers and duties of a county board of elections is devolved upon the county clerk by this chapter, the county clerk," or if he be absent or unable to act, a deputy county clerk designated by the clerk, shall be secretary of the board of county can- vassers. In every other county of the state the president of the board of elections shall be the secretary of the board of county canvassers, or if he be absent or unable to act, the secretary of such board shall be the secretary of the board of county canvassers. When a chairman of the board of county canvassers shall have been chosen, as above pro- vided, the secretary of such board shall thereupon administer the con- stitutional oath of office to the chairman, 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 canvassers 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 present 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 1. As to conduct of elections and powers and duties of county boards of can- vassers, see Jewett'a Election Manual, 1918. Published by Matthew Bender & Co Albany, N. Y. '' 2. If the county clerk fails to appear, and if his deputy be also absent, the board has power to appoint a secretary in their place to perform the duties which appertain to that office. The same is true, if the county clerk is present but refuses to perform his duties. People ex rel. Daley v. Rice, 129 X. Y. 449; 29 N. E. 355. COUNTY BOARDS OF CANVASSERS. 35 Election Law, §§ 431, 432. meet within two days after the time fixed for organizing such hoard, the supreme court, or any justice thereof, or county judge within such county, may compel the members thereof by writ of mandamus to meet and organize forthwith. [Election Law, § 430 ; as amended by L. 1910, ch. 432, and L. 1916, eh. 537; B. C. & G. Cons. L., p. 1570.] § 2. PRODUCTION OF ORIGINAL STATEMENTS AND COPIES THEREOF. As soon as such board of county canvassers shall have been organized, the officer with whom they were filed shall deliver to such board of can- vassers all the returns with tally sheets annexed containing the original statements of canvass received from inspectors of election for districts within the county for which said board are county or city canvassers. The original statements which have been delivered to members of the board of canvassers 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 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 returns with tally sheets annexed so required to be produced 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 returns, if possible, otherwise he shall procure the other set of returns with tally sheets annexed, or, failing that, the third set of returns without tally sheets, in time to be produced before such board at its next meeting. At such first meeting, or as soon as an original state- ment of the result of the canvass of the votes cast at such election in every election district of the county shall be produced before such board, the board shall proceed to canvass the votes cast in such county at such election.* [Election Law, § 431, as amended by L. 1913, ch. 821, and L. 1916, ch. 537 ; B. C. & G. Cons. L., p. 1572.] § 3. CORRECTION OF CLERICAL ERRORS IN ELECTION DISTRICT STATEMENT, 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 which should have been inserted, or that any merely clerical mistakes exist therein, they shall have power, and such power is hereby given, to summon the election officers whose names are sub- scribed thereto before such board, and such election officers shall forth- with meet and make such correction as the facts of the case require ; but such election officers shall not change or alter any decision before made 3. Determination o£ board. It is not the duty of a board of county can- vassers to ascertain which, of the candidates for an office was in fact elected, but simply to determine from the documentary evidence .before them, furnished by inspectors of election, upon which alone they may act, the number of votes given for each candidate. People ex rel. Noyes v. Board of Canvassers, 126 N. Y. 392. 86 COUNTIES; BOARDS OF SUPERVISORS. Election Law, § 433. 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 cor- rected statements. [Election Law, § 432, as amended by L. 1913, ch. 821 ; B. C. & G. Cons. L., p. 1573.] § 4. CORRECTION IN STATE OR COUNTY BOARD OF CANVASS- ERS' STATEMENT. The Supreme Court may, upon affidavit presented by any voter show- ing 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 Hinisterial duties. Board of county canvassers cannot act judicially. Id. People ex rel. Blodgett v. Board, 44 N. Y. St. Rep. 738, 19 N. Y. Supp. 206; Matter of Woods, 5 Misc. 575, 26 N. Y. Supp. 169; People ex rel. Derby v. Rice, 129 N. Y. 461. See Matter of Hart, 161 N. Y. 507. 4. Correction of errors. A board of county canvassers has only ministerial and not judicial duties to perform, and cannot enter upon a judicial inves- tigation to ascertain the genuineness of a return which the law requires in- spectors to make to it. The correctness of such return is favored by the presumption of official honesty and regularity. If the returns are not regular, the board should send them back to the inspectors for correction. People ex rel. Russell v. Board, 46 Hun, 390; People ex rel. Noyes v. Board of County Can- vassers, 126 N. Y. 392; 27 N. E. 792; People ex rel. Plske v. Devermann, 83 Hun, 181; 31 N. Y. Supp. 593. Boards of canvassers have no power conferred upon them to correct frauds or rectify mistakes, except clerical ones. Their duty is simply to add to- gether the statements of results filed with them by inspectors. People ex rel. Blodgett V. Board of Town Canvassers, 44 N. Y. St. Rep. 738; 19 N. Y. Supp. 206. But returns cannot be sent back to inspectors of election for a re- count. People ex rel. Fiske v. Devermann, 83 Hun, 181; 31 N. Y. Supp. 593. A writ of mandamus will issue to compel the board to send back to the inspectors, for correction, returns which do not show upon their face that any particular person received any votes whatsoever and which do not contain a statement of the number of general ballots protested as " marked for identifica- tion." People ex rel. Ranton v. City of Syracuse, 83 Hun, 203; 34 N. Y. Supp. 661; People ex rel. Munro v. Board, 129 N. Y. 469. But where it does not clearly appear that a clerical error exists in the returns of a canvass an appli- cation to the court to have it corrected will be refused. Matter of Application of Aldermen, 49 N. Y. Supp. 241. When the statement or return states a less number of votes for certain can- didates than that shown by the unquestioned tally sheet the board of county canvassers may be required by mandamus, on the petition of the candidates prejudiced, to exercise the powers conferred by this section to summon in- spectors to correct their returns. Matter of Stewart, 155 N. Y. 545, aftg 24 App..Div. 201. 48 N. Y. Supp. 957. COUNTY BOARDS OF CANVASSEKS. 87 Election Law, § 433. requiring such board to correct such errors, or perform its duty in the man- ner prescribed by law, or show cause why such correction should not be made or such duty performed. If such board shall fail or neglect to make such correction, or perform such duty, or show cause as aforesaid, the court may compel such board, by writ of mandamus, to correct such errors •or perform such duty ; and if it shall have made its determination and dis- solved, to reconvene for the purpose of making such corrections or per- forming such duty.' Such meeting of the board of state or county can- 5. Court may compel board to perform its duty. The above section is in effect a re-enactment of L. 1880, ch. 460, authorizing the Supreme Court in proceedings by writ of mandamus to correct errors in the determination of boards of county canvassers and to compel them to reconvene and declare a truthful result of the returns before them. See People ex rel, Noyes v. Board of County Canvassers, 126 N. Y. 392; 27 N. B. 792; Kutz v. County Canvassers, 12 Abb. N. C. 84; People ex rel. Noyes v. Board, 126 N. Y. 392; People ex rel. Daley r. Rice, 129 N. Y. 449; People ex rel. Munro v. Board, 129 N. Y. 469; People ex rel. Russell v. Board, 46 Hun, 390; People ex rel. Fiske v. Dever- mann, 83 Hun, 81, 31 N. Y. Supp. 593. The board of county canvassers is manifestly created for the fulfillment of a mere ministerial function. The legislature has not invested it with power to determine questions concerning the conduct or legality of an election. These boards derive their powers strictly from the statute. They cannot hear or consider evidence outside of the returns. They are restricted by the law of their creation to certain prescribed functions, and in their fulfillment they act under the written commands of the statute. A writ of mandamus will lie against them for a failure to perform a specific duty which has been imposed "upon them by statute, or where they have failed to conform to the law, or have refused some legal right. People ex rel. Derby v. Rice, 129 N. Y. 461; 29 N. E. 358. The courts in the issuing of such writs will not compel the board to do that which the statute does not authorize them to do. Matter of Woods, 5 Misc. 575; 26 N. Y. Supp. 169. Upon a writ of mandamus to require the board of canvassers to reconvene and correct alleged errors in its canvass of the votes cast upon a question relating to the location of county buildings, the court cannot decide whether the question, as printed on the ballot, was in the form prescribed by law. People ex rel. Williams v. Board of Canvassers, 105 App. Div. 197, 94 N. Y. Supp. 996. When refusal of mandamus proper. When a relator seeks a determination Ijy mandamus of a canvassing board that he has been elected to an office in the possession of another, claiming title thereto, who is not a party to the proceed- ing, the court may refuse the writ as a matter of discretion leaving him to his remedy in the action provided by law for the determination of a title to an oflSce. Matter of Hart, 159 N. Y. 278. The court has no power to interfere by mandamus with the canvassing of returns, regular upon their face, by the county board, when it Is simply alleged that fraud has been committed in the counting of votes by the inspectors. If there were two returns, one true and the other false, the court might compel the board to canvass the true one. People ex rel. Gregg v. Board of •County Canvassers, 54 Hun, 595; 8 N. Y. Supp. 259. 88 COUNTIES; BOARDS OF SUPERVISORS. Election Law, § 437. vassers shall be deemed a continuation of its regular session, for the pur- pose of making such corrections, or otherwise acting as the court 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 statements had been a part of the originals required by law. A special proceeding authorized 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 particulars as to which it is claimed to have failed to perform its duty. [Election Law, § 433 ; B. C. & G. Cons. L., p. 1573.] § 6. STATEMENTS OF CAIfVASS BY COUITTY BOARDS; PBESEETATIOK OF PBOTESTED, TOID AM) WHOLLY BLANK BALLOTS. Upon the completion by a county board of canvassers of the canvass of votes of which original statements of canvass are by law reqmred to be delivered to them, by the boards or officers with whom the same may have been filed by the inspectors of election, they stall make separate statements thereof as follows : * The court cannot compel the county board of canvassers to change the returns of a general election so as to show separately the number of votes cast for the office of governor in the name of and under the emblem of, the political party whose candidate for the office was the same as that of another political party, in order that it shall appear from the returns filed in the office of the secretary of state, whether or not such first mentioned political party polled 10,000 votes for such officer at such election, and is thus entitled to make its nominations for the next year by convention. People ex rel. Boies v. Board of Canvassers, 79 App. Div. 514, N. Y. Supp. 6. The statement returned by board of county canvassers to the State board may not lawfully contain anything save the whole number of votes given in the county, the names of the candidates, and the number of votes given for each, and this must be made up solely from the original statements of the canvass returned by the inspectors in each and all of the election districts of the county. Such a board has no authority to transmit with its return any paper attacking the validity of the election, and if such a paper is so transmitted the state board has no power to consider it. People ex rel. Derby v. Rice, 129 N. Y. 461. Separate return of votes cast for candidates of political party. The court cannot compel a county board of canvassers to make its return so as to show separately the number of votes cast for the office of governor in the column and under the emblem of a political party whose candidate for the office of governor was the same as that of another political party, in order that it may appear from the returns filed in the office of the secretary of state whether or COUNTY BOARDS OF CONVASSERS. 89 Election Law. § 437. 1. One statement of all such votes cast for each office of elector of president and vice-president of the United States. 2. One Sitatement of all such votes cast for each state office, to in- clude, in the case of a candidate for governor who was nominated by two or more parties or independent bodies, a separate statement of the number of votes cast for him as the candidate of each party or indef pendent body by which he was nominated. 3. One statement of all such votes cast for each office of representa- tive in congress, except thac the board of canvassers in the county of New York shall not make a statement 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 voters in election districts in any county not within the city of New York. 4. One statement as to all such votes cast upon every proposed con- stitutional amendment or other proposition or question duly submitted to all the voters of the state. 5. One statement as to all the votes cast for all and each of the candi- dates for each office of member of assembly for which the voters of such county or any portion thereof, except as provided in paragraph num- bered three in this section, were entitled to vote at such election. 6. One statement as to all the votes cast for each county office, and office of school commissioner, for which the voters of such county, or any portion thereof, were entitled to vote at such election, and to be canvassed by them. 1. One statement as to all the votes, if any, upon any proposition or question upon which only the voters 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 proposition or question upon which only the voters of such city were entitled to vote at such election in such county or portion thereof. Each such statement shall set forth, in words written out at length, all votes cast for all the candidates for each such office ; and if any such office was to be filled at such election by the voters of a portion only of not such political party polled the required number of votes for state officers to entitle it to make its nominations by conventions during the next year. There is no provision in the statute authorizing such a separate return. People €X rel. Boies v. Board of Canvassers, 79 App. Div. 514, 80 N. Y. Supp. 25. 90 COUNTIES; BOARDS OF SUPEEVISORS. Election Law, § 438. a county, all the votes cast for all the candidates for each office in any such portion of a county, designating it by its proper district number or other appropriate designation ; the name of each such candidate ; the number of votes so cast for each, and, in the case of a candidate for governor who was nominated by two or more parties or independent bodies, the number separately stated of votes cast for him as the candi- date of each party or independent body by which he was nominated ; and the whole number of votes so cast upon any proposed constitutional amendment or other propoeition or question, and all the votes so cast in favor of and against the same respectively. In the counties wholly or partly within the city of New York, the respective county boards shall make a separate statement of the votes oast for all the city offices voted for by the voters of such city or any portion thereof, within such counties. The statements required by this section shall each be certified as cor- rect over the signatures of the members of the board, or a majority of them, and shall be filed and recorded in the office of the board of elec- tions of each county, except in the counties wholly within the city of New York, and in such counties they shall be filed in the office of th& county clerk. When the whole canvass shall be completed, all original statements of canvass used thereat shall be filed in the office of the secretary of the board, who shall file a report of such canvass with the board of supervisors, except in counties wholly within a city of the first class. The original statement of canvass not used at the canvass and the packages of protested, void and wholly blank ballots shall be retained in the office in which or by the officer with whom they were filed, except as otiherwise expressly provided by law. The packages of protested, void and wholly blank ballots shall be retained inviolate in the office in which they are filed subject to the order and examination of a court of com- petent jurisdiction, or to examination by a committee of the senate or assembly to investigate and report on a contested election of member of the legislature where such ballots were cast at such election, and may be destroyed at the end of six months from the time of the completion of such canvass, unless otherwise ordered by a court of competent juris- diction or unless such committee examination be pending. [Election Law, § 437, as amended by L. 1913, ch. 821, L. 1914, ch. 244, and L. 1916, ch. 537 ; B. C. & G. Cons. L., p. 1576.] § 6. DECISIONS OF COUXTTY BOARDS AS TO PERSONS ELECTED. TJpon the completion of the statements required by the preceding section the board of canvassers for each county shall determine what COXINTY BOARDS OF CANVASSERS. 91 Election Law, § 438. person has by the greatest number of votes been so elected to each office of member of assembly to be filled by the voters 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 than one school commissioner district in such county, each person elected by the greatest number of votes to the office of school commissioner to be filled at such election in each district. The board of elections of the county of Hamilton shall forthwith transmit to the board of elections of the county of Fulton a certified copy of the statement so filed and recorded in its office of the county board of canvassers of Hamilton 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 composed of Fulton and Hamilton counties; and the board of elections of Fulton county shall forthwith deliver the same to the Fulton county board of canvassers, who shall from such certified 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 voters of such county only has by the greatest number of votes beea 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 re- corded in the office of the board of elections of such county, except in the counties wholly within the city of ISTew York, and in such counties the county clerk, who or which shall each cause a copy thereof, and of the statement filed and recorded in his or its office, upon which such determination was based, to be published in accordance with the pro- visions of the laws of eighteen hundred and ninety-two, chapter six hundred and eighty-six, sections twenty-one and twenty-two. The board of elections of each county, except in the counties wholly within the city of New York, and in such counties the county clerk, shall prepare as many certified copies of each certificate 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 92 COUNTIES; BOARDS OF SUPEEVISOES. Election Law, § 439. such copies to the persons therein declared to be elected, respectively.'' [Election Law, § 438; as amended by L. 1916, ch. 537; B. C. & G. Cons. L., p. 1578.] § 7. TBANSMISSION OF STATEMNTS OF COUNTT BOARDS TO SECBETABY OF STATE BOABD OF ELECTIONS. Upon the filing in the office of the county clerk or board of elections of a statement of the county board of canvassers as to the votes cast for candidates for the offices of electors of president and vice-president, or as to the votes cast for candidates for state officers, except members of assembly, and for representatives in congress, or as to the votes cast on any proposed constitutional amendment or other proposition or ques- tion submitted to all the voters of the state, such county clerk or board of elections shall forthwith make two certified copies of each such state- ment, and, within five days after the filing thereof in his or its office, transmit by mail one of such copies to the secretary of state, and one to the comptroller of the state. The comptroller shall forthwith upon the receipt thereof deliver such certified copy 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 mes- senger to obtain such certified copy from the county clerk or board of elections required to transmit the same, and such county clerk or board of elections shall immediately upon demand of such messenger at his or its office make and deliver a certified copy to such messenger who shall, as soon as practicable, deliver it to the secretary of state. The board of elections of each county, except a county wholly within the city of New York, and in any such county the county clerk, shall transmit to the secretary of state within twenty days after a general election, and within ten days after a special election, a list of the names and residences of all persons determined by the board of county can- vassers of such county to be elected member of assembly, or to any county office; and on or before the fifteenth day of December in each year a certified tabulated statement of the official canvass of the votes 7. Canvass of votes cast for persons of similar names. The board of county canvassers cannot determine that the votes cast for several somewhat similar names were all intended for the same person, and from the result thus reached issue a certificate of election to him, but they should certify separately the separate names and issue the certificate of election to the one entitled thereto on the face of the returns. People ex rel. Katham v. County Board of Canvassers, 75 App. Div. 110; 77 N. Y. Supp. 620. CLERKS OF BOARDS OF SUPERVISORS. 93 Election Law, § 439. cast in each such county by election districts for candidates for governor, lieutenant-governor, secretary of state,* comptroller, treasurer, attorney- general, state engineer and surveyor and United States senator, or any proposed constitutional amendment or other proposition, at the last pre- ceding general election, to include, in the case of a candidate for governor who was nominated by two or more parties or independent bodies, a separate statement of the number of votes cast for him as the candidate of each party or independent body by which he was nominated. 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 days after the filing thereof in his office, deliver in a sealed envelope such certified copy to the board of elections of the city of 'New York ; on or before the fifteenth day of December in any year in jvhich there shall have been an election for a city office for which votes were cast in a county 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 thereof by election districts for such city office, and such canvass by election districts shall, as soon as possible thereafter, be published in the City Eecord. [Election Law, § 439, as amended by L. 1914, cL 244, and L. 1916, ch. 537 ; B. 0. & G. Cons. L., p. 1579.] 8. Failure or refusal of clerk to send statement. If the comity clerk fails or refuses to send certified copies of the statements of county hoards to secre- tary of state and other state officers, the hoard may cause statements, attested hy one of their numher acting as secretary pro tempore, to be transmitted, and such statements shall be filed and considered by the board of state canvassers as the properly certified result of the canvass of the board of county canvassers. People ex rel. Daley v. Rice, 129 N. Y. 449 ; 29 N. B. 358. The court cannot compel the return to be changed so as to show that a political party polled 10,000 votes, and is thus entitled to make nominations by convention. People ex rel. Boies, 79 App. Div. 514. 94 COUNTIES; BOARDS OF SUPERVISORS. Explanatory note. CHAPTER VI. CLERKS OP BOARDS OF SUPERVISORS. EXPLANATORY NOTE. Appointment of Clerk. Each board of supervisors is required to appoint a clerk, who shall serve during the pleasure of the board and until his successor is ap- pointed. (County Law, § 10, ante.) His compensation is fixed by the board. (Idem.) He should take the constitutional oath of office like any other county officer, before the county clerk or county judge (County Law, § 246, post.)^ Functions of Clerk. The clerk has many important duties to perform, some expressly re- quired by statute and others conferred upon him by the board. He is to record all the proceedings of the board, file and preserve accounts acted upon or audited by the board, gi\'e certified copies of accounts when requested and upon the payment of fees for copying, prepare tax-rolls under the direction of the board, and perform or cause to be performed under the direction of the board such clerical duties as may be demanded of him. Abstracts of county accounts are to be prepared by him, and he is to cause their publication. Town abstracts prepared by town auditors are to be submitted to him and he should publish them with the abstracts of county accounts. (See Town Law, § 155, as amended by L. 1910, ch. 316.) Section 1. General duties of cleiks of boards of supervisors. 2. Clerk to cause statement of accounts audited to be published. 3. Statement of railroad, telegraph, telephone and electric light taxes. 4. Failure to make statement, return or report, penalty for; action to recover penalty. f 1. GENEBAI. DTTTIES OF CLERKS OF BOARDS OF SUPERVISORS. Clerks of boards of supervisors shall :^ 1. For form of oath of olBce, see Form No. 6, post. For manner of executing oath, time and place of filing and effect of failure to file, see Public Officers Law, sees. 10, 13, 15 and 30, post. 2_ In Westchester county the board is authorized to appoint one or two CLERKS OF BOARDS OF SUPERVISORS. 95 County Law, § 50. 1. Eecord in books provided for the purpose all the proceedings of such fooard.* 2. Make regular entries of all their resolutions or decisions.* 3. Eecord 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. 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 office, 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 Albanay, 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. deputy clerks to said board, and may fix their compensation and prescribe their duties. See L. 1903, eh. 483. 3. Becord of proceedings. The duties of the clerk of a board of super- visors are purely ministerial, — simply to record correctly what took place at the session of the board, in the order in which it took place. He cannot alter or affect the action of the board in any way. It is his duty by law to make a correct recital of the doings of the board. People ex rel. Bur- roughs v. Brinkerhoff, 68 N. Y. 259, 267. The record of proceedings of the board of supervisors, kept pursuant to this section, is for public information and for authentic evidence, and it seems that the supervisors are not entitled to compensation for special services rendered to the county, in the absence of a record showing that such special duties were law- fully committed to them. Wallace v. Jones, 122 App. Div. 497, 501, 107 N. Y. Supp. 288. 4. Entries by clerk. The proper mode by which a board of supervisors renders itself legally liable is by resolution entered in its minutes; its clerk is to make entries of all resolutions or decisions on questions concerning the raising or payment of moneys. Chemung Canal Bank v. Supervisors of Chemung, 5 Den. 517. Service of process in actions against the county may be made upon the clerk. People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310. 5. Town abstracts are to be delivered by town boards to the clerk of the board of supervisors and he " shall cause the same to be printed, with the statements required to be printed by him." See Town Law, sec. 155, post. 96 COUNTIES; BOARDS OP SUPERVISORS. County Law, § 51. 9. Perform such other duties as may lawfully be required of him by the board.' [County Law, § 50; B. C. & G. Cons. L., p. 748.] § 2. 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 news- paper printed in the county, with the abstract of accounts furnished by town auditors, a statement 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. 6. Other powers and duties of clerk. (See Schedule of Laws after tahle of contents for pages In this Manual where sections referred to may he found.) 1. As to taxation. The clerk of the board of supervisors is required to transmit to the comptroller, on or before the second Monday in December in each year, a statement of the equalized valuation of the real and personal property in each tax district, and also a statement of the names of corpora- tions and the amount for which each is assessed. See Tax Law, sec. 61, post. He is also required, on or before December 20 in each year, to transmit to the county treasurer an abstract of the tax rolls. See Tax Law, sec. 62, post. For form of abstract of tax rolls, see Form No. 44, post. 2. As to relief of poor. The supervisor of each town is required to report to the clerk of the board of supervisors an abstract of the amount expended in the town for the relief of the poor. See Poor Law, sec. 141, post. For form of report, see Form No. 73, post. "When the distinction between town and county poor has been abolished by the board of supervisors, the clerk is required to serve upon each town, village and city clerk, and upon each of the superintendents and over- seers of the poor, a copy of the resolution adopted by the board. See Poor Law, sec. 138, post. 3. As to highways. The clerk of the board of supervisors is required to transmit to the comptroller and the commission the amount of highway taxes levied in each town in the county for the repair and improvement of highways therein during the ensuing year. See Highway Law, sec. 100. Transmission of resolutions for construction of county highways to State Commission, Highway Law, S 123, as amended by L. 1909, ch. 487, and 5 128, aa amended by L. 1909, ch. 240. 4. As to session laws. The clerk is required to forward to the secretary ot state the names of the newspapers designated by the board to publish the session laws. See County Law, sec. 20, ante. 5. As to reports. Reports of county officers are to be filed with the clerk of the board of supervisors on or before the fifth day of November of each year, and are to he by him laid before the board of supervisors. See County Law, sec. 243, post. 7, Pnblicatioii of abstracts. The above section, and section 155 of the Town CLERKS OF BOAKDS OF SUPERVISORS. 97 County Law, §§ 52, 53. 3. The number of days the board was in session, and the distance traveled by each member in attending the same.' [County Law, § Si ; B. C. & G. Cons. L., p. 749. J § 3. STATEMENT OF RAIIBOAD, 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 supervisors, prepare and deliver to the county treasurer of his county, a statement showing the title of all railroad corporations and telegraph, telephone and electric-light lines in such county, as appear on the last asssesment-roll of the towus 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 valuation in each town or city in his county.* [County Law, § 53 ; B. C. & G. Cons. L., p. 750.J Law as amended by L. 1910, ch. 316, only authorize the publication of town and county abstracts in a single publication. These accounts cannot be out up and distributed for publication in a number of papers throughout the county. Rogers v. Board of Supervisors, 77 App. Div. 501, 78 N. Y. Supp. 1081. For form of statement of county and town accounts required by the above section, see Form No. 7, post. 8. Report as to town bonds. The supervisor of each town which has a, public debt consisting of bonds or other evidence of debt issued on the credit of the town, is required to make a report to the board of supervisors at each annual session thereof of the amount of such indebtedness, specifying the different acts under which the bonds were issued, the rate of interest, the amount unpaid, and the amount coming due during the term of office of the supervisor. See Town Law, §§ 190-192, post. 9. See, also, Tax Law, sec. 60, post, which is to the same effect, and must be construed with the above section. 98 COUNTIES; BOARDS OF SUPERVISORS. County Law, § 54. § 4. FAILURE TO MAKE STATEMENT, RETURN OR REPORT, PEN- ALTY 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 simi of one iundred dollars, to he recovered 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 certify 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 ne- glected to furnish him with the information 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 immediately upon its receipt.*" 2. The costs awarded upon the collection of such recoveries may be retained by the district attorney for his own use. [County Law, § 54 ; B. C. & G. Cons. L., p. 751.] 10. Penal provision as to failure to make report Section 1842 of the Penal Law provides that, "A county oflScer or an officer whose salary is paid by the county, who neglects or refuses to make a report under oath to the board of supervisors of such county on any subjects or matters connected with the duties of his office, whenever required by resolution of such board, is guilty of a misdemeanor." PART IL COUNTY OFFICERS; JAILS AND PRISONERS; LOAN COMMIS- SIONERS; COUNTY HOSPITALS. CHAPTER VII. COUNTY TREASURER. EXPLANATORY NOTE. Office of County Treasurer. The county treasurer is the chief fiscal officer of the county, and as such he has the custody and control of all county funds. The office of county treasurer is not recognized in the constitution as in the case of sherifF, county clerk and district-attorney, and the legislature may pro- vide for his election or appointment by some competent county au- thority. The ofBce under the statute at the present time is elective. Duties of Office. The general duties of the office are prescribed by § 142 of the County Law. But the county treasurer has many other duties conferred upon him by other statutes. These duties pertain to financial matters in which the state or county are interested. It is attempted to group in this chapter all the statutes especially conferring duties upon the county treasurer not properly included in separate chapters. Where he has duties to perform in connection with other county officers or relating to subjects covered by other chapters, references are made to those chapters. It will be noticed that the county treasurer performs im- portant duties in respect to the collection of liquor taxes and taxes upon decedent's estates. In respect to these taxes he acts as agent for the state, and is required to account to state officers. Official Bonds. As the county treasurer is the custodian and disburser of county and state funds, the statute is explicit in its requirement of a bond. Such bond is to be in the sum fixed by the board of supervisors, if in session, if not by the county judge and county clerk. The bond is approved in 99 100 COUNTY OFFICERS. County Law, § 140. the same manner. The board of supervisors may require additional security, whenever the bond given is, in its opinion, insufficient. The bond is for the protection of the county, and also of the state, to the extent of the moneys in his hands belonging to the state. If a county treasurer defaults his sureties should first be compelled to account; if the remedy against the sureties is not sufficient to make good the loss of the state, action may then be taken against the county. The county will be bound to make good the loss to the state upon the theory that the county treasurer is the agent of the county. If a county treasurer defaults in the payment of school moneys, a town or the supervisor thereof may sue on the bond. Section 1. County treasurer to be elected in each county; vacancy filled by governor; term of office; official undertaking. 2. Deputy county treasurers in certain counties. 3. General powers and duties of county treasurer. 4. Time for making report may be extended by order of Supreme Court. 5. 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. 7. Treasurer not relieved from liability by designation of deposi- tary and deposit of money. 8. Moneys deposited not to be drawn except upon order of super- visors; transfer of funds from one depositary to another. 9. Treasurer to deliver books and funds to successor; penalty for failure. 10. Penalty lor neglect to make report or statement. 11. Late county treasurer may maintain action for recovery of moneys. 12. Duties of county treasurer in respect to cemetery trusts. 13. Penalty for neglect to pay over money on order of the court. 14. Misappropriation of moneys and securities by county treasurer. 15. Duties under the Liquor Tax Law; tax to be paid to county treasurer and distributed by him. 16. Compensation of county treasurers on account of the Liquor Tax Law. 17. Duties of county treasurers under taxable transfer provisions of Tax Law. § 1. COUNTY TREASURER TO BE ELECTED IN EACH COUNTY; VACANCY FILLED BY GOVERNOR; OFFICIAL UNDERTAK- ING. There shall continue, (1) to be elected in each of the counties except in the counties of Kings, Queens and Kichmond, a county treasurer, who COUNTY TREASURER. 101 County Law, § 140. shall hold his office for three years from and including, 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 session, a county treasurer, when a vacancy shall occur in such office, and the person so appointed shall hold the office until and including, in the county of Monroe, the first Monday of October, and in the other counties, the last day of December, succeeding his appointment, and until his successor shall be duly elected and qualified.^ Every person elected or appointed to the office 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 three or more sufficient sureties, with the approval of the board of super- visors, if in session, indorsed thereon by the clerk, otherwise with the ap- 1. Beferences. (See Schedule of Laws after table of contents for pages in this Manual where laws referred to may be found.) The constitution provides that county officers whose election or appointment is not provided for by the Constitution, shall be elected by the electors of the respective counties or ap- pointed by the boards of supervisors, or other county authorities, as the leg- islature shall direct. See Constitution, art. 10, sec. 2. Vacancies in county elective offices are to be filled in the manner provided by the legislature; but " but no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next suc- ceeding the first annual election after the happening of the vacancy." See Constitution, art. 10, sec. 5. Ofl5cial oaths, when and how taken. County Law, sec. 246, post. Effect of failure to take oath. Public Officers Law, sec. 13, post. Vacancy created by failure to take oath. Public Officers Law, sec. 30, post. Undertaking, further provisions respecting. County Law, sec. 247, post. Public Officers Law, sec. 11, post. Money to be delivered to county treasurer before executing undertaking; force and effect of undertaking. Public Officers sec. 12, post. Effect of failure to execute undertaking. Public Officers Law, sec. 13, post. Validation of official acts of treasurer before executing bond. Public Officers Law, sec. 15, post. Vacancy in office created by failure to execute undertaking. Public Officers Law, sec. 30, sub. 7, post. Vacancies, how created. Public Officers Law, sec. 30, post. Besignations of all county officers are to. be made to the county clerk. Public Officers Law, sec. 31, post. Supervisor. County treasurer not eligible to office of supervisor. Town Law, sec. 81, post. , Ofacial seal of county treasurer. County Law, sec. 245, post. Superintendent of the poor, county treasurer not to be elected or appointed as. County Law, sec. 220, post. Compensation and clerks of county treasurer, board of supervisors to deter- mine. County Law, sec. 12, sub. 5, ante. Expiration of term, county treasurer to hold office until successor is appointed and has qualified. Public Officers Law, sec. 5, post. 103 COUNTY OFFICERS. County Law, § 140. proval of the county judge and county clerk, and in such sum as such hoard 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 shall come to his hands as treasurer, and render a just and true ac- count thereof to the board of supervisors when required, and obey all orders and directions of a competent court relating thereto. When, in the opinion of the board of supervisors, the moneys intrusted to such person as treas- urer 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 forfeiture of his office and the same shall become vacant. Such undertaking, with the ap- proval 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 hands as county treasurer, and for the rendering of a just and true account thereof to the state comptroller.- [County Law, § 140; B. C. & G. Cons. L., p. 780.] 2. Official undertaking. The county treasurer may file his bond at any time before entering upon the duties of his office. McRoberts v. Winant, 15 Abb. Pr. N. S. 210. Additional securities may be required by board of supervisors. Denton v. Merrill, 43 Hun, 224. A bond of the county treasurer conditioned, " that he shall faithfully ex- ecute the office of treasurer of such county and pay all moneys which shall come into his hands as treasurer according to law, and render a just and true account thereof, to the said supervisors, or to the comptroller of the state when required," and a further condition that he " shall well, truly, and faithfully execute and perform the duties of treasurer of said county, ac- cording to law," contains in substance all that the act requires, and is valid. Supervisors of Alleghany County v. Van Campen, 3 Wend. 48. In the case of Supervisors of Schoharie County v. Pindar, 3 Lans. 8, it was held that a bond is not void because its condition " to account to the board of super- visors," contains also the words, " or to the comptroller of the state." These words may be regarded as surplusage. Liability of sureties. The sureties on the bond of a county treasurer are not exonerated by any neglect or malfeasance of the supervisors in pass- ing upon his accounts. The bond is not conditioned for, and the law does not guarantee such examination. Supervisors of Monroe County v. Otis, 62 5f. Y. 88. The imposition by the board of supervisors upon the county treasurer, during his term of office, of the duty of raising, keeping and disbursing large sums of money, in addition to the usual and ordinary duties of his office, does not discharge the sureties upon his bond from all liability. Conceding that no liability is imposed upon them on account of such increased duties. COUNTY TREASURER. 105 County Law, § 141. § 2. DEPUTY COUNTY TREASURERS IN CERTAIN COUNTIES. The county treasurer of any county, having a population of less than fifty thousand according to the last preceding state or federal census, may, when authorized by a resolution of the board of supervisors, appoint and at pleasure remove a deputy county treasurer, who shall perform all the duties and possess all the powers of a county treasurer, during his absence, or inability to act. The compensation of such deputy shall be paid by the treasurer out of the fees or salary allowed to him by law and shall not be a county charge. The appointment" of such deputy shall not release the treasurer, from any liability in relation to the moneys in his hands or under his control, or in any manner afEeet such liability, but any default by such deputy shall be deemed a default of such treasurer, and he shall be liable therefor. The undertaking of the county treasurer required by section one hundred and forty of this chapter given after this chapter takes effect shall cover the acts and default of such deputy. In all other cases the county treasurer shall, before said deputy enters upon the dis- charge of his duties, give an undertaking with three or more sufficient sureties to the effect that such deputy shall faithfully execute the duties of his office and shall not make default therein, the amount thereof to be fixed and the same to be approved as provided in section one hundred and forty of this chapter for the fixing of the amount and the approval of the under- every obligation in reference to the usual and ordinary duties of the treasurer remains unaffected. Supervisors of Monroe County v. Clark, 92 N. Y. 391; see, also. People v. Vilas, 36 N. Y. 459. The sureties of a county treasurer are liable for his failure to account for interest on funds deposited. Supervisors of Richmond v. Wandel, 6 Lans. 33. Allegations of money in hands of treasurer and refusal to pay on orders of the board of supervisors, are material to constitute the breach, in an action on the bond. Supervisors of Monroe v. Beach, 9 Wend. 143. Moneys due state. The relation of the treasurer to the county and his duties have the nature of an agency; and all losses sustained by reason of his default are chargeable on the county. Supervisors v. Otis, 62 N. Y. 88. See also Denton v. Merrill, 43 Hun, 224; Newman v. Supervisors of Livingston Co., 45 N. Y. 676, 686. The moneys due the state are payable by the county treasurer, not as the county's oflScer or agent, but as an individual; and not until the remedy against both the treasurer and his bail has been exhausted can the county be required to apt. Nat. Bank of Ballston Spa. v. Supervisors, 106 N. Y. 488. Action on bond for conversion of school money. The bond of a county treasurer running to the county, conditioned for the faithful performance of the duties of his office, and for the payment over to the proper authorities of all moneys received by him as such treasurer may be sued upon by a town or supervisor thereof to recover school money which had been converted by the treasurer to his own use. Town of Ulysses v. Ingersoll, 182 N. Y. 369, reversing 81 App. Div. 304, 80 N. Y. Supp. 924. 104 COUNTY OFFICERS. County Law, § 142. taking of the county treasurer. [County Law, § 141; B. C. & G. Cons. L., p. 782.] § 3. GENERAI. POWERS AND DUTIES OF COUNTY TREASURER. The county treasurer shall ;^ 1. Eeceive 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 expenditures of all such 3. General powers and duties of county treasurer. 1. As to moneys paid into court. All moneys paid court are to be paid to the county treasurer. Code Civ. Proc, see. 745. The county treasurer is a trustee of the fund and may bring an action in relation thereto. Code Civ. Proc, sec. 749. Upon the expiration of term, removal or death of a county treasiu'er, fund must be credited to his successor. Code Civ. Proc, sec 750. No part of fund to be paid out except upon order of court. Code Civ. Proc, see. 751, as amended by L. 1917, eh. 731. Accounts, how kept. Code Civ. Proc, sec. 752. Report of funda to comptroller. Code Civ. Proc, sec. 753, as amended by L. 1917, oh. 731. 2. As to taxation. The tax assessed upon bank shares is to be paid to the county treasurer, to be paid by him upon the order of the board of super- visors to the several tax districts in the county entitled to share in the ap- portionment of such tax, see Tax Law, sec. 24, post. Statements of debts owing to non-residents are to be made to the county treasurer whose duty it is to transmit to the assessors of each tax district copies of so much of such statements as relate to such district, see Tax Law, sec. 35, post. The clerk of each board of supervisors is required to furnish to the county treasurer a statement of the corporations assessed within the several tax districts, see Tax Law, sec. 60, post. The clerk is also required to deliver to the county treasurer an abstract of the several tax rolls, see Tax Law, sec. 62, post. A railroad, telegraph, telephone or electric light company may pay their taxes to the county treasurer whose duty it is to credit the amount thereof to the collector of the proper tax district, see Tax Law, sec. 73, post. The county treasurer may enforce the collection of a tax against a telegraph, telephone or electric light line by a sale of the instru- ments and batteries connected with such lines. Tax Law, sec. 74, post. The county treasurer may issue his warrant to the sheriff for the collection of unpaid taxes on debts owing to non-residents of the United States, see Tax Law, sees. 76, 77, post. Collectors are required to make a return to the county treasurer of the amount of taxes unpaid and the county treasurer is authorized to incur such expenses as he may deem necessary for the examina- tion of such returns so that he may make a proper sale of lands for unpaid taxes, see Tax Law, sec. 82, post. A collector is required to file with the county treasurer one of duplicate receipts received by him from the officers and persons to whom he has made payment, see Tax Law, sec. 84, post. The county treasurer may upon the application of any supervisor extend the time for the collection of taxes, see Tax Law, sec. 85, and County Law, sec. 16, post. The county treasurer is required to give to the collector who shall have fully paid over and duly accounted for all taxes collected by him, a written certificate of such settlement, see Tax Law, sec. 88, post. The county treasurer COUNTY TREASURER. 105 County Law, § 142. moneys, in books prepared for the purpose at the expense of the eoTinty." is required to deliver to the supervisor an abstract of the amount of taxes un- paid on resident real property, see Tax Law, sec. 89, post. It is provided by section 90 of the Tax Law, post, that, "Each county treasurer shall pay to the creditors of the county from 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." As to pay- ment of state tax to comptroller and fees therefor, see Tax Law, sec. 91, post. The comptroller is required to state annually on June 1st the account of each county treasurer, and if any part of a state tax is unpaid at that date the comptroller must transmit by mail to the county treasurer a copy of such ac- counts and a requisition that he must pay the balance due to the state within thirty days, see Tax Law, sec. 92, post. In case of a default by the county treasurer or collector the county is to be chargeable, see Tax Law, sec. 93, post. As to sales by county treasurer for unpaid taxes, see Tax Law, sees. 150-160, post. The county treasurer is required to invest for the benefit of the town taxes paid in such town by railroads constructed with aid of such town, see General Municipal Law, sec. 13, post. As to payment to county treasurer by county clerk of amounts received on account of mortgage tax, see Tax Law, sec. 261, post. 3. As to the relief of the poor. The county treasurer is required to charge to the several towns the amount of money expended for the support of the poor, see Poor Law, sec. 9, post. He is required to keep accounts with the several towns as to the receipts and expenditures for town poor, see Poor Law, sec. 8, post. Overseers of the poor are required to pay to the county treasurer moneys in their hands when the distinction between town and county poor is abolished, see Poor Law, sec. 139, post. 4. As to school moneys. The county treasurer is required to furnish to the commissioner of education a report showing the unexpended moneys in their hands applicable to the payment of teachers' wages and to library purposes, see Education Law, sec. 495. The county treasurer is required to pay to the collector of each school district the amount of taxes returned to him as unpaid, upon the voucher or draft of the board of supervisors, see Education Law, sec. 435, as amended by L. 1910, chap. 284, and L. 1915, chap. 136. The amount so paid is to be laid by the county treasurer before the board of supervisors, who shall cause the amount thereof to be levied upon the lands chargeable therewith; the amount of any such tax so levied may paid by the owner to the county treasurer, see Educa- tion Law, see. 436. 5. As to highways. The moneys received from the state in aid of the improvement and repair of highways under sec. 101 of the Highway Law, as amended by L. 1913, chap. 375, are to be paid by the county treasurer to the supervisor of each town as provided in the Highway Law, sec. 103, post. 6. Fees. As to fees of county treasurer, see Code Civ. Proe., sec. 3321, and chap. 71, post. 4. Payment of claims. For an improper refusal to pay a claim upon the order of the board of supervisors, the appropriate remedy is by man- damus; they have no right to adjust claims presented to them, nor to deter- mine the validity of demands. Huff v. Knapp, 5 N. Y. 65. If the subject matter of a claim against the county is within the jurisdiction of the board of supervisors, and the board allows the claim, the county treasurer has no lOG COUNTY OFFICERS. County Law, § 142. 3. Yearly, and at such times as the board of supervisors 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.^ 1. On or before the first day of March in each year transmit to the state comjptroller a statement of all moneys received by him during the preced- ing year for penalties belonging to the people of the state; and at the same time, pay to the treasurer of the state, the amount of such penalties, after deducting his 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 ; and 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 ex- ceed 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 right to refuse payment on the ground that the payment was excessive. Peo- ple ex rel. Martin v. Earle, 16 Abh. Pr. N. S. 64. Where It appears on the face of the account that the board of supervisors had no jurisdiction to allow the account, it is the duty of the county treasurer to withhold payment. Peo- ple V. Lawrence, 6 Hill, 244. To account for interest. If a county treasurer fails to pay over money in his hands, he should be charged with interest upon the amount found to be due, from the time that his successor qualifies and enters office, as the sum from that time is not an unliquidated claim within the rule as to interest. Super- visors of Monroe County v. Clarke, 25 Hun, 282. See, also. Supervisors of Chenango County v. Birdsall. 4 Wend. 453. 5. Accounts of county treasurer. The county treasurer is required to keep a true account of all moneys which come into his hands as such, in a book kept for that purpose, provided at the expense of the county. Herendeen v. De Witt, 49 Hun, 53. This statutory provision imposes an active duty upon the treasurer, and a failure to perform it constitutes a breach of the condition of his bond. Supervisors of Monroe Co. v. Clarke, 92 N. Y. 391, 397. A copy of such accounts duly certified by the treasurer may be used in evidence. Erickson V. Smith, 2 Abb. Ct. App. Dec. 64, 38 Hun, Pr. 454. 6. A failure or refusal to furnish report when required by the board of supervisors is a misdemeanr. See Penal Law, sec. 1842, ante. 7. Recovery and disposition of penalties. Actions for penalties incurred to the people of the state may be brought by the attorney-general or district attorney, see Code Civ. Proc, sec. 1962. Penalties recovered by the district attorney, which belong to the county, must be paid to the county treasurer, and such district attorney is required to account for all penalties received by him, at the first term of the county court held in each calendar year. County Law, sec. 201. post. COUNTY TREASURER. 107 County Law, § 142. all sums withheld, such rate of interest as shall be sufpcient 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 first day of April in each year, which shall be regarded as funds in the hands of the county treasurer, belonging to the state, and for which his sureties and county shall be liable.^ 6. Within ten days after the first day of July in each year, make and file in the office of the clerk of his county, a special report, which shall contain a statement of all moneys or securities in his hands belonging to 8. This subdivision is, for the most part, superseded by section 91 of the Tax Law, post. Fees and compensation. The board of supervisors may fix the compen- sation of county treasurers. See County Law, sec. 12, subd. 5, as amended "by L. 1911, chap. 359, L. 1913, chap. 742, L. 1914, chap. 358. But the fees Allowed by law for receiving and paying over the state taxes belong to the county treasurer and not to the county. The compensation so fixed is for services rendered to the state, — the allowance is by competent authority, from a fund not belonging to the county, and over which it has no control, and the county has no right to the same, either as originally belonging to it, or as received for its use. Supervisors of Monroe Co. v. Otis, 62 N. Y. 88. But if it be expressly declared by statute that the salary as fixed is in full compensation for all his services it has been held that such fees cannot be retained by him for his own use, see Supervisors of Seneca Co. v. Allen, 99 N. T. 532; Supervisors of Erie Co. v. Jones, 119 N. Y. 339. See People ex rel. Conine v. Steuben County, 183 N. Y. 114; Upham v. State of New York, 174 N. Y. 336. The limitation contained in subdivision 5 authorizing a county treasurer to retain compensation on account of the state tax received and paid over by him in a sum not exceeding $2,000 does not supersede the limitation of $500 fixed by L. 1871, oh. 110, S 1, amending L. 1846, ch. 189, and, therefore, the treasurer of a county not excepted from the provisions of the act of 1871, cannot receive more than $500 for receiving and paying over state tax and school moneys. Upham v. State of New York, 174 N. Y. 336, affirming 62 App. Diy. 631, 71 N. Y. Supp. 1150. Such act does not au- thorize a county treasurer to retain for his own use fees for receiving and paying over state taxes and school moneys. People ex rel. Conine v. County of Steuben, 183 N. Y. 114, affg. 93 App. Div. 604. When county treasurers become salaried officers they are not entitled to exact for -their own use, fees or commissions for receiving and paying out moneys passing t') rough their hands in the course of legal proceedings. Matter of N. Y. Central, «tc., R. Co., 7 Abb. N. 0. 408. A county treasurer is not allowed commissions on moneys not received by him, as on collector's fees retained by the collectors, back taxes and taxes levied on non- residents' lands returned to the comptroller's office. Supervisors of Chenango v. Birdsall, 4 Wend. 453. Where the compensation of a county treasurer is fixed by the supervisors, he is not entitled to a fee on the state tax in addition to such com- pensation. People ex rel. Conine v. County of Steuben, 41 Misc. 590, 85 N. Y. Supp. 244, affd. 93 App. Div. 604, 183 N. Y. 114. He is also entitled to the compensation subsequently provided by the legislature for collecting liquor taxes, making reports and issuing licenses, under the Liquor Tax Law. Montgomery v. Vosburgh, 74 Misc. 562, 134 N. Y. Supp. 457. As to rate of commissions allowed county treasurers, see Supervisors of Otsego v. Hendryx, 58 Barb. 279. An additional allowance for clerk kire during the term of a county treasurer necessarily increases his compensation and is unauthorized. Rept. of Atty. Genl., Mch. 7, 1912. 108 COUNTY OFFICERS. County Law, §§ 143, 144. infants, or other persons, for whom invested, and how invested, with a particular 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 his hands invested and uninvested, and to whom the same belongs; and if he has in hi.? hands any money not invested, such report shall state the amount there- of, 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 interest, and the length of time any principal sum thereof shall 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, § 142; B. C. & G. Cons. L., p. 783.] § 4. TIME FOB MAKING REPORT MAY BE EXTENDED BY ORDER OF SUPREME COURT. The time for making and filing any report herein required, may be extended twenty days by a justice of the Supreme Court, upon good cause shown; but no order shall be made, unless notice of the application of the same shall have been served on the district attorney of the county ; and no such order shall be of any force or effect, until the original order signed by the justice, with the papers on which the same was granted, shall have been filed in the office of the county clerk. [County Law, § 143 ; B. C. & G. Cons. L., p. 785.] § 5. COUNTY TREASURER TO DESIGNATE BANKS OF DEPOSIT; INTEREST ON DEPOSITS TO BE CREDITED; DEPOSITS, ■WHEN MADE. Each county treasurer shall, within twenty days after he shall have entered upon the duties of his office, except in counties whose board of supervisors shall otherwise direct, designate by written instrument in duplicate, one copy of which shall be filed in the office of the county clerk, and the other in the office of the state treasurer, one or more good and solvent banks, bankers, or banking associations, in such county ; or if there shall be no such, then in an adjoining county within the state, for the deposit of all moneys received by him as such treasurer and agree with such bank or banks, banker or bankers, or banking associations, upon the rate of interest to be paid on the moneys so deposited. The accrued interest thereon shall, as often as once in six' months, be credited by such COUNTY TREASURER. 109 County Law, §§ 145, 146. depositary to the account of such county treasurer, for the use of his county ; and he shall deposit with such depositary, or depositaries, at least once in each week, and in a county containing a city having more than ten thousand inhabitants, daily, all such moneys so received by him. But nothing herein shall limit the power of any court or officer, by whose direc- tion any moneys shall be paid over to, or received, by such treasurer, to direct in relation to the custody or investment thereof, or the disposi- tion to be made of the interest thereon; and no interest received from any moneys so deposited which are not received for some public use, shall belong to the county.» [County Law, § 144; B. C. & G. Cons. L., p. 785.] § 6. DEPOSITAKY TO GIVE UNDERTAKING BEFORE RECEIVING DEPOSITS; CONTENTS AND EFFECT OF UNDERTAKING. Each bank, banker, or banking association, so designated, shall, for the benefit and security of the county, and before receiving any such deposit, give to the county a good and sufficient undertaking, with two or more sureties to be approved by the judge of the county in which such bank, banker or banking association, shall be located, the chairman of the board of supervisors of the county of which such treasurer is an officer, and such treasurer, or any two of them. Such undertaking shall specify the amount which such treasurer shall be authorized to have on deposit at any one time with such depositary, and shall be to the effect that such depositaiy shall faithfully keep and pay over on the order or warrant, of such treasurer, or on any other lawful authority, such deposits, and the agreed interest thereon ; and for the payment of such bonds or coupons, as by their terms are made payable at a bank or banks, for the payment of which a deposit shall be made by such treasurer with such depositary. Such undertaking shall be filed by the clerk of the board of supervisors with the clerk of the county. [County- Law, § 145 ; B. C. & G. Cons. L., p. 785.] I 7. TREASURER NOT RELIEVED FROM LIABII.ITY BY DESIGNA- TION OF DEPOSITARY AND DEPOSIT OF MONEY. Such designation and deposit of moneys shiall not release the treasurer, or his sureties, from any liahility in relation to such moneys, or in any manner affect such liability; but any default by such depositary, shall be deemed a default of such treasurer, and he and his sureties shall be liable therefor. [County Law, § 146; B. C. & G. Cons. L., p. 786.] 9. Authority to designate banks of deposit. — The board of supervisors has no authority to direct the county treasurer where he shall deposit the moneys o£ the county that come into his hands. Kept, of Atty.-Genl. (1911), Vol. 2, p. 608. The necessity of designating banks is in no way eliminated by the fact that a county treasurer succeeds himself. Rept. of Atty.-Genl. (1903), 210. 110 COUNTY OFFICERS. County Law, 55 147, 148. § 8. MONEYS DEPOSITED NOT TO BE DRAWN EXCEPT UPON ORDER OF SUPERVISORS; 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, county officers, or pursuant to the lawful direction of some court; and if he shall draw or appropriate any money for any other purpose, 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, § 147 ; B. C. & G. Cons. L., p. 786.] § 9. TREASURER TO DELIVER BOOKS AND FUNDS TO SUCCES- SOR; PENALTY FOR FAILURE. When the right of a county treasurer to his office expires, the books and papers belonging to the office, and all money 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 forfeitures, books, papers or 10. Audit. It is well settled that the duties imposed upon the board of passing and auditing claims and ordering their payment cannot be delegated to a county auditor. People v. Neff, 191 N. Y. 210, affg. 122 App. Div. 135, 106 N. Y. Supp. 747. Money, belonging to county, deposited in a bank by the county treasurer in his name as " treasurer " and not mixed with his own funds, on his becoming bankrupt, belong to county. Supervisors of Schuyler v. Bank of Havana, 5 Hun 649, affd. 76 N. Y. 598. County treasurer cannot determine for himself the amount of a levy to be applied to a sinking fund. Matter of Clark, 20 Wk. Dig. 274. 11. Delivery of books, etc. County treasurer cannot set up invalidity of act by which funds were received by him, and claim them himself. Supervisors of Seneca v. Allen, 99 N. Y. 532. Delivery of books to successor. Supervisors of Monroe v. Clark, 92 N. Y. 391. Where a trust, upon which certain securities are held, terminates during the term of the county treasurer, he is not bound to deliver them to his successor; it seems that he must turn them over when the trust has not expired; quaere as to military fund. Supervisors of Tompkins v. Bristol, 15 Hun 116. Summary proceedings to compel delivery of papers and books by out-going oflBcer, see Public Officers Law, § 80. A person who 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, see Penal Law, sec. 1836. post. COUNTY TREASURER. Ill County Law, §§ 149, 151. 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. Whenever required so to do by the state comptroller, he shall bring and maintain such action at the expense of the county, for the recovery of all moneys and securities paid into court, or that belong to any heir, litigant or party, or that stand to the credit of any action or proceeding which have come into the hands of any county treasurer whose right to office already has expired, or hereafter shall expire, or which have been placed to his credit in any bank or depository, or with which he is in any way chargeable, and which have not been delivered to his successor; and for all increase, loss, penalty, damage or expense lawfully chargeable to such treasurer in connection therewith. A party to whom such county treasurer may have transferred or assigned any security or other property belonging to any fund held by him, may be made a defendant in the same action, and the rights of the several parties determined therein. Any action so brought at the direction of the state comptroller shall not be discontinued or compromised without the approval of the state comptroller. [County Law, § 148; B. C. & G. Cons. L., p. 787.] § 10. PENAI.TY FOB NEGIiECT TO MAKE REPORT OR STATEMENT. If a county treasurer shall neglect to make any report or statement herein required of him, except as herein otherwise 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 nor more than 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, § 149; B. C. & G. Cobs. L., p. 787.] § 11. LATE COUNTY TREASURER MAY MAINTAIN ACTION FOR RECOVERY OF MONEYS. The county treasurer of any county in this state, within three years after he has ceased to be county treasurer, may maintain an action in any court of record in this state as late county treasurer to recover any moneys, funds or properties belonging to the county or deposited with such county treasurer pursuant to law, without right obtained, received, con- verted or appropriated, disposed of or withheld by any party or parties, 12. Failure to make a report required by law is a misdemeanor, see Penal Law, § 1842, ante. 112 COUNTY OFFICERS. County Law, § 152. association or corporation, their legal representatives and assigns, during the term or terms of office of such county treasurer. Any and all moneys, funds and properties recovered in such an action, shall be paid to and deposited with the then treasurer of the county from which such moneys, funds and properties were taken. Upon the payment of any moneys or the depositing of any funds by a late county treasurer bringing such action, he shall be forthwith credited with the amount and value of such deposit. I'his section shall apply to all county treasurers of this state elected to office on or after the seventh day of Xovember, eighteen hundred and eighty-two. [County Law, § 151 ; B. C. & G. Cons. L., p. 788.] § 12, DUTIES OF COUNTY TKEASUREK IN RESPECT TO CEME- TERY TRUSTS. A person residing in this state may create a trust in perpetuity for the maintenance of a cemetery lot, the preservation of a building, structure, feiice or walk therein, the renewal or preservation of a tomb, monument, stone, fence, railing or other erection or structure on or around such lot, or the planting or cultivation of trees, shrubs, flowers or plants in or about such lot, or for any of such purposes, by transferring, conveying, devising or bequeathing to the county treasurer of the county in which such person resides or in which such cemetery is located, or if such person resides or such cemetery is located in a county wholly within a city, to the chamberlain of such city, real or personal property, and designating such county treas- urer or chamberlain as trustee in the instrum'ent creating such trust. Such instrument may direct that the income derived from such property shall be applied to one or more of the purposes specified in this section. A county treasurer or city chamberlain designated as trustee in pursuance of this section, may in his discretion accept the property so transferred, and if he accepts the same, he shall cause the same to be invested in accordance with the terms of the trust, if any are prescribed, and otherwise shall invest and reinvest such property in securities in which savings banks are authorized to invest. The income derived from such property shall be collected by the county treasurer or chamberlain who shall be entitled to receive five per centum of such income for administering the trust. The balance of such income shall be paid by the county treasurer or cham- berlain to the person or corporation owning or conducting such cemetery, provided such person or corporation is willing to accept the same and apply the money so recei\ed, so far as the same may be applicable, in furtherance of the purposes for which such trust was created. Such money shall not be paid to an individual unless he shall give to the county treasurer or chamberlain a bond in an amount to be approved by him conditioned for COUNTY TREASURER. 113 County Law, § 152. the faithful application of such money, in accordance with the terms of the trust. If at any time after the creation of such trust there is no person or corporation willing to receive and apply the income thereof in accordance with the terms of the trust, the county treasurer or chamberlain shall pre- sent a petition to the county judge of the county, or a justice of the supreme court of the district wherein such cemetery is located, praying for directions as to the manner in which such trust shall be administered by him. Such county judge or justice of the supreme court may, by order, direct that the trust shall be directly administered by the county treasurer or city chamberlain or may otherwise provide for the administration thereof in such manner as shall, so far as practicable, carry out the intent of the creator of the trust. [County Law, § 153 ; B. C. & G. Cons. L., p. 788.] § 13. PENALTY FOR NEGLECT TO PAY OVER MONEY ON ORDER OF THE COURT. Whenever any county treasurer, after service on him personally, or by leaving at his office, in his absence, with some person having charge thereof, or if such service can not 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, of a certified copy of an order of the court, directing the payment or delivery of any money or securities held by him pursuant to an order of the court, to any person or persons, shall fail or neglect so to do, or where any county treasurer has invested or loaned any moneys held by him pursuant to an order of the court, to any person or persons on inadequate or worthless securities, and shall fail or neglect, when required so to do, to pay over the amount of the moneys 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 person 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 pur- pose.^5 [County Law, § 153; B. C. & G. Cons. L., p. 789.] 13. Action on bond. Where county treasurer has converted money to his own use and an action is brought upon his bond to recover same, the action is properly brought in the, name of the board of supervisors, and the recovery will inure to the benefit of the individual whose property was converted. Board of Supervisors of Tompkins Co, v. Bristol, 99 N. Y. 316. 114 COUNTY OFFICERS. Penal Law, § 1867; Liquor Tax Law, § 10. § 14. MISAFPROPIATION OF MONEYS AND SECURITIES BY COUNTY TREASURER. A county treasurer, who wilfully misappropriates any moneys, funds or securities, received by or deposited with him as such treasurer, or who is guilty of any other mlalfeasance or wilful neglect of duty in his office, is punishable by a fine not less than five hundred dollars nor more than ten thousand dollars, or by imprisonment in a state prison not less than one year or more than five years, or by both such fine and imprisonment. [Penal Law, § 1867; B. C. & G. Cons. L., p. 4052.] § 15. DUTIES UNDER THE LIQUOR TAX LAW; TAX TO BE PAID TO COUNTY TREASURER AND DISTRIBUTED BY HIM. The taxes assessed, and all fines and penalties incurred under this chapter except those assessed under subdivisions four and five of section. eight and under section nine-a and all fines and penalties incurred in connection therewith in counties or boroughs having a special deputy commissioner of excise shall be collected by and paid to him. In all other counties such taxes, fines and penalties shall be collected by and paid to the county treasurer of the county in w^hich the traffic is carried, on. All taxes assessed under subdivisions four and five of section eight and under section nine-a of this chapter, and all fines and penalties in connection therewith, shall be collected by and paid to the state com- missioner of excise. All taxes, fines and penalties under subdivisions four and five of section eight shall be paid by the state commissioner of excise to the state treasurer. One-fourth of the revenues resulting from taxes, fines and penalties collected under the provisions of section nine-a of this chapter which accrue after June thirtieth, nineteen hundred and eighteen and one-half of revenues which accrue before July first, nine- teen hundred and eighteen, shall be paid by the state commissioner of excise to the state treasurer. The remainder of such revenues shall be- long to the town or city in which the traffic was carried on from which such revenues were received and shall be paid to the supervisor of such town or to the treasurer or fiscal officer of such city. After June thir- tieth, nineteen hundred and eighteen, one-fourth of the revenues result- ing from taxes, fines and penalties under the provisions of this chapter excepting taxes collected under subdivisions four and five of section eight and under section nine-a and before July first, nineteen hundred and eighteen, one-half of tre revenues result from fines and penalties, under the provisions of this chapter less the amount allowed for collect- ing the same, shall be paid by the county treasurers, 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 remainder thereof, less the amount allowed COUNTY TREASURER. 115 Liquor Tax Law, § 10. for collecing the same, sliall belong to the town or city in which the traffic was carried on from which revenues were received, and shall be paid by the county treasurer of such county, or by the special deputy commissioner to the supervisor of such town, or to the treasurer or fiscal officer of such city, within ten days from the receipt thereof. All excise moneys collected by county treasurers and special deputy commissioners of excise shall be deposited until the same shall be paid over to the state or local fiscal officer as is herein provided, in bank or other deposi- tories 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 ap- proved 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 stat^ commissioner of excise who shall distribute the amount of money re- covered to the locality and the state as their respective interests may appear. At the time of making such payment the special deputy com- missioner or county treasurer shall furnish to the officer of such city or tev?n to whom such payment is made a written statement under oath stating when such money was received and from whom received; and that the statement includes all the moneys received to a 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 pro- vided by law for the appropriation and expenditures of sums received for excise licenses or in such other manner as may hereafter be provided by law ; and any portion of such revenues not otherwise specifically ap- propriated 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 pro- vided in this chapter, be liable to a penalty of fifty dollars for each and every offense, to be recovered in an action by the officer entitled to re- ceive such excise moneys, brought by such officer in the name of the city or town entitled thereto, with costs, in addition to the money un- lawfully withheld; and if any special deputy commissioner or countj treasurer shall wilfully make and verify a false statement under this section, he shall be guilty of perjury." [Liquor Tax Law, § 10, as amended by L. 1916, ch. 416, L. 1917, ch. 623, and L. 1918, ch. 473 ; B. C. & G. Pons. L-, p. 3278.] 14. Other provisions of Liquor Tax Law relating directly or indirectly to the duties of the county treasurer are as follows: Amount of tax. Liquor Tax Law, sec. 8, as amended by L. 1909, ch. 281; L. 1910, chs. 485, 494; L. 1911, ch. 39'8; L. 1913, ch. 168; L. 1915, eh. 654; L. 1916, ch. 416; L. 1917, ch. 623, and L. 1918, ch 473. Books and Wanks furnished by state excise commissioner. Liquor Tax Law, sec. 12, as amended by L. 1909, chs. 240, 281, and L. 1912, ch. 263. 116 COUNTY OFFICERS. Liquor Tax Law, § 11 ; Tax Law, §§ 237, 240. § 14. COMPENSATION OF COUNTY TREASXTBERS ON ACCOUNT OF THE LIQUOR TAX LA'W. 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, as required by the state com- missioner of excise, and issuing the liquor tax certificates, the officer charged therewith, shall be allowed, except as provided in section six, in counties containing a city of the first or second class one per centum of the amount of taxes, penalties and fines collected ; in counties contain- ing a city of the third class, but not a city of the first or second class, two per centum; in all other counties, three per centum, which amount shall be deducted and retained hj him from the moneys so collected, as his compensation for the duties imposed upon him by this chapter, and in addition to the salary or fees allowed by law for the performance of his other official duties, and charged one-half to the state and one-half to the locality to which the tax belongs. [Liquor Tax Law, § 11 ; B. C. & G. Cons. L., p. 3280.] § 16. DUTIES OF COUNTY TREASURERS UNDER TAXABLE TRANS- FER PROVISIONS OF TAX LAW. The tax shall be paid to the treasurer in a county in which the office of appraiser is not salaried, and in other counties, to the state comp- troller and said treasurer or state comptroller shall give, and every ex- ecutor, administrator or trustee shall take, duplicate receipts from him of such payment.^'' [See Tax Law, § 222, in part ; B. C. & G. Cons. L., p. 5990.] Fees of county treasurer. — The treasurer of each county in which the office of appraiser is not salaried shall be allowed to retain, on all taxes Bond of applicants for liquor tax certificates to be approved by county treasurer. Liquor Tax Law, sec. 16, as amended by L. 1910, cli. 484; L. 1911, cli. 223, and L. 1916, ch. 416. Application for liquor tax certificates, what to state. Liquor Tax Law, sec 15, as amended by L. 1909, ch. 281; L. 1910, ehs. 485, 494, 503; L. 1911, ch. 643; L. 1912, ch. 378; L. 1913, ch. 168; L. 1915, ch. 654; L. 1917, ch. 623, and L. 1918, ch. 473. Certificates, liquor tax, to be issued by county treasurer. Liquor Tax Law, sec. 17, as amended by L 1910, ch. 494; L. 1913, ch. 168, and L. 1917, ch. 623. Refusal to grant certificate, county treasurer to endorse reasons therefor on appli- cation. Liquor Tax Law, sec. 27, as amended by L. 1909, ch. 281, and L. 1910, ch. 503. Injunctions to restrain unlawful traffic in liquors, county treasurel- may institute proceedings. Liquor Tax Law, sec. 28, as amended by L. 1909, ch. 281, and L. 1918, ch. 473. Violations of Liquor Tax Law, county treasurer to make complaint thereof to dis- trict attorney. Liquor Tax Law, sec. 40. Pee B. C. & G. Cons L., pp. 3272-3368. 15. The amount of the tax on transfers is determined by the Tax Law, § 220, as amended by 1j. 1910, ch. 706; L. 1911, ch. 732; L. 1915, ch. 664, and L. 1916, ch. 323, and § 221, as amended by L. 1910, ehs. 600, 706; L. 1911, ch. 732; L. 1912, ch. 206; L. 1913, ehs. 356, '795; L. 1916, ch. 548; L. 1917, eh. 53, and L. 1918, ch. 111. For provisions generally, relating to the taxation of taxable transfers, and the duties of county officers in respect thereto, see McElroy on Taxable Transfers, published by Matthew Bender & Co., Albany, N. Y. COUNTY COMPTROLLER; COUNTY AUDITORS. II7 Tax Law, § 340. paid and accounted for by him each fiscal year under this article, five per centum on the first fifty thousand dollars, two and one-half 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. [Tax Law, § 237 ; B. C. & G. Cons. L., p. 6013.] Reports of county treasurer. — Each county treasurer in a county in which the ofiice of appraiser is not salaried 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, stating for what estate and by whom and when paid. The form of such report may be prescribed by the state comptroller. He shall, at the same time, pay the state treasurer all taxes received by him under this article and not previously paid into the state treasury, except as provided in the next section, and for all such taxes collected by him and hot 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, § 240, as amended by L. 1911, ch. 800; B. C. & G. Cons. L., p. 6014.] 118 COUNTY OFFICERS. County Law, § 234. CHAPTER VIII. COUNTY COMPTROLLER; COUNTY AUDITORS. EXPLANATORY NOTE. County Comptroller. The office of county comptroller is a new office, created by L. 1909, eh. 466, which inserted a new article 14a in the county law. "When a peti- tion signed by one per cent of the total vote cast in the county for the office of governor at the last general election is presented to the county clerk, a proposition must ba submitted to the voters of the county for the creation of the office. If the proposition is adopted, a county comptroller must be elected at the next general election. The duties of such officer are prescribed by statute. He is not to supersede the board of supervisors in the audit of claims against the county, but is to investigate as to such claims and report thereon to the board. County Auditor. Chapter 152 of the Laws of 1910, as amended by L. 1913, ch. 384, amends the County Law by adding a new article thereto, which author- izes a board of supervisors to appoint a county auditor. Such officer, when appointed, audits all claims against the county, to the same effect as though audited by the board of supervisors. Section 1. County comptroller; term of office. 3. Duties of county comptroller; issue and sale of bonds. 3. County employees; how paid. 4. Filing and verification of accounts. 5. Purchase of supplies by county officers; sheriff to be custodian of buildings. 6. Estimate of county officers. 7. Accounts with treasurer. 8. Appointment of county auditors. 9. Duties. § 1. COUNTY COMPTROIXEB; TERM OF OFFICE. Upon the filing with the county clerk of any county, prior to the first day of October, of a petition, duly signed by a number of voters equal to at least one per centum of the total vote cast in such county for the office of governor at the last general election, asking that the office of county comptroller be created in and for such county, such county clerk shall prepare a question to be submitted, in the same manner as other questions are submitted, to the voters of such county at the next general election, in substantially the following form : " Shall the office of county comptroller be created in and for the county of ?" At the next general election after the affirmative determination of such propo- sition, there shall be elected, in the same manner as are other county COUNTY COMPTROLLER; COUNTY AUDITORS. ng County Law, § 335. ofBoers, a county comptroller, whose term of office stall commence on the first day of January following and shall be for three years and whose successor shall be elected in like manner for a term of three years. A member of the board of supervisors, during the term for which he has been so elected or appointed, shall not be eligible for election or ap- pointment to the office of county comptroller, nor shall any person elected or appointed to the office of county comptroller, while holding such office, be eligible to election or appointment as supervisor. Before entering upon the duties of his office he shall take the constitutional oath and execute to the county a bond with good and sufficient sureties to be approved by the county judge in a sum to be fixed by the board of supervisors, conditioned upon the faithful performance of his duties. The board of supervisors shall prescribe the annual salary of such county comptroller and the compensation of assistants appointed by him and shall provide and maintain suitable rooms to be used by such county comptroller as his office. The office of the county comptroller shall be open daily, with the exception of Sundays and holidays, from nine ante meridian until five post meridian. The county comptroller may be re- moved by the governor within the term for which he shall have been chosen, after a copy of the charges against him and an opportunity to be heard in his defense shall have been given to such comptroller. If a vacancy shall occur, otherwise than by expiration of term, the governor shall appoint a person to execute the duties of county comptroller until the vacancy shall be filled by an election. If the county comptroller shall be unable to perform the duties of his office in consequence of sickness or temporary absence from the county he may designate one of the assistants, deputies, inspectors or clerks in his office to act in his place. If the county comptroller shall be so in- capacitated for more than ten days without making such designation, the board of supervisors may do so. Such designation shall be in writ- ing and shall be signed by the county comptroller in case he makes such designation and by the chairman and clerk of the board of supervisors in case such designation is made by the board of supervisors. Such des- ignation shall be filed with the county clerk and the clerk so designated shall be known as the acting county comptroller. The assistant, deputy, inspector or clerk so designated shall perform the duties of the county comptroller until the county comptroller shall resume them. An assist- ant, deputy, inspector or clerk so designated shall not receive any addi- tional compensation while acting as county comptroller to that which he is receiving at the time of the designation. [County Law, § 234, in- serted by L. 1909, ch. 466, and amended by L, 1917, ch. 76 ; B. C. & G. Cons. L., p. 820.] § 2. DUTIES OF COUNTY COMPTROLI.EB; ISSUE AND SALE OF BONDS. The comptroller shall superintend the fiscal affairs of the county pur- suant to law and the resolutions of the board of supervisors. He shall keep a separate account with every officer and department and with each improvement for which funds are appropriated or raised by tax or as- sessment. No warrant shall be drawn for the payment of any claim or 120 COUNTY OFFICERS. County Law, § 235. obligation of the county unless it state particularly against which of such funds it is drawn. No fund shall be overdrawn nor shall any warrant be drawn against one fund to pay a daim chargeable to another. The county comptroller shall perform such other and further duties as may from time to time be prescribed by law or by resolution of the board of supervisors, not inconsistent with this act or other laws of the state. All accounts or claims against the county for work, labor, services, mer- chandise or materials, for the county or any county officer, and all accounts or claims against the county for fees by any officer or officers authorized to charge and collect fees from the county shall be filed in the office of the county comptroller before being presented to the board of supervisors. The county comptroller shall cause each claim upon pre- sentation to him to be numbered consecutively, and the number, date of presentation, the name of the claimant and a brief statement of the character of each claim, shall be entered in a book kept for such purpose, which shall at all times during office hours be so placed as to be conven- ient for public inspection and examination. The county comptroller shall examine and report upon all accounts or claims against the county for work, labor, services, merchandise or materials furnished the county or any officer or department thereof and all accounts or claims against the county for fees by any officer or officers authorized to charge and collect fees from the county, before the same shall be audited and ordered paid by the board of supervisors ; he shall ascertain, before reporting to the board of supervisors, whether such accoimts or claims and the prices therein are just and true, and whether the prices charged and the quality of the merchandise furnished are in accordance with the contract or agreement therefor, if any such contract or agreement has been made, and whether the work, labor and services have been performed and the merchandise or materials delivered and whether the services for which any officer or officers are entitled to collect fees from the county have been performed and whether the fees charged therefor are in accordance with law, and shall attach a certificate to each claim or account, stating the result of such examination, and, if it is advised by him that any such account or claim be rejected or modified, stating the reasons for such re- jection or modification. Such account or claim with the certificate at- tached thereto shall be filed in his office, and shall during office hours be open to public inspection. The board of supervisors shall not audit any account or claim which the county comptroller advises should be rejected or modified, except where such account or claim is modified in accordance with the recommendations of the county comptroller, unless two-thirds of all the members elected to the board of supervisors shall vote in favor of the payment of said account or claim notwithstanding the recommend- ation of the pountv comntroller.^ The comptroller shall cause to be kept 1. Audit of rejected claiin.^The board of supervisors cannot legally audit a claim which the county eom-ptroller advises should be rejected or modified, unless two-thirds of the board vote in favor of such audit. The remedy of the claimant Is by certiorari. Becker v. County of Oneida, 157 Appi Div. 457. COUNTY COMPTROLLER; COUNTY AUDITORS. 121 County Law, § 236. in his office such books as are necessary to contain all claims and accounts against the county presented to him for examination, and the action taken by him on each, and a record of the money appropriated by the board of supervisors for the benefit of the county buildings and officers and the amount drawn thereon, and a record of all contracts or agreements made for supplies to be furnished any county building or county office. The county comptroller shall report to the board of supervisors at each regular meeting thereof the balance of the appropriation to each depart- ment remaining unexpended. A county comptroller first elected in any county as above provided is authorized after he enters upon the dis- charge of his duties to employ such expert accountants as may be neces- sary in opening the proper books in his office and in establishing the financial system herein provided for such time as he shall deem necessary, not exceeding ninety days, and the expense thereof shall be a county charge. All bonds of the county for whatever purpose issued shall be advertised and sold by the county comptroller. He shall cause to be published, for such time as the board of supervisors shall prescribe, a notice containing a description of the bonds to be sold, the manner and place of sale, and the time when the same shall be sold. Award shall be made to the highest ' bidder. At any sale of bonds the county comp- troller may reject all bids and readvertise, if in his opinion the price offered is inadequate. All bonds shall be signed in the name of the county, by the chairman of the board of supervisors and county treasurer and countersigned by the county comptroller. A list of all bonds issued by the county shall be kept in the county comptroller's office and when any bonds are paid by the county treasurer they shall be presented by him to the county comptroller for cancellation. [County Law, § 235, as inserted by L. 1909, ch. 466, and amended by L. 1910, ch. 8; B. C. & G. Cons. L., p. 831.] § 3, COUNTY EMPLOYEES; HOWT PAID. Before presentation to the county comptroller of the claims or payrolls for services rendered to the county, or for services of subordinate officials, such claims shall be certified by the county officer appointing or employ- ing such persons to the effect that such such persons were regularly appointed to or employed in the positions held by them; that the services represented were actually performed and that the compensation demanded in said claims and the amounts contained in such payrolls were correct. Upon the presentation of such claims or payrolls to the county comp- troller by the several county officers he shall examine the same, report thereon to the board of supervisors and a certified transcript of such claims or payrolls as allowed shall be made by the county comptroller and 122 COUNTY OFFICERS. County Law, §§ 237, 238. delivered to the county treasurer. All original payrolls and claims for services shall be filed in the office of the county comptroller and transcripts thereof in the office of the county treasurer. All county employees and county officers shall be paid by warrants issued by the county comptroller upon the county treasurer. [County Law, § 236, as inserted by L. 1909, ch. 466; B. C. & G. Cons. L., p. 823.] § 4. FILING AND VERIFICATION OF ACCOUNTS. Each account or claim presented to the county comptroller for examina- tion shall be approved by the officer or head of the department , incurring the same; such claim or account shall be verified by the person presenting it to the effect that it is just, true and correct; that no part thereof has been paid or otherwise settled; that the prices charged in such accounts or claims are correct and just, and, if there is any contract or agreement therefor, that the prices are in accordance with such contract or agree- ment, a copy of which must be attached to said account or claim. All orders or warrants for the payment of any claims or accounts examined by the county comptroller and ordered paid by the board of supervisors shall be drawn by the clerk of said board and countersigned by the chair- man thereof and by the county comptroller before the same are paid by the county treasurer. [County Law, § 237, as inserted by L. 1909, ch. 466 ; B. C. & G. Cons. L., p. 823.J § 5. PURCHASE OF SUPPLIES BY COUNTY OFFICERS; SHERIFF TO BE CUSTODIAN OF BUILDINGS. County officers may purchase for the use of the buildings or offices of which they have charge or custody all supplies necessary for their support and maintenance, all accounts for which shall be presented to the county comptroller to be examined by him, and in case any purchase or contract shall involve an expense exceeding two hundred dollars it shall be let to the lowest responsible bidder, after public notice such as the board of supervisors shall prescribe. The superintendent or custodian of a county building, a county officer, county comptroller or supervisor shall not be directly or indirectly interested in a contract or purchase of supplies by any such superintendent or custodian or county officer. All written contracts or agreements for supplies for any county building or office shall be made in duplicate, one copy of which shall be filed in the office of the county comptroller and one copy in the office of the super- intendent or custodian of the county building or county office for which such contracts were made. The sheriff of the county shall be the super- intendent and custodian of the county jail and such other of the county buildings as the board of supervisors shall designate and shall make all COUNTY COMPTROLLER; COUNTY AUDITORS. 123 County Law, §§ 239, 240. contracts for heating, lighting and the care and maintenance of the buildings of which he is custodian. [County Law, § 238, as inserted by L. 1909, ch. 466; B. C. & G. Cons. L., p. 824.] § 6. ESTIMATE OF COUNTY OFFICERS. The superintendent or custodian of county buildings and all county officers shall annually submit to the board of supervisors on or before the fifteenth of the last month of the fiscal year upon forms pre- scribed by the county comptroller an estimate of the amount necessary to be expended for supplies, for the support, the conduct and maintenance of such buildings or offices during the next fiscal year. They shall include in their annual report to the board of supervisors at its first regular meet- ing after the beginning of the fiscal year upon forms prescribed by the county comptroller the quantity of supplies used by them, the amount paid for them during the preceding year ; and also a statement of all con- tracts made by them for supplies, and all facts as shall be required to show whether such contracts were reasonable and just and shall state the action of the board of supervisors thereon. The board of supervisors may call upon any such superintendent or custodian or officer for a further or more detailed report or for further information on any subject embraced in the report. The board of supervisors by a committee ap- pointed for the purpose may investigate any such report or any agreement or contract for supplies at any time. Upon such examination said board or committee shall have the power to subpoena witnesses and to compel their attendance with or without books or papers. [County Law, § 239, as inserted by L. 1909, ch. 466 ; B. C. & G. Cons. L., p. 824.] § 7. ACCOUNTS W^ITH TREASURER. The comptroller shall keep an account between the county and treas- urer of all moneys received and disbursed by the treasurer, and for all purchases made shall procure daily statements from the treasurer as to the moneys received and disbursed by such treasurer. He shall procure from the banks in which the amounts have been deposited by the treas- urer monthly statements of the moneys which have been received and paid out on account of the county. He shall examine the treasurer's books, accounts and bank books and ascertain as to their correctness and shall render to the board of supervisors, as often as such board shall prescribe, a detailed report of the funds and of the financial condi- tion of the county. All moneys deposited by the treasurer shall be placed to the credit of the county. The treasurer shall keep bank books in which shall be entered his deposits in and moneys drawn from the banks or trust companies in which such deposits shall be made. He shall exhibit 134 COUNTY OFFICERS. County Law, §§ 215, 216. such books to the county comptroller for his inspection at least once each month, and oftener if required. The banks or trust companies in which such deposits are made shall make to the comptroller monthly statements of moneys which shall have been received and paid out by them on account of the county. Deposits in banks and trust companies shall be made by the treasurer in conformity with the provisions of this chapter. [County Law, § 339a, as inserted by L. 1909, ch. 466 ; B. C. & G. Cons. L., p. 835.] § 8. AFPOINTSIENT OF COUNTY AUDITORS. The board of supervisors in any county may, by resolution duly adopted, appoint a county auditor or auditors in and for such county and fix the term of office and salary. The county auditor or auditors may also act as county purchasing agent or committee where so directed by the board of supervisors which shall prescribe the place where and the time when the office shall be open. [County Law, § 215, as added by L. 1910, ch. 153.] § 9. DUTIES. The comity auditor or auditors shall audit all the bills for the ex- penses of the several county officials for repairs and maintenance of the several county offices and buildings under their respective jurisdictions and the expenses of county officials and all other bills that are properly chargeable to the county, unless their powers shall be limited by the board of supervisors, and v^hen so audited they shall have the same force and effect as if audited by the board of supervisors and shall be paid by the county treasurer upon the certificate of such auditor or auditors in the same manner. But any board of supervisors which has appointed or which may hereafter appoint a county auditor or county auditors, may by resolution limit his or their power of audit to certain accounts or classes of accounts against the county, in which case such auditor or auditors shall have power to audit such accounts or classes of accounts only. The board of supervisors also by resolution or resolutions, duly adopted, shall prescribe the form and manner of presentation of such bills, and the form and manner in which such auditor or auditors shall keep a record of the presentation thereof, and the action of such auditor or auditors thereon. In case of refusal or neglect of such auditor or auditors to audit any bill presented for audit for the full amount claimed the claimant shall be unprejudiced by such refusal or neglect and shall have the right to present the same to the board of supervisors for audit. [County Law, § 216, as added by L. 1910, ch. 152, and amended by L. 1913. eh. 384.] COUNTY CLERK. 125 Explanatory note. CHAPTER IX. COUNTY CLERK. EXPLANATORY NOTE. Office of County Clerk. The oflSce of county clerk is created and the term fixed at three years by the constitution. The ofiice is thus a constitutional office and may not be abolished or the term changed by act of the legislature. The duties of the office are prescribed by statute. The county clerk is the clerk of the supreme and county courts and his duties as such are conferred upon him by the Judiciary Law and the Code of Civil Pro- cedure. He is made the recording officer in all counties, except those having registers of deeds, by the Real Property and other laws. It is not within the scope of this work to treat of his powers and duties as a clerk of the court or a recording officer. We will only consider his powers and duties as a county administrative officer. Section 1. Election, appointment, term of office and undertaking of county clerk. 2. General powers and duties of county clerk. 3. County clerk to appoint a deputy; oath of office of deputy; designa- tion of clerk to act as deputy. 4. Duties of deputy county clerk. 5. Duties of special deputy county clerk. 6. County clerk to present statement of receipts and expenditures to board of supervisors. 7. Business hours in office of county clerk. 8. County clerk may complete records of predecessor. 9. County clerks may receive certain papers for safe keeping. 10. County clerk shall maintain register of moneys paid or ordered paid into court, penalty for failure thereof. 10a. Records to be kept by the county clerk. 11. False certificates by clerk, etc.; penalty for recording instrument with- out acknowledgment attached. 13. County clerk omitting to publish statement required by law. 126 COUNTY OFFICERS, County Law, S 160. § 1. ElECTIOir, APPOIIfTMENT, TEBJff OF OFFICE AND UITDEETAKING OF COUNTY CLESK. There shall continue: 1. To be elected in each of the counties a county clerk, 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 county clerk, when a vacancy shall occur in such office, and lie 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 supervisoi-s, 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 re- siding in the county, and in such sum as such board, judge or justice approving the same shall direct, to the effect that he will faithfully execute and discharge 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 pay them over as required by law, or directed by such order.^ [County Law, § 160, as amended by L. 1914, ch. 62; B. C. & G. Cons. L., p. TOO.] 1. Reference. Reference should be made to the following provisions relating to county clerks (See Schedule of Laws, after Table of Contents, for places in this Manual where laws referred to may be found) : County clerk must be elected by electors of county for terms of three years, except in New York and Kings counties. Constitution, art. X, sec. 1. Local o£Scer; state officer. The county clerk in all his administrative duties is a local officer elected by the electors of the county and paid by taxes collected from the people included in the territory comprising the county. It is only when he performs state functions that he is to be treated as a state officer. People ex rel. Plancon v. Prendergast (1916), 219 N. Y. 252, 114 N. E. 433. BemoTBl of county clerk. The county clerk is removable by the governor. Constitution art. X, sec. 1. The procedure for such removal is prescribed by Public Officers Law, sees. 33-35, post. The expenses of such removal are a county charge. County Law, sec. 240, sub. 16, ante. Official oath to be taken. County Law, sec. 246, post. Effect of failure to take oath. Public Officers Law, sec. 13, post. Vacancy created by failure to take. Public Officers Law, sec. 30, post. „ . t Undertaking, further provisions resnesting. County Law, sec. 247, post. Public Officers Law, sec. 11, post. Effect of failure to execute undertaking. Public Officers Law, sec. 13, post. Validation of official acts before executing undertaking Public Officers Law, sec. 15. post. Vacancy in office created by failure to execute undertaking. Public Officers Law, sec. 30 sub. 7, post. Vacancies, how created. Public Officers Law sec. 30, post. Resignations of county clerks are to be made to the governor. Public Officers Law sec 31 post. Fxuiration of term of office, county clerk to hold office after, until successor Is appointed and has qualified. Public Officers Law, sec. 5, post. Fpps of county clerk, see ch. 71, post. Snecial acts relating to salaries of county clerks. In many of the counties thp n'flrp of county clerk is made salaried by special act of the legislature, ui^ senerallY provided in such acts that the fees chargeable by the county clerk for services performed by him shall belong to the county. The following is a list of such acts: — COUNTY CliEEK. ]^27 County Law, § 161. § 2. GENERAL POWERS AND DITTIES OF COITNTY CLERK. The county clerk shall : 1. Have the custody of all books, records, deeds, parchments, maps and papers,- deposited in Ms office in pursuance of law, and attend to their arrangement and preservation.^ Alleghany county, L. 1897, ch. 340. Bronx county, L. 1912, oh, 548, aa amended by L. 1913, oh. 266, as to fees, see X. 1915, ch. 355. Broome county, L. 1900, eh. 655. Cattaraugus county, L. 1891, ch. 281, as amended by L. 1901, ch. 2, and L. 1914, ch. 129. Cayuga county, L. 1906, ch. 93, as amended by L. 1907, eh. 29. Chautauqua county, L. 1890, ch. 547, as amended by L. 1903, eh. 310; L. 1907, ch. 101, and amended by L. 1908, ch. 39. Columbia county, L. 1893, ch. 52, as amended by L. 1901, ch. 463. Delaware county, L. 1911, ch. 110. Erie county, L. 1885, oh. 502, as amended by L. 1887, ch. 125, L. 1891, ch. 149, and L. 1910, ch. 48. Genesee county, L. 1909, eh. 334. Greene county, L. 1900, ch. 161. Herkimer county, L. 1891, ch. 47, as amended by L. 1904, ch. 66, L. 1905, ch. 412, and L. 1908, ch. 413. Livingston county, L. 1903, eh. 200, amended by L. 1905, ch. 52, and L. 1916, ■eh. 241. Madison county, L. 1891, ch. 64, as amended by L. 1898, ch. 492, L. 1897, ch. 640, and L. 1898, ch. 492. Monroe county, L. 1886, ch. 195, as amended by L. 1889, ch. 498, L. 1893, ch. 243, and L. 1907, ch. 55. Montgomery county, L. 1898, ch. 41, as amended by L. 1899, ch. 216. Nassau county, L. 1901, ch. 337. Niagara county, L. 1894, ch. 422, as amended by L. 1896, ch. 25. Oneida county, L. 1898, ch. 10. Onondaga county, L. 1893, ch. 520, as amended by L. 1895, ch. 44, L. 1896, ch. 14, L. 1897, ch. 512, L. 1898, ch. 14, L. 1900, ch. 116, L. 1901, ch. 516, L. 1903, ch. 604, L. 1904, ch. 175, and L. 1912, ch. 244. Ontario county, L. 1890, ch. 327, as amended by L. 1895, ch. 128. Orange county, L. 1904, ch. 213, as amended by L. 1907, ch. 31, and L. 1911, ch. 691. Oswego county, L. 1897, ch. 118, amended L. 1906, ch. 143, and L. 1908, ch. 453. Richmond county, L. 1909, ch. 813. St. Lawrence county, L. 1887, ch. 392, as amended by L. 1888, ch. 79, L. 1889, ch. 287, and L. 1896, ch. 47. Saratoga county, L. 1898, ch. 43, as amended by L. 1909, ch. 72. Schenectady county, L. 1907, ch. 390. Schuyler county, L. 1892, ch. 590. Seneca county, L. 1899, ch. 546. Steuben county, L. 1890, ch. 323, as amended by L. 1893, ch. 713, and L. 1908, ch. 15. Sullivan county, L. 1897, ch. 440, as amended by L. 1901, ch. 119. Tompkins county, L. 1909, ch. 298. Ulster county, L. 1906, ch. 103, as amended by L. 1911, ch. 237. Washington county, L. 1897, ch. 116, as amended by L. 1898, ch. 324, L. 1906, ch. 112, and L. 1911, ch. 723. Wayne county, L. 1892, ch. 663. Westchester county, L. 1909, ch. 318. Yates county, L. 1897, ch. 363. 2. Books and papers. — The clerk has the power to repair damage accidentally done to books, papers, etc., in his office at a reasonable expense, and the cost 128 COUNTY OFFICERS. County Law, § 161. 2. Provide at the expense of the county, all necessary books for re- cording all papers, documents or matters authorized 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 hie office, give immediate notice thereof, at the expense of the county, to every person named therein. When any other commission 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, within the time required by law, to file the constitutional oath of office, 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 corpora- tions whose certificates of incorporation have been filed in his office during the previous year. 6. Eecord at length in the book kept in his office for recording certifi- cates of incorporation an order entered in his office changing the name of a corporation. This subdivision also applies to the county of New York. 7. Annually, in the month of December, report to the secretary of state all changes of names of individuals or of corporations, which have been made in pursuance of orders filed in his office during the past year and since the last previous report, and also report in like manner to the superintendent of banks all changes of the names of banking corporations, and to the superintendent of insurance all changes of names of corpora- tions authorized to make insurances. This subdivision also applies to the county of New York. 8. Keep in his office a book, free at all times to public inspection, in thereof is a coimty charge. Worth v. City of Brooklyn, 34 App. Div. 223, 54 N. Y. Supp. 484. Making new indexes. A board of supervisors has no power to contract with a county clerk to make an entirely new set of indexes of the county records for a compensation in addition to his regular fees where the old indexes have become dilapidated and inadequate. Wadsworth v. Supervisors of Livingston (1916), 217 N. Y. 484, 112 N. E. 161, revg. 159 App. Div. 934, 144 N. Y. Supp. 1149. Presumption as to existence of document. The law presumes that all officers in- trusted with the custody of public files and records will perform their official duty by keeping the same safely in their offices, and if a paper is not found where, if in existence, it ought to be deposited or recorded, the presumption thereupon arises that no such document has ever been in existence, and until this presumption is re- butted it must stand as proof of such non-existence. Deshong v. City of New York, 176 N. Y. 475. COUNTY CLERK. 129 County Law, § 162. 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. 9. Except as otherwise specially prescribed by law, each county clerk or register, who receives a salary, must account for, under oath, and pay to the treasurer of his county, in the manner prescribed by law, all fees, perquisites, and emoluments, received by him, for his official services. This subdivision also applies to the county of l^ew York. 10. Upon request, and upon payment of, or offer to pay, the fees allowed by law, diligently search the files, papers, records, and dockets in his office; and either make one or more transcripts therefrom, and certify to the correctness thereof, and to the search, or certify that a document or paper, of which the custody legally belongs to him, cannot be found. This subdivision also applies to a register of a county and to the county of New York. 11. Be clerk of the county court in his county. [County Law, § 161; B. C. & G. Cons. L., p. 791.] § 3. COUNTY CLERK TO APPOINT A DEPUTY; OATH OF OFFICE OF DEPUTY; DESIGNATION OF CLEKK TO ACT AS DEPUTY. Every county clerk shall, within ten days after entering upon the 3. Other powers and duties. Among the other powers and duties of county clerks the following are here referred to: — Notary public, county clerk must notify person appointed as. Executive Law, sec. 103, as amended by L. 1915, ch. 18. Elections. County clerk to puDiish notice of submission of proposed constitutional amendments and other questions. Election Law, sec. 294, as amended by L. 1910, ch. 446. Compensation for duties respecting elections to be fixed by board of super- visors. Election Law, see County Law, § 319. Copy of election laws to be trans- mitted to clerk. Election Law, sec. 320, as amended by L. 1916, ch. 537, and L. 1918, ch. 323. Certificates of nomination to be filed in office of clerk. Election Law, sec. 127, as amended by L. 1911, ch. 891, and L. 1913, ch. 820, and sec. 128, as amended by L. 1911, ch. 891; L. 1913, ch. 820, and L. 191S, ch. 298. County clerk to publish nominations. Election Law, sec. 130, as amended by L. .1911, ch. 891, and L. 1915, ch. 673. List of Candidates to be sent to town clerks and aldermen. Election Law, see. 131, as amended by L. 1911, ch. 891. Notice of declination of nominations to be filed with clerk. Election Law, sec. 133, as amended by L. 191, ch. 891, and L. 1913, ch. 820. Clerk to notify committees. I'd. Vacancies in nomi- nations, how filled, and correction of certificates of nominations. Election Law, sec. 135, as amended by L. 1911, ch. 891, and L. 1913, ch. 820 and sec. 136, as amended by L. 1911, ch. 891; L. 1913, eh. 820, and L. 1918, ch. 298; sec. 137, as amended by L. 1911, ch. 891, and L. 1913, ch. 821. See Jewett's Election Manual, 1918, published by Matthew Bender & Co., Albany, N. Y. Bajlots, form of. Election Law, sec. 331, as added by L. 1913, ch. 821, and amended by L. 1914, chs. 87, 244; L. 1916, eh. 537, and L. 1918, ch. 323, and sec. 332, as amended by L. 1913, ch. 821. Sample ballots and instruction cards to be provided for each polling place. Election Law, sec. 333, as amended by L. 1913, ch. 821. County clerk to furnish blank forms for election officers. Election Law, sec. 334, as amended by L. 1913, ch. 821. Number of official ballots. Election Law, sec. 340, as amended by L. 1913, ch. 820. County clerk to furnish and distribute ballots and stationery. Election Law, sec. 344, as amended by L. 1916, ch. 537 and sees. 342 and 343, as amended by L. 1916, ch. 537. Clerk of county board of canvassers. See Election Law, sec. 430, as amended by L. 1910, ch. 432, and L. 1916, ch. 537. District superintendents of schools, county clerks to fiu-nish to commission- ers of education certificates of election of. Education Law, § 383, as amended 130 COUNTY OFFICERS. County Law, §§ 163, 163a. •duties of his office, make, under his hand and seal, and record in his office, a ■written appointment of some suitable person to be deputy clerk of his county. In counties containing a population of more than one hundred thousand by the last preceding federal census or state enumeration, the county clerk, may, in like manner, appoint not to exceed two additional deputies. The clerks of the counties of New York, Kings, Bronx, Queens and Richmond may also designate assistants or clerks appointed by him and employed in the naturalization of aliens to be special deputy county clerks authorized to administer oaths required by the naturalization laws; but such special deputy county clerks shall not receive any compensation other than the salaries paid them as such assistants or clerks. Every such deputy, and every such special deputy designated pursuant to the provisions of this section, shall hold such office during the pleasure of the clerk. When any such deputy is temporarily absent, disqualified or disabled, the clerk shall appoint some one of hia assistants to act as a deputy in his place for a period not exceeding thirty days and without any additional compensation. Before any such deputy so appointed, or special deputy so designated pursuant to the provisions of this section, «nters on his duties as such, he shall take the constitutional oath of office. If there shall be no county clerk, or deputy county clerk, or assistant authorized to act as deputy, the county judge may designate in writing, to be recorded in the county clerk's office, a suitable person to act as county clerk with all the powers, duties and privileges of the office, and subject to the liabilities thereof, until a county clerk shall have been elected, or appointed, and qualified. This section shall not apply to or affect any special deputy clerk to the county clerk appointed pursuant to the provisions of the judiciary law of this state. [County Law, § 162, as amended by L. 1911, ch. 727, and L. 1916, ch. 452; B. C. & G. Cons. L., p. 793.] § 4. DUTIES OF DEPUTY COUNTY CLERK. Any such deputy may perform such duties of the clerk as may be assigned to him by an order of the clerk to be entered in his office and shall also perform all the duties of the clerk when the clerk shall be absent from his office, or shall be incapable of performing the duties thereof, or when the office shall become vacant, until it shall be filled, except that of deciding upon the sucffiiency of sureties, which duty shall devolve upon the county judge.* [County Law, § 163; B. C. & G. Cons. L., p. 793.] § 4.a. DUTIES OF ASSISTANT CLERKS IN COUNTIES. The clerk of any county may designate one of his assistants to be the calendar clerk of such county who may in the absence of any deputy clerk or for the pur- pose of assisting any deputy clerk, and after taking the required oath, perform such duties of l£e clerk as may be assigned to him by an order of the county clerk ■to be entered in his office. The compensation of any such assistant of the clerk shall be fixed by the county clerk, and when so fixed, no additional compensation shall be paid to any such assistant of the clerk for the performance of any duties whatsoever which the county clerk may assign to him. [County Law, § 163-a, as added by L. 1913, ch. 368.] by L. 1910, ch. 607. Oath of, to be filed in county clerk's office. Idem, § ,38.5, as amended by L. 1910, ch. 607. Registration of titles to real property. The county clerk has certain duties to perform under the so-called Torrena Land Title Registration Act which .was enacted into law by oh. 444 of L. 1908, and re-enacted in Real Prop. Law, art. 12. 4. Charges against employees may be heard by deputy in the event of the clerk's inability. People ex rel. De Vries v. Hamilton, 84 App. Div. 369, 82 N. Y. Supp. 884. The authority of a deputy clerh, discharging the duties of clerk in conse- quence of the death of his principal, ceases on the appointment by the governor of a person to be clerk during the vacancy. People v. Fisher, 24 Wend. 215. Oath may be administered by deputy, who may sign name of clerk to jurat. People V. Powers, 19 Abb. Pr. 99. COUNTY CX,EEK. 131 County Law, § 169. S 5. DITTIES OF SFECIAI. DEPUTY COUNTY CLERK. 1. In every county other than the counties of Queens, Dutchess, Orange and Rockland the county clerk may, from time to time, by an instrument in writing filed in his oifice, appoint, and at pleasure re- move, one or more special deputy clerks to attend upon any or all of the terms or sittings of the courts of which he is clerk, and in any county having a population of more than sixty thousand at the last enumeration, the salary of such special deputy clerks shall be fixed by the board of supervisors of such county, and when the said salary shall be so fixed the same shall be paid from the court funds of said county or from an appropriation made therefor. Each person so appointed must, before he enters upon the duties of his office, subscribe and file in the clerk's ofiice the constitutional oath of office; and he possesses the same power and authority as the clerk at any sitting or term of the court which he attends, with respect to the business transacted thereat. The salaries of special deputy clerks and assistants appointed in Queens county under the provisions of section one hundred and fifty- nine of the judiciary law shall be fixed by the justice residing in such county and shall be a county charge. In the county of Westchester before such appointment shall become effective the same shall be ap- proved in writing by a majority of the justices of the supreme court residing within the judicial district of the appointee, which approval shall be filed in the office of the clerk of the county. Before the removal of such appointee, as herein provided, shall become effective, the same shall be concurred in by a majority of the justices of the supreme court residing within the judicial district of the appointee and a certificate of such concurrence of removal shall be filed in the office of the clerk of the county by said justices. The provisions of this subdivision shall not apply to the first judicial department. All special deputy clerks appointed in the counties of Dutchess, Orange and Eockland, situate in the ninth judicial district hereunder, shall be appointed by the justices of the supreme court residing in said district, or a majority of them, which appointment shall be filed in writing in the clerk's office of the county affected thereby, and the sal- aries of such deputy clerks shall be fixed by the justices making the appointment and paid as hereinbefore provided. [Subd. 1, amended by L. 1915, ch. 345, and L. 1918, ch. 411.] 2. The minutes of the part or term of the supreme court to which any of the special deputy clerks to the clerk of the county of New York appointed pursuant to the judiciary law is assigned, kept by him, and the records kept by the supreme court jury clerk in the first judicial district shall be kept by the county clerk of New York county in his office and said county clerk shall give extracts from such minutes and records as now prescribed by law. 3. The minutes and records kept by the special deputy clerks ap- pointed in the county of Queens pursuant to the judiciary law shall be 132 COUXTY CLERK. County Law, §§ 164, 165. kept by the county clerk in his office and he shall give extracts from such minutes and records as now prescribed by law. [County Law, § 169, as amended by L. 1910, ch. 694, and L. 1913, chs. 109, 367, 637; B. C. & G. Cons. L., p. 796.] § 6. COUNTY CLERK TO PRESENT STATEMENT OF RECEIPTS AND EXPENDITURES TO BOARD OF SUPERVISORS. Every county clerk shall present to the board of supervisors of his county, upon the first day of their annual meeting, a statement, verified by his oath to be true, showing for the year preceding the first day of January : 1. The amount of all fees charged or^received for searches, and for certificates thereof. 2. The amount of all fees charged or received for recording any documents in his office, and for certificates thereof. 3. The amount of all sums charged or received for services rendered the county. 4. The amount of all sums charged or received for official services. 5. The sums paid by him for assistance, fuel, lights, stationery and other incidental expenses, the names of the persons paid and the items thereof; but he shall not make any charge against the county for sta- tionery, except record books and stationery furnished by him for courts held in his county, but the board of supervisors may allow the county clerk the necessary expenses incurred by him for lighting and heating his office. => [County Law, § 164; B. C. & G. Cons. L., p. 794.] § 7. BUSINESS HOURS IN OFFICE OF COUNTY CLERK. Clerks of counties, courts of record, and registers of deeds, except in the counties of New York, Kings, Queens, Erie and Westchester, as hereinafter provided, shall respectively keep open their offices 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,*' 5. For form of statement of county clerk to be made to the board of supervisors see Form 8, post. 6. Holidays and half-holidays are enumerated in the General Conatruction Law, sec. 24, as amended by L. 1909, eh. 112, as follows: Jan. 1 (Xew Year's day) ; Febru- ary 12 (Lincoln's birthday) ; February 22 (Washington's birthday) ; May 30 (Memorial day); July 4 (Independence day); first Monday of September (Laba-r day) ; Oct. 12 (Columbus day) ; first Tuesday after first Monday in November (Elec- tion day); Thanksgiving day; December 25 (Christmas day). If any such days fall on Sunday, the day following is observed as a holiday. The term, half-holiday, includes the period from noon to midnight of each Saturday which is not a holiday. Office hours. Keeping open the clerk's office after or before the hours mentioned is not unlawful; and a certificate of nomination may be filed at 11 P. M. on the last day allowed for such filing. Matter of Norton, 34 App. Div. 79, 53 N. Y. Supp. 1093. Judgments docketed out of office hours must be considered as docketed and become liens equally at the next office hour thereafter. France v. Hamilton, 26 How. Pr. 180. Business in public offices on holidays. Holidays and half-holidays shall be considered as Sunday for all purposes relating to the tiansaction of business in the public offices of the state, and of each county. [Public Officers Law, § 62.] COUNTY CLERK. I33 County Law, §§ 166, 167. from nine o'clock in the forenoon to five o'clock in the afternoon. In the counties of ISTew York, Kings and Queens, said offices, the sheriff's office and the offices of the commissioner of jurors shall remain open during the months of July and August in each year from nine o'clock in the forenoon to two o'clock in the afternoon, and during the other months in the year from nine o'clock in the forenoon to four o'clock in the afternoon; and in Erie county the county clerk's office shall re- main open from nine o'clock in the forenoon to five o'clock in the after- noon ; and in Westchester county the offices of clerks of counties, courts of record, registers of deeds, sheriffs, commissioner of jurors and sur- rogates shall remain open from nine o'clock in the forenoon to five o'clock in the afternoon, except during the months of July and August, when they shall remain open from nine o'clock in the forenoon to three o'clock in the afternoon. [County Law, § 165, as amended by L. 1909, ch. 199, and L. 1918, ch. 576; B. C. & G. Cons. L., p. 794.] § 8. COUNTY CI.EBK MAY COMPLETE RECORDS OF PREDECESSOR. 1. The county clerk of any county of this state upon order duly made by the supreme court at a special term thereof shall hereafter have power to complete and sign and certify in his own name, adding to his signature the date of so doing, all records of papers, orders and mintues of pro- ceedings of any court of which he is clerk or ex officio clerk, left un- completed or unsigned by any of his predecessors. This subdivision shall also apply to the county of New York. [County Law, § 166, as amended by L. 1915, ch. 246 ; B. C. & G. Cons. L., p. 795.] 2. The county clerk of any county or register if any upon an order made by the county judge or by a justice of the supreme court in a county in which there is no county judge and filed with such clerk, may complete and sign all uncompleted or unsigned records of conveyances and mortgages of real estate and other instruments affecting real prop- erty filed for record during the term of any of his predfecessors. Such records shall be signed in his own name. [Subd. added by L. 1915, ch. 246.] § 9. COUNTY CLERKS MAY RECEIVE CERTAIN PAPERS FOR SAFE KEEPING. The clerk of every county in this state, and the register of deeds in the county of New York, upon being paid the fees allowed therefor by law, shall receive and deposit In their offices respectively, any deeds, conveyances, wills or other papers or documents, which any person shall offer to them for that purpose ; and shall give to such person a written receipt therefor. Such instruments, papers and documents, shall be properly Indorsed so as to Indicate their general nature and the names of the parties thereto, shall be filed by the officer receiving the same, stating the time when received, and shall be deposited and kept by him and his successors In office, with his official papers. In some place separate and distinct from such papers. The instruments, papers and documents so received and deposited, 134 COUNTY OFFICERS. County Law, § 168. shall not be withdrawn from such oflBce, except on the order of some court of record, for the purpose of being read in evidence in such court, and then to be returned to such office; nor shall they be delivered with- out such order, to any person, unless upon the written order of the person or persons who deposited the same, or their executors or administrators. Such instruments, papers and documents so deposited shall be open to the examination of any person desiring the same, upon payment of the fees allowed by law. [County Law, § 167; B. C. & G. Cons. L., p. -95.] § lO. COUNTY CLERK SHALL MAINTAIN REGISTER OF MONEYS PAID OR ORDERED PAID INTO COURT; PENALTY FOR FAILURE THEREOF. The county clerk in each of the counties of this state shall maintain and keep in his olfice a book to be known as a court and trust fund regis- ter to be used solely as a record of moneys and securities paid or trans- ferred, or ordered or required to be so paid or transferred into court. Immediately upon the filing in his office of any judgment, order or decree of any court directing the payment or transfer of money or se- curities, the amount thereof being stated, or determinable upon the hap- pening of the contingency expressed in said judgment, order or decree, to the treasurer of his or any other county of the state, or in the coun- ties of Bronx, New York, Kings, Queens and Richmond to the cham- berlain of the city of New York, or upon the filing in his office of any report of a referee or other person, or treasurer's or chamberlain's re- ceipt, stating that a sum of money has been deposited with such treas- urer or chamberlain, in accordance with any such judgment, order or decree or with any provision of law; or upon the filing or entry in his office of any other paper or record from which it appears that money or securities, the amount thereof being stated, or determinable upon the happening of the contingency expressed in said paper or record, have been or should be paid to such treasurer or chamberlain; or upon the receipt by any such clerk of moneys required by any judgment, order or decree of the court, or by any provision of law, to be brought into court, the clerk shall enter in his court and trust fund register, the title of the action or proceeding in which such judgment, order or decree was made, or in which moneys are required to be deposited, together with a statement of the amount so deposited, or ordered or required to be deposited, if said judgment, order or decree contains the amount of the same, or, otherwise, of the amount to be deposited as shown by the report of the referee or other person, or of the amount received by such clerk, or shown by the records of his office, if the said amount has been determined, or if not determined, a statement of the contingency upon the happening of which the amount is determinable, and the name of the person or persons, if any, for whom such money or securities are ordered to be deposited, and the date of filing the same, or of such report or receipt as herein mentioned. For failure to comply with any pro- vision of this section a county clerk shall be liable to a penalty of two hundred and fifty dollars, to be recovered by the comptroller of the COUNTY CLERK. 1J5 Dom. Rel. Law, § 20; Penal Law, §§ 1860, 1861, 1862, 1860. state in an action brought in his name as such comptroller and all money recovered in any such action or actions shall be paid to the people of the state of New York. [County Law, § 168, as amended by L. 1910, eh. 160, and L. 1917, eh. 366 ; B. C. & G. Cons. L., p. 796.] § lOa. RECORDS TO BE KEPT BY THE COUNTY CLERK. The county clerk of each county except the counties included within the city of New York shall keep a copy and index in a book kept in his ofBce for that purpose of each statement, affidavit, consent and license, together with a copy of the certificate thereto attached showing the per- formance of the marriage ceremony, filed in his office. During the first twenty days of the months of January, April, July and October of each year the county clerk shall transmit to the state department of health at Albany, New York, all original affidavits, statements, consents and li- censes with certificates attached filed in his office during the three months preceding the date of such report, also all original contracts of marriage made and recorded in his office during such period entered into in accordance with subdivision four of section eleven of this chapter, which record and certificate shall be kept on file and properly indexed by the state department of health. Whenever it is claimed that a mis- take has been made through inadvertence in any of the statements, affidavits or other papers required by this section to be filed with the state department of health, the state commissioner of health may file with the same, affidavits upon the part of the person claiming to be aggrieved by such mistake, showing the true facts and the reason for the mistake and may make a note upon such original paper, statement or affidavit showing that a mistake is claimed to have been made and the nature thereof. The services rendered by the county clerk in carry- ing out the provisions of this article shall be a county charge except in counties where the county clerk is a salaried officer in which case they shall be a part of the duties of his office. [Dom.estic Relations Law, § 20, as added by L. 1917, ch. 245.] § 11. FALSE CERTIFICATES BY CLERK, ETC.; PENALTY FOR RE- CORDING INSTRUMENT 'WITHOUT ACKNOAVLEDGMENT AT- TACHED. An oflScer authorized by law to record a conveyance of real property, or of any other instrument, which by law may be recorded, who knowingly and falsely certi- fies that such a conveyance or instrument has been recorded, is guilty of a felony. [Penal Law, § 1860; B. C. & G. Cons. L., p. 4050.] A public officer 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, ciui- taining 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, §, 1861; B. C. & G. Cons. L., p. 4050.] 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 certifi- cate according to law, of the proof or acknowledgment, is guilty of a misdemeanor. [Idem, § 1862; B. C. & G. Cons. L., p. 4050.] § 12. COUNTY CLERK OMITTING TO PUBLISH STATEMENT RE- QUIRED BY LAW. A county clerk who willfully omits to publish any statement 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 Law, § 1869; B. C. & G. Cons. L., p. 4052.] 136 COUNTY OFFICERS; JAILS. Explanatory note. CHAPTER X. DISTRICT ATTORNEYS, COUNTY ATTORNEYS, COUNTY JUDGES AND SURROGATES. EXPLANATORY NOTE. Office of District Attorney ; Duties. The office of district attorney is a constitutional office. The constitu- tion provides for the election of a district attorney in each county for a term of three years. The term being so fixed the legislature may not prescribe a different term. The board of supervisors may fix the salary of the district attorney, and prescribe the number, mode of appointment and pay of the clerks and employes in his office. The district attorney is the prosecuting attorney of the county. It is his duty to prosecute all crimes cognizable by the courts of his county. He has charge of indictments by the grand jury of persons charged with the commission of crime in the county, and he must conduct the trial of indictments so found. It is not the purpose of this chapter to treat of the duties of district attorneys in the prosecution of crimes. He is required to report and account for all moneys received by him by virtue of his office. Such report and account must be filed in the office of the county treasurer. He must pay over to the county treasurer all moneys received by him as fines, penalties and forfeitures. In the case of a murder or other important crime he may employ counsel, with the approval of the county judge, to assist him in the trial of the indictment, and the cost is chargeable against the county. If the district attorney is incapacitated by sickness or other cause the court may designate an attorney to act as special district attorney for a term of court, and the board of supervisors must pay a reasonable com- pensation to such attorney. County Attorneys. Prior to L. 1907, ch. 280, the district attorney or some other attorney designated by the board of supervisors acted as attorney for such board. By that act, as consolidated in § 210 of the County Law, a board of supervisors is authorized to appoint a county attorney to advise the board DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 137 County Law, § 200. and county and town officers. The board may prescribe the duties of such officer, and fix his salary. County Judges and Surrogates. The constitution (Art. VI, §§ 14-16) provides for the election of a county judge and surrogate for terms of six years. In counties of 40,000 or less, the two offices are to be held by the same person. In other counties the legislature may provide for separate offices. The com- pensation of such officers is fixed by the County Law, § 232, post. The constitution provides that such compensation shall not be changed dur- ing the terms of office of such officers. The county judge presides over the county court, and has the jurisdiction and performs the duties pre- scribed by law.. The surrogate has to do with the estates of decedents and of infanta, and the jurisdiction of his court is controlled by the Code of Civil Procedure and other statutes. Section 1. Election, appointment, term of oflace and undertaking of district attorney. 2. Report of district attorneys of moneys received. 3. Board of supervisors may authorize district attorneys to appoint assistant; powers of assistant. 4. Appointment of assistants in Erie, Monroe, Onondaga and Rens- selaer counties; district attorneys in Erie and Monroe entitled to costs; payment of expenses of district attorneys in Albany, Rensselaer and Monroe counties. 5. Employment of counsel by district attorney. 6. Special district attorney. 7. Expense of transfered trial of an indictment. 8. Expense of transferred trial of an indictment. 9. Appointment, term of office and duties of county attorneys. 10. Election, appointment and term of office of county judge, surro- gate, special county judge and special surrogate. 11. Board of supervisors to create office of surrogate in certain counties; undertaking of surrogate. 12. Compensation of county judges and surrogates. 13. Salaries of surrogates and county judges, how paid; compensa- tion of county judge serving in another county. § 1. ELECTION, APPOINTMENT, TERM OF OFFICE AND UNDER- TAKING OF DISTRICT ATTORNEY. 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 Janu- ary succeeding his election; *2. To be appointed by the governor, a district attorney, when a va- cancy shall occur in such office, and the person so appointed shall hold 138 COUNTY OFFICERS; JAILS. County Law, § 200. the office until and including the last day of D'ecember succeeding the :first annual election thereafter at which such vacancy can be lawfully filled. 3. Except in the county of Kings, every person elected or appointed to the office of district attorney, shall, before he enters upon the duties of his office, aiid if appointed, witliin 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 more sufficient sureties, being resident freeholders, and in such sum as the board of supervisors of the county shall direct, to the effect that he will faithfully account for and pay over according to law, or as the court may direct, all moneys that may come into his hands as such dis- trict attorney. 4. It shall be the duty of every district attorney to conduct all prose- cutions for crimes and offenses cognizable by the courts of the county for which he shall have been elected or appointed ; except when the place of trial of an indictment is changed from one county to another, it shall be the duty of the district attorney of the county where the indictment is found to conduct the trial of the indictment so removed, and it shall be the duty of the district attorney of the county to which such trial is 1. Beferences. Reference may also be made to the following provisions of law, relating directly or indirectly to the office of district attorney. (See Schedule of Laws, after the table of Contents for the places In this Manual where the sections referred to may be found.) Term of office of district attorney is fixed by the constitution at three years. Constitution, art. X, sec. 1. Removal. The district attorney is removable by the governor. Consti- tution, art. X, sec. 1. Proceedings for his removal are prescribed by Public ■Officers Law, sees. 33-35, post. The expense thereof are a county charge. County Law, sec. 240, sub. 16, ante. TTndertaking, further provisions respecting. County Law, sec. 247, post. Public Officers Law, sec. 11, post. Effect of failure to execute. Public Officers Law, sec. 13, post. Validation of official acts before executing. Public Officers Law, sec. 15, post. Vacancy in office created by failure to execute. Public Officers Law, sec. 30, sub. 7, post. Vacancies, how created. Public Officers Law, sec. 30, post. Resignation of district attorneys to be made to the governor. Public Officers Law, sec. 31. Official oath to be taken. County Law, sec. 246, post. Effect of failure to take. Public Officers Law, sec. 13, post. Vacancy created by failure to take. Public Officers Law, sec. 30, post. Bribery, failure to prosecute for, a ground for removal. Constitution, art, 13, sec. 6. Displaced temporarily by attorney-general, when ordered by the governor. Execu- tive Law, sec. 62, sub. 2, as amended by L. 1911, ch. 14. Salary of district attorney fixed by board of supervisors. County Law, sec. 12, subd. 5, ante. DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 139 County Law, § 301. changed to assist in such trial upon the request of the district attorney of the county where the indictment was found.^ [County Law, § 200, as amended by L. 1914, ch. 63; B. C. & G. Cons. L., p. 807.] § 2. REPORT OF DISTRICT ATTORNEYS OF MONEYS RECEIVED. 1. Every district attorney shall, on or before the first Tuesday in October, annually file in the office 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 bal- ances thereof to the county treasurer. If he shall refuse or neglect to ac- count for and pay over such moneys as so required of him, the county treas- urer shall prosecute him and his sureties for the same, in the name of and for the benefit of his county. 2. Within thirty days after a district attorney receives or collects money upon a recognizance or for a penalty or forfeiture, belonging to the county, he must pay it to the county treasurer of his county, deducting only his necessary disbursements ; except that, where he does not receive, as his com- pensation, a salary fixed pursuant to law, the county court may, by an order entered in its minutes, allow him to retain also a sum, specified in the order, for his reasonable costs and expenses, and a reasonable counsel fee. 3. Each district attorney must render to the first term of the county court of his county, held in each calendar year, a written account, verified by his affidavit, of all actions brought by him upon recognizances, or for penalties or forfeitures belonging to the county, or to the state; of all his proceedings therein ; of all judgments recovered by him therein ; and of all money, collected by him from any person, belonging to the county or to the state. This subdivision applies to a district attorney who has gone out of office, during the preceding calendar year.' 2. Duties as to prosecutions. The duty of the district attorney to conduct prose- cutions embraces whatever is essential to bring a criminal to trial as well as the proceedings of the trial; so he may cause the arrest of a fugitive in a foreign juris- diction, and the expense thereof is a proper county charge. People ex rel. Gardenier V. Supervisors, 134 N. Y. 1. Institution of proceedings to compel rescinding of parole. It is a part of the prosecution for crime, within the statutory duty of the district attorney, to institute ana enforce in the courts any proceeding or means authorized by law for the restoration and enforcement of a judgment of conviction obtained by him. Where the board of parole paroled a prisoner contrary to the provisions of the statute the Jaw imposes upon the district attorney the duty to preserve and defend the integrity and effect of the judgment. Matter of Lewis v. Carter, 220 N. Y. 8, revg. 175 App. Div. 501, 160 N. If. Supp. 1136. 3. For form of report of moneys received by district attorney see Form No. 9, post. 4. Action for breach of an unaerlaking given upon conviction of » husband for abandonment of his wife may be prosecuted in the name of the overseer of the poor. Lutes V. Shelley, 24 Wk. Dig. 117. After forfeiture the recognizance will not be discharged on giving new bail until there has been a trial, but proceedings on the forfeiture will be stayed. People v. Coman, 5 Daly, 527; People v. Abrahams, 6 Daly, 120. Where the recognizance is for appearance on a day named " and from time to lime as directed by the justice," and the proceedings are adjoui-ned when the defend- ant is not present, there cannot be a forfiture at a subsequent adjoiu-ned day. Peo- ple V. Scott, 67 N. Y. 585. 140 COUNTY OFFICERS; JAILS. County Law, §§ 202, 203. 4. Where a recognizance to the people Is forfeited, the district attorney of the county in which It was taken, must, unless the court otherwise directs, forthwith bring an action to recover the penalty thereof.^ 5. Subdivisions two, three, and four of this section shall also apply to the county of New York. [County Law, § 201; B. C. & G. Cons. L., p. 808.] § 3. BOARD OF SUPERVISORS MAY AUTHORIZE DISTRICT AT- TORNEYS TO APPOINT ASSISTANT; POWERS OF ASSIST- ANT. In any county having, according to the last preceding federal or state enumeration, more than sixty-five thousand Inhabitants, the district attorney may, when authorized by the board of 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 appointment 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 district attorney. Every such appointment may be revoked by the district attorney making the same, which revocation shall be in writing and filed In the clerk's office. Such assistant district attorney may attend all criminal courts, and discharge any duties imposed by law upon, or required of the district attorney by whom he was appointed. And In any such county the district attorney may in like manner appoint any additional assistant district attorneys or detectives or stenographers or interpreters for his office whenever he is authorized so to do by the board of supervisors of any such county. The qualifications, regulations and powers of any such additional assistant district attorneys shall be the same as prescribed in this section in relation to an assistant district attorney. The salaries of any such officers so authorized to be appointed by the district attorney shall be fixed by such board of supervisors. [County Law, § 202; B. C. & G. Cons. L., p. 810.] § 4. APPOINTMENT OF ASSISTANTS IN ERIE, MONROE, ONON- DAGA, RENSSELAER, NIAGARA AND VTESTCHESTER COUN- TIES; DISTRICT ATTORNEYS IN ERIE AND MONROE EN- TITLED TO COSTS; PAYMENT OF EXPENSES OF DISTRICT ATTORNEYS IN ALBANY, RENSSELAER AND MONROE COUNTIES. The district attorney of Erie county may appoint in and for the county of Erie, in the manner provided in the last section, and with like powers, such number of assistants as shall be fixed and determined by resolution of the board of supervisors of Erie county. All of the per- sons so appointed shall be called assistant district attorneys. Each of said assistant district attorneys shall receive such salary as shall be fixed and determiped by said board of supervisors. The district attorney shall designate in the order appointing such assistants the salary which each of such assistants shall receive, subject however to the limitations prescribed by such resolution of the board of supervisors. The three as- sistant district attorneys and the two deputy assistant district attorneys now in office shall continue to receive the same salaries that are now paid them until the board of supervisors shall by rfsnlution fix and determine the salaries which such assistants and deputies shall receive pursuant to DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 141 County Law, § 203. the provisions of this section. Said assistants shall severally take the constitutional oath of office before entering upon the duties thereof ; and the district attorney shall be responsible for their acts. Said district at- torney may designate, in vsriting to be filed in the office of the clerk of said county, one of his said assistants to be the acting district attorney in the absence from said county or other inability of said district attor- ney; and the assistant so designated shall during such absence or ina- bility of said district attorney perform the duties of the office. Such designation may be revoked by said district attorney in vs^riting, to be filed in said county clerk's office. The district attorney of ]\Ionroe county may appoint, in and for the county of Monroe, in the manner provided in the last section, and with like powers, three assistants, to be called respectively the first, second and third assistant district attorneys, and two deputy assistants, to be called respectively the first and second deputy assistant district attor- neys, who shall severally take the constitutional oath of office before en- tering upon the duties thereof, and the district attorney shall be respon- sible for their acts. In Monroe covmty the salaries of the assistant dis- trict attorneys and the deputy assistant district attorneys shall be fixed by the board of supervisors as follows : The salary of the first assistant district attorney shall not be less than two thousand dollars per year, payable monthly ; the salary of the second assistant district attorney shall not be less than eighteen himdred dollars per year, payable monthly; the salary of the third assistant district attorney shall not be less than sixteen hundred dollars per year, payable monthly ; the salary of the first deputy assistant district attorney shall not be less than twelve hundred dollars per year, payable monthly; the salary of the second deputy assistant district attorney shall not be less than seven hundred and twenty dollars per year, payable monthly ; and until the salaries of said officials are so fixed by the board of supervisors, they shall be as above stated. The district attorney of Monroe county and his assistants and such deputy assistants shall conduct, on the part of the people, all preliminary examinations in the police court of the city of Rochester, and, subject to the right of a claimant to appear personally or by attor- ney, all other prosecutions for crime therein ; and may conduct prosecu- tions therein for violations of the penal ordinances of the said city, and appeals therefrom, and in such event one-half of the salary of such first deputy shall be a charge upon the city of Rochester and assessed back upon said city by the board of supervisors of Monroe county ; but the corporation counsel of the said city shall have the power to prosecute any person for the violation of an ordinance and to conduct proceedings therefor or an appeal therefrom. The district attorney of Onondaga county may appoint in and for said 'county, in the manner provided in the last section, and with like powers, two assistants, to be called respec- tively the first and second assistant district attorneys, each of whom shall take the constitutional oath of office before entering upon the duties thereof ; and the district attorney of said county shall be responsible for 142 COUNTY OFFICERS; JAILS. County Law, § 203. their acts. The district attorney of Westchester county may appoint in and for the county of Westchester, in the manner provided in the last section, and with like powers, two assistants, to be called respectively the first and second assistant district attorney, who shall severally take the constitutional oath of office before entering upon the duties thereol ; and the district attorney shall be responsible for their acts ; and the salary of each shall be fixed by the board of supervisors. The district attorneys of the counties of Erie, Onondaga and Monroe may also appoint a person to act as interpreter at all sessions of the grand juries of such counties and of the city of Buffalo, whose compensation shall be fixed by the court in and for which such grand jury may be empaneled. The district at- torneys of the counties of Erie and Moriroe shall each be entitled to re- ceive,, in addition to their salary, all costs collected by them in actions and proceedings prosecuted and defended by them. The county judge, or the special county judge, of the county of Monroe, or any supreme court judge, shall have power, on the application of the district attorney of Monroe county, to order and direct the county treasurer of Monroe county to pay to the district attorney any sum of money expended or in- curred by him in the performance of his duties in his office, and the county judge of the county of Rensselaer, or any supreme court judge, shall have power, on the application of the district attorney of Rensselaer county, to order and direct the county treasurer of Rensselaer county to pay to the district attorney any sum of money expended or incurred bv him in the performance of his duties in his office, and the county judge of the county of Albany, or any supreme court judge, shall have power, on the application of the district attorney of Albany county, to order and direct the county treasurer of Albany county to paj' to the district attor- ney of such county any sum of money expended or incurred by him in the performance of his duties in his office, and the county judge of Columbia county, or any judge of the supreme court, shall have power, on the application of the district attorney of Columbia county, to order and direct the county treasurer of Columbia county to pay to the district attorney of such county any sum of money expended or incurred by him in the performance of his duties in office. The district attorney of Niagara county shall have charge of and conduct on the part of the people all preliminary examinations in the police courts of the cities of Lockport, North Tonawanda and Niagara Falls, either in person or by his assistant. In lieu of the necessary traveling expenses and other dis- bursements incurred in the performance of these additional duties, either by himself or his assistant or stenographer, the district attorney of Niagara county shall receive an amount to be fixed by the board of supervisors of Niagara county at not less than one thousand two hun- dred dollars per annum, payable nionthly by the county treasurer of Niagara county, and the assistant district attorney shall receive au amount to be fixed by the board of supervisors of Niagara county, at not less than five hundred dollars per annum, payable monthly by the county treasurer of Niagara county, and the district attorney's stenographer shall receive an amount to be fixed by the board of supervisors of Ni- agara county at not less than four hundred dollars per annum, payabk monthly by the county treasurer of Niagara county. Until such amount DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 143: County Law, §§ 204, 205, 244. is SO fixed by the board of supervisors it shall be as above stated. [County Law, § 203, as amended by L. 1911, ch. 95; L. 1912, ch, 544^ and L. 1915, oh. 140 ; B. C. & G. Cons. L., p. 810.] § 5. EMPLOYMENT OF COUNSEI. BY DISTRICT ATTORNEY; TRANSFER OF TRIAL. The district attorney of any county in which an indictment has been found for a capital or other important crime, with the approval in writing of the county judge of such county, which shall be filed in the office of the county clerk, may employ counsel to assist him on the trial of such indictment ; and the costs and expenses thereof, to be certified by the judge presiding at the trial, shall be a charge upon the county.' [County Law, § 204; B. C. & G. Cons. L., p. 812.] § 6. SPECIAL DISTRICT ATTORNEY. Whenever there is a vacancy or the district attorney of any county and his assistant, if he has one, shall not be in attendance at a term of any court of record, which he is by law required to attend, or shall be unable by sickness, or by being disqualified from acting in a particular case, to discharge his duties at any such term, the court may, by an order entered in its minutes, appoint some attorney at law residing in the county, to act as special district attorney during the absence, inability or disquali- fication of the district attorney and his assistant"; but such appointment shall not be made for a period beyond the adjournment of the term at which made. The special district attorney so appointed shall possess the powers and discharge the duties of the district attorney during the period for which he shall be appointed. The board of supervisors of the county shall pay the necessary disbursements of, and a reasonable compensation for the services of the person so appointed and acting.'^ [County Law, § 205 ; B. C. & G. Cons. L., p. 812] § 7. RECOVERY AND DISPOSITION OF MONEYS. The district attorney shall sue for and recover, in behalf of, and in 5. Mnst be employed by district attorney of county \rhere case tried. This section is the only source of authority for any district attorney to employ counsel, and a compliance with its terms is necessary in order to confer juris- diction upon the court to niak« an order fixing the compensation of such counsel; and where such special counsel was employed by the district attorney in the county where the indictment was found, and the prosecution was subsequently removed to another county, such counsel is not entitled to have an application for compensation granted unless he be likewise employed by the district attorney of the county where the action was tried. Matter of Knight, 191 N. Y. 286, aifg. People V. NeflF, 121 App. Div. 44, 106 N. Y. Supp. 559. Certificate of judge authorizing the employment of counsel on a second trial of a criminal case does not authorize payment of services in the same case prior to Such trial. People ex rel. Peck v. Supervisors of Genesee, 61 App. Div. 545, 70 N. Y. Supp. 578. Governor may designate deputy attorney-general as special district attorney. Executive L., sec. 62, as amended by L. 1911, ch. 14, and L. 1917, ch. 595, and see. 67. 5-a. The governor may require the attorney-general to designate a special deputy attorney-general to prosecute special criminal offenses, and the expense thereof is a county charge. The board of supervisors may not be compelled to pay the com- pensation of such special deputy until the compensation has been fixed by the attorney -general. See People ex rel. Osborne v. Westchester County, 168 App. Div. 765, 154 N. Y. Supp. 266. 144 COUNTY OFFICERS; JAILB. County Law, §§ 210, 248. the name of, his county, the money received by any officer for, or on ac- count of, his county, or any town or city therein, and not paid to the county treasurer, as herein required. All moneys belonging to any town or city in such county, which shall be received by the county treasurer, shall be distributed to the several towns or cities entitled to the same, by resolution of the board of supervisors, which shall be entered in the minutes of its proceedings. [County Law, § 244; B. C. & G. Cons. L., p. 831.] § 8. EXPENSE OF TRANSFERRED TRIAI. OF AN INDICTMENT. 1. Whenever the trial of an indictment has been transferred from the county in which such indictment was found to some other county the cost and expense of such trial shall be a charge upon the county in which such indictment is found. 2. Whenever, under the order of any court of competent jurisdiction, the pleadings and issue in any prosecution for any crime or misdemeanor, other than indictment, shall have been sent down to any county in this state for trial therein, in consequence of any inability to obtain an unpreju- diced or impartial jury in the county in which the venue was originally laid, the expenses of the trial of said prosecution shall be a charge upon the county from which the same was transferred. 3. In case the expenses of the trial of said indictment or prosecution shall have been assessed on any county in which any such issue shall have been determined, the same, with interest thereon, shall be reimbursed to the treasury of such county by the county treasurer in the county from which such proceedings have been sent down, and the board of supervisors of the county liable to pay such expenses as aforesaid are hereby authorized to include the same in their annual levy of taxes. 4. This section also applies to the county of New York. [County Law, § 248 ; B. C. & G. Cons. L., p. 833.] § 9. APPOINTMENT, TERM OF OFFICE AND DUTIES OF COUNTT ATTORNEYS. The board of supervisors in any county may appoint a county attorney who shall be removable at its pleasure. The term of office of a county at- torney so appointed shall be two years, unless sooner removed, and his salary shall be fixed by the board of supervisors and be a county charge. The board of supervisors may, by local law, prescribe the duties of the county attorney, which duties may include the services to town boards and town officials when not in conflict with the interests of the county. [Coun- ty Law, § 210 ; B. C. & G. Cons. L., p. 814.] DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. I45 County Law, § 230. § 10. ELECTION APPOINTMENT AND TERM OF OFFICE OF COUNTY JXTDGE, SURROGATE, SPECIAL COUNTY JUDGE AND SPECIAL SURROGATE. There shall continue to be elected in each of the counties now having such ofiBces, 1. A county judge and a surrogate, who shall severally hold the office for six years from and including the first day of January succeeding his election. 2. A special county judge and a special surrogate, pursuant to the several acts of the legislature creating and respectively defining the terms and duties thereof. 3. There shall continue to be appointed by the governor, by and 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 in- cluding the last day of December succeeding the first annual election there- after at which such vacancy can be lawfully filled.* [County Law, § 330; B. C. & G. Cons. L., p. 817.] 6. Constitutional provisions. By section 14 of art. 6 of the constitu- tion the existing county courts are continued. The successors of the several county judges in oflBce when the constitution was adopted are to be chosen hy the electors of the counties for the term of six years. Bach county judge is required to perform such duties as may he required by law. His salary is established by law, payable out of the county treasury. The county judge of any county may hold county courts in any other county when requested by the judge of such other county. By section 15 of art. 6 of the constitution existing surrogates' courts are continued and the successors of the surrogates in office at that time are to be chosen by the electors of the respective counties, and their terms of office shall be six years. Such section also provides that: " The county judge shall be surrogate of his county, except when a separate surrogate has been or shall be elected. In counties having a population exceeding 40,000, wherein there is no separate surrogate, the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years. When the surrogate shall be elected as a separate officer his salary shall be established by law, payable out of the county treasury. No county judge or surrogate shall hold office longer than until and including the last day of December next after he shall be seventy years of age. Vacancies occurring in the office of county judge or surrogate shall be filled in the same manner as like vacancies occurring in the Supreme Court. The compensation of any county judge or surrogate shall not be increased or diminished during his term of office. For the relief of Surrogates' Courts the legislature may confer upon the Supreme Court, in any county having a population exceeding 400,000, the powers and jurisdiction of surrogates, with authority to try Issues of fact by jury in probate cases." 146 COUNTY OFFTCErvS; .TAILS. County Law, § 231. § 11. BOARD OF SUPERVISORS TO CREATE OFFICE OP SURRO- GATE IN CERTAIN COUNTIES; UNDERTAKING OF SURRO- GATE. The board of supervisors of any county, e.xcept Kings, having a popula- tion exceeding forty thousand, may, by resolution at a meeting thereof. It is also provided by section 16 of art. 6 of the Constitution, " The legislature may, on application of the board of supervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, in cases of their inability or of a vacancy, and in such other cases as may be provided by law, and to exercise such other powers in special cases as are or may be provided by law." Surrogate's deik. Board of supervisors may authorize surrogate to appoint addi- tional clerks, their compensation and that of the clerks to be fixed by the board. Code Civ. Proc, § 2491, as amended by L. ISli, ch. 443; L. 1917, ch. 47, and L. 1918, ch. 310. The powers of the clerk of the surrogate are prescribed by Code Civ. Proc, § 2502, as amended by L. 1914, ch. 443, and L. 1917, ch. 10, and § 2503, as amended by L. 1914, ch. 443. Temporary surrogate. Where, in any county, except New York, the office of surrogate is vacant; or the surrogate Is disabled by reason of sickness, ab- sence or lunacy, or is disqualified in a particular matter, and special provision is not made by law for the discharge of the duties of his office in that con- tingency; the duties of his office must be discharged, until the vacancy Is filled or the disability ceases, as follows: 1. By the special surrogate. 2. If there is no special surrogate, or he is in like manner disabled, or is precluded or disqualified, by the special county judge. 3. If there is no special county judge, or he is in like manner disabled, or Is precluded or disqualified, by the county judge. 4. If there is no county judge, or he is in like manner disabled, or is pre- cluded 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 2481 of this chapter 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 O'f 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 case to the Supreme Court to be heard and decided at a special term thereof, held in such county, which order shall be recorded In the surrogate's office. A certified copy of such order, together with the appropriate certificate or certificates of the authority of the officer to act as surrogate, shall be sufficient and conclusive evidence of the jurisdiction and authority of the Supreme Court in such matter or cause. After a final order or decree Is made in the matter or cause so transferred to the Supreme Court, the court shall direct the papers to be returned and filed, and transcripts of all orders and decrees made therein to be recorded in the surrogate's office of such county; and when so filed and recorded, they shall have the same effect as if they were filed and recorded in a case pending in the Surrogate's Court of such county. (Code Civ. Proc, § 2478, as amended by L. 1893, ch. 686, and L. 1914, ch. 443.) DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 147 County Law, § 232. determine that the office of surrogate therein shall be a separate office, and provide for the election of stich 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 separate office of surrogate, 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, 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 execution of his office; which undertaking shall be immediately filed in the office of such county clerk. [County Law, § 231; B. C. & G. Cons. L., p. 817.] § 12. COMPENSATION OF COUNTY JUDGES AND SUBKOGAXES. 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 : Where the surrogate of any county, except New York, Is precluded or dts- qualified from acting with respect to any particular matter, his powers with respect to that matter, or if he he temporarily absent, his powers with respeot to all matters, shall he discharged by the several officers designated in the last section in the order therein provided. If there is no such officer qualified to act therein, the surrogate may file in his office a certificate, stating that fact; specifying the reason why he is disqualified or precluded; and designating the surrogate of any county, other than New York, to act In his place in the par- ticular matter or during his absence. The surrogate so designated has, with respect to that matter, or generally when the designation is made on account of absence of the surrogate, all the powers of the surrogate making the designa- tion, and may exercise the same in either county. (Code Civ. Proc, 2479, a» amended by L. 1914, ch. 443.) Board of supervisors may appoint person to act as surrogate. In any county, except New York, if the surrogate is disabled, by reason of sickness, and there is no special surrogate, or special county judge of the county, the board of supervisors, or in the counties embraced within the city of New York, the board of aldermen, may, in its discretion, appoint a suitable person to act as surrogate until the surrogate's disability ceases, or until a special surrogate or a special county judge is elected or appointed. A person so appointed must, before entering on the execution of the duties of his office, take and file 148 COUNTY OFFICERS; JAILS. * ^ County Law, § 232. Salary of Salary of Sub. Name of County. county judge. surrogate. 1 Albany $7,000.00' $6,500.00 2 Allegany 2,750.00 3 Broome 5,000.00 4 Cattaraugus 1,500.00 1,500.00 5 Cayuga '. 2,000.00 2,000.00 6 Chautauqua 2,500.00 2,500.00^' 7 Chemung 5,000.00 8 Chenango 4,000.00'*' 9 Clinton 1,200.00 1,800.00 10 Columbia 2,000.00 2,500.00 11 Cortland 3,500.00"= 12 Delaware 3,000.00 13 Dutchess 3,000.00 3,000.00 14 Erie 7,500.00* 7,500.00 15 Essex 2,500.00 an oath of office and give an official bond as prescribed by law with respect to a person elected to the office of surrogate. (Code Civ. Proc, § 2484, as amended by L. 1893, ch. 686, and L. 1914, ch. 443.) Compensation of temporary surrogate. An officer, or person appointed by the board of supervisors, or board of aldermen, who acts as surrogate of any county dur- ing a vacancy in the office, or in consequence of disability, as prescribed in this title must be paid for the time diu^ing which he so acts, a compensation equal pro rata to the salary of the surrogate; or, in a county where the county judge is also a surrogate, to the salary of the county judge. The amount of his compensation must be audited and paid in like manner as the salary of the surrogate, or of the county judge, as the case may be. Where an officer of the county performs the duties of the surrogate, with respect to a particular matter wherein the surrogate is dis- qualified or precluded from acting, the supervisors of the county, or board of alder- men, must allow him a compensation equal pro rata to the salary of the surrogate to be audited and collected in the same manner. (Code Civ. Proc, § 2485, as iimended by L. 1914, eh. 443.) Fees received by clerk of surrogate's court. The board of supervisors may fix the rate of fees and may require the clerk to keep an account of all such fees and make a report thereof whenever requested by such board. See Code Civ. Proc, § 2499, as amended by L. 1914, ch. 443. 7. By L. 1912, ch. 54?, the salaries of the county judge and surrogate of Albany county were fixed at $7,000 and $6,500, respectively. 7a. Amended by L. 1918, ch. 234. 7b. Amended by L. 1918, ch. 234. 7c. Amended by L. 1917, ch. 34. 8. Amended by L. 1912, ch. 37. DISTRICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 149 County Law, § 232. Salary of Salary of Sub. Name of County. county judge. surrogate. 16 Franklin 3,200.00' 17 Fulton _. . 2,000.00 2,200.00''» 18 Genesee 2,500.00 19 Greene 4,000.00'" 20 Hamilton 1,200.00°'= 21 Herkimer 3,000.00 22 Jefferson 3,000.00" 3,000.00" 23 Kings 10,000.00 10,000.00" 24 Lewis 2,400.00 25 Livingston 3,000.00 26 Madison 4,000.00"" 27 Monroe 7,000.00" 7,000.00 28 Montgomery 1,400.00 1,600.00 29 Nassau 5,000,00" 5,000.00" 30 Niagara 5,000.00 1,500.00 31 Oneida 5,000.00" 5,000.00" 32 Onondaga 5,000.00 5,000.00 33. Ontario 2,000.00 2,000.00"" 34 Orange 3,000.00 3,500.00 35 Orleans 2,000.00 36 Oswego 2,500.00 2,000.00"" 37 Otsego 1,800.00 1,500.00. 38 Putnam 2,000.00 39 Queens 10,000.00 10,000.00 40 Eensselaer 5,000.00 5,000.00 41 Eiclimond 5,000.00^= 9. Amended by L. 1913, eh. 436. 9a. Amended by L. 1918, ch. 216. 9b. Amended by L. 19'18, ch. 234. 9c. Amended by L. 1918, ch. 234. 10. Amended by L. 1010, ch. 281, and L. 1918, eh. 224. XI. Amended by L. 1911, ch. 413. 11a. Amended by L. 1918, ch. 234. 12. Amended by L. 1912, ch. 549. 13. Amended by L. 1910, ch. 300, and L. 1916, ch. 382. 14. Amended by L. 1911, ch. 203, and L. 1916, ch. 86. 14a. Amended by L. 19'16, eh. 252. 14b. Amended by L. 1918, ch. 219. 15. Amended by L. 1911, ch. 413. 150 COUNTY OFFICERS. County Law, § 232. Salary of Salary of Sub. Name of County. county judge. surrogate. 42 Rockland 3,600.00 43 St. Lawrence 1,750.00 1,750.00 44 Saratoga 2,000.00 2,500 & 500 for clerk lire. 45 Schenectady 4,000.00 4,000.00 46 Schoharie 2,500.00 47 Schuyler 1,500.00 48 Seneca 2,500.00"* 49 Steuben 2,500.00"'' 2,500.00"'' 50 Suffolk 3,500.00"= 4,000.00"" 51 Sullivan 1,200.00 52 Tioga 2,500.00 53 Tompkins 3,500.00 54 Ulster 3,000.00 3,000.00 55 Warren 5,000.00" 56 Washington 2,000,00" 2,500.00" 57 Wayne 3,000.00 58 Westchester. 10,000.00 10,000.00" 59 Wyoming 3,500.00' 60 Yates 2,000.00=" J19 ■^20 61. The Salaries provided in the preceding subdivision of this sec- tion for the county judge and surrogate of each of the counties of Onon- daga, Queens, Rensselaer and Tompkins shall take effect upon the expiration of the terms of the incumbents in office on February seven- teenth, nineteen hundred and nine, respectively, and until the expira- tion of said terms such officers shall receive the salaries authorized by law on January first, nineteen hundred and nine. The salaries pro- vided in subdivision twenty-nine of this section for the county judge and surrogate of the county of Nassau shall take effect upon and after January first, nineteen hundred and seventeen, and until that date the 15a. Amended by L. 1918, ch. 136. 15b. Amended by L. 1915, ch. 255. 15c. Amended by L. 1918, ch. 234. 16. Amended by L. 1916, ch. 132. 17. Amended by L. 1917, ch. 192. 18. Amended by L. 1912, ch. 549. 19. Amended hy L. 1918, ch. 30. 20. Amended by L. 1918, ch. 234. DISTEICT ATTORNEY, COUNTY JUDGE AND SURROGATE. 151 County Law, § 233. county judge of the county of Nassau shall receive the salary authorized by law on January first, nineteen hundred and sixteen. [Subd. amended by L. 1910, ch. 300, and L. 1916, ch. 382.] 62. The salary provided in subdivision twenty-three of this section for the surrogate of the county of Kings shall take effect upon the ex- piration of the term of the present incumbent, and until the expiration of said term such surrogate shall receive the salary authorized by law on January first, nineteen hundred and eleven. [Subd. added by L. 1911, ch. 413.] 63. The salary provided in subdivision forty-one of this section for the county judge of the county of Eichmond shall take effect upon the expiration of the term of said ofiice, expiring December thirty-first, nineteen hundred and eleven, [Subd. added by L. 1911, ch. 413.] 64. The salaries provided in subdivision fourteen of this section for the county judge and surrogate of the county of Erie shall take effect upon the expiration of the term of the present incumbents, respectively, and until the expiration of said terms such officers shall receive the sal- aries authorized by law on January first, nineteen hundred and nine. [Subd. added by L. 1912, ch. 37, in effect March 13, 1912.] 64. In addition to the salary herein provided to be paid to the surro- gate of Chautauqua county, he shall be entitled to receive his necessary expenses while holding court in said county at places other than the county seat at Mayville. Such expense account shall be audited by the board of supervisors of said county and shall not exceed the sum of five hundred dollars per annum. [Subd. added by L. 1912, ch. 92, in effect April 3, 1912.] 65. The salaries provided in subdivisions one, twenty-seven and fifty- eight for the county judge and surrogate of the county of Albany, for the county judge and surrogate of the county of Monroe, and for the surrogate of the county of Westchester, shall take effect upon the expira- tion of the terms of the present incumbents respectively, and until the expiration of such terms such county judges and surrogates shall re- ceive the salaries authorized by law on January first, nineteen hundred and, twelve. [Subd. added by L. 1912, ch. 549.] 66. The salary provided in subdivision sixteen of this section for the county judge of the county of Franklin shall take effect upon the ex- piration of the term of the present incumbent and until the expiration of said term such officer shall receive the salary authorized by law on January first, nineteen hundred and thirteen. [Subd; added by L. 1913, ch. 436.] 151a COUNTY OFFICERS. County Law, § 233. 67. The salary provided in subdivision fifty-five of this section for the county judge and surrogate of the county of Warren shall take effect upon the expiration of the term of the present incumbent, and until the expiration of such term such officer shall receive the salary authorized by law on January first, nineteen hundred and eleven. [Subd. added by L. 1916, ch. 132. County Law, § 232 ; B. C. & G. Cons. L., p. 819.] 68. The salary provided in subdivision eleven of this section for the county judge and surrogate of the county of Cortland shall take effect upon the expiration of the term of the present incumbent, and until the expiration of such term such officer shall receive the salary author- ized by law on January first, nineteen hundred and fourteen. [Subd. added by L. 1917, ch. 34.] 69. The salaries provided for in subdivision fifty-six of this section for the county judge and the surrogate of the county of Washington shall take effect upon the expiration of the terms of the present in- cumbents, respectively, and until the expiration of such terms such officers shall receive the salaries authorized by law on January first, nineteen hundred and seventeen. [Subd. added by L. 1917, ch. 192, as subd. 68, and renumbered subd. 69 by L. 1918, ch. 30.] 70. The salary provided in subdivision fifty-nine of this section for the county judge and surrogate of the county of Wyoming shall take effect upon the expiration of the term of the present incumbent, and until the expiration of such term such officer shall receive the salary authorized by law on January first, nineteen hundred and eighteen. [Subd. added by L. 1918, ch. 30.] 71. The salary provided in subdivision forty-eight of this section for the county judge and surrogate of the county of Seneca shall take effect upon the expiration of the term of the present incumbent, and until the expiration of such term such officer shall receive the salary authorized by law on January first, nineteen hundred and eighteen. [Subd. 71, added by L. 1918, ch. 136.] 71. The salary provided in subdivision thirty-six of this section for the county judge and for the surrogate of the county of Oswego shall take effect upon the expiration of the term of the present incumbents and until the expiration of said term such officers shall receive the salary authoribed by law on the first day of January, nineteen hundred and fourteen. [Subd. 71, added by L. 1918, ch. 216.] DISTRICT ATTORNEY, COUXTY JUDGE AND SURROGATE. 151b County Law, § 233. § 13. SALARIES OF SURROGATES AND COUNTY JUDGES, HOAV PAID; COMPENSATION OF COUNTY JUDGE SERVING IN ANOTHER COUNTY. Such salaries, except in the counties of Kings, Broome and West- chester, shall be paid quarterly, by the county treasurer of the respective counties. In the counties of Broome and Westchester such salaries shall be paid monthly by the county treasurer. When a county judge of one county shall hold a county court, or preside at a court of sessions, in any other county, he shall be paid the sum of ten dollars per day, except in the county of Kings where the compensation shall be twenty dollars per day, for his 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, § 233, as amended by L. 1909, chs. 122, 228, and L. 1914, ch. 70 ; B. C. & G. Cons. L., p. 819.] 152 COUNTY OFFICERS; JAILS. Explanatory note. CHAPTER XL. SHERIFF AND CORONERS; POWERS AND DUTISa EXPLANATORY NOTE. OfBce of Sheriff. The office of sheriff is created hy the constitution. The term is three years and a sheriff is ineligible for the term following that for which he was elected. The constitution also provides that a county shall not be liable for the acts of a sheriff. The office of sheriff is perhaps the most important in the county. He has many administrative duties to perform, and is also clothed with the power of preserving order and enforcing the law in his county. It is his duty to execute processes and mandates issuing from the courts. He or one of his deputies must attend trial terms of the Supreme Court and terms of the Appellate division. He has certain other duties to per- form as an officer of the courts held in his county. He is the custodian of county buildings, unless otherwise specified by statute, and must see that court rooms and other parts of the court-house are kept in proper condition. He is responsible for the safe keeping of prisoners in jails, and has many duties relative to the apprehension, custody and trial of criminals. It would be impossible, within the scope of this work to give the law relating to all the powers and duties of a sheriff. It will only be attempted to set forth the law relating to his administration of county affairs. The sheriff was formerly paid by fees allowed for the service of proc- esses, both civil and criminal, the boarding of prisoners, and for services rendered in respect to criminals. In nearly all the counties, at the present time, the sheriff is paid a salary and the fees are all turned into the county treasury. Office of Coroner. The office of coroner is not a constitutional office. The statute pro- vides that there shall be four coroners in counties of over 100,000 popu- lation, and in other counties such number not exceedin"- four as may be determined by the board of supervisors. SHERIFF AND CORONERS. I53 Explanatory note. One of the coroners, designated by the county judge acts as sheriff when that office is vacant or the sheriff is incapacitated, and there is no under-sheriff, pending an appointment to fill the vacancy. The usual duties of coroner pertain to the ascertainment of the cause of death of any person who has died under circumstances leading to the belief that his death was the result of a crime, or that he has committed suicide. In all such cases the coroner is required to summon a jury and conduct an inquest. If it appears that a crime has been committed the coroner may issue a warrant for the arrest of the person chargeable therewith. See Code of Criminal Procedure, §§ 773-787. Section 1. Election, appointment and term of oflSce of sheriffs and coroners, and the undertakings of sheriffs. 2. Sheriffs to appoint under-sheriffs; duties of under-sheriff; mal- feasance of under-sheriffs. 3. Deputy sheriffs to be appointed by sheriff; appointment to be in writing. 4. Sheriff's office; notice of place to be filed; when to be kept open; papers served on sheriff. 5. Fees for services for the state; accounts, how audited. 6. Sheriff to be removed for non-payment of moneys. 7. When coroner to act as sheriff; county judge to designate coroner; undertaking. 8. When other coroner to be designated; when coroner to execute duties of office of sheriff. 9. County judge may appoint a person other than a coroner in cer- tain cases. 10. Coroners to execute duties of office until vacancy is filled; duties and liabilities of incumbent. 11. Board of supervisors may fix salary of coroner. 12. Fees allowed coroners for services on inquests, etc. 13. Employment of stenographer and surgeons. 14. Duties of sheriff in respect to services of mandates in civil actions; copy of process to be delivered; return of sheriff. 15. Liability of sheriff for neglect in serving process in special pro- ceeding. 16. Powers of sheriff in case of resistance to the service of mandate; names of resisters to be certified to court; sheriff may ask as- sistance; governor may order out militia. 17. Attendance of sheriff and deputies upon terms of court; duties in respect to appellate division. 18. Trial by sheriff of claim of title to property seized by him; jurors, how summoned; examination of witnesses; payment of fees. 19. Proceedings on new sheriff assuming office. 20. Injury to records and misappropriation by ministerial officers. 21. Sheriffs and others permitting escapes or refusing to receive prisoners. 154 CX)UNTY OFFICERS; JAILS. Count}' Law, § 180. § 1. ELECTION, APPOINTMENT AND TERM OF OFFICE OF SHER- IFFS AND CORONERS, AND THE UNDERTAKINGS OF SHERIFFS. There shall continue, 1. To be elected in each of the counties a sheriflF, and in each of the counties con- taining a population of one hundred thousand and over, except in Nassau county, four coroners, and in all other counties such number of coroners, not more than four, as shall be fixed by the board of supervisors, vpho shall respectively hold their offices for three years from and including the first day of January succeeding their election. The board of supervisors of a county containing a population of less than one hun- dred thousand, and having more than one coroner, may, by resolution, determine that after the first day of January of a year to be specified in such resolution, the number of coroners in such county shall be reduced to a specified number not less than one, and may by such resolution fix the terms of coroners to be thereafter elected in such county so that the terms of all the coroners therein -will expire on the first day of January of the year specified in the resolution. [Subd. amended by L. 1912, ch. 91, and L. 1916, ch. 87.] 2. To be appointed by the governor, a sherifi', or a coroner, when a vacancy shall occur in either of such oflices, 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.i Every person elected or appointed to the office of sheriff shall, before he enters upon the duties of his ofiice, 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 continuance therein, without fraud or deceit. Such undertaking shall be filed in the office of the county clerk ■, and the clerk shall, at the time of his approval thereof. 1. A sheriff appointed by the Governor to fill a vacancy liolds office only to the commencement of the political year next succeeding the first annual election after the happening of the vacancy. Rept. of Atty. Genl. (1911), vol. 2, p. 594. Special election. ■\A'here a vacancy occurs in the office of sheriff between the fifteenth of October and the general election day in November following, it cannot be filled at that election, but a special election should be called for that purpose, of which not less than thirty or more than forty days' notice must be given. Matter of Mitchell v. Boyle (1916), 219 N. Y. 242, 114 N. E. 382, revg. (1916), 175 App. Div. 905, 161 N. Y. Supp. 1135. A person elected to fill a vacancy in the office of coroner is entitled to hold the office for a full term of three years. Rept. of Atty. Genl. (1911), vol. 2, p. 578. Term of office of sheriffs is fixed by the constitution at three years; and sheriffs shall hold no other office and be ineligible for the next term after the termination of their ofT.es. Constitution, art. X, sec. 1. Keferences. Reference may be made to the following provisions of law relating directly or indirectly to the offices of sheriffs and coroners: Term of person appointed to fill vacancy. Subdivision 2 of this section is contrary to the constitutional provision (State Const., art. X, § 5) that no person appointed to fill a vacancy in an elective office shall hold his office " longer than the commencf- ment of the political year next succeeding the first annual election after the hap- pening of the vacancy," and the governor cannot appoint a sheriff to fill a vacancy caused by death after October fifteenth preceding a general election to hold for a term beyond the first of the next January. People ex rel. Conklin v. Boyle (1917), 98 Misc. 364, 163 N. Y. Supp. 72. Acts of sheriff, county not responsible for. Constitution, art. X, sec. 1. Undertaking. Sheriffs may be required by law to renew their security, arid in default of giving such new security their offices shall be deemed vacant. Constitu- tion, art. X, sec. 1. Further provisions respecting undertaking. County Law, sec. 247, post. Public Officers Law, sec. 11, post. Effect of failure to execute under- taking. Public Officers Law, see. 13, post. Validation of official acts before execut- ing undertaking. Public Officers Law, sec. 15, post. Vacancy in office created by failure to execute undertaking. Public Officers Law, sec. 30, subd. 7, post. SHERIFFS AND CORONERS. '" 155 County Law, § 180. examine each surety thereto under oath; and he shall not approve of such under- takings, unless it shall appear on such examination that such sureties are jointly ■worth at least fifteen thousand dollars over and above all debts whatever; which examination, subscribed by the sureties, shall be indorsed on or attached to the undertaking; but the clerk shall determine the sufficiency of each surety. In the same manner the security shall be renewed within twenty days after the first Mon- day of January in each year subsequent to that in which he shall have entered upon the duties of his ofBce. [County Law, § 180; B. C. & G. Cons. L., p. 797.] Bemoral of sheriffs. The sheriff is removable by the governor. Constitution, art. X, sec. 1. The procedure for removal is prescribed by Public Officers Law, sees. 33-35, post. The expenses of such removal are a county charge. County Law, see. 240, sub. 16, ante. Official oaths of sheriffs and coroners, to be taken and filed. County Law, sec. 246, post. Effect of failure to take oath. Public Officers Law, sec. 30, post. Vacancies in offices of sheriff and coroners. Public Officers Law, sec. 30, post. Sesignations of sheriffs and coroners are to be made to the governor. Public Officers Law, sec. 31. Forms of official oaths and undertakings. See Forms Nos. 20, 21, 22. Fees of sheriff and coroner. See chapter on " Fees," post. Collection of taxes, duties of sheriff relating to. Tax Law, sees. 76, 77, 87, post. Undertaking. Sheriff does not forfeit office by failing to execute bond within time specified; the statute is directory merely and does not impose an absolute limitation upon him. People v. Holley, 12 Wend. 481. A sheriff's bond is broken it he be guilty of any default of misconduct in his office. People v. Brush, 6 Wend. 454. The condition of a sheriff's bond does not extend beyond nonfeasance or mis- feasance in respect to his official acts; and the plaintiff must show same affirma- tively. Ex parte Reed, 41 Hill, 572. Special acts making office of sheriff salaried in the several counties. In a great many of the counties the office of sheriff is made salaried by special act of the legislature. These acts vary in their nature, and it would be impracticable in a work of this character to attempt to include such acts in full. The follow- ing list is made from a careful examination of the statutes. It >vill be noticed that during recent years the tendency has been to declare sucli offices salaried, and ultimately all the counties will probably be put upon the same basis in this respect: Albany county, L. 1884, eh. 218, as amended by L. 1886, ch. 598, L. 1897, ch. 20, and L. 1901, ch. 344, L. 1904, ch. 336, L. 1906, ch. 41, and L. 1909, ch. 530. Alleghany county, L. 1897, ch. 539. Broome county, L. 1902, ch. 51, as amended by L. 1910, ch. 132. Bronx county, L. 1912, ch. 548, as amended by L. 1913, ch. 266. Cattaraugus county, L. 1900, ch. 142, as amended by L. 1909, ch. 512. Cayuga county, L. 1906, ch. 24, as amended by L. 1908, ch. 26. Chautauqua county, L. 1901, ch. 255, superseded by County Law, § 12, sub. 17. Chemung County,' L. 1900, ch. 249. Chenango county, L. 1898, ch. 288. Clinton county, L. 1903, ch. 36. Columbia county, L. 1891, ch. 268, as amended by L. 1911, ch. 44. Cortland county, L. 1906, ch. 42. Delaware county, L. 1901, ch. 461, as amended by L. 1904, ch. 154, and L. 1910, ch. 167. Dutchess county, L. 1903. ch. 82. Erie county, L. 1891, ch. 108, as amended by L. 1896, ch. 104, and L. 1902, ch. 345. Essex county, L. 1903, ch. 26. Franklin county, L. 1902, ch. 29, as amended by L. 1907, ch. 12, L. 1908, ch. 317, and L. 1910, chs. 29, 689. 156 COUNTY OFFICERS; JAILS. County Law, § 181. § 2. SHERIFFS TO APPOINT UNDER-SHERIFFS; DUTIES OF UNDER- SHERIFF; MAI,FEASANCE OF UNDER-SHERIFFS. Each sheriff shall, within ten days after he enters on the duties of his office, appoint some proper person under-sheriff of his county, to hold during his pleasure. When a vacancy shall occur in the office of sheriff, the under-sheriff shall, in all things, execute the duties of the office of 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 under- taking given by the sheriff who appointed him and also a breach of the Fulton county, L. 1904, ch. 154. Genesee county, L. 1911, ch. 94. Greene county, L. 1900, eh. 84, as amended by L. 1910, ch. 354. Herkimer county, L. 1903, ch. 319, as amended by L. 1904, ch. 681, L. 1907, ch. 376, and L. 1915, ch. 409. Kings county, L. 1901, ch. 705, as amended by L. 1903, ch. 464; L. 1908, ch. 484, and L. 1917, ch. 271. Livingston county, L. 1903, ch. 260, as amended by L. 1905, ch. 177. Madison county, L. 1891, ch. 29. Monroe county, L. 1902, ch. 490, as amended by L. 1903, ch. 100; L. 1906, ch. 500; L. 1907, ch. 35, and L. 1916, ch. 67. Montgomery county, L. 1898, ch. 42, as amended by L. 1901, ch. 341. Nassau county, L. 1898, ch. 588, as amended by L. 1899, ch. 658, L. 1900, chs. 38, 178, and L. 1901, ch. 337. Niagara county, L. 1894, ch. 160. New York county, L. 1890, ch. 523, as amended by L. 1891, ch. 315, L. 1892, ch. 418, L. 1894, ch. 477, L. 1897, ch. 636, L. 1911, ch. 761, L. 1912, ch. 500, L. 1913, ch. 373, and L. 1916, ch 525. Oneida county, L. 1898, eh. 321, as amended by L. 1901, ch. 666, L. 1907, chs. 39, 702, and L. 1913, ch. 298. Onondaga county, L. 1909, ch. 216. Ontario county, L. 1902, ch. 380. Orange county, L. 1904, ch. 214, as amended by L. 1909, ch. 577. Orleans county, L. 1904, ch. 294, as amended by L. 1907, ch. 348. Oswego county, L. 1909, ch. 242, as amended by L. 1911, ch. 61. Putnam county, L. 1903, ch. 280. Queens county, L. 1909, ch. 502. Rensselaer county, L. 1903, ch. 9, as amended by L. 1904, ch. 4, and L. 1910, ch. 243. Richmond county, L. 1896, ch. 392, as amended by L. 1911, ch. 701, L. 1916, ch. 83, and L. 1917, ch. 473. Rockland county, L. 1905, eh. 265, as amended by L. 1913, ch. 396. St. Lawrence county, L. 1900, ch. 324, as amended by L. 1910, ch. 686, and L. 1913, ch. 383. Saratoga county, L. 1898, ch. 44, as amended by L. 1901, ch. 583, and L. 1904, ch. 103. Schenectady county, L. 1905, ch. 153, as amended by L. 1911, ch. 168. Schuyler county, L. 1902, ch. 8 Seneca county, L. 1899, ch. 547, as amended by L. 1915, ch. 143. Steuben county, L. 1898, ch. 445. Suffolk county, L. 1902, ch. 131, as amended by L. 1910, ch. 687, L. 1916, ch. 583, and L. 1917, ch. 338. Sullivan county, L. 1897, ch. 505, as amended by L. 1898, ch. 323, L. 1902, ch. 215, L. 1904, ch. 434, and L. 1906, ch. 399. Tioga county, L. 1898, ch. 9. Tompkins county, L. 1909, ch. 297. Ulster county, L. 1906, ch. 65, as amended by L. 1910, ch. 688, and L. 1917, ch. 21. Warren county, L. 1906, eh. 66, as amended by L. 1907, ch. 443. Washington county, L. 1897, ch. 117, as amended by L. 1899, ch. 229, and by L. 1907, ch. 79. Wayne county, L. 1891, eh. 30. Westchester county, L. 1894, ch. 687, as amended by L. 1895, ch. 420, L. 1899, ch. 310, and L. 1901, ch. 537, L. 1903, eh. 550, L. 1905, ch. 88, and L. 1909, ch. 500. Yates county, L. 1897, ch. 362, as amended by L. 1906, ch. 245, L. 1909, ch. 86, and L. 1915, ch. 67. SHERIFF AND CORONERS., 157 County Law, § 182. undertaking executed by such under-sheriff, to the sheriff by whom he was appointed.^ [County Law, § 181 ; B. C. & G. Cons. L., p. 798.] § 3. DEPUTY SHERIFFS TO BE APPOINTED BT SHERIFF; AP- POINTMENT TO BE IN WRITING. Such sheriff may appoint such and so many deputies as he may deem proper, not exceeding one for every three thousand inhabitants of the county; any person may also be deputed by any sheriff or under-sheriff by written instrument, 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, § 182; B. C. & G. Cons. L., p. 799.] 2. TTnder-sheriffs. An action will not lie against an under-sheriff for breach of duty. Paddock v. Cameron, 8 Cow. 212. See also Tuttle v. Love, 7 Johns. 470. Though at common law the powers of the under-sheriff cease upon the death of the sheriff, yet by statute his power is continued for the benefit of all the parties interested. Ward v. Storey, 18 Johns. 120. The under-sheriff has no right to keep the money for which sheriff is liable until he is assured that the sheriff will pay it over to party entitled thereto. Stegman v. Hollingsworth, 39 N. Y. St. Rep. 18, 14 N. Y. Supp. 465. Death or resignation of sheriff. A person while acting as sheriff is responsible for the acts of one acting as his late under-sheriff; but on the death of the principal the under-sheriff becomes substituted in his place and assumes all his duties and liabilities in respect to process not fully executed and is personally responsible for his acts, the sureties of the deceased late sheriff being sureties for the acts of the late under-sheriff. Newman v. Beckwith, 61 N. Y. 205, revg. 5 Lans. 80. 3. Vacancy in office of sheriff; appointment of deputies. In case of a vacancy in the office of sheriff, the duties of his office devolve upon his under- sheriff, but the deputies do not continue in office. A new appointment as deputy of the under-sheriff is necssary; nevertheless, if the deputy continues to act under the under-sheriff with his assent, without a formal appointment, he may be regarded as his deputy de facto. Boardman v. Halliday, 10 Paige, 223. A promise by a sheriff to appoint a certain person a deputy sheriff, even though for a valuable consideration, is void as against public policy. Hager v. Catlin, 18 Hun, 448. The only way the appointment of a deputy sheriff can be proved is by production of the original appointment in writing under the hand and seal of the sheriff, and due proof of its execution. Von Bail v. Rellly, 14 "Wk. Dig. 443. See also Crowley v. Conner, 1 Robt. C. C. 162. Number of deputies. The statute authorizes the sheriff to appoint as many deputies as he may deem proper, provided he does not exceed the statutory 158 COUNTY OFFICERS; JAILS. County Law, § 184. § 4. SHERIFF'S OFFICE; NOTICE OF FI.ACE TO BE FILED; WHEN TO BE KEPT OPEN; PAPERS SERVED ON SHERIFF. 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 limit. People ex rel. Andrus v. Town Auditors, 33 App. Div. 277; 53 N. Y. Supp. 739. Compensation of under sheriffs and deputies not to be included as part of dis- bursements of sheriff. Matter of Beck, 31 App. Div. 361, 364, 53 N. Y. Supp. 156, note. Power of deputy. A deputy sheriff has full power and authority to perform all necessary ministerial acts required in the service and execution of legal process addressed to the sheriff. Gibson v. National Park Bank, 98 N. Y. 87. And where the sheriff is directed to summon jurors they may be lawfully summoned by his deputy, under his direction. People v. McGeery, 6 Park Cr. R. 653. The authority of the deputy continues as long as that of his principal, provided he have a continuance of authority derived from the principal. Ferguson v. Lee, 9 Wend. 258. A sheriff who has goods in his custody under a process, has a special property therein which gives him an insurable interest, and his deputy, as such, without special power, is authorized to insure in the name and behalf of his principal. White v. Madison, 26 N. Y. 117. The duty of the sheriff is to execute process according to command of the writ in pursuance of the established rules of law; and if he deviates therefrom by direction of the plaintiff in the suit, he ceases to be the sheriff's agent and becomes that of such plaintiff. Acker v. Ledyard, 8 Barb. 514. An execution in a sheriff's hands when he goes out of office may be executed by him thereafter personally or by deputy. Jackson v. Collins, 3 Cow. 89. A sheriff may lawfully arrest without showing the warrant, but a deputy must show authority if required; this is on the presumption that within his county the sheriff is a known public officer. Sheldon v. Van Buskirk, 2 N. Y. 473. A deputy sheriff selling land on execution, may authorize another person to compute amount necessary to be paid to redeem and may direct that redemption money be deposited with such person as his agent. Hall v. Fisher, 9 Barb. 17. Undertaking of deputy. The deputy's undertaking is for the benefit of the sheriff. He himself is responsible for the acts of his deputy and may properly require an undertaking to be given by each deputy appointed by him, conditioned for the faithful performance of the deputy's duties. Reiley V. Dodge, 38 N. Y. St. Rep. 352; 14 N. Y. Supp. 129; affd. 131 N. Y. 153. It is a breach of the deputy's bond if he fail to pay over to the sheriff money collected by him, even if the sheriff should never be sued or made to pay the amount. The deputy's liability depends solely upon his own omission to pay the sheriff and not in any manner upon what becomes of the money after the sheriff receives it, or who is entitled to it. Willet v. Stuart, 43 Barb. 98. Where a deputy's bond was conditioned to indemnify the sheriff from all costs, damages, etc., concerning the return and execution of process and con- cerning the not executing or wrongful execution, etc., of process, it was held that it did not embrace costs in suits wrongfully instituted; but that some SHERIFF AND CORONERS. 159 County Law, § 184. 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 act or omission of the deputy must be shown, of such a character that the sheriff would legally be bound to answer for It in damages. The language of the bond should be explicit in order to render the deputy liable for costs in an unfounded suit against him. Franklin v. Hunt, 2 Hill, 671. To give the sheriff a cause of action on the bond of his deputy there must not only be a technical breach of duty, but pecuniary damage resulting therefrom to the sheriff. Rowe v. Richardson, 5 Barb. 385. The sureties on the bond of a deputy sherlfi are only responsible for his official acts as a general deputy; and the deputy is not accountable to his principal In that character when acting under his special direction and authority in a given case. Tuttle v. Cook, 15 Wend. 274. A sheriff may recover by action upon his deputy's official bond conditioned to indemnify him against liability to third parties because of acts or omis- sions of the deputy, the amount for which he has been rendered liable to the plaintiff in an attachment suit by reason of the deputy's falsely informing him that a check received by the deputy from the claimant of the attached property, on releasing the property under a written stipulation between the attachment plaintiff's attorney and the claimant, that the proceeds of the check were to be held by the sheriff until the final judgment as security after the plaintiff's demand in the attachment suit, was received simply in lieu of the property released. Flack v. Brassel, 153 N. Y. 621; 47 N. E. 807. A deputy sheriff is an officer within the meaning of the statute and may resign his office; upon his resignation his sureties are not responsible for any acts done thereafter. Gilbert v. Luce, 11 Barb. 91. Revocation of authority. The authority of a deputy ceases upon ser- vice on him of a written revocation of his appointment, signed by the sheriff. The formality of a seal is not indispensable. The common law, that an instrument under seal cannot be discharged except by a similar instrument under seal, does not apply to the case. This is an administrative arrange- ment, and is to be regulated by the statute. Edmunds v. Barton, 31 N. Y. 495. Sheriff must notify constables and deputies to attend terms. The Sheriff of each county, except New York and Kings, must within a reasonable time before the sitting, in his county, of any term of court, notify, in writing or personally, as many constables or deputy sheriff's of his county, as he deems necessary, to appear and attend upon the term during Its sitting. Judiciary Law, § 403. Number. In any county where the compensation of such attendants is now fixed by statute at the sum of three dollars per day and mileage, the number of attendants to be appointed for any one term of court, pursuant to the last preceding section, shall not exceed eighteen. Judiciary Law, § 343. Penalty for neglect of officer to attend court. Each constable or deputy sheriff, seasonably notified, as prescribed in the last two sections, must attend the term accordingly; and for each day's neglect he may be fined by the court, at the term which he was notified to attend, a sum not exceeding five dollars. Judiciary Law, § 407. 160 COUNTY OFFICERS; JAILS. County Law, § 185. 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 ihe afternoon, during the months of November, December, January, Feb- ruary 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 l)e 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 notice or paper shall be delivered to such person, and every such service shall be deemed equivalent to a personal service on such sheriff." In the counties 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 holi- days or half holidays. [County Law, § 184; B. C. & G. Cons. L., p. 800.] § 5. FEES FOR SERVICES FOR THE STATE; ACCOUNTS, HOW 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 i. Office hours of sheriff. Holidays and half-holidays are specified in the General Construction Law, sec. 24, as amended by L. 1909, ch. 112. See note to County Law, sec. 165, ante, p. 132. By section 62 of the Public Officers Law it is provided that, " holidays and half-holidays shall be considered as Sunday for all purposes relating to the transaction of business in the public offices of the state, and of each county." Business with sheriffs, unlike that with county clerks, may be trans- acted at other places besides their offices, and outside of office hours. France v. Hamilton, 26 How. Pr. 180. The sheriff's office not being required to be kept open Sunday, when the last day for redemption falls on that day, it may be made on Monday. Porter v. Pierce, 120 N. Y. 217. 5. Service of paperrs. The papers and notices which may be served upon the sheriff by leaving the same at his office, with his clerk or deputy, refer to the large class of papers and notices which are required by law to be served on the sheriff as such, by virtue of his office, and which do not con- cern him personally. A summons in a civil action against the sheriff cannot be served upon him by leaving the same at his office, or otherwise than by delivering the same to him personally. Sherman v. Conner, 16 Abb. N. S. 396. Notice by surety on bond of deputy of his withdrawal is not a paper that can be so served. Reilly v. Dodge, 131 N. Y. 153. SHERIFF AND CORONERS. 161 County Law, §§ 186, 187. not be made chargeable by law to his 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, § 185; B. C. & G. Cons. L., p. 801.] § 6. SHERIFF TO BE BXMOVED 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 re- main so comnaitted for the space of thirty days successively, such facts shall be presented 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, § 186; B. C. & G. Cons. L., p. 802.] § 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 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 forth- with 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 instrument, signed by the judge, and filed in the office of the clerk of the county, and the clerk shall immediately give notice thereof to such coroner. Within six days after receiving such notice, such coroner shall execute a joint and several While a delivery of an execution to a deputy in person is a delivery to the sheriff, yet leaving it in some undescribed place in the meat market of the deputy is not a good delivery. Burrell v. Hollands, 78 Hun, 583, 29 N. Y. Supp. 515. 6. Fees of sheriflFs generally. See Code Civ. Proc, see. 3307, as amended by L. 1907, ch. 253 ; L. 1915, ch. 565, and h. 1917, ch. 265. See Note 1, in this chapter, for list of counties in which the office of sheriff is salaried. 7. Duties of coroner as to arrest and confinement of sheriff. When a mandate, requiring the arrest of a sheriff is directed to the coroner he must execute the same in the same manner as a similar mandate directed to a sheriff. His duties in respect to the confinement of the sheriff are the same as those of the sheriff in respect to the confinement of any other civil prisoner. See Code Gov. Proc, sees. 172-181. Removal of sheriff. For procedure for the removal of county officers by the gov- ernor, see Public Officers Law, sees. 33-35, post. 16.3 COUNTY OFFICERS; JAILS. County Law, § 188, 189. 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, § 187; B. C. & G. Cons. L., p. 802.] § 8. WHEN OTHER CORONER TO BE DESIGNATED; 'WHEN COR- ONER 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 cor- oners 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 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, § 188; B. C. & G. Cons. L., p. 802.] § 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 person 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 person 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 SHERIFF AND CORONERS. 163 County Law, §§ 190, 191, 192. shall execute the duties of the office of sherifE of the county until a sheriS shall be duly elected or appointed, and qualified. [County Law, § 189 ; B. C. & G. Cons. L., p. 803.] § 10. CORONERS TO EXECUTE DITTIES OF OFFICE UNTIL VAC- ANCY IS FIU.ED; DUTIES AND LIABILITIES OF INCUM- BENT. 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 cor- oner or coroners of the county in which such vacancies shall exist shall execute the duties of the office of sheriff therein; and when any under- sheriff, coroner, coroners or other person shall execute the duties of the office of sheriff, pursuant to either of the foregoing provisions, the person so executing the same shall be subject to all the duties, liabilities and pen- alties imposed by law upon the sheriff duly elected and qualified, and he shall be entitled to the same compensation. [County Law, § 190; B. C. & G. Cons. L., p. 803.] § 11. BOARD OF SUPERVISORS MAY FIX SALARY OF CORONER. The board of supervisors of any county shall have power to prescribe that coroners in said county shall receive a salary, instead of fees, and to fix the amount of such salary; and 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 sheriff, in which last named case the coroner so acting, shall ha^"e the same compensation as the sheriff, whose duties he performs, would have had. [County Law, § 191 ; B. C. & G. Cons. L., p. 803.] § 12. FEES ALLOWED CORONERS FOR SERVICES ON INQUESTS, ETC. Coroners in and for the state of New York, except in the county of Kings and except in such other counties as have prescribed or shall here- after prescribe, different compensation, shall be entitled to receive the following compensation for services performed: Mileage to the place of inquest and return, ten cents per mile. Viewing bodies, five dollars. Ser- vice of subpoena, ten cents per mile traveled. Swearing each witness, fifteen cents. Drawing decision, one dollar. Copying decision for record, per folio, twenty-five cents, but such officers shall receive pay for one copy only. For making and transmitting statements to the board of super- visors, each decision fifty cents. For warrants of commitment, one dollar. For arrest and examination of offenders, fees shall be the same as justices 164 COUNTY OFFICERS; JAILS. County Law, §§ 193, 194; Code Civ. Proc, f§ 100, 101. of the peace in like eaSes. When required to perform the duties of sheriff, shall be entitled to and receive the same fees as sheriffs for the perform- ance 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 parts thereof spent in taking an inquisition, three dollars. For performing the requirements of law in regard to wrecked vessels, shall receive three dollars per day and fractional parts thereof, and a measure- able compensation for all official acts performed, and mileage to and from such wrecked \essels, ten cents per mile. For taking ante-mortem state- ment shall be entitled to the same rates of mileage as before mentioned, and three dollars per day and fractional parts thereof, and for taking deposition of injured person in extremis, one dollar.^ [County Law, § 192 ; B. C. & G. Cons. L., p. 804.] Whenever, in consequence of the performance of his official duties, a coroner becomes a witness in a criminal proceeding, he shall be entitled to receive mileage to and from his place of residence, ten cents per mile, and three dollars per day for each day, or fractional parts thereof, actu- ally detained as such witness. This section also applies to the county of New York. [County Law, § 193 ; B. C. & G. Cons. L., p. 804.] § 13. EMPLOYMENT OF STENOGRAPHER AND SURGEONS. A coroner shall have power, when necessary, to employ not more than two compe- tent surgeans to make post-mortem examinations and dissections and to testify to the same and in counties where coroners are paid in fees, to employ a stenographer i to take and reduce to writing the testimony of witnesses examined before the coro- ner, the compensation therefor to be a county charge. This section also applies to the county of New York.2 [County Law, § 194, as amended by L. 1910, ch. 158; B. C. & G. Cons. L., p. 804.] § 14. DUTIES OF SHERIFF IN RESPECT TO SERVICES OF MAN- DATES IN CIVIL ACTIONS; COPT OF PROCESS TO BE DE- LIVERED; RETURN OF SHERIFF. A sheriff, to whom a, mandate of any description, is delivered to be executed, must, without compensation, give to the person delivering the same, if required, a. minute in writing, signed by the sheriff, specifying the names of the parties, the general nature of the mandate and the day and hour of receiving the same. [Code Civ. Proc, § 100] A sheriff or other officer, serving a mandate, must, upon the request of the per- son, served, deliver to him a copy thereof, without compensation. [Idem, § 101.] 1. Fees and compensation of coroner. — A coroner is entitled to fees where an inquest is held, but is not entitled to disbursements in addition thereto. Where no inquest is held he is entitled to actual and necessary disbursements, but no fee. Eept. of Atty. Genl., March 3, 1911. Expenses. — Coroner, whose salary is fixed, is not entitled to compensation for his expenses. Kept, of Atty. Genl. (19'01), 186. But it has been ruled that a coroner receiving a salary instead of fees is entitled to reimbursement for expenses actually and necessarily incurred by him in the discharge of his duties. Opinion of State Comptroller (1916), 10 State Dept. Eep. 550. 2. The appointment of a coroner's physician is personal to each coroner and the term of office of each physician is coterminous with that of the coroner who appoints him unless he has been sooner removed. Matter of Naiuaack, 145 App. Div. 289. SHERIFF AND CORONERS. 165- Code Civ. Proc, §§ 102, 103. A sheriff or other ofBeer, to. whom a mandate is directed and delivered, must execute the same according to the command thereof, and make return thereon of his proceedings, under his hand. For a violation of this pro- vision, 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 postpaid 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.] § 15. LIABILITY OF SHERIFF FOR NEGLECT IN SERVING PRO- CESS 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 8. Euty as to service and return. It is the duty of the sheriff to use reasonable efforts to execute process, and he cannot rely upon mere casual information. Hinman v. Borden, 10 Wend. 367. A party in whose favor process is issued may give such directions to the sheriff as will not only excuse the sheriff, from his general duty but bind him to the performance of what is required of him. Gregg v. Murphy, 73 Hun, 389; 28 N. Y. Supp. 556. He is subject at all times to the direction of the party in whose favor process is issued. Root v. Wagoner, 30 N. Y. 19. See, also, Douglas v. Haberstro, 88 N. Y. 611; Crouse v. Bailey, 2 N. Y. St. Rep. 395; Corning v. Southerland, 3 Hill, 502. Liability of sheriff; damages. Prima facie where a sheriff fails to return an execution within the required time he is liable for the amount of the debt, but he may show in mitigation of damages that the defendant therein had no property on which the execution could be levied. Pach v. Gilbert, 17 Civ. Proc. R. 39; 7 N. Y. Supp 336; affd. 124 N. Y. 612. On the failure to return an execution the sheriff is only liable for the damages sustained, and if it appears that there was only a small amount of leviable property, it is error to direct a verdict for the full amount of the execution. The sheriff Is not bound to levy on property pointed out by the plaintiff though an indemnity is offered him, provided he acts in good faith and shows that the property did not belong to the defendant. Dolson v. Sax- ton, 11 Hun, 565. In an action against a sheriff, for neglecting to collect and return an exe- cution against the property, the plaintiff must show a valid judgment; but. the sheriff cannot take advantage of a mere irregularity making the judgment only voidable. Forsyth v. Campbell, 15 Hun, 235; Dunford v. Weaver, 84 N. Y. 445. A sheriff cannot, in an action for damages, attack the form of the mandate given him for enforcement unless it is absolutely void. McDonald V. Kieferdorf, 22 Civ. Proc. R. 105; 18 N. Y. Supp. 763. An officer to whom an execution is delivered who extends the judgment debtor's time for payment of the judgment debt beyond the time fixed for 166 COUNTY OFFICERS; JAILS. Judiciary Law, §§ 400, 401. 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 of Civ. Proc. § 103.] § 16. POWERS OF SHERIFF IN CASE OF RESISTANCE TO THE SERVICE OF MANDATE; NAMES OF RESISTERS TO BE CERTIFIED TO COURT; SHERIFF MAY ASK ASSISTANCE; GOVERNOR MAT ORDER OUT MII.ITIA. If a sheriff, to whom a mandate is directed and delivered, finds, or has reason to apprehend, that resistance will be made to the execution thereof, he may command all the male persons in his county, or as many as he thinks proper, and with such arms as he directs, including any military organization armed and equipped, to assist him in overcoming the resis- tance, and, if necessary, in arresting and confining the resistors, their aiders and abettors, to be dealt with according to law." [Judiciary Law, § 4001 B. C. & G. Cons. L., p. 2804.] The sheriff must certify to the court, from which or by whose authority the mandate was issued, the names of the resisters, their aiders and abettors, as far as he can ascertain the same, to the end that they may be punished for their contempt of the court. [Idem, § 401; B. C. & G. Cons. L., p. 2805.] the return of the execution, and, without consultation with the judgment creditor or her attorney, procures the renewal of the execution, is liable for damages sustained by the subsequent disappearance of the judgment debtor. 9. Sheriff may call for assistance. The fact that an officer had not, at the time of summoning the power of the county, a sufficient cause for sum- moning them, does not affect the duty of the persons summoned, if, when they come together, resistance is offered to his executing the process; nor does it affect the liability of those who make or cause resistance except as to damages. Slater v. Wood, 9 Bosw. 15. The sheriff may call on others to assist him and leave them to watch while he goes for further assistance. He is deemed constructively present so as to justify the others making an arrest. Coyles V. Hurtin, 10 Johns. 85. One who, being called upon by an officer to assist him, does so, acts at his own peril; if the officer has authority to do the act in which the person is called upon to assist, such person is bound to obey, and if he neglects or re- fuses, he is guilty of a misdemeanor; but if the officer is not so authorized, the person who obeys him is a trespasser. Elder v. Morrison, 10 Wend. 128. Liability of sheriff. Where property is attached by the sheriff and afterward is wrongfully taken from his possession, it is his duty to retake it by force from any person who has so removed it. He is guilty of neglect if he does not use the power conferred by this section in retaking such property. Matter of Wood V. Bodine, 32 Hun, 354. See also Delancy v. Piepgrass, 141 N. Y. 88, 96. SHERIFF AND CORONERS. 16 7 Penal Law, § 1848; Military Law, § 115; Judiciary Law, §§ 402-405. A person, who, after having been lawfully commanded to aid an officer in arresting any person, or in re-taking any person who has escaped from legal custody, or in exeeutiag any legal process, wilfully neglects or refuses to aid such officer is guilty of a misdemeanor. [Penal Law, § 1848 ; B. C. & G. Cons. L., p. 4047.] If it appear to the governor that the power of the county be not sufficient to enable the sheriff to preserve the peace and protect the lives and prop- erty of the peaceful residents of this county, or to overcome the resistance to process of this state, the governor must, on the application of the sheriff, order out such military force from any other county or counties, as is necessary. [Military Law, § 115, in part; as amended by L. 1916, ch. 355; B. C. & G. Cons. L., p. 3526.] § 17. ATTENDANCE OF SHERIFF AND DEPUTIES UPON TERMS OF COURT; DUTIES IN RESPECT TO AFPEIiLATE DIVISION. A term of the appellate division of the supreme court must be attended by the sheriff of the county in which it is held, his under-sheriff, or one of his deputies, each of whom must act under the direction of the court or of the presiding justice. The sheriff of the county must cause the room in which a term of the appellate division is held to be properly heated, ventilated, lighted, and kept comfortably clean and in order. The sheriff must also provide the court with all necessary stationery and minute books, upon the written requisition of the court or of the justice presiding at the term, and shall defray the necessary expense of telegraphing the day calendar to such county clerks as the court shall direct; also the necessary expense of transmitting printed cases and papers to the reporter; to the various libraries and to the justices of the appellate division. The fees of the sheriff for attending a term of the appellate division and all ex- penses incurred by a sheriff in obedience to this section must be audited by the comptroller and paid out of the treasury of the state. [Judiciary Law, § 402 ; B. C. & G. Cons. L., p. 2805.] The sheriff of each county, except New York and Kings, must within a reasonable time before the sitting, in his county, of any term of court, notify, in writing or personally, as many constables or deputy sheriffs of his county, as he deems necessary, to appear and attend upon the term during its sitting. [Idem, § 403; B. C. & G. Cons. L., p. 2806.] Where a special term of the supreme court is adjourned to the cham- bers of a justice of the court, pursuant to section one hundred and forty- eight of this chapter, the attendance of the sheriff or a constable is not required unless the justice directs them to attend. [Idem, § 404; B. C. & G. Cons. L., p. 2806.] The sheriff of the county of Erie shall not be required to attend or designate any officer to attend at justices' chambers or at special terms of 168 COUNTY OFFICERS; JAILS. Judiciary Law, §§ 406-409; Code Civ. Proc, § 108. the supreme court, or at any term of the county court and surrogate's court held in said county of Erie unless requested so to do by the justice, judge or surrogate presiding thereat. [Idem, § 405 ; B. C. & G. Cons. L., p. 3807.] A sheriff, deputy sheriff, or constable, attending a term, of a court of record, must, when required by the court, act as crier therein; and he is not entitled to any additional compensation for that service. [Idem, § 406; B. C. & G. Cons. L.. p. 2807.] Each constable or deputy sheriff, seasonably notified, as prescribed in section four hundred and three of this chapter, must attend the term ac- cordingly; and for each day's neglect he may be fined by the court, at the terra at which he was notified to attend, a sum not exceeding five dollars. [Idem, § 407; B. C. & G. Cons. L., p. 2807.] The sheriff of Queens county shall not notify, or designate any deputy sheriffs to attend at a term of court in said county held with or without a jury except by an order of the justice, or judge, presiding thereat, to be entered upon the minutes. [Idem, § 408; B. C. & G. Cons. L., p. 2807.] The sheriff of the county of Monroe is hereby authorized by and with the consent and approval of the justices of the supreme court of the seventh judicial district, residing in the county of Monroe, and the county judge and special county judge of Monroe county, respectively, to appoint and with the consent of said justices and judges at pleasure, to remove, such attendants from the supreme court and the county court, respectively, held in and for the county of Monroe, as such justices and judges shall deem necessary. [Idem, § 409 ; B. C. & G. Cons. L., p. 2808.] § 18. TRIAI. BT SHERIFF OF CLAIM OF TITLE TO PROPERTY SEIZED BY HIM; JURORS, HOW SUMMONED; EXAMINA- TION 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 of 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: 1. The sheriff must, from time to time, notify as many 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 Supreme Court, 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 claimed was taken by -the sheriff. For the puvpo=p of compelling a witness to attend and SHERIFF AND CORONERS. 169 Code Civ. Proc, § 109; County Law, § 195. 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 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. 3. The sheriff or under-sheriff must preside upon the trial. A witness, produced by either party, nxust be sworn by the presiding officer, and examined orally in the presence of the jury. A witness, who testifies falsely upon such an examination, is guilty of perjury in a like case, and is punishable in like manner, as upon the trial of a civil action. [Code Civ. Proc. § 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, and must be paid as follows: 1. If the jury, by their verdict, find the title, or the right of possession to the property claimed, to he 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 prop- erty claimed; by the claimant. 3. If they find the title, or the right of possession to only a part of the property claimed, to be in the claimant ; each party must pay his own witnesses' fees; and the sheriff's and jurors' fees must be paid, one- half by each party to the inquisition. Before notifying the jurors, the sheriff may, in his discretion, require each of the parties to the controversy to deposit with him such reasonable sum, as may be necessary to cover his legal fees, and the jurors' fees. The sheriff must return to each party the balance of the sum so deposited by him, after deducting his fees, lawfully chargeable to that party, as pre- sci-ibed in this section. [Idem, § 109.] § 19. PROCEEDINGS ON NEW SHERIFF ASSUMING OFFICE. 1. Where 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 certificate, under his hand and ofificial seal, stating that the person so appointed or elected, has so qualified and given security. 2. 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.^" 10. Meaning of section. Section 182 of the Code from which subd. 1 was derived, was interpreted by the old supreme court to mean that until the irO COUNTY OFFICERS; JAILS. County Law, § 195. 3. 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. (3.) All the prisoners then confined in the jail or jails.^^ (3.) All process, orders, commitments, and all other papers and docu- ments, authorizing, or relating to the confinement or custody of a prisoner, or, if such a process, order, or commitment has been returned, a statement in writing of the contents thereof, and when and where it was returned. certificate of the clerk was served upon the old sheriff, he had authority to execute process placed in his hands as sheriff, and that the powers of the old sheriff did not cease until the powers of the new sheriff became complete. Curtis V. Kimball, 12 Wend. 275. The outgoing sheriff, while retaining possession of the office awa-'ting advent of the new sheriff, is to be considered as his agent In receiving such process as comes into his hands, until the transfer of the office is complete. Littlejohn V. Leffingwell, 34 App. Dlv. 185, 54 N. Y. Supp. 536. Qualifying. A sheriff does not lose his office by neglecting to give his bond within twenty days after receiving notice of his election, if he execute and file it within fifteen days after the commencement of his term. People v. Holley, 12 Wend. 481. " Qualified " means taken the oath of office. Curtis v. Kimball, 12 Wend. 275. 11. Delivery of prisoner. The power of the outgoing sheriff ceases after ten days and the new one has no power unless the prisoner is assigned to him. Matter of Irving, 3 How. Pr. (N. S.) 236; Hinds v. Doubleday, 21 Wend. 223. The power of the outgoing sheriff as to prisoners is unchanged until the certifi- cate is served upon him by the incoming sheriff. Feerick v. Conner, 12 Wk. Dig. 43. A prisoner on his jail limits not assigned to the incoming sheriff by the out- going sheriff cannot be deemed to be imprisoned. Matter of Irving, 3 How. Pr. (N. S.) 236. An outgoing sheriff neglecting to deliver a prisoner to his successor is liable to plaintiff in the execution. French v. Willet, 10 Abb. Pr. 99. If a new sheriff regularly receives a prisoner he is answerable, though there had been a previous voluntary escape; but plaintiff may elect which sheriff he will hold, but he cannot hold both. Radson v. Turner, 4 Johns. 469. A new sheriff is not liable for the escape of a prisoner who is on the limits on bond and has not been assigned to him by his predecessor. Partridge v. Wester- velt, 13 Wend. 500. So where the sheriff dies and the under-sheriff neglects to assign such prisoner to the new sheriff. Ridgway v. Barnard, 28 Barb. 613. Where outgoing sheriff assigned to the Incoming one a priooner under mesne process, but himself returned the writ, and the new sheriff subsequently took bail, and after Judgment the prisoner escaped, the new sheriff was held not liable therefor because of the irregularity of the assignment in that he never had the writ. Richard v. Porter, 7 Johns. 137. As to information necessary to be given with a prisoner delivered to sheriff's successor, see Tallmadge v. Richmond, 9 Johns. 85, revd. on another point, 16 Johns. 307. SHERIFFS AND CORONERS. 171 County Law, § 195. (4.) All mandates, then in his hands, except such as he has fully executed, or has begun to execute, by the collection of money thereon, or by a seizure or of levy on money or other property, in pursuance thereof. At the time of the delivery, the former sheriff must execute an instrument, reciting the property, documents, and prisoners delivered, specifying par- ticularly the process or other authority, by which each prisoner was com- mitted 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 property, documents and prisoners, therein specified; and deliver such duplicate and acknowledgment to the former sheriff. 4. 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 proceed with and complete the execution of each mandate which he has begun to execute, in the manner specified in para- graph fourth of subdivision three of this section, except that all mandates issued against the wages, debts, earnings, salary, income from trust funds or profits of a judgnKent debtor, shall be delivered over to the new sheriff, who shall proceed with and complete the execution of the same.^^ [Amended by L. 1910, ch. 418.] 5. When a person, arrested by virtue of an order of arrest, is confined, either in jail, or to the liberties thereof, at the time of assigning and delivering the jail to the new sheriff, the order, if it is not then returnable, must be delivered to the new sheriff, and be returned by him at the return 12. Authority of former sheriff. Where a sheriff prior to the expiration of his term of office under a judgment of foreclosure advertised the premises for sale upon a day after his term had expired, he had authority and was hound to proceed with and complete the sale. Union Dime Savings Inst'n v. Andariege, 83 N. Y. 174. A sheriff may complete the execution of a fieri facias after he has gone out of office. Wood V. Colvin, 5 Hill, 228. So he may sell and convey. Averill v. Wilson, 2 Barh. 180. As to return, see Richards v. Porter, 7 Johns. 137. Becree. Where sheriff appointed to sell property in foreclosure has advertised the same for sale before receiving his successor's certificate, he is not required to deliver the decree to his successor, since by the advertisement the seizure be- came complete and rendered the property subject to the decree. Union Dime Savings Inst'n v. Andariese, 83 N. Y. 174. Executions not levied should be turned over, and where the new sheriff has received such an execution an order will issue requiring him to make return thereon or that attachment will issue against him. Holmes B. & H. v. Rogers, 50 Hun 600, 2 N. Y. Supp. 501, 18 N. Y. St. Rep. 652, 2 N. Y. gupp. 501. Property seized. A sheriff cannot be compelled ' to deliver to his successor property seized by him by virtue of an attachment. McKay v. Harrower, 27 Barb. 463. 172 COUNTY OFFICERS; JAILS. Penal Law, 55 1838, 1839. day thereof, with the proceedings of the former sheriff and of the new sheriff thereon. G. 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 prescrihed in this section, his successor must, notwithstanding, take posses- sion 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. 7. 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 his under- sheriff, or by a coroner of the county, or a person specially authorized for that purpose, he must comply with the provisions of this section, and per- form the duties thereby required of the former sheriff.'' 8. The provisions of this section shall also apply to the county of New York. [County Law, § 195; B. C. & G. Cons. L., p. 805.] § 20. INJURT TO RECORDS AND MISAPPROPRIATION BY MINIS- TERIAL OFFICERS. A sheriff, coroner, clerk of a court, constable or other ministerial officer, and every deputy or subordinate of any ministerial officer, who: 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 such use, any money, evidence of debt or other property intrusted to him in virtue of his office, is guilty of felony. [Penal Law, § 1838; B. C. & G. Cons. L., p. 4044.] § 21. SHERIFFS AND OTHERS PERMITTING ESCAPES OR RE- FUSING TO RECEIVE PRISONERS. A sheriff, coroner, clerk of a court, constable or other ministerial officer and every deputy or subordinate of any ministerial officer, who : 1. Receives any gratuity or reward, or any security or promise of one. 13. Liability of uadgr-sherifl. Where a sherifE dies, who, at the expiration of his term, has process not fully executed, his late under-sheriff Is substituted for him, assumes all his duties and liabilities, and is personally liable, although the sureties of the late sheriff may be also liable. Newman v. Beckwith, 61 N. Y. 205. A bond given by an under-sheriff to the sheriff covers moneys received by the former after the latter's final term has expired; he is bound to pay over to the ex- sheriff. Stegman v. Holllngsworth, 39 N. Y. St. Rep. 18, 14 N. Y. Supp. 465. Appointment of special person to execute a deed where sheriff died and there was no under-sheriff. Sickles v. Hogeboom, 10 Wend. 562. SHERIFFS AND CORONERS. 173 Penal Law, §§ 1839, 1840. 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 misdemieanor. A conviction of a sheriff or other officer also operates as a forfeiture of his office, and disqualifies him forever thereafter from holding the same. The governor shall, upon application, grant a hearing to a person convicted under this section and if he be satisfied that the facts warrant it, he may, by order, relieve such person from such disqualification. [Penal Law, § 1839, as amended by L. 1917, ch. 236 ; B. C. & G. Cons. L., p. 4045.] An officer who, in violation of a duty imposed upon him by law to repeive a person into his official custody, or into a prison under his charge, wilfully neglects or refuses so to do, is guilty of a misdemeanor. [Idem, § 1840.] 174 COUNTY OFFICERS; JAILS. County Law, § 183. CHAPTER Xn COUNTY JAILS. Section 1. Sheriffs to have custody of jails. 2. Use of county jails. 3. Either of several jails may be used. 4. Number of rooms in county jail. 5. Custody and control of prisoners; civil prisoners to be kept separate; women not to be kept in same room with men; com- munication with counsel, etc. 6. Prisoners to be furnished with wholesome food; employment of prisoners. 7. Prisoners to be furnished with reading matter; divine service. 8. Record of commitments and discharges, what to state. 9. United States prisoners to be received. 10. Calendars of names of prisoners, etc., to be presented to court. 11. Prisoners to be discharged if not indicted. 12. Suspension of habeas corpus during term of court. 13. Prisoner to be discharged if unable to pay fine. 14. Houses of detention for women, children and witnesses. 15. Boards of supervisors may establish and maintain county work- houses. 16. Who may visit jails and workhouses. 17. Board of supervisors to appoint jail physlcan. 18. Sale of liquors in jails; permit for use of liquors; penalties. 19. Service of papers in civil action to be made on prisoner in jail. 20. Removal of prisoner in case of an emergency. 21. 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. 22. Jail liberties, when designation is made. 23. Revocation of designation. § 1. SHERIFFS TO HAVE CUSTODY OF JAILS. Each sheriff shall have the custody of the jails of his county and the prisoners therein and such jails shall be kept by him, or by keepers ap- pointed by him, for whose acts he shall be responsible.^ [County Law, § 183; B. C. & G. Cons. L., p. 800.] 1. Duties of state commissioners of prisons as to jails. The state commis- sion of prisons was created by L. 1895, ch. 1026, pursuant to the authority con- COUNTY JAILS. I75 County Law, § 90. § 2. USE OF COUNTY JAILS. Each county jail shall be used, 1. For the detention of persons duly committed to secure their attendance as witnesses in any criminal case; 2. For the detention of persons charged with crime, and committed for trial -or examination; ferred upon the legislature by section 11 of art. 8 of the Constitution, which authorizes the legislature to provide for a " state commission of prisons, which shall visit and inspect all institutions used for the detention of sane adults charged with or convicted of crime, or detained as witnesses or debtors. This act was repealed by L. 1907, ch. 381, and both acts were repealed by the Prison Law, which continues the state commission of prisons. Sections 46-53 (sec. 46, as amended by li. 1914, ch. 379; sec. 50, as amended by L. 1916, ch. 118; sec. 53, as amended by L. 1918, ch. 364), of the Prison Law have reference to the duties of such commission in connection with county jails and are here inserted in full. General powers and duties of commission of prisons. The state commission of prisons shall visit and inspect all institutions used for the detention of sane adults charged with or convicted of crime, or detained as witnesses or debtors, excepting sucn reformatories as are subject to the visitation and inspection of the state T)oard of charities; and shall; 1. Aid in securing the just, humane and economic administration of all institutions subject to its supervision. 2. Advise the officers of such institutions or in control thereof in the performance •of their official duties. 3. Aid in securing the erection of suitable buildings for the accommodation of the inmates of such insttiutions, and approve'or reject plans for their construction or improvement. 4. Investigate the management of all institutions made subject to the visitation of the commission, and the conduct and efficiency of the officers or persons charged "with their management. 5. Secure the best sanitary conditions of the buildings and grounds of all such institutions, and protect and preserve the health of the inmates. 6. Collect statistical information in respect to the property, receipts and expendi- tures of said institutions and of any department of the state or any subdivision thereof in charge of the same, and the number and condition of the inmates thereof. 7. Ascertain and recommend such system of employing said inmates as may, in the opinion of said commission, be for the best interest of the public and of said inmates and not in conflict with the provisions of the constitution relating to the employment of prisoners. Prison Law, § 46, as amended by L. 1914, ch. 379. 8. Close any city jail or police station, town or village jail or lockup which Is unsanitary or inadequate to provide for the separation and classification of prisoners required by law. The powers and duties of the commission under this subdivision shall be exercised in the following manner: The commission shall cause a citation to be mailed to the mayor and the city clerk, in the case of a city Jail or police station; to the supervisor and town clerk, in the case of & town jail or lockup, and to a trustee and village clerk, in the case of a village jail or lockup, at least twenty days before the return day thereof, directing the authorities ot the city, town or village designated to appear before such com- mission at the time and place set forth in the citation, and show cause why «uch city jail or police station, or town jail or lockup, or village jail or lockup, shall not be closed. After a hearing thereon or upon the faiure to appear, such ■commission is empowered to order the city jail or police station, town jail or lockup, village jail or lockup designated in the citation closed within ninety days, during which time the city, town or village may review such order by writ of certiorari, in the supreme court. Ninety days after the order to close Tias been served by registered letter upon the mayor and city clerk, in case of a city jail or police station, upon the supervisor and town clerk, in case of a town jail or lockup, and upon a village trustee and clerk in case of a village jail or lockup, if no court review has been taken, and ninety days after the order of such commission has been confirmed by the court, in case of court review, the city jail or police station, town jail or lockup and village jail or lockup designated in the order shall be closed, and it shall be unlawful to confine or detain any person therein and any officer confining or detaining any person therein shall be guilty of a misdemeanor. [Sub. 8, added by L. 1914, ch. 379.] Yisitation and inspection of institutions. The institutions subject to tha 176 COUNTY OFFICERS; JAILS. County Law, § 90. 3. For the confinement of persons duly committed for any contempt, or upon ciTll process; 4. For the confinement of persons convicted of any offense, other than a felony, and sentenced to Imprisonment therein, or awaiting transportation under sentence to imprisonment in another county. visitations of said commission may be visited and inspected by it or by any member thereof or by its secretary, when authorized, or by any oflicer or inspector duly appointed by it for that purpose, at any and all times. Such commission or any member thereof may take proof and hear testimony relating to any matter before it, or before such member, upon any such visit or inspec- tion. Any member or the secretary of such commission, when authorized, or any oflScer or inspector duly appointed by it, shall have full access to the grounds, buildings, books and papers relating to any such institution, and may require from the officers and persons in charge or control thereof any information he may deem necessary in the discharge of his duties. Said commission may prepare regulations according to which, and provide blanks and forms upon which, such information shall be furnished, in a clear, uniform and prompt manner, for the use of the commission. Any superintendent, commissioner, officer, or employee of such institution, or in charge or control thereof, who shall refuse or cause admission to be refused to any member, officer or inspector of the commission, for the purpose of visitation and inspection, or who shall refuse or neglect to furnish, or to cause to be furnished, the information required by the commission or by any of its members, officers or Inspectors, shall be guilty of a misdemeanor. Idem, sec. 47. Orders of the commission directed to institutions or officers in charge thereof. If it shall appear, after any such investigation, that the laws relating to the construction, management and affairs of any such institution and the eare, treatment and discipline of its inmates, are being violated, or that inmates of any such institution are cruelly, negligently or improperly treated, or inadequate provision is made for their sustenance, clothing, care, supervision,, or other condition necessary to their suitable and proper well being, said board may apply for an order of the supreme court, directed to the proper superintendent, commissioner, agent and warden, manager, keeper or other officer of such institution or in control thereof, requiring him to modify such treatment or apply such remedy, or both, as shall therein be specified. The application for such order shall be made as prescribed in section fifty-two of this chapter, and the court may thereupon make such order as may be just; a failure to comply with the terms of such order shall be a contempt of court and punishable as such. Any person to whom such an order is directed who shall wilfully refuse to obey the same, shall likewise, upon conviction, be adjudged guilty of a misdemeanor. Idem, sec. 48. Keports of commission. The state commission of prisons shall annually report to the legislature, in January of each year, its acts and proceedings for the preceding year, with results and recommendations, which report shall include the information obtained in its enquiries and investigations, and such other matters relating to the institutions subject to its visitations as it may deem necessary or proper. It may, in its discretion, and shall, when required by the governor, or either house of the legislature, make other and special reports. Idem, sec. 49. Beports of wardens, et cetera. The agent and warden of every prison, the superintendent or manager of every penitentiary, the keeper of every jail or other institution used for the detention of sane adults charged with or con- victed of crime or detained as witnesses or debtors, subject to the visitation of the commission, shall, besides such information as may from time to time be required of him by the state commission of prisons pursuant to the powers hereinbefore conferred, on or before the first day of August in each and COUNTY JAILS. 177 County Law, § 90. 5. The buildings, now used as the jails of the counties of tihe state, shall continue to be the jails of those counties respectively, until other buildings have been designated or erected for that purpose, according to law. [County Law, § 90 ; B. C. & G. Cons. L., p. 762.] *very year, report to said commission the number of male and female persons charged w;th crime and awaiting trial, the number convicted of crime, the number detained as witnesses and as debtors in his custody on the first day of July last past, together with a statistical eshibit of the number of admissions, discharges and deaths which have occurred within the past year, the nature of the charge, the period of detention or sentence, and such other facts and information as the commission may reqmre. Idem, sec. 50, as amended by L. 1916, eh. 118. Estimates to be furnished by certain officers. The said commission shall have the further duty and authority to require the proper officials of the state and the political divisions thereof, and of all public institutions of the state, and political divisions thereof, supported wholly or in part by the state,, or any political division thereof, to furnish to said commission, annually, estimates for each ensuing year of the articles which may be manufactured in penal institutions, required for the use of the state or such political divisions, or said institutions in their charge or under their management. Idem, sec. 51. Enforcement of rights and powers of commission. Duties of the attorney-general and district attorneys. The rights and powers conferred by this article upon the state commission of prisons, its members, officers and inspectors and each of them, may be enforced by an order of the supreme court, or by indictment by the grand jury of the county, or both. The application of such order shall be to a special term or to the appellate division of the supreme court of the judicial district or department, respectively, in which the institution complained of is situated after at least twenty days notice to the oflficer or board having charge of such institution, of the time and place of making such application. A copy of all the papers upon which the application is based shall be served with the notice of such application. On such hearing the court may make such order as may be just, and a failure to comply with the terms thereof shall be a contempt of court and punishable as such. During the pendency of such an applica- tion and prior to the hearing thereof before the appellate division, such commis- sion may, by order to show cause, obtain a stay upon application to a special term or to a justice of the supreme court in chambers restraining any municipal officers from proceeding contrary to the determinations of the commission. Such stay may be, in the discretion of the appellate division, continued pending the determina- tion of the original application. If, in the opinion of the commission, any matter in regard to the management or affairs of any such institution, or any inmate or person in any way connected therewith, require legal investigation or action of any kind, notice thereof may be given by the commission, to the attorney-general, or to the district attorney of the county, or both, and he or they shall thereupon make inquiry and take ^ch proceeding in the premises as he or they may deem necesasry and proper. It shall be the duty of the attorney-general and of every district attorney when so required to furnish such legal assistance, counsel or advice as the commission may require in the discharge of its duties. Idem, sec. 52, as amended by L. 1918, ch. 364. Misdemeanor. Except as in this article otherwise expressly provided, any person who wilfully violates any of the provisions of this article shall be guilty of a mis- demeanor. Idem, sec. 53. Erection of jails. The board of supervisors may borrow money for the erection of county buildings and for the purchase of sites therefor, and may acquire, by purchase or otherwise, necessary real property for ocunty jails, arid may erect on such real property necessary buildings for the use of a, jail. See County Law, sec. 12, subds. 6, 13, ante, pp. 46, 49. If the county owns a 178 COUNTY OFFICERS; JAILS. Prison Law, § 347; County Law, §§ 91, 92. § 3. EITHER OF SEVERAL JAILS MAT BE USED. The sheriflE of a county, in which there is more than one jail, may confine a civil * and criminal prisoner in either; and may remove him from one jail to another, within the county, whenever he deems it neces- sary for his safe-keeping, or for his appearance at court. [Prison Law, § 347; B. C. & G. Cons. L., p. 4370.] § 4. NUMBER OF ROOMS IN COUNTY JAIL. Each county jail shall contain, 1. A sufficient number of rooms for the confinement of persons com- mited on criminal process, or detained for trial, or examination as witnesses in a criminal ease, separately from prisoners under sentence; 2. A sufficient number of rooms for the separate confinement of persons committed on civil process, or for contempt; 3. A sufficient number of rooms for the solitary confinement of pris- oners under sentence. [County Law, § 91; B. C. & G. Cons. L., p. 763. J § 5. CUSTODY AND CONTROL OF PRISONERS; CIVIL PRISONERS TO BE KEPT SEPARATE; 'C70MEN NOT TO BE KEPT IN SAME ROOM WITH MEN; COMMUNICATION AVITH COUNSEL, ETC. Each sheriff shall receive and safely keep, in the county jails of his county, every person lawfully committed to his custody for safe-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 custody 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. Per- sons detained for trial or examination upon a criminal charge shall not be put or kept in the same room with convicts under sentence. Minors shall not be put or kept in the same room with adult prisoners. A woman detained in any county jail or penitentiary upon a criminal charge, or as a convict under sentence, shall not be kept in the same room with a man ; site with a building thereon, it may appropriate a part of such building as a jail. Roach v. O'Dell, 33 Hun, 320; aff'd 99 N. Y. 635. The board of super- visors has authority to direct the purchase of such articles of furniture as are necessary to properly equip and furnigh the county jail, and an account for articles so purchased is a proper county charge. Schenck v. Mayor, etc., of New York, 67 N. Y. 44. * So in original. COUNTY JAILS. 179 County Law, § 92. and if detained on civil process, or for contempt, or as a witness, she shall not be put or kept in the same room with a men, except with her husband, in a room in which there are no other prisoners. If a woman committed to any county jail or penitentiary is then the mother of a nursing child in her care, under one year of age, or if a child be born to such woman after her said commitment, such child may accompany its mother to and remain in such institution until it is two years of age or until the mother's discharge from custody before the child reaches that age. The sheriff, superintendent or other officer in charge of any county jail or penitentiary shall cause such child, when it attains the age of two years, while its mother is still in custody, or at the expiration of the extension of such tinie hereinafter mentioned, to be placed in an asylum for children in this state, or may commit such child to the care and custody of some relative or proper person willing to assume such care; provided, however, that the said child shall continue to remain with its said mother in such jail or pentitentiary after it becomes two years of age for such a period as the physician employed to treat and visit prisoners in said jail or penitentiary certifies in writing to be necessary or advisable. If such woman at the time of such commitment shall be the mother of, and have in her exclusive care, a child more than one year of age which might otherwise, be left without care or guardianship, the justice or magistrate commiting such woman shall cause such child to be committed to such an asylum as may be provided for such purposes, or to the care and custody of some relative or proper person willing to assume such care. All persons confined in a county jail or penitentiary shall, as far as practicable, be kept separate from each other, and shall be allowed to converse with their counsel or religious adviser, under such reasonable regulations and restrictions as the keeper of the jail may fix.^ Convicts under sentence shall not be allowed to converse with any other person, except in the presence of a keeper. The keeper may prevent all other conversation by any other pris- oner in the jail when he shall deem it necessary and proper. [County Law, § 93; B. C. & G. Cons. L., p. 763.] 8. Separation of prisoners. Section 345 of the Prison Law, provides that: " A prisoner, arrested in a civil cause, must not be kept in a room in which any prisoner, detained on a criminal charge or conviction is confined." Section 346 provides that: "Male and female prisoners must not be. put in the same room; except that a husband and his wife may be put or kept together. In a room wherein there are no other prisoners." And in section 1875 of the Penal Law it is provided that: "A sheriff or other officer, who wilfully violates any of the foregoing provisions of sections one hundred and ten and one hundred and eleven of the code of Civil Procedure; or sections three hundred and forty, three hundred and forty-one, three hundred and forty-two, three hundred and forty-three, three hundred and forty-four, three hundred and forty-five, and 180 COUNTY OFFICERS; JAILS. County Law, § 93. § 6. PRISONERS TO BE FURNISHED WITH WHOLESOME FOOD; EMPLOYMENT OF PRISONERS. Prisoners detained for trial, and those under sentence, shall be provided with a sufBcient quantity of plain but wholesome food, at the expense of the county;^ such food shall be purchased in the manner and subject to the regu- lations provided in section two hundred and thirty-eight of this chapter ; but prisoners detaiaed 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 imprison- ment under sentence, to be constantly employed at hard labor when prac- ticable, during every day, except Sunday, and the board of supervisors of the county, or judge of the coimty, 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 ofBcers, or persons, under whose directions such convicts shall be placed subject to such regula- tions as the board or judge may prescribe; and the board of supervisors of the several counties are authorized to employ convicts under sentence to confinement in the county jails, in buildiag and repairing penal institu- tions of the county and in building and repairing the highways in their re- spective 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 authoirzed to cause money to be raised by taxa- tion for the purpose of furnishing materials and carrying this provision three hundred and forty-six of the prison law, forfeits to the person aggrieved, treble damages. He is also guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a forfeiture of his office." Liability of sheriff for injuries to prisoner. The case of Gunther v. Johnson, 36 App. Div. 437; 55 N. Y. Supp. 869, was where a prisoner, while confined in the county jail to await the action of the grand jury under a charge of grand larceny, and, while in the custody of the sheriff of the county, had an altercation with a prisoner who had been committed to the jail as a vagrant; on the following morning when the prisoners were allowed the liberty of the corridor of the jail, no keeper being present, the quarrel was resumed, and the plaintiff's intestate struck the prisoner who ran after and stabbed him with a pocket knife which such prisoner owned and used in shaving. It was held, in the absence of evidence that the sheriff knew of any trouble in the jail, negligence could not be predicated upon his failure to anticipate the attack of the plaintiff's intestate upon the prisoner, or the subsequent felonious assault by such prisoner. 3. Board of prisoners. Boards of supervisors are authorized to contract at COXJNTY JAILS. jgl County Law, §§ 94, 95. into effect; and the courts of this state are hereby authorized to sentence convicts committed to detention in the county jails to such hard labor as may be provided for them by the board of supervisors. This section as amended shall not affect a county wholly included within a city. [County Law, § 93, as amended by L. 1917, ch. 352; B. C. & G. Cons. L., p. 764.] § 7. PRISONERS TO BE FURNISHED IVITH READING MATTER; DIVINE SERVICE. 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 sup- plied with other suitable and proper books and papers, and if practicable, he shall 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, § 94; B. C. & G. Cons. L., p. 7&5.J § 8. RECORD OF COMMITMENTS AND DISCHARGES, WHAT TO STATE. Each keeper shall keep in a book, to be provided at the expense of the county, a daily record of the commitments and discharges of all prisoners delivered to his charge, which shall contain the date of entrance, name, offense, term of sentence, fine, age, sex, place of birth, color, social relations, education, secular and religious, for what and by whom committed, how and when discharged, trade or occupation, whether so employed when arrested, number of previous convictions.* The book containing such record shall be a public record, and shall be delivered by each sheriff to his successor, and kept on file in the office of the sheriff or keeper. [County Law, § 95; B. C. & G. Cons. L., p. 766.] such times and on such terms as the board may by resolution determine, with the sheriff of the county, when he is not by law in receipt of a salary as such sheriff, for the board, maintenance and care and custody of prisoners committed to the county jail. See County Law, see. 12, sub. 5, ante. As to contracts for the support of civil prisoners, see County Law,. § 12, subd. 22, ante, pp. . 4. Commitments to county jails. It is provided in section 2181 of the Penal Law that: " Wlhere a person is convicted of a crime, for which the punishment inflicted is imprisonment for a term of less than one year, the imprisonment must be inflicted by confinement in the county jail or place of confinement designated by law to be used as the jail of the county, except when otherwise specially prescribed by statute." Where a minor under the age of sixteen is convicted of a crime he may, instead of being sentenced to fine or imprisonment, be placed in charge of any suitable person or institu- tion willing to receive him. A child under the age of sixteen years who is committed for misdemeanor must be committed to some reformatory, char- l82 COUNTY OFFICERS; JAILS. County Law, §§ 96, 97; Code Crim. Proc, §§ 25, 22M. § 9. UNITED STATES PRISONERS TO BE RECEIVED. Such keeper shall receive and keep in his jail every person duly com- mitted thereto, for any offense 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 convicts, shall apply to all persons so committed by any court or officer of the United States. [County Law, § 96; B. C. & G. Cons. L., p. 766.] § 10. CALENDARS OF NAMES OF PRISONERS, ETC., TO BE PRE- SENTED TO COURT. Such keeper shall present to the court at the opening of every term of the supreme court, and at every term of the county court, having a grand jury, to be held in his county, 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, § 97; B. C. & G. Cons. L., p. 766.] § 11. PRISONERS TO BE DISCHARGED IF NOT INDICTED. Within twenty-four hours after the discharge of any grand jury by any supreme or county court, the court shall cause every person con- fined in jail on a criminal charge, who shall not have been indicted, to be discharged without bail, unless satisfactory cause shall be shown for his further detention, or if the case may require, upon bail until the meeting of the next grand jury in the county. [Code Crim. Proc, sec. 222d.] § 12. SUSPENSION OF HABEAS CORPUS DURING TERM OF COURT. During the session of the supreme court in any county, no person de- itable or other institution autliorized by law to receive and take charge of minors. See Penal Law, sec. 2194. Sentences to penitentiaries. Where a hoard of supervisors has contracted ■with another county for the custody of prisoners in a penitentiary, it is the duty of a committfng magistrate to sentence prisoners for terms of sixty days or more to such penitentiary. If the term imposed is less than sixty days, the sentence should be to the county jail. See Prison Law, sec. 320. 6. Disorderly persons. It is provided in section 908 of the Code of Crim- inal Procedure that: " The keeper of every prison to which disorderly per- sons may be committed must return to the County Court of the county on the first day of each term, a list of the persons so committed and then in his custody with the nature of the offense of each, the name of the magistrate COUNTY JAILS. 183 County Law, §§ 98, 99. tained in a county jail of such county, upon a criminal charge, shall be removed therefrom by writ of habeas corpus, unless such writ shall have been issued by or shall be made returnable before such court.' [Code Crim. Proc, sec. 25. J § 13. PRISONER TO BE DISCHARGED IF UNABLE TO PAY FINE. When any person shall be confined in a jail for the nonpayment 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 be 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, § 98; B. C. & G. Cons. L., p. 766.] § 14. HOUSES OF DETENTION FOR AVOMEN, CHILDREN AND VTIT- NESSES. 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 keeping 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 detention ; 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 compensation for the care and keeping of prisoners therein, as in the county jail. [County Law, § 99; B. C. & G. Cons. L., p. 766.] by whom lie was committed, and the term of his imprisonment." The persons here referred to are persons committed as disorderly persons on failure to give security as provided in sec. 997 of the Code of Criminal Procedure. For form of calendar to be presented to criminal courts as required in the above section, see Form No. 10, post. 7. Suspension of writ of habeas corpus. The session of a court con- tinues for the purpose of a suspension of habeas corpus until the grand jury is actually discharged from its work; the absence of the judge and the trial of the jury is not a termination of the court within the meaning of the statute. See Matter of Taylor, 8 Misc. 159; People v. Sullivan, 115 N. Y. 185; 21 N. E. 1039; People v. Barrett, 56 Hun, 351, 9 N. Y. Supp. 321. 8. Remission of fines. It is provided in sec. 484 of the Code of Criminal Procedure that: "Any court of record, except an inferior court of local jurisdiction, which has imposed a fine for any criminal offense, or the pre- T84 COUNTY OFFICERS; JAILS. County Law, §§ 100, 101. § 15. BOARDS OF SUPERVISORS MAY ESTABLISH AND MAINTAITf COUNTY WORKHOUSES. The board of supervisors of any county may establish and maintain a workhouse for the confinement of persons convicted within the county of crimes and criminal offenses, the punishment for which is imprison- ment in the county jail, and may provide for the imprisonment and employment therein of all persons sentenced thereto, and any court or judicial officer may sentence such person to such workhouse instead of to the county jail." [County Law, § 100 ; B. C. & G. Cons. L., p. 707.] § 16. WHO MAY VISIT JAILS AND W^ORKHOUSES. The following persons may visit at pleasure all county jails and work- houses: The governor and lieutenant-governor, secretary of state, comp- troller and attorney-general, members of the legislature, judges of the court of appeals, justices of the supreme court and county judges, district at- torneys and every minister of the gospel having charge of a congregation in the town in which such jail or workhouse is located. No other person not otherwise authorized by law shall be permitted to enter the rooms of a county jail or workhouse in which convicts are confined, unless under such regulations as the sheriff of the county shall prescribe.^" [County Law, § 101; B. C. & G. Cons. L., p. 767.] siding judge tliereof, or any judge authorized to preside therein, shall have power in his discretion, on five days' notice to the district attorney of the county in which such fine was imposed, to remit such fine, or any portion thereof. In case of a fine Imposed by a court not of record or by any In- ferior court of local jurisdiction, for any criminal offense whatever, the county judge of the county in which the fine was imposed, and in case of a fine imposed by such a court in the city of New York the Court of General Sessions, or any judge thereof, upon five days' notice to the district attorney of the county in which such fine was imposed, shall have the same power." 9. Penitentiaries are of the same nature as workhouses, and it is proba- ble that under the above section boards of supervisors may establish and maintain penitentiaries. 10. Visitation of jails and workhouses. Any member of the state com- mission of prisons or its secretary or other authorized agent shall be admitted into the jails for the purpose of visitation or inspection. Prison Law, § 47, ante, p 171. Members of the executive committee of the prison association of New York or such committees as they shall from time to time appoint, have the power of visitation of county jails upon an order granted by one of the judges of the Supreme Court. See L. 1846, ch. 163, sec. 6. Members of the grand jury are entitled to free access at all reasonable times to county jails. See Code Crim. Proc, sec. 261. Pejial provisions as to commiuiications with prisioners. Section 1691 of the Penal Law, is as follows: COUNTY JAILS. 185 Prison Law, §§ 348, 349; Penal Law, § 1791. § 17. 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 physician to a jail holds his office at the pleasure of the board which appointed him, except in the county of Kings. In that county, the term of his office is three years. [Prison Law, sec. 348 ; B. C. & G. Cons. L., p. 4370.] § 18. 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. Spirit- uous, fermented or other liquors, 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 civil prisoner for whom, and the time during which the same may be furnished. [Prison Law, § 349; B. C. & G. Cons. L., p. 4370.J A permit by a jail physician as specified in the last section shall not be granted, unless the physician is satisfied, that the liquor allowed to be furnished, is necessary for the health of the civil prisoner, for whose use it is permitted; and that fact must be stated in the permit. [Idem, § 350.] A person who brings into or sells in a jail, strong, spirituous, fermented, or other liquor, or wine, contrary to the provisions of sections three hundred and forty-nine or three hundred and fifty of the prison law; or a sheriff, keeper of a jail, assistant keeper, or officer, or person employed in or about a jail, who knowingly suffers liquor or wine to be sold or used therein, contrary to either of said sections, is guilty of a misdemeanor, and shall be punished accordingly. A conviction also operates as a for- feiture of his office. [Penal Law, § 1791; B. C. & G. Cons. L., p. 4039.] " A person who : " 1. Not being authorized by law visits any state prison, reformatory, peni- tentiary, county jail or other place for the detention of persons convicted of crime or communicates with any prisoner therein without the consent of the agent or warden, superintendent, keeper, sheriff or other person having charge thereof or without such consent brings into or conveys out of a state prison, reformatory, penitentiary, county jail or other place for the detention of persons convicted of crime, any letter, information or writing to or from any prisoner; or, " 2. Conveys in or takes from such prison, reformatory, penitentiary, covtaty jail or other place for the detention of persons convicted of crime, or who 186 COUNTY OFFICERS : JAILS. Code Civ. Proc, §§ 131, 132; Prison Law, §§ 351. 354. § 19. SERVICE OF PAPERS IN CIVII. ACTION TO BE MADE ON PRISONER IN JAIL. A sheriff or jailer, upon whom a paper in an action or special proceeding, directed to a prisoner in his custody, is lawfully served, or to whom such a paper is delivered for a prisoner, must, within two days thereafter, deliver the same to the prisoner, with a note thereon of the time of the service thereof upon, or the receipt thereof by him." For a neglect or violation of this section the sheriff or jailer, guilty thereof, is liable to the prisoner for all damages occasioned thereby. [Code Civ. Proc, § 131.] Subject to reasonable regulations, which the sheriff may establish for that purpose, a sheriff, jailer 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, § 132.] § 20. 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 designation is made, as prescribed in section three; hundred and fifty-one of this article. [Prison Law, § 35-i; B. C. & G. Cons. L., p. 4371.J § 21. DESIGNATION OF JAIL OF OTHER COUNTY OR OTHER PLACE IN SAME COUNTY AS A COUNTY JAIL; MODIFICA- TION OR REVOCATION OF DESIGNATION; COPY OF DESIG- NATION 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, civil or criminal, or is destroyed by fire or otherwise; or if a pestilential disease breaks out in the jail, or in the vicinity of the jail, and the physician to the jail personally or through any other person or persons gives, sells, furnishes or otherwise delivers to any prisoner or prisoners in custody any drug, liquor or any article prohibited by law or by the rules of the superintendent, keeper, sheriff, board of managers or other person, or official having charge or control thereof; is guilty of a misdemeanor." 11. An execution against a person is not a paper within the meaning of this section. See Matter of Johnson, 21 Abb. N. C. 172. COUNTY JAILS. 187 Prison Law, §§ 352, 353, 356; Code Civ. Proc, §§ 138, 139. 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 designated 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 expressed in the instrument designating the same. [Prison Law, §351 ; B. C. & G. Cons. L., p. 4370.] The designation may be modified or revoked, by the judge making the same, by a like instrument in writing, filed with the clerk of the county. [Idem, § 353.] 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, § 353.] If the county judge, or the presiding judge of the appellate division, of the supreme court of the first department, is absent or unable to act, or his office is vacant, a designation, or the revocation or modification there- of, as prescribed in this article, may be made, in any county, except New York, by the special county judge or the district attorney, or, in the city and county of New York, by any justice of the appellate division. [Idem, i 356.] § 22. JAIL LIBEHTIES, 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, pursuant to section three hundred and fifty-one of the prison law, he must, notwithstanding, remain within those liberties; but he 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. Proc, § 138.] If a person, who is arrested, before or after the designation, by the sheriff of the county for which the designation is made, becomes entitled, after the designation, and before his removal, to the liberties of the jail, he must be admitted to the liberties of the jail of that county, as if the designation had not been made; but he may be removed by the sheriff 188 COUNTY OFFICERS; JAILS. Code Civ. Proc, §§ 140-142. to the jail, or other place, so designated, and confined therein, in a case where the sheriff might confine him in the jail of his own county. [Idem, § 139.] If a person confined in or removed to the jail of a contiguous county, designated as prescribed in article thirteen of the Penal Law, becomes entitled to the liberties of the jail, the sheriff of that county must admit him to the jail liberties, as if he had been originally arrested by .that sheriff, on a mandate directed to him. [Idem, § 140.] § 23. REVOCATION OF DESIGNATION. When a jail is erected for the county, for whose use the designation pursuant to section three hundred and fifty-one of the prison law was made, or its jail is rendered fit and safe for the confinement of prisoners, or the reason for the designation of another jail or place has otherwise ceased to be operative, the designation must be revoked-, as prescribed in this article, and section three hundred and fifty-two of the prison law. [Code Civ. Proc, § 141.] The county clerk must immediately serve a copy of the revocation, duly certified by him under his official seal, upon the sheriff of the same county; who must remove the prisoners belonging to his custody, and confined without his county, to his proper jail. If a prisoner has' been admitted to the jail liberties in the other county, he must also be removed ; and he is entitled to the liberties of the jail of the county, to which he is removed, without a new bond, as if he had been originally admitted to the jail liberties in that county; and the bond given by him applies accord- ingly to those liberties. [Idem, § 142. J CIVIL PRISONERS; JAIL LIBERTIES. jgg Code Civ. Froc, §§ 110, 111. CHAPTER XIII. CIVIL PRISONERS; JAIL LIBERTIES. Section 1. Civil prisoners, when arrested; how long imprisoned. 2. Support of civil prisoners; sheriff not to charge for food nor keeping prisoners out of jail; support of civil prisoners out of Jail; sheriff not to receive room rent. 3. Prisoner conveyed through other counties. 4. Civil prisoners by virtue of process of United States courts; sheriff or jailer may receive compensation for services. 5. Civil prisoner, when sick may he removed. 6. Jail limits, how established; copy of resolution of board of super- visors to be served on jailer. 7. Boundaries of jail limits, how designated. 8. Civil prisoner, when entitled to jail liberties; undertaking, how executed; effect of undertaking. 9. Surrender of civil prisoner upon jail limits. 10. Escape of civil prisoner, what constitutes. 11. Liability of sheriff for escape. 12. When sheriff to produce civil prisoner who has been indicted. 13. Confinement of prisoner committed for contempt. f 1. CIVrL PRISONERS, WHEN ARRESTED; HOW LONG IMPRIS- ONED. 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 section and in subdivision nineteen of section two hundred and forty of the county law, at his own expense, until he satisfies the judgment rendered against him, or is dis- charged according to law. [Code, Civ. Proc, § 110.] No person shall be imprisoned within the prison walls of any jail for a longer period than three months under an execution or any other mandate against the person to enforce the recovery of a sum of money less than five hundred dollars in amount or 'under a commitment upon a fine for contempt of court in the nonpayment of alimony or counsel fees in a divorce case where the amount so to be paid is less than the sum of five hundred dollars; and where the amount in either of said eases is five 190 COUNTY OFFICERS; COUNTY JAILS. Code Civ. Proc, § 111. hundred dollars or over, such imprisonment shall not continue for a longer period than six months. It shall be the duty of the sheriff in whose custody any such person is held to discharge such person at the expira- tion 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 man- date against the person, and no action shall be commenced against the shierifE 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' imprison- ment 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 commit- ment for contempt of court. ^ [Idem, § 111. J 1. Application of section. This section refers only to a final process or mandate after an adjudication fixing the amount due; it does not include orders of arrest issued at the time of the commencement of an action or be- fore any recovery. Levy v. Salomon, 105 N. Y. 529; 12 N. E. 53, 19 Abb. N. C. 52; In re Coyne, 18 Civ. Proc. R. 397; 13 N. Y. Supp. 797. It has refer- ence to that class of defendants who are actually confined in jail or within the jail liberties. Wright v. Grant, 11 Civ. Proc. R. 407; 18 Abb. N. C. 451. But an imprisonment of the defendant for contempt on an interlocutory order before judgment will not prevent his subsequent imprisonment for disobedi- ence to a final judgment in the same action. Reese v. Reese, 46 App. Div. 156; 61 N. Y. Supp. 760. The object of the section is to limit the period of imprisonment to three months in case of actual confinement, and to six months in case of imprison- ment within the jail liberties. In computing the term to which the im- prisonment is limited, for contempt of court in the non-payment of alimony, the time during which the person against whom the process runs is out of jail, in the custody of his counsel pending habeas corpus proceedings, is not to be included. People ex rel. Clark v. Grant, 111 N. Y. 584; 19 N. E. 281. Not to be again imprisoned upon a like process in same action. Where a defendant has been arrested and imprisoned for the non-payment ot alimony previously directed to be paid by the judgment, and remains in prison under the commitment, because of such default of payment, for the full term for which he could be imprisoned, he is not thereafter liable to arrest and imprison- ment because of the non-payment of alimony subsequently becoming payable, as the above section prohibits the imprisonment of the party upon a like process, not for the non-payment of the same sum of money, but under a like CIVIL PRISONERS; JAIL LIBERTIES. 191 Prison Law, §§ 340-344. § 2. SUPPORT OF CIVIL PRISONERS; SHERIFF NOT TO CHARGE FOR FOOD NOR KEEPING PRISONERS OUT OF JAIL; SUP- PORT 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 sherifp, jailer, or deputy jailer, that he is unable to support himself during his imprisonment, his support is a county charge. This subdivision shall also apply to the county of New York. [County Law, § 340, sub. 19; B. C. & G. Cons. L., p. 827.] A sheriff or other officer shall not charge a civil prisoner, with any sum of money, or demand, or receive from him money, or any valuable thing, for any drink, victuals or other thing, furnished or provided for the officer, or for the prisoner, at any tavern, alehouse, or public victualing or drinking house. [Prison Law, § 340; B. C. & G. Cons. L., p. 4368.] A sheriff or other officer shall not demand or receive from a civil pris- oner, 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, § 341.J If a person arrested in a civil cause 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 or county court of the county; or, if no rate has been prescribed by the Court of Sessions or county court, 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. [Ideto, § 342.] A civil prisoner arrested and kept in a house, other than the jail of the county, may send for and have beer, ale, cider, tea, coffee, milk, and neces- sary 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, § 343.] A sheriff, jailer, or other officer, shall not demand or receive money, or any valuable thing, for chamber rent in a jail; or any fee, compensation. process issued in the same action. Winton v. Winton, 53 Hun, 4; 5 N. Y. Supp. 537; affd. 117 N. Y. 623. 3. As to contracts with sheriff made by the board of supervisors for the support and maintenance of civil prisoners, see County Law, § 12, subd. 22, ante. 192 COUNTY OFPICBKS; COUNTY JAILS. Code Civ. Proc, |§ 118, 133, 134; Civ. Righta Law, § 22. or reward, for the comniit«ient, detaining in custody, release, or discharge of a civil prisoner, other than the fees expressly allowed therefor by law. [Idem, § 344.] § 3. PRISONER CONVEYED THROUGH OTHER COUNTIES. A sheriff or other officer, who has lawfully arrested a prisoner, 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. Proc, § 118.] A prisoner conveyed to jail through another county pursuant to section one hundred and eighteen of the code of civil procedure, or the officer having him in custody, is not liable to arrest in any civil action or special proceeding, while passing through another county. [Civil Eights Law, § 22 ; B. C. & G. Cons. L., p. 632.] 8 4. Civil. PRISONERS BT VIRTUE OF PROCESS OF UNITED STATES COURTS; SHERIFF OR JAII,OR MAY RECEIVE COM- SATION FOR SERVICES. A sheriff must receive into his jail and keep a prisoner, committed to the same, by virtue of civil process issued by a 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 the state. The sheriff may receive, to his own use, the money payable by the United States for the use of the jail. [Code Civ. Proc, § 133.] A sheriff, or jailer, 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.] 8 5. CIVIL PRISONER, VTHEN 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 jailer, certifying in writing, that a prisoner, con- fined 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 treatment, 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, desig- nated 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 CIVIL PKISONEKS; JAIL LIBERTIES. 193 Prison Law, §§ 357, 358, 360; Code Civ, Proc, § 127; L. 1899, ch. 443. the warden or jailor, and that the latter thereupon resume custody of the prisoner. [Prison Law, § 355 ; B. C. & G. Cons. L., p. 4371.] If the prisoner actually escapes, while going to, remaining at, or re- turning from a hospital to which he has been ordered removed pursuant to section three hundred and fifty-five of the prison law, a new execution may be 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 undertak- ing. [Code Civ. Proc., § 127, as amended by L, 1909, ch. 65.] § 6. JAIL LIMITS, HOW ESTABLISHED; COPY OF BESOL1TTION 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 county of New York, the whole of said county ; For the county of the Bronx, the whole of said county ; ^°- For the county of Onondaga, the whole of the city of Syracuse ; For the county of Monroe, the whole of the city of Rochester ; For the county of Erie, the whole of the city of Buffalo ; For the county of Dutchess, the whole of the city of Poughkeepsie; For the county of Kings, the whole of that county ; For the county of Albany, the whole of the city of Albany ; For the county of Schenectady, the whole of the city of Schenectady; 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 Eensselaer, the whole of the city of Troy; For the county of Niagara, the whole of the city of Lockport ; For the county of Steuben, the whole of the village of Bath; For the county of Nassau, the whole of the town of Hempstead; For the county of Broome, the whole of the city of Binghamton ; For the county of Genesee, the whole of the village of Batavia. [Prison Law, § 357, as amended by L. 1911, ch. 174, L. 1915, ch. 62, and L. 1917, ch. 122; B. C. & G. Cons. L., p. 4372.] 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, § 358.] 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 2a. Prior to the amendment of 1915, it was lield that the jail liberties of the county of Bronx consisted of the whole of New York county. See Rosenzwig v. U. S. fidelity & G. Co., 151 N. Y. Supp. 237. 3. The jail liberties for the county of Cayuga are the city limits of the city of Auburn. See L. 1882, ch. 12. The jail liberties of the county of Ulster are the whole of the city of Kingston. See L. 1881, ch. 299. 194 COUNTY OFFICERS; COUNTY JAILS. Prison Law, §§ 359, 360; Code Civ. Proc, § 149. Ids 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 liberties of the jail, at the time of his executing a bond for that purpose.* [Prison Law, § 360, B. C. & G. Cons. L., p. 4373.] § 7. BOUNDARIES OF JAIL lilMITS, HOW 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 of 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 per- manent marks, at the expense of the county." [Prison Law, § 359; B. C. & G. Cons. L., p. 4373.J § 8. CIVIL PBISONEB, WHEN ENTITLED TO JAIL LIBERTIES; UN- DERTAKING, HOW^ EXECUTED; EFFECT OF UNDERTAKING. A person in the custody of a sheriff by virtue of an order of arrest; or of an execution in a civil action ; or in consequence 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 approved undertaking as prescribed in the next section." [Code Civ. Proc, § 149.] 4. Powers of board of supervisors. The above section would seem to imply that the board of supervisors had power to adopt a resolution altering and establishing jail liberties. L. 1875, ch. 484, sec. 1, sub. 18, which was repealed by the County Law and not re-enacted, gave to boards of supervisors the power of adopting such a resolution, on the recommendation of the County Court. The repeal of such provision without the enactment of a substitute therefor has perhaps deprived the board of supervisors of such power. 5. A board of supervisors in exercising its powers under this section is subject to the limitations contained therein. Roach v. O'Dell, 33 Hun, 320. In this case it was held that under ch. 482, Laws of 1875, boards of supervisors could establish jail liberties of 500 acres in extent, as provided in the above section. The act of 1875, ch. 482, was repealed in toto by the County Law (L. 1892, ch. 686) and the powers of boards of supervisors as to jail liberties are now only conferred by the above section. 6. Who entitled to jail liberties. This section extends the liberties of CIVIL PRISONERS; JAIL LIBERTIES. 195 Code Civ. Proc, § 150. 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 at 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 custody 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 manner, escape or go without the liberties of the jail, until discharged by due course of law. Upon the giving and the approval by a court or a judge thereof, or a county judge, of such an undertaking, the prisoner shall be released from the custody of the sheriff and the sheriff shall thereupon be exonerated from liability. But after the allowance of the undertaking as hereinafter pre- scribed, the same must be delivered by the clerk, on request, to the party at whose instance the prisoner was in custody. Within two days after the ap- proval by the court, judge, or county judge, the undertaking must be filed by the sheriff with the clerk, and a copy delivered to the party at whose instance the prisoner was in custody, or to his attorney, who shall within three days thereafter serve upon the surety or sureties, or the attorney for the prisoner, a notice that he does not accept him, or them, as bail; otherwise he is deemed to have accepted them. Within three days after the receipt of such notice, the surety or sureties, or the attorney for the prisoner, may serve upon the party, or attorney for the party, at whose instance the prisoner was in custody, notice of justification of the same or other bail before the court or a judge thereof, or a .county judge, at a specified time and place; the time to be not less than five days nor more than ten days thereafter, and the place to be within the county where one of the bail resides or where the defendant was arrested. Except as other- wise expressly prescribed in. this article, the provisions regulating the substitution of new sureties or a new undertaking, and the examination and qualification of the new sureties, and the allowance of the under- taking after justification, contained in article third of title first of chapter seventh of this act, shall govern. If the bail shall not . be allowed, the court, judge or county judge shall remand the prisoner to the custody of the sheriff. [Idem, § 150.] the jail to defendants in custody under orders of arrest as well as under final process. See Levy v. Kaim, 55 How. Pr. 136; Horowitz v. Olenick, 62 App. Div. 283; 70 N. Y. Supp. 1116. A defendant arrested in an action brought to recover chattels wrongfully concealed and disposed of may be admitted to the liberties of the jail upon the ordinary limit bond. Dougan v. Cohen, 13 19G COUNTY OFFICERS; COUNTY JAILS. Code Civ. Proc, §§ 151-155. An undertaking so taken is held for the indemnit}- of the party at whose instance the prisoner executing it is confined. [Idem, § 151.] If the party at whose instance the prisoner is in custody discovers that a surety therein is insufficient, he may, upon proof of the fact, by affidavit 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, § 152.] § 9. SURRENDER OF CIVIL PRISONER UPON JAIL LIMITS. 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 ren- dered against them in an action on the undertaking, but they are not exonerated thereby from a liability incurred before making the surrender. [Code Civ. Proc, § 153.] 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 the principal into his custody, and indorse upon the undertaking given for the liberties, an aclniowlcdg- ment of the surrender, and also, if required, give the surety or sureties a certificate, acknowledging the surrender. [Idem, § 154.] § 10. ESCAPE OF CIVIL PRISONER, WHAT CONSTITUTES. The going at large, within the liberties of the jail in which he is in custody, of a prisoner who has executed such an undertaking, or of a prisoner who would be entitled to the liberties upon executing such an undertaking, is not an escape. But the going at large, beyond the liberties, 1)y a prisoner, without the assent of the party at whose instance he is in custody, is an escape; and the sheriff in whose custody he was, 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 Civ. Proc. R. 295. But in a divorce case, where the defendant has been com- mitted to jail for non-payment of counsel fees and alimony pendente lite, he is not entitled to the liberties of the jail. Allen v. Allen, 58 How. Pr. 381. 7. When bond is insuflacient. If the sheriff who has taken a bond for the limits discovers that the sureties are insufficient, he may commit the prisoner who executed it to close confinement until another bond with good and sufficient sureties is offered, and the prisoner may give a new bond in lieu of the one on which the sureties failed to justify. Dougan v. Cohen, 13 Civ. Proc. R. 295. CIVIL PRISONERS; JAIL LIBERTIES. 197 Code Civ. Proc, § 158. liberties, if any; subject to the provisions of the next article of this title.* [Code Civ. Proc, § 155.] § 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 pro- vided for in section one hundred and fifty of this article has been given and approved, as follows : 1. If the prisoner was in custody by virtue of an order of arrest, or in consequence of a surrender in exoneration of his bail, before judgment, the sheriff is answerable to the extent of the damages 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, damages, or sum of money, for which the prisoner was committed. 3. Upon the giving and approval of the undertaking in this article mentioned, no action for an escape shall be maintained against the sheriff. [Code of Civ. Proc, § 158.] 8. What constitutes an escape. It Is an escape for a sheriff to permit a defendant held in execution to be taken from his custody upon the warrant of a police justice. Eads v. Wynne, 79 Hun, 463; 29 N. Y. Supp. 983. The suffering of a prisoner to go at large is in any event an escape. Loosey v. Orser, 4 Bosw. 391. Where, after a voluntary escape, the prisoner is arrested on criminal pro- cess so that the officer cannot re-take him, he is liable for the escape. Olmstead v. Raymond, 6 Johns. 62. So where a prisoner allowed the liberties of the jail under a final process, was arrested and taken to another county, it was held to be an escape. It was the officer's duty to prevent a rescue from the limits as much as it would have been from the jail, if he had been in close confinement. Brown v. Tracy, 9 How. Pr. 23. The overstepping of undefined limits is a voluntary escape. Dole v. Moul- ten, 20 Johns. Cas. 205. So going beyond the liberties without necessity is an escape, though it is inadvertent and arises from the boundaries being badly defined. Bissell v. Kip, 5 Johns. 89. "Actions for escape. The plaintiff in an action for an escape must show that the judgment debtor was taken into custody before the alleged escape. Jackson v. Comisky, 30 Misc. 622; 62 N. Y. Supp. 705. If, after a negligent escape, the prisoner returns or is retaken so as to be in custody before the suit is begun by actual service of process against the sheriff, it is a defense. Middle District Bank v. Deyo, 6 Coll. 732, In an action for escape the sheriff may set up as a defense that the execu- tion under which the prisoner was held was illegally issued, and that the ar- rest was unauthorized and void. Goodwin v. Griffis, 88 N. Y. 630; Carpentier 198 COUNTY OFFICERS; COUNTY JAILS. Penal Law, § 1839; Code Civ. Proc, §^ 156, 157. A sheriff, coroner, clerk of a court, constable, or other ministerial officer, and every deputy or subordinate of any ministerial officer who : 1. Receives any gratuity or reward, or any security or promise of one, to procure, assist, connive 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. A conviction of a sheriff or other officer also operates as a forfeiture of his office and disqualifies him forever thereafter from holding the same. The governor shall, upon application, grant a hearing to a person convicted under this section, and if he be satisfied that the facts warrant it, he may, by order, relieve such person from such disqualification. [Penal Law, § 1839, as amended by L. 1917, ch. 226; B. C. & G. Cons. L., p. 4045.] § 12. WHEN SHERIFF TO PRODUCE dVTL PRISONER WHO HAS BEEN INDICTED. 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 indictment 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. Proc, § 156.] § 13. 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 sustained 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. Proc, § 157.] v. Willett, 1 Abb. Ct. App. Dec. 312; 1 Keyes, 510. But if the process is merely voidable, it is no defense. Dunford v. Weaver, ■ 84 N. Y. 445. Nor is a mere irregularity in the process or judgment a defense to the sheriff. Wesson v. Chamberlain, 3 N. Y. 331; Hutchinson v. Brand, 9 N. Y. 208; Lathan v. Westervelt, 16 Barb. 421. Liability of surety on judgment debtor's bond may be enforced although the debtor was insolvent. Plyn t. Union Surety Co., 61 App. Div. 170, 70 N. Y. Supp. 403, aff'd 170 N. Y. 145. CORONER'S INQUEST. 19» Code Crim. Proc, § 773. CHAPTER XIV. CORONER'S INQUEST. Section 1. In what cases coroner to summon a jury; number of jurors to Ije summoned; coroner, when disqualified. 2. Witnesses to be subpcenaed; compelling attendance. 3. Verdict of jury, what to contain. 4. Testimony to be in writing and filed; when defendant is arrested before inquisition, testimony to be delivered to magistrate. 5. Warrant for arrest of party charged by verdict; form of warrant. 6. Execution of warrant. 7. Proceedings of magistrate or coroner on defendants being brought before him. 8. Disposition of money or property found on deceased. 9. Coroner to give statement to board of supervisors before his ac- counts are audited; compensation. 10. Witnesses and jurors; report of coroner. 11. Justices of the peace, when to act as coroners. § 1. IN VTHAT CASES CORONER TO SUMMON A JURY; NUMBER OF JURORS TO BE SUMMONED; CORONER, WHEN DISQUALI. FIED. Whenever a coroner is informed that a person 'has been killed or dan- gerously wounded by another, or has suddenly died under such circum- stances as to afford a reasonable ground to suspect that his death has been occasioned by the act of another by criminal means, or has committed suicide, he must go to the place where the person is and forthwith inquire into the cause of the death, or wounding, and in case such death, or wound- ing, occurred in a county in which is situated in whole, or in part, a city having a population of more than five hundred thousand as appears by the last state enumeration, 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, or complainant, or if it shall appear from the evidence taken on, or during, the inquisition, or hearing, that any person, or persons, are chargeable with the killing or wounding, or that there is probable cause to believe that any person or persons are chargeable therewith, and if such person or persons be not in custody he must forthwith issue a warrant for 200 COUNTY OFFICKRS; JAILS. Code Crim. Proc, §§ 775-777. ihe arrest of the person or persons charged with such killing or wounding ; and upon the arrest of any person, or persons, chargeable therewith, he must be arraigned before the coroner for examination, and the said coroner shall have power to commit the person or persons so arrested to await the result of the inquisition or decision. Any coroner shall be disqualified from acting as such in any case ■where the person killed, or dangerously wounded, or dying suddenly, as aforesaid, is a co-employe with said coroner, of any person, or persons, association, or corporation, or where it appears that the killing or wound- ing has been occasioned, directly or indirectly, by the employer of said coroner. [Code Crim. Proc, § 773.] § 2. ^VITNESSES TO BE SUBPOENAED; COMFELIiING ATTENDANCE. The coroner may issue subpoenas for witnesses, returnable forthwith, or at such time and place as he may appoint. He must summon and ex- amine as witnesses, every person who, in his opinion, or that of any of the jury, has any knowledge of the facts; and he must summon as a witness a surgeon or physician, who must, in the presence of the jury, inspect the body, and give a professional opinion as to the cause of the death or wounding.^ [Code Crim. Proc, § 775.] A witness served with a subpoena may be compelled to attend and testify, or punished by the coroner for disobedience, as upon a subpoena issued by a magistrate, as provided in this code. [Idem, § 776.] S 3. VERDICT OF JURY, V^HAT 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 pro- vided in section seven hundred and seventy-three, the jury must render their verdict, and certify it by an inquisition or decision in writing, signed by him or them as the case may be, and setting 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 occasioned by the act of another, by criminal means, who is guilty thereof, 1. Publicity of proceedings. A coroner's inquest is a judicial proceeding within the statute declaring that the sittings of any court shall be public and every citizen may freely attend the same; a post mortem examination con- ducted by surgeons employed by the coroner is not a part of the inquest, which, like sittings of any court of the state, any citizen has a right to attend. Crisfield v. Ferine, 15 Hun, 200; aftd. 81 N. Y. 622. 2. Examination of witnesses. A prisoner has no right to cross-examine witnesses before the coroner or to produce witnesses in his own behalf. People -V. Collins, 20 How. Pr. Ill; 11 Abb. Pr. 406. CORONER'S INQUEST. 201 Code Crim. Proc, §§ 778-781. in so far as by such inquisition he or such jury has been able to ascertain. [Code Crim. Proc, § 777.] § 4. TESTIMONY TO BE IN WRITING AND FILED ; WHEN DEFEND- ANT IS ARKESTED BEFORE INQUISITION, TESTIMONY TO BE DELIVERED TO MAGISTRATE. 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. Proc, § 778.] If, however, the defendant be arrested before the inquisition can be filed, the coroner must deliver it with the testimony, to the magistrate before whom the defendant is brought, as provided in section 781, who must return it with the depositions and statement taken before him, in the manner prescribed in section 381. [Idem, § 779.] 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 ascertained by the inquisition or decision, and be not in custody, the coroner must issue a warrant, signed by him with his- name of office, into one or more counties, as may be necessary, for the arrest of the person charged. [Idem, § 780.] § 5. WARRANT FOR ARREST OF PARTY CHARGED BY VERDICT; FORM OF TVARBANT, 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 C 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 C D and bring him before me, or in the case of my absence or inability to act, before the nearest or most acessible 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). [Code Crim. Proc, § 781.] 202 COUNTY OFFICERS; JAILS. Code Grim. Proc, §§ 782-787. § 6. EXECUTION OF WARRANT. The coroner's warrant may be served in any county; and the officer 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. Proc, § 782.] § 7. PROCEEDINGS OF MAGISTRATE OR CORONER ON DEFEND- ANTS BEING BROUGHT BEFORE HIM. The magistrate or coroner, when the defendant is brought before him, must proceed to examine the charge contained in the inquisition or infor- mation, 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 in- formation. [Code Crim. Proc, § 783.] Upon the arrest of the defendant, the clerk with whom the inquisition is filed, must, without delay, furnish to the magistrate or coroner before whom the defendant is brought, a certified copy of the inquisition and of the testimony returned therewth. [Idem, § 784.J g 8. DISPOSITION OF MONEY OR PROPERTY FOUND ON DE- CEASED. 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 mean 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. Proc, § 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 30 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.] If the money in the treasury be demanded within six years, by the legal representatives of the deceased, the treasurer must pay it to them, after deducting the fees and expenses 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.] 3. Hearing on arrest. A prisoner against whom an Inquisition has been found by a coroner's jury, whether arrested before, on or after the filing of such inquisition, is entitled to a hearing before a magistrate, in the same CORONER'S INQUEST. 203 Code Crim. Proc, §§ 788-789-a; County Law, § 192. § 9. 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 persons 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 the legal repre- sentatives of the deceased, or to the county treasurer. [Code Crim. Proc, § 788.] The coroner is entitled, for his services in holding inquests and per- forming any other duty incidental thereto, to such compensation as defined by special statutes. [Idem, § 790.J § 10. FEES OF WITNESSES AND JURORS; REPORT OF CORONER. Whenever, in consequence of the performance of his official duties, a coroner becomes a witness in a criminal proceeding, he shall be entitled to receive mileage to and from his place of residence, ten cents per mile, and three dollars per day for each day, or fractional parts thereof, actually detained as such witness. [See County Law, § 192; B. C. & G. Cons. L., p. 804.] The fees of jurors necessarily summoned upon any coroner's inquest shall be not to exceed one dollar for each day's service, shall be a county charge and shall be audited and allowed by the board of supervisors in the same manner as other fees and charges mentioned in this title. But the coroner holding such inquest and summoning said jurors, shall make report to the next succeeding board of supervisors after every such inquest of the names of such jurors and the term of service of each, and upon what inquest rendered, on or before the third day of the annual session in each year. [Code Crim. Proc, § 774. J §11. JUSTICES OF THE PEACE, VTHEN 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 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. manner as if he had been arrested upon an ordinary information, as defined by sec. 145 of the Code of Criminal Procedure. Matter of Ramscar, 10 Abb. N. C. 442; 63 How. Pr. 255. 204 COUNTY OFFICERS; JAILS. Code Criin. Proc. § 789a. Post-mortem examinations. In all cases in which the cause of death is not apparent, it shall be the duty of the justice to associate with himself a regularly licensed physician, to make a suitable examination for the dis- covery of said cause. Fees. Each justice of the peace who shall hold inquests by virtue of this act, shall receive the same fees as are now allowed by law to coroners. [Code Crim. Proc, § 789-a.J UNITED STATES DEPOSIT FUND, 205 Explanatory note. CHAPTER XV. UNITED STATES DEPOSIT FUND; LOAN COMMISSIONERS. EXPLANATORY NOTE. United States Deposit Fund. This fund was derived from proceeds of the sale of public lands be- longing to the United States, which were apportioned among the States by Act of Congress, passed June 23, 1836. This act declared that the income of such proceeds should be used by the states for educational purposes. In pursuance of this act the legislature enacted L. 1837, ch. 150 which provided a scheme for loaning the money belonging to the fund on mortgages throughout the state, and created the office of loan commissioner in the several counties. The revision of the State Finance law in 1897 materially changed the law relating to the care and disposition of the United States deposit fund. Loan commissioners were by the revision deprived of their power to loan the money belonging to this fund. They retained the power to enforce the collection of loans, but upon receipt of the money by them they were required to return it to the comptroller who was then author- ized to re-invest it in the same manner as other funds of the state. This arrangement was evidently not satisfactory, as the legislature at its suc- ceeding session amended the law by the enactment of L. 1898, ch. 360, and the power to loan money belonging to the United States deposit fund was again conferred upon the loan commissioners. Many of the provisions of the original United States Loan Deposit Act of 1837, ch. 150, were re-enacted and incorporated in the State Finance Law. These provisions were retained in the State Finance Law as consolidatd in 1909. The law was again amended by L. 1911, ch. '634, which deprived the loan commissioners of the power to loan moneys belonging to the fund and vested the same in the state comptroller. We have inserted in this chapter the sections of the State Finance Law relating to the United States deposit fund and the powers and duties of United States loan commissioners and boards of supervisors in respect thereto. 206 COUNTY OFFICERS; JAILS. State Finance Law, § 82. SECTION 1. The United States deposit fund. 2. Discharge and cancellation of mortgages. 3. Books and records. 4. Supervision of existing United States deposit fund mortgages. 5. Investments. 6. Release of part of mortgage of premises. 7. Power of comptroller to maintain actions. 8. Foreclosure of United States deposit fund mortgages. 9. Disposition of surplus moneys, principal to be deposited. 10. Supervision of lands. 11. Audit of loan commissioners' accounts. 12. Certified copy of original mortgage. 13. Duties of loan commissioners; office abolished. § 1. THE UNITED STATES DEPOSIT FUND. The part of the United States deposit fund received out of the sur- plus money of the treasury of the United States, under the thirteenth section of the act of congress, entitled "An act to regulate the deposits of the public money," passed June twenty-third, eighteen hundred and thirty-six, is held by the state on the terms, conditions and provisions specified in such act of congress, and the faith of the state is inviolably pledged for the safe keeping and repayment of all moneys thus received from time to time, vsrhenever the same shall be required by the secretary of the treasury of the United States, under the provisions of such act. The comptroller and the treasurer of the state shall keep the accounts of the moneys belonging to the United States deposit fund in the books of their respective oiRces, separate and distinct from the state funds, and in such manner as to show the amount of principal, of the fund, the amount received from the interest, the amount paid from the annual rev- enue and the objects to which the same have been applied. If there shall be any loss in the loans of the moneys belonging to the United States de- posit fund, it shall be a charge on the interest derived from the loan of such moneys, and none of the interest moneys shall be paid out for any purpose until such loss has been made good thereon. The comptroller shall have full charge and control over the United States deposit fund, including that part of such fund now invested in mortgages in the dif- ferent counties of the state. [State Finance Law, § 82, as amended by L. 1911, ch. 634, in effect Aug. 10, 1911 ; B. C. & G, Cons. L., p. 5516.] UNITED STATES DfePOSIT FUND. 207 State Finance Law, §§ 83, 84, 85. § 2. BISCHAKGE AND CANCELI/ATION OF MORTGAGES. The comptroller may cancel and discharge any mortgage, on satis- factory proof that the moneys loaned and secured by such mortgage have been fully paid to the officers authorized by law to receive the same if the mortgage remains uncanceled and undischarged of record. [State rinance Law, § 83, as amended by L. 1911, ch. &34; B, C. & G. Cons. L., p. 5517.] § 3. BOOKS AND RECORDS. The book or books of mortgages executed to the loan commissioners shall remain in the clerk's office of the county, and in the city and county of New York in the office of the register. During office hours any person, may search and examine any book required to be kept by this article. [State Finance Law, § 84, as amended by L. 1911, ch. 634; B. C. & G. Cons. L., p. 5517.] § 4. SUPERVISION OF EXISTING UNITED STATES DEPOSIT FUND MORTGAGES. The comptroller shall have charge of the mortgages heretofore exe- cuted to the commissioners for loaning certain moneys of the United States on lands in the several counties of the state, which mortgages shall continue with the same force and effect as if this chapter were not enacted. The rate of interest on such mortgages shall be five per centum per annum, and shall be due annually on the first Tuesday of October. The comptroller shall collect and receive the interest arising on every such mortgage. In case of failure to pay such interest before the first •day of iJfovember next following the date when the same became due, the comptroller shall report such failure to the attorney-general within fifteen days after the said first day of November. The comptroller shall receive payment of the principal or any part thereof of any such mortgage on lands when tendered and immediately pay the same into the state treasury, and shall satisfy and discharge the same by the exe- cution and acknowledgment of a satisfaction piece in the usual fonn, which shall be recorded by the county clerk, who shall thereupon write upon the margin of such mortgage, in the book containing the same in his office, a statement to the effect that the same has been discharged and .satisfied by the comptroller, giving the date thereof. Such mortgages 208 COUNTY OFFICERS; JAILS. State Finance Law, §§ 81, 86. may be assigned by the said comptroller on such terms and on such con- ditions as may be satisfactory to the comptroller. [State Finance Law, § 85, as amended by L. 1910, eh. 201, and L. 1911, ch. 634; B. C. & G. Cons. L., p. 5518.] § 5. INVESTMENTS. The comptroller shall invest and keep invested all moneys belonging to the common school, literature and United States deposit funds in the stocks and bonds of the United States and of this state, or for the pay- ment of which the faith and credit of the United States or of this state are pledged, or in the judgments or awards of the court of claims of the state, or in the stocks or bonds of any county, town, city, village or school district of the state authorized to be issued by law. The comptroller, whenever he deems it for the best interest of such funds, or either of them, may dispose of any of the securities therein or investments there- for, in making other investments authorized by law, and he may ex- change any such securities for those held in any other of such funds, and the comptroller may draw his warrant upon the treasurer for the amount required for such investments and exchanges. The care and disposition of all lands belonging to the literature fund and the common school fund shall be vested in the commissioners of the land office. [State Finance Law, § 81, as amended by L. 1910, ch. 201, and L. 1911, ch. 634; B. C. & G. Cons. L., p. 5515.] § 6. RELEASE OF PART OF BKORTGAGED PREMISES. If the owner of mortgaged premises sell a part thereof, the comp- troller, on application and with the consent of the mortgagor or such owner may release the part of the mortgaged premises sold from the lien of the mortgage. Such release, however, shall not be given unless a sum approved by the comptroller shall be first paid upon the mortgage and unless the part of the mortgaged premises remaining unsold, exclusive of buildings and prior liens, is worth double the residue of the mort- gage debt. The comptroller shall execute such release in the usual form, which, when acknowledged, shall be recorded by the county clerk and a minute thereof made upon a margin of the mortgage. [State Finance Law, § 86, as amended by L. 1911, ch. 634; B. C. & G. Cons. L., p. 5519.] UNITED STATES DEPOSIT FUND. 209 State Finance Law, §§ 87, 80, 89. § 7. POAVER OF COMFTROI § 4. ESTABLISHMENT OF DISPUTED LINES; APPLICATION THERE. FOB; NOTICE TO BE PUBLISHED AND SERVED UPON TOWN OFFICERS; RESOLUTION TO BE FILED IN OFFICE OF SEC- RETARY OF STATE. Such board may establish and define boundary lines between the several towns of the county. A notice of intention to apply to the board to establish and define such boundary line, 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 newspapers published in the county in, or nearest to such towns, if so many, otherwise in all the newspapers published in the county as often as once a week. A copy of such notice shall also be served personally, at least fifteen days before the meeting of such board, on the supervisors and town clerk of each of the other towns to be affected thereby. only described the dividing line, it has been held that the indefinlteness was cured by reference contained in the act to the application upon which it was founded and from w^^ich it appeared that the new town was to lie south of the line of division. People v. Carpenter, 24 N. Y. 86. In this case the court ruled that the act of the supervisors being one of a legislative character, in favor of the regularity of which all presumptions are to be indulged; those who would impeach the act must show by affirmative proof a non-compliance with the conditions imposed by law as a prerequisite to the exercise of power. 238 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 30. 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 referred to therein, plainly and distinctly marked and indicated 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, § 37; B» C. & G. Cons. L., p. 734.] § 5. DISPOSITION OF TOWN PROPERTY, UPON ALTERATION OF TOWN BOUNDARIES; W^HEN PROPERTY TO BE SOLD DU- TIES OF TOW^N BOARDS RESPECTING SALE; CEMETERY NOT TO BE SOLD OR DIVIDED. When the boundaries of a town owning real or personal property shall be altered, either by a division of a town into two or more towns or by the annexation of a part of its territory to another town or towns, the town boards of the several towns affected by such alterations shall meet as soon as may be after the first town meetings subsequently held in such towns, and shall make such agreement concerning the disposition to be made of such real and personal property, and the apportionment of the proceeds, as they shall deem equitable and take all measures, and execute all con- veyances necessary to carry such agreement into effect. If no such agree- 3. For form of resolution of board of supervisors establishing and defining boundary lines between towns, see Form No. 13, post. Failure to acquire jurisdiction. If the board of supervisors attempts to establish disputed boundary lines without having acquired jurisdiction by the necessary application and the publication of the notice to make such applica- tion, an Injunction will lie against such board to restrain further action by it. People ex rel. Town of Knox v. Supervisors, 63 How. Pr. 411. Effect of statute establishing boundary line between towns. A board of supervisors may, under this section, ascertain and locate a disputed boundary line between two towns within the county which was established and settled by an early statute in accordance with an ancient designated map. The authorized action of a board of supervisors in determining such a boundary line cannot, in the absence of fraud, collusion or bad faith on the part of the board, be attacked in a taxpayer's action. Govers v. Board of Supervisors, 171 N. Y. 403, afEg. 55 App. Div. 40, 67 N. Y. Supp. 27. Town boundaries; islands intersected by town lines. Whenever two towns are separated from each other by a river, creek or lake, the middle of the channel of such river, creek or lake, shall be the division line between them, unless hereinbefore otherwise provided. R. S. pt. 1, ch. 2, tit. 4, sec. 58. Whenever the boundary line between two towns crosses an island, the whole of such island shall be deemed to be within the town in which the greater part of it lies, unless hereinbefore otherwise provided. Idem, sec. 59. TOWNS; ERECTION AND ALTERATION. 339 Town Law, § 31. ment shall be made within six months after such town meetings, the town board of each town in which any portion of such real property, or in whose possession any of such personal property shall be, shall, as soon as may be, sell and convey such part of the real property as shall be included within the limits of the town as fixed by such alteration, and such of the personal property as may be in its possession ; and the proceeds arising from the sale shall be apportioned between the several towns in- terested 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 with- in 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 town for the support of the gospel and of schools, commonly called the gospel and schools lots, shall be sold or apportioned.* [Town Law, § 30 ; B. C. & G. Cons. L., p. 6138.] § 6. DEBTS TO BE APPORTIONED ACCORDING TO AMOUNT OF TAXABI,E PROPERTY; COLLECTION OF UNPAID TAXES IN SUCH TO'WNS. 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 ex- isted before such division or alteration, to be ascertained by the last assess- ment-roll of the town.° 4. Title of property. Without express provision of statute tlie erection of a new town does not take away the rights of the old town as to the com- mon property not located within the limits of the new town. Denton v. Jack- son, 2 Johns. Ch. 320. But in the case of Town of North Hempstead v. Town of Hempstead, 2 Wend. 109, it was held that the division of the town of Hempstead effected a division of the common lands. Under an act passed by the legislature to divide the town of Kingston it was held the legal title in the property belonging to the freeholders and in- habitants of the town, continued in their trustees until conveyed by them to ofiBcers of the towns into which the old town was divided. Jackson v. Louw, 12. Johns. 252. As to constitutionality of chapter 975 of the laws of 1895, dividing the town of Watervliet, see Fort v. Cummings, 90 Hun, 481. 5. Apportionment of debts. By this section debts owed by a town which 240 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 32. 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 property against persons or corporations who 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 war- rant, action, sale or otherwise, as the town so divided or altered had, or would have had if such town had not been so divided or altered. Any such town having apportioned to it more than its proportion of unpaid taxes, according to the aforesaid taxable property, to be ascertained by the last assessment-roll of such town, shall pay to the other town or towns in- terested, such sum or sums as shall be necessary to make such apportion- ment correspond with the said taxable property, as ascertained by the said last assessment-roll of said town, before the said division or alteration. [Town Law, § 31 ; B. C. & G. Cons. L., p. 6138.] f 7. MEETINGS OF TOWN BOARDS FOR DISPOSITION OF PROP- ERTY AND APPORTIONMENT OF DEBTS TO BE CALLED BY SUPERVISOR; ACTION TO ENFORCE SETTLEMENT. Whenever a meeting of the town boards of two or more towns shall be required, in order to carry into effect the provisions of this article, such meeting may be called by either of the supervisors of such towns, by giv- ing at least three days' written notice to all the other members of such town boards of the time and place of such meeting. [Town Law, § 33 ; B. C. & G. Cons. L., p. 6139.] 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 has been divided or whose boundaries have been altered must be apportioned by the town boards of the several towns affected by the division or alteration in the manner prescribed in the preceding section for the apportionment of the personal property of the several towns; that is by an agreement to be made by the town boards. Proceedings by mandamus cannot be instituted against a board of super- visors to levy and assess the amount due upon a judgment against the town upon the territory formerly included in the town. The statute requires the town boards to apportion the debts of the towns upon the property of the several towns, and if the town boards refuse to act the remedy is by mandamus against them to compel a compliance with the terms of the statute. People ex rel. McKenzie v. Board of Supervisors of Ulster County, 94 N. Y. 263. In this case the court said: " But for the statute, or some other provision of law, upon a division of the old town of Kingston, all the liabilities of that TOWNS; ERECTION AND ALTERATION. 24j Town Law, §§ 33, 34. division or alteration mentioned in section thirty 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. [Idem, § 33.] The provisions of this article shall apply to towns heretofore and here- after divided or altered. [Idem, § 34. J town would have remained against the present town of Kingston; and it would have been entitled to all the property of the old town within its limits, and would have been obliged to discharge all its debts and obligations. Lara- mie County V. Albany County, 92 U. S. 307; Mount Pleasant v. Beckwith, 100 U. S. 514. Within the latter authority, if the old town of Kingston had been entirely blotted out, and its territory annexed to other towns; or if other towns had been carved out of it, and new municipalities' had thus been formed, in the absence of any legislation providing for the payment of the debts of the old town, they would have devolved upon the new towns to be paid by them in equitable proportions. But here express provision of law is made as to the manner of discharging the obligations of the old town; and those provisions are, at least in the first Instance, executive and must be pur- sued. Under them all the debts of the old town of Kingston are to be ap- portioned by the ofiicers named, between the three towns of Ulster, Wood- stock and Kingston, according to taxable property as the same existed im- mediately before the division, to be ascertained by the last assessment list of the town, which was the assessment list of 1879. The relator, therefore, has a plain remedy, which is by mandamus, to compel a meeting of the present officers of the three towns and a discharge by them of the duties devolved upon them by the statute." 242 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. CHAPTER XIX. TOWN MEETINGS. EXPLANATORY NOTE. Town Meetings Generally. The present law has materially modified that ancient institution known as " the town meeting." In former days it was, as its name indicates, a meeting of the inhabitants of a town to consider town affairs and elect town officers. It was not then subject to the same formalities as at the present time. The persons present at such meeting frequently discussed town enterprises, and passed by resolution, adopted withoiit a ballot, upon many important questions. This power of voting viva voce upon town questions still remains, but it is infrequently exercised. Town meetings are now most commonly held at the time of general elec- tions, in the same election districts and subject to the same general conditions as such elections. Where town meetings are so held the provisions of the Election Law, relative to nominations, ballots and canvassing are generally applicable. Time and Place of Holding Town Meetings. Town meetings were formerly held annually. But since 1897 (L. 1897, ch. 481) they have been held biennially, in most counties in each odd-numbered year. Unless otherwise provided by boards of super- visors such meetings are held on the second Tuesday of February. Such boards may fix a different time for holding such meetings ; at any time between February 1 and May 1, or on general election day. It is also provided that a town may change the time of holding town meetings to general election day by adopting a proposition therefor at a regular town meeting. The place of holding town meeting not held at the time of general elections may be determined by vote of a biennial town meeting. Such town meetings may be held in election districts, when so voted by the electors of the town at a biennial or special town meeting. Unless it has been so voted, town meetings are to be held in one place. Where town meetings are held in election districts, the votes east are to be canvassed by the justices of the peace and the town clerk on the day following the town meeting. (See Town Law, § 6,5.) TOWN MEETINGS. 243 Explanatory note. Special Town Meetings. Special town meetings are held for purposes authorized by law, on the call of the town clerk. Applications therefor must be in writing ad- dressed to the town clerk. Such applications must be signed by at least twenty-five taxpayers, or must be presented by a supervisor, superin- tendent of highways, or overseer of the poor. Notice of such town meeting must be given by the town clerk, by posting the same at least twenty days before the day of the meeting in at least four conspicuous places in the town, and by publication in at least two newspapers in the town^; if only one is published in the tovm, publication must be made therein. If none are published in the tovsm, the notices must be pub- lished in at least two newspapers in the county. Adopting Propositions. If a proposition requiring a vote by ballot is to be submitted at a town meeting, either biennial or special, application must be presented to the tovsTi clerk, either by taxpayers or town officers, stating the prop- osition proposed. The town clerk must give the notice required by law that such proposition is to be submitted. Eallots and ballot boxes must be provided by him for use in voting upon such proposition. The pro- visions of § 48 of the Town Law, as amended by L. 1916, ch. 79, apply to propositions voted upon at town meetings held at other times than on general election day. If the town meeting is held on general election 32. This section was formerly part of § 12 of the Town Law. Ballots at town meetings. Under this section the election of town officers is by ballot. The provisions of the election Law relating to the nomination of town offi- cers (Election Law, sees. 120-126; Jewett's Election Manual, 1918), and to the cer- tificates of nominations (Election Law, sees. 127, 128; Jewett's Election Manual) apply to town meetings. Section 132 of the Election Law (Jewett's Election Manual, 1918), provides that each town clerk shall cause at least ten copies of a list of all nominations to office filed with him to be conspicuously posted in ten public places in the town at least one day before the town meeting, one of which copies shall be so posted at each polling place of such town meeting. TOWN MEETINGS. 271 Election Law, § 316. Ballot Boxes. — Separate ballot boxes appropriately and conspicuously marked must be provided as occasion shall require, to receive, 1. Ballots for presidential electors. 2. Ballots for general officers. 3. Ballots upon constitutional amendments and questions submitted. 4. Ballots upon town propositions and upon town appropriations. 5. Ballots defective in printing or spoiled and mutilated. 6. Stubs detached from ballots. Each box shall be supplied with a sufficient lock and key and with an opening in the top large enough to allow a single folded ballot to be easily passed through the opening, but no larger. It shall be large enough to receive all the ballots which may be lawfully deposited therein at any elec- tion, and it shall be well and strongly made and be free from checks and blemishes. Each and every inspector of elections shall be personally responsible for the custody of each box aud its contents from the time the election begins until the box is delivered, according to law, to the person entitled to receive it. Upon making any such delivery each inspector of elections shall be entitled to a receipt for each box delivered. [Election Law, § 316, as amended by L. 1911, eh. 649, L. 1913, ch. 831, and L. 1917, ch. 703; B. C..& G. Cons. L., p. 1506.] Payment of Election Expenses. — The expense of providing polling places, voting booths, supplies therefor, guard-rails and other furniture of Ballots to be voted at town meetings are to be prepared in conformity with sec- tion 331, as amended by L. 1915, ch. 87, and L. 1916, ch. 537, of the Election Law. Jewett's Election Manual, 19'18. The above section of the Town Law provides that when town meetings in towns are held at the same time as general elections, the names of candidates for town offices shall be on the same ballot as candidates for other offices voted for thereat. This provision is now in conformity with a similar provision contained in section 341, as amended by L. 1916, ch. 454, of the Election Law. Section 318 of the Election Law, as amended by L. 1918, ch. 323, {Jewett's Elec- tion Manual, 1918), contains the following provisions: "The expense of printing and delivering the official ballots, sample ballots, affidavits for proof of citizenship by marriage, cards of instruction, poll books, tally sheets, return sheets for inspec- tors and ballot clerks and distance markers, to be used at a town meeting or city or village election not held at the same time as a general election, and of printing the lists of nominations therefor, shall be a charge upon the town, city or village in which the meeting or the election is held." Registration. No registration of voters shall be required for town or village elections, except as provided in the Village Law, and except that when a town or village election is held at the same time with a general election all voters in such town or village to be entitled to vote at such town or village election must be registered as provided by law for the registration of voters for any general election in such town or village. [Election Law, § 161, as amended by L. 1910, ch. 424; B. C. & G. Cons. L., p. 1450.] Town superintendents of highways are elected or appointed for terms of two years, under the Highway Law of 1909, sees. 40-42. By sec. 43 of such Highway Law the office of highway commissioner is abolished on and after November 1, 1909. 272 TOWNS, .TOWN MEETINGS AND TOWN OFFICERS. Election Law, § 318. the polling place, and distance markers, and the compensation Jif tne election officers in each election district, shall be a charge upon the town or city in which such election district is situated, except that such expenses incurred for the purpose of conducting a village election not held at the fame time as a general election shall be a charge upon the village. The expense of printing and delivering the official ballots, sample ballots and cards of instruction, poll books, tally sheets, return sheets for inspec- tors and ballot clerks, and distance markers to be used at a town meeting or city or village election not held at the same time as a general election, and of printing the lists of nominations therefor shall be a charge upon the town, city or village in which the meeting or election is held. The expense uf printing and delivering the official ballots, sample ballots, affidarits for proof of citizenship, by marriage, and cards of instruction, poll books, tally sheets, return sheets for inspecors and ballot clerks and distance markers to be used in any county, except such counties or portions thereof as are included within the city of Xew York, at any other election_, if no town meeting or city or village election be held a the same time therewith, and of printing the lists of nominations therefor, shall be a charge upon such county. The expense of printing and delivering the official ballots, sample ballots, affidavits for proof of citizenship by marriage and cards of instruction, poll books, tally sheets, return sheets for inspectors and ballot clerks, and distance markers, to be used in any such county at any other election, and of printing the lists of nominations therefor, if the town meeting or city or village election be held in such county at the same time therewih, 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 officers on such ballots, re- spectively, to the whole number of candidates thereon, and the amount of such expense so apportioned to each such municipality shall be a charge thereon. Whenever voting machines are used in an election by any city, town or village, only such expenses as are caused by the use of such machines, and such as are necessary for the proper conduct of the elections as required by this chapter shall be charged to such city, town or village.^'. . . [Election Law, § 318, as amended by L. 1918, ch. 323; B. C. & G. Cons. L., p. 1508.] The county clerk of each county, not salaried, shall be paid by such county a reasonable compensation for his services in carrying out the provisions of this chapter, to be fixed by the board of supervisors of the county, or the board acting as such board of supervisors. The town clerk of each town shall be paid by such town a reasonable compensation for his services in carrying out the provisions of this chapter, to be fixed 33. Provision as to compensation of inspectors in cities of the first class omitted TOWN MEETINGS. ^^^3 Election Law, § 127. by the other members of the town board of the town. Ballot clerks shall receive the same compensation for their attendance at an election as in- spectors of election for the election and be paid in like manner. Poll clerks shall receive the same compensation for their attendance at an election and canvass of the votes as inspectors of election and be paid in like manner. An inspector of election lawfully required to file papers in the county clerk's office shall, unless he resides in the county if within the city of New York, or in any other city or town in which such office is situated, be entitled to receive as compensation therefor five dollars, and also four cents a mile for every mile actually and necessarily traveled between his residence and such county clerk's office in going to and returning from such ofiice.^* * * * Election officers required to meet at a different time from the regular count of the votes cast at a general election for the purpose of counting and returning the votes of electors absent from their election districts in time of war in the actual military or naval service of this state or of the United States shall be paid five dollars each. [Election Law, § 319, as amended by L. 1915, ch. 678, and L. 1918, ch. 333 ; B. C. & G. Cons. L., p. 1508.] Places of filing independent certificates of nomination. — Independ- ent certificates of nomination of candidates for office to be filled by the voters of the entire state, or of any division or district greater than a county, shall be filed with the secretary of state, except that each certi- ficate of nomination of a candidate for member of assembly for the as- sembly district composing the counties of Fulton and Hamilton shall be filed in the office of the board of elections of Fulton county, and a copy thereof certified by the board of elections of Fulton county shall be filed in the office of the board of elections of Hamilton county, so long as the said counties constitute one assembly district, and except that such certificates of nomination of candidates for offices to be filled only by the voters or a portion of the voters of the city of New York shall be filed with the board of elections of the city of New York. Independent certificates of nomination of candidates for offices to be filled only by the votes of voters, part of whom are of New York city and part of whom are of a county not wholly within the city of New York, shall be filed with the board of elections of such county and in the office of the board of elections of said city. Such certificates of nomination of candidates for offices of any other city, to be elected at the same time at which a general election is held shall be filed with the board of elec- tions of the county in which such city is located. Certificates of nomi- nation of candidates for offices of a city, village or town to ba elected at a different time from a general election shall be filed with the clerk of such city, village or town respectively. 34. Provision omitted as to compensation of election officers in cities of the first class. 274 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. ElecUon Law, §§ 127, 128. In towns in which town meetings are held at the time of general elec- tions, independent certificates of nomination of candidates for town offices shall be in duplicate, one of which shall be filed with the town clerk of the to-vra in which such officers are to be voted for, and the other with the board of elections of the county in which such town is located. All other independent certificates of nomination shall be filed with the board of elections of the county in which the candidates so nominated are to be voted for. All such filed certificates and corrected certificates of nomination, all objections to such certificates and all declinations of nomination are hereby declared to be public records ; and it shall be the duty of every officer or board to exhibit without delay every such paper to any person who shall request to see the same. It shall also be the duty of each such officer or board to keep a book which shall be open to public inspection, in which shall be correctly recorded the names of all candidates nomi- nated by independent certificates issued by or filed in the office of such officer or board or certified thereto, the title of the office for which any such nomination is made, the name and emblem of the independent body making such nomination, and in which shall also be stated all declina- tions of nominations or objections to such nominations, and the time of filing each of the said papers. [Election Law, § 127, as amended by L. mn, eh. 891, and L. 1913, ch. 820; B. C. & G. Cons. L.. p. 1430.] Times of filing independent certificates of nomination. — Independent oertificates of nomination, except those for the nomination of candidates to be elected at a difEerent time from a general election, shall be filed not earlier than the ninth Tuesday, and not later than two days after the eighth Tuesday preceding the day of the general election. Independent certifi- cates of nomination of candidates to be elected at a different time from a general election shall be filed at least fifteen, and not more than thirty days before the day of the election. In case of a special election ordered by the governor under the provi- sions of section two hundred and ninety-two of this chapter, independent TOWN MEETINGS. gij^S Election Law, § 332. •certificates of nomination, for the office or offices to be filled at such special €lection shall be filed with the proper officers or boards not less than ten days before such special election.'^ [Election Law, § 138, as amended by X.. 1911, eh. 891, L. 1913, ch. 830, and L. 1918, ch. 398; B. C. & G. Cons, li., p. 1431.] Form of ballot for questions submitted. — The reading form of each proposed constitutional amendment '* or other question submitted as provided in section two hundred and ninety-five of this chapter shall be printed in a separate section. At the left of each question shall ap- pear two voting squares, one above the diher, each at least one-half inch 35. Time of filing. Statute is mandatory. Matter of Cuddeback, 3 App. Div. 103, 39 N. Y. Supp. 388. But certiflcate may be filed at any hour of last day. Need not be filed within hours during which clerk's office is open. Matter of Norton, 34 App. Div. 79, 53 N. Y. Supp. 1093 ; appeal dismissed, 158 N. Y. 130. When the last day for filing the certificate falls on Sunday it must be filed on the day preceding. Eept. of Atty. Genl. (1902) 318. An official ballot is not invalid because it contains the name of u, candidate "whose certificate of nomination was not filed until after the fixed date. Eept. of Atty. Genl. (1895) 293. When court may give relief. The statutory requirement as to the time when ■certificates of nominiatioD should be filed in mandatory, yet there may occur acci- dents and mistakes, causing delay in such filing, and from the effects of which the supreme court may give relief, provided it finds that the delay was not due to the negligence of the convention making the nomination, but to the party to whom the filing of the certificate was intrusted; but the question in each case, as to whether there has been excusable default or misfortune depend upon the particular facts, and the determination of the question rests in the supreme court. Matter of Dar- ling, 189 N. Y. 570, affg. 121 App. Div. 656, 106 N. Y. Supp. 430. Default in filing nominations may be remedied by the Supreme Court, where it appears that the certificates were mailed by the proper officers so that in the ordinary course of mail they would reach the office of the secretary of state in time, but for some unaccountable reason they did not reach such office until the following day. Matter of Bayne, 69 Misc. 579, 127 N. Y. Supp. 915. Mandamus will not issue to compel the acceptance and filing of a certificate of nomination, if it was not tendered for filing twenty days before the election, as required by this section. People ex rel. Steinert v. Britt, 146 App. Div. 684. So, where an original certificate of nomination has been held to be valid notwithstanding the fact that the person designated to call the convention to order was not present owing to illness, the court will not compel the board of elec- tions to accept a second certificate made at a subsequent convention where the time for filing the certificate of the original nomination has expired. Matter of People ex rel. McGrath v. Dooling, 141 App. Div. 29, 127 N. Y. Supp. 748. 36. Liquor Tax Law propositions may properly be included on same ballot with constitutional amendments. Matter of Arnold, 32 Misc. 439, 66 N. Y. Supp. 557; but see Matter of Webster, 50 Misc. 253, 100 N. Y. Supp. 508, and opinion of attor- ney-general, 1903, p. 300. 276 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Election Lav, § 340. square. At the left of the upper square shall be printed the word " Yes," and at the left of the lower square shall be printed the word " No." On the stub at the top of the ballot shall be printed the follow- ing directions to the voter: 1. To vote " Yes " on any question make a cross X mark in th& square opposite the word " Yes." 2. To vote " No," make a cross X mark in the square opposite the word " No." 3. Mark only with a peucil having black lead. 4. Any other mark, erasure or tear on the ballot renders it void. 5. If you tear, or deface, or wrongly mark this ballot, return it and obtain another. The questions shall be numbered consecutively on the face of the bal- lot, and on the back of each voting section shall be printed the number of the question which it contains. So far as possible the ballots upon town propositions shall conform tO' the directions herein contained respecting the ballot on constitutional amendments and questions submitted. All ballots for the submission of town propositions for raising or ap- propriating money for town purposes, or for incurring a town liability,. to be voted at any town meeting in any town, shall be separate from all other ballots for the submission of other propositions or questions to- the electors of such town to be voted at the same town meeting or elec- tion. Such ballots shall be indorsed " ballot upon town appropria- tions."'''' [Election Law, § 332, as amended by L. 1913, ch. 821; B. C. & G. Cons. L., p. 1514.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 87. AddlOonal matter Improperly placed upon a ballot for the submission of a proposition, does not necessarily render the ballot void. People ex rel. Wil- liams V. Board of Canvassers, 105 App. Div. 197, 94 N. Y. Supp. 9S6. A proposition to change the site of a county building is not a town proposition,, within the meaning of this section, but is a county proposition and must be sub- mitted to the voters upon the same ballot with the constitutional amendments and other questions submitted. Opinion of Atty. General (1916), 9 State Dept. Reports, 427. TOWN MEETINGS. 2*77 Election Law, § 341. ejection, shall be one and one-half times as many ballots as near as may be as there were names of voters on the register of voters of such district for such election at the close of the final regular meeting for such regis- tration. In cities of the first class the ofiicer or board charged with the duty of furnishing official ballots shall furnish one and one-fourth times as many official ballots, of each kind to be provided for such election as there are voters entitled to vote thereat, as nearly as can be estimated by such officer or board. The number of ofiicial 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-fourth times the number of persons who will be en- titled to vote thereat, as nearly as can be estimated by the officer charged with the duty of providing such ballots. [Election Law, § 340, as amended by L. 1913, ch. 820; B. C. & G. Cons. L., p. 1522.] Officers providing 'ballots and stationery. — The county clerk, in each of the counties of Oneida and Broome, the commissioner of elections in any county having one commissioner of elections, the board of electionis in every other county except a county within the city of New York, and in any such county the board of elections of such city, shall provide tho requisite number of official and sample ballots, cards of instruction, two poll books, distance markers, two tally sheets of each kind, three return blanks of each kind, pens, penholders, red and black ink, pencils having black lead, blotting paper, sealing wax and such other articles of station- ery as may be neceaeary for the proper conduct of the election and the canvass of the votes, for each election district in the county, for each election to be held thereat, except that when town meetings, city or village elections and elections for school officers are not held at the sam.3 time as a general election, the clerk of such tovrn, city or village, re- spectively, shall provide such official and sample ballots and stationery for such election or town meeting.** If the town meeting is held on general election day ballots and sample ballots for town propositions and official and sample general ballots on which town officers only are to be voted for shall be provided by the town clerk in like manner and in the same form as at a town meeting, held at any other time, and such town clerk shall also furnish blanks for making returns on town propositions or questions and for making returns of votes cast for candidates for town offices at such an election, and the expense of furnishing such ballots, sample ballots and return blanks shall be a town charge. And the board of elections of the city of New York shall provide such articles for each election to be held in said city. [Election Law, § 341, as amended by L. 1911, ch. 649, L. 1913, ch. 821, and L. 1916, ch. 454; B. C. & G. Cons. L., p. 1532.] 38. The exception as to furnishing ballots at town meetings other than those held at the time of a general election, has no application to a town meeting held at the same time as a general election, and ballots furnished for a local option election thereat are valid. Matter of Town of Bath, (1916) 93 Misc. 575, 157 N. Y. Supp. 205. -278 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Election Law, §§ 342, 393, 394. Public inspection ballots. — Each officer or board charged with the duty of providing official ballots for any polling place, shall have sample ballots and official ballots provided, and in the possession of such officer or board, and open to public inspection as follows: The sample ballots five days before the election, and the official ballots four days before the election for which they are prepared, unless prepared for a village election or town meeting held at a different time from a general election, in which case the official ballot shall be so printed and in possession at least one day, and the sample ballots at least two days, before such election or town meeting. During the times within which the same are open for inspection as afore- said, it shall be the duty of the officer or board charged by law with the duty of preparing the same, to deliver a sample ballot of the kind to be voted in his district to each qualified elector who shall apply therefor, so that each elector who may desire the same may obtain a sample ballot similar, except as regards color and the number on the stub, to the official ballot to be voted at the polling place at which he is entitled to vote. [Election Law, § 342 ; B. C. & G. Cons. L., p. 1524.J % 27. THE USE AND PURCHASE OF VOTING MACHINES. Adoption of voting machine. — The board of elections of the city of New York, the common council of any other city, the town board of any town, or the board of trustees of any village may adopt for use at elections any kind of voting machine approved by the state board of voting machine commissioners, or the use of which has been specifically authorized by law ; and thereupon such voting machine may be used at any or all elections held in such city, town or village, or in any part thereof, for voting, regis- tering and counting votes cast at such elections. Voting machines of dif- ferent kinds may be adopted for different districts in the same city, town or village. [Election Law, § 393; B. C. &.G. Cons. L., p. 1556.] Experimental use of voting machines. — The authorities of a city, town or village authorized by the last section to adopt a voting machine may provide for the experimental use, at an election in one or more districts, of a machine which it might lawfully adopt, without a formal adoption thereof; and its use at such elections shall be as valid for all purposes as if it had been lawfully adopted. [Election Law, § 394; B. C. & G. Cons. L., p. 1556.] Providing machines. — The local authorities adopting a voting machine shall, as soon as practicable thereafter, provide for each polling place one or more voting machines in complete working order, and shall thereafter preserve and keep them in repair, and shall have the custody thereof and TOWN MEETINGS. 379 Election Law, §§ 396, 419. >of the furniture and equipment of the polling place when not in use At an election. If it shall be impracticable to supply each and every election district with a voting machine or voting machines at any election following such adoption, as many may be supplied as it is practicable to procure, and the same may be used in such election district or districts within the city, town or village as the officers adopting the same may direct. [Election Law, § 395; B. C. & G. Cons. L., p. 1556.] Payment for machines. — The local authorities, on the adoption and purchase of a voting machine, may provide for the payment therefor in such manner as they may deem for the best interest of the locality and may for that purpose issue bonds, certificates of indebtedness or other obligations which shall be a charge on the city, town or village. Such bonds, certificates or other obligations may be issued with or without in- terest, payable at such time or times as the authorities may determine, but shall not be issued or sold at less than par. [Election Law, § 396 ; E. C. & G. Cons. L., p. 1556.] 'Number of voters in election districtt. — For any election in any city, town or village in which voting machines are to he used, the election districts in which such machines axe to be used may be created by the officers charged with the duty of creating election districts, so as to contain as near as may be in districts in which one such machine is used, six hundred voters each, and in districts in which two or more such machines are used, nine hundred voters each. Such redistricting or redi- vision may be made at any time after any November election and on or before August fifteenth following, to take effect on the sixth Wednesday before the next general election. Where such redistricting or redivision shall be made in any town, the board making the same shall, on or before September first following, appoint from the inspectors of election then in ofl^ce (if sufficient therefor are then in office, and, if not, from persons not in office, sufficient to make up the requisite number), to take efi'ect on or before the first day of registration thereafter and not earlier than the sixth Wednesday preceding the next general election, four inspectors of election for each election district thus created, who shall be equally divided between the two parties entitled to representation on said boards of inspectors. Thereafter no redivision of such election districts shall be made for elections by such machines until at some general election the number of votes cast in one or more of such districts in which such machine is used shall exceed six hundred and fifty, or in which two or more such machines are used shall exceed one thousand. But the town board of a town in which such" machines are used may alter the boundaries of the election districts at any time after a general election and on or before August fif- teenth following, to take effect on the sixth Wednesday before the next general election, provided that the number of such election districts in such town shall not be increased or reduced, and the number of votes to be east in any district whose boundaries are so altered shall not exceed six hundred and fifty in a district in which one machine is used, or one thousand in a district in which two or more machines are used. If the creation, division or alteration of an election district is rendered necessary by the creation, division or alteration of a town, ward or city or rendered necessary or occasioned by the division of a county into assembly districts after a reappor- tionment by the legislature of members of assembly, such creation, division or alteration of an election district shall be made and shall take effect immediately; and inspectors of election for the new election districts, as so created, divided or altered, shall be appointed, in the manner provided by law, a reasonable time before the next official primary or meeting for registration and such appointments shall take effect immediately. [Election Law, § 419, amended by L. 1911, ch. 542, L. 1914, ch. 244, L. 19-16, ch. 537, and L. 1918, ch. 323; B. C. & G. Cons. L., p. 1568.] 280 TOWNS. TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. CHAPTER XX. TOWN OFFICERS; ELECTION AND TERMS. EXPLANATORY NOTE. Election of Town Officers. Town officers consist of supervisor, town clerk, four justices of the peace, three assessors, collector, one or two overseers of the poor, not more than five constables, and one superintendent of highways. Other town officers exist in some towns, as where town auditors are elected or provision is made for the election of pound keepers. Elective town officers are to be elected by ballot at biennial town meetings. In case of a failure to elect, the town officer in office continues in office until the vacancy is filled by appointment. The Highway Law, § 41, as amended by L. 1916, ch. 47, provides for the adoption of a proposition at a towTi meeting to appoint a town superintendent of highways. Where such a proposition is adopted, the town board is to appoint such superintendent for the term prescribed by law. Terms of Office. The terms of town officers, except justices of the peace, are fixed by law at two years. Justices of the peace are required by the constitution to be elected for terms of four years. If town meetings are held at times other than general election day they take office immediately upon taking the required oath. If such meetings are held on general election day, the terms of town officers begin on the first day of January follow- ing their election. If a town superintendent of highways is elected at a town meeting held on election day, his term begins on the Thursday succeeding his election ; if elected at a town meeting held at any other time his term begins on November first, following his election. TOWN OFFICERS; ELECTION AND TERMS. ggl Town Law, § 80. Section 1. Election of town officers. 2. Power of town meeting to fill vacancy in office of justice of the peace. 3. Term of office of town officers; when town meetings are held at time of general election, term to begin on January 1, following; collector to complete duties of office. 4. Terms of supervisors in certain counties. 5. Holding over after expiration of term. 6. Number and terms of justices of the peace. 7. Justices of the peace; ballots for full term and vacancies; officers in new towns. 8. Justices in new towns; upon erection of new town, or annexation, justices of the pelace, how to hold office. 8-a. Reduction of number of justices in towns of Monroe county to one; election and powers of town trustees. 9. Certificates of election of justice of the peace. 10. Town superintendents of highways, election and term of office; vacan- cies; office of highway commissioner abolished; deputies. 11. Overseers of poor; determination of number; resolution to be voted for; appointment of overseer by town board. 12. Special constables; appointment and powers. 13. Election officers; their designation, number and qualifications. 14. Election officers in towns at general elections; poll clerks and ballot clerks. 15. Erection or discontinuance of pounds; election of poundmasters. § 1. ELECTION OF TOWN OFFICERS. Except as otherwise provided in this section, there shall be elected at the hiennial town meeting in each town, by ballot, one supervisor, one town clerk, two justices of the peace, two assessors, one collector, one or two over- seers of the poor, not more than five constables and one superintendent Election of town officers. This section applies to town and not to city super- visors. People ex rel. Clancy v. Supervisors, 139 N. Y. 524; 34 N. E. 1106. Town clerks can only be elected at town meetings. Matter of Foley, 8 Misc. 196; 28 N. Y. Supp. 611. Additional supervisors in certain counties, see §i§ 450-456, Town Law, as added by L. 1918, ch. 389. Election of justices of the peace. The constitution provides that electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. Constitution, art. 6, sec. 17. Tlie designation con- tained in such constitutional provision of the " annual town meeting " as the time when justices of the peace are to be elected, is equivalent to a prohibition against electing them at any other time, and while the legislature may fix the day upon which town meetings may be held, it cannot prohibit the election of justices of the peace at such meeting, or provide for their election at any other time or place. Peo- ple ex rel. Smith v. Schiellein, 95 N. Y. 124. See, also. Ex parte Quackenbush, 2 Hill, 369; People v. Keeler, 17 N. Y. 370. Where a vacancy exists in the office of justice of the peace for a term which would have expired December 31, 1913, and in August, 1912, such vacancy was filled, the town being one in which its biennial town meftings are held in the spring, the person appointed to fill the vacancy holds his o.nce until the biennial town meeting in 1913, at which time the vacancy is filled by election for the balance of the unexpired term. Opinion of Atty. Genl., Mch. 11, 1913. Election of constables. Under section 43 of the Town Law, post, a town meeting may determine the number of constables — a number not exceeding Ave. Where a town meeting fixes the number of constables at three, but 282 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 44, 82. of highways, excepting that in towns which shall have adopted a resolution that thereafter such town superiatendent shall be appointed by the town board, pursuant to the provisions of section forty-one of the highway law, he shall be appointed as thereia prescribed. Provided, however, that in towns in a county containing two hundred thousand or less inhabitants, according to the last federal census or state enumeration, adjoining a city of the first class containing a population of over one million, the town superintendent of highways hereafter elected or appointed shall hold office for the term of four years ; and provided further that in a town of any such county not more than four constables shall be hereafter elected at the biennial town meeting. At the first biennial town meeting in each town, after this section as hereby amended takes effect, two assessors shall bo elected to hold ofSce for two years and one assessor to hold ofiBce for four years. Of the two assessors chosen, at any subsequent biennial town meeting in each town, one shall be elected to hold ofiBce for two years and one to hold office for four years. [Town Law, § 80, as amended by L. 1909, ch. 491, L. 1910, ch. 271, L. 1916, ch. 346, and L. 1917, ch. 44; B. C. & G. Cons. L., p. 6157.] • § 2. POWER OF TOWN MEETING TO FILI, VACANCY IN OFFICE OF JUSTICE OF THE PEACE. 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." [Town Law, § 44 ; B. C. & G. Cons. L., p. 6144.] § 3. TERM OF OFFICE OF TOWN OFFICERS; WHEN TOWN MEET- INGS ARE HEIiD AT TIME OF GENERAL ELECTION, TERM TO BEGIN ON JANUARY 1 FOLLOWING; COLLECTOR TO COMPLETE DUTIES OF OFFICE. Supervisors, town clerks, town superintendents of highways, collectors, overseers of the poor, inspectors of election and constables, when elected, shall hold their respective offices for two years. The terms of office of only elects two, the two elected oust all those in office at the time of such election. People ex rel. Platner v. Jones, 17 Wend. 81; People v. Loomis, 8 Wend. 396; People v. Adams, 9 Wend. 333. EfEect of tie vote. When an election for a town officer results in a tie, the person then holding office holds over until his successor shall be elected. Kept, of Atty. Genl. (1895) 93; Kept, of Atty. Genl. (1897) 340. 3. Election to fill vacancies. Since the amendment of the former Town Law by ch. 481 of the L. of 1897, providing for biennial in place of annual town meetings, which also made the terms of office of all town officers, except justices of the peace, two years, the only town office in which a vacancy can be filled by election at a town meeting is that of justice of the peace. If the office of justice of the peace is vacant at the time of holding town meet- ings, it may be filled by the electors voting at such town meeting, and the person elected shall hold his office for the residue of the unexpired term. Upon the election and qualification of such a justice to fill a vacancy, the term of office of the person appointed to fill such vacancy expires. People ex rel. Lovett v. Randall, 151 N. Y. 497; 45 N. E. 841. TOWN OFFICERS; ELECTION AND TEEMS. 283 Town Law, § 82. assessors shall be two years for one assessor and four years each for two assessors.^ But whenever there is or shall be a change in the time of hold- ing town meetings in any town, persons elected to such offices at the next biennial town meeting after such change has been authorized as provided by law, shall enter upon the discharge of their duties at the expiration of the term of their predecessors and serve until the next biennial town meet- ing thereafter or until their successors are elected and have qualified, except that the assessor elected for four years shall serve until the second biennial town meeting thereafter, or until his successor is elected and has qualified. Whenever the time of holdiag town meetings in any town is changed to the first Tuesday after the first Monday in November, except when changed as provided in section forty-one of this chapter,* the town officer selected thereat shall take office on the first day of January succeeding their election. Ex- cept that the collector elected at such town meeting shall take office imme- diately upon his election and qualification as prescribed by law. Except as otherwise provided in this section, in case the time of the holding of town meetings in any county is changed by resolution of the board of supervisors of the county to the first Tuesday after the first Monday 3. Extension of term. It is a general rule that the term of office of a town officer cannot be extended by an act of the legislature. In the case of People ex rel. Le Roy v. Foley, 148 N. Y. 679, 682; 43 N. E. 171, the court said: "The legislature- cannot extend the term of a town officer after his election, since that would virtually be an appointment to the office during the period of extension. The legislature can- not appoint town officers. They must either he elected by the people of the town or appointed by such town authorities as the legislature may designate for that pur- pose. Constitution, art. 10, sec. 2. The power of appointment in such oases can- not be directly exercised by the legislature nor indirectly by extending the term of a town officer after Ms election. It can, of course, enlarge the official term of town officers, but such action can operate only upon officers thereafter elected. Where the office is to be filled by one authority and the duration of the term is to be de- termined by another, the declaration of such duration must go before the filling, so that each authority may have its legitimate exercise." See, also. People ex rel. Williamson v. McKinney, 52 N. Y. 374; People ex rel. Lord v. Crooks, 53 N. Y. 648. When the duration of the term of office is once declared by law the legislature can- not extend such term so as to affect the term of the incumbent at the time of the passage of the act. People ex rel. Fowler v. Bull, 46 N. Y. 57. See also, People hs. rel Lovett v. Randall, 151 N. Y. 497; 45 N. E. 841. A board of supervisors has no authority to so change the time of town meetings as to extend the terms of the supervisors in office at the time of the adop'ion of the resolution. Kept, of Atty. Genl., Feb. 15, 1912. But see People ex rel. Fluckiger V. Huftalen, 158 App. Div. 44, and People ex rel. Perkins v. Pelcher, 81 Misc. 423, in which case it waa in effect held that town officers in office wt the time the election would have been held if the time had not been changed continue in office until the vacancies caused by expiration of term are filled either by appointment or election. Election and qualification of successor. Supervisor to serve until successor is el»cted and has filed, the constitutional oath. Matter of Bradley, 49 N. Y. St. Rep. 530, 21 N. Y. Supp. 167. 284: TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 82, 102. in November, all town officers in any town of such county elected at the first biennial town meeting held after the adoption of such resolution shall hold office until the first day of January succeeding the biennial town meeting first held pursuant to such resolution. No resolution changing the time of holding town meetings to the first Tuesday after the first Monday in November shall be effectual to dispense with the liolding of the first biennial town meeting after the adoption of such resolution at the time fixed when such resolution was adopted. But the collector in each 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 oflSce, notwithstanding the fact that his successor has entered upon the duties of his office. [Town Law, § 82, as amended by L. 1909, eh. 491, L. 1910, eh. 271, L. 1913, ch. 231, and by L. 1918, ch. 372; B. C. & G. Cons. L., p. 6159.] § 4. TERMS OF SUFEBVISOKS IN CERTAIN COUNTIES. In each of the counties of this state containing over three hundred thou- sand inhabitants and less than six hundred thousand inhabitants as now appears or as may hereafter appear by the latest federal or state enumera- tion of inhabitants, and within which is, or may be, a city divided into wards from which supervisors are elected for a longer term than one year, the term of office of supervisors of the respective towns shall be as long as the term of office of the city supervisors. The terms of office of all such supervisors shall begin on the first day of January next succeeding their election.'' [Town Law, § 102 ; B. C. & G. Cons. L., p. 6170.] § 5. HOIiDING OVER AFTER EXFIRATION OF TERM. Every officer except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly ■entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor. An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly 4. Section 41 o£ the Town Law {ante, p. 246), referred to in the above section authorizes a town to adopt a proposition at a regular town meeting changing the date of its town meeting to the first Tuesday after the first Monday in November, known as general election day. If such a proposition is so adopted, the term of office of all officers, except justices of the peace, is two years from the date of their election. 5. This section was derived from L. 1893, ch. 130, § 1, as amended by L. 1895. ch. 266, and only applies to Erie Co. TOWN OFFICERS; ELECTION AND TERMS. 285 Public Officers Law, § 5. 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; B. C. & G. Cons. L., p. 4631.J 6. Application of section. Unless expressly authorized by statute an officer is not permitted to hold over after the expiration of his term. People v. Tiernan, 30 Barb. 193; 8 Abb. 359. In the case of People ex rel. Woods v. Crissell, 91 N. Y. 616, it appeared that at a general election two persons were candidates for office of alderman. Two of the four inspectors signed a state- ment certifying that one of them had received a majority of the votes cast. The other two inspectors refused to sign the statement. It was held that until the rights of the parties were decided In the courts and the result settled the election was to be treated as a failure so far as either of such candidates were concerned, and neither could claim any benefit therefrom; and that since, at such election, no successor was elected to the alderman in office, that he held over until the official determination of the result of the election and until his successor duly aualifled. In the case of People ex rel. Kehoe v. Fitchie, 76 Hun. 80; 28 N. Y. Supp. 600, it was held that the failure to elect a successor of an officer does not render the office vacant, and when a supervisor of a city ward is elected he continues to hold office until his successor is elected either at a general or at a special election ordered as provided by law. In the case of People ex rel. Williamson v. McKinney, 52 N. Y. 374, it was held that until a town collector shall take and subscribe an oath of office he is not qualified within the meaning of this section, and the incumbent of the office is entitled to hold over. See, also, Montgomery v. O'Dell, 67 Hun, 169, 178; 22 N. Y. Supp. 412. The term " qualified," as used in this section and in section 82 of the Town Law, means to take an oath of office and to file an official undertaking as required by law. People ex rel. Williamson v. McKinney, 52 N. Y. 374, 380. Where a town officer is lawfully holding over after the expiration of his term the office is to be deemed vacant for the purpose of electing a successor, from and after the expiration of the term for which the incumbent was chosen, although the term of the office, as distinguished from the term for which he was chosen, may have been in the meantime enlarged. People ex rel. Lovett V. Randall, 151 N. Y. 497; 45 N. B. 841. The town officer holding over after the expiration of his term is a de facto officer. People v. Cooper, 57 How. Pr. 416; People ex rel. Rumph v. Supervisors, 89 Hun, 38, 41; 34 N. Y. Supp. 1, 128. Officer holding over is entitled to salary. DeLacey v. City of Brooklyn, 12 N. Y. Supp. 540, 36 N. Y. St. Rep. 95. Where an election held to fill the office of trustee in a village, whose term expired on the day of the election, results in a tie vote, the trustee whose term has expired will hold over by virtue of the above section until his successor is duly elected, as provided by the village charter, at a special election held therefor. Matter of Travis, 87 App. Div. 554, 84 N. Y. Supp. 534. Justices of tlie peace are not within the provisions of this section. Kept, of Atty. Genl. (1903) 298. A supervisor holding over cannot vote as a member of the town board to fill a vacancy in the office. Matter of Smith, 116 App. Div. 665, 101 N. Y. Supp. 992, aifd. 188 N. Y. 549. A town assessor holds over until his successor is elected. Rept. of Atty. Genl.^ May 25, 1911. 286 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 103. § 6. iniMBER AND TERMS OF JUSTICES OF THE PEACE. There shall be four justices of the peace in each town, divided into two classes, two of whom shall be elected biennially. Such justices shall hold office for a term of four years commencing on the first day of January succeeding their election. In each county in the state having within its boundaries a city having a population of not less than three hundred thou- sand and not more than four hundred thousand, according to the last federal enumeration, the justices of the peace heretofore elected shall hold their offices for the terms for which they were respectively elected, but, except as hereinafter provided, no successors to them shall be elected. In each of said counties there shall be elected at the biennial town meeting in nine- teen hundred and three, two justices of the peace whose terms of office shall begin on the first day of January succeeding their election, and who shall hold office for the term of four years. . At the biennial town meeting in each of said counties held in nineteen hundred and five, there shall be elected two justices of the peace whose terms of office shall begin January first, succeeding their election, and who shall hold office for four years. At each biennial town meeting thereafter, there shall be elected two justices of the peace for the full terms of four years, commencing on the first day of January succeeding the town meeting.'' [Town Law, § 103 ; B. C. & G. Cons. L., p. 6170.] Inspectors of election hold over the same as other town ofiBcers. Rept. of Atty. Genl. (1903) 357. Expiration of term. Notwithstanding the determination at an annual town meeting that the number of constables of the town shall be three, the election of only two ousts the three elected the preceding year. People ex rel. Platner v. Jones, 17 Wend. 81. Authority of a deputy clerk, who discharges duties of county clerk in con- sequence of the death of his principal, ceases on the appointment by the governor of another county clerk. People ex rel. Smith v. Fisher, 24 Wend. 215. Successor duly qualified. Before a successor can be duly qualified to take an office, there must be united an appointment by competent authority, and such other proceedings as the law requires. People v. Woodruff, 32 N. Y. 355, 361; Pell V. Ulmar, 21 Barb. 500; Tappan v. Gray, 9 Paige, 507; People v. Van Home. 18 Wend. 515, 518. 7. Constitutional provision as to justice of the peace. The constitution provides (art. 6, sec. 17), as follows: " The electors of the several towns, shall, at their annual town meetings, or at such other time and In such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. In case of the election to fill a vacancy occurring before the expiration of the 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 as are or may be prescribed by law." Power of legislature as to office of justice of the peace. The office of justice .of the peace In towns is a constitutional office and cannot be abolished by the TOWN OFFICERS; ELECTION AND TERMS. £87 Town Law, § 56. § 7. JUSTICES OF THE PEACE; BAtLOTS FOR FULL TERM AND VACANCIES; OFFICERS IN NEW TOWNS. When the electors of any town are entitled to vote for a justice of the peace, to fill a vacancy caused otherwise 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 designated as the longer and the shorter vacancy; and if three vacancies, the longer, shorter and shortest vacancy ; and each person having the greatest number of votes with reference to each designation shall be deemed duly elected for the term or vacancy designated. If ballots are voted without designa^ tion, the first name on the ballot shall be deemed as intended for the full term of the office voted for, the second name for the longer vacancy, the third name for the shorter vacancy and the fourth name for the shortest legislature either directly or indirectly, so long as the town exists. Not only is the office itself placed beyond the' reach of hostile legislation, but also the term thereof, the method of filling it, and, by implication, the method of removing the incumbent. People ex rel. Burby v. Rowland, 155 N. Y. 270; 49 N. E. T75. In this case chapter 22 of the Laws of 1896, entitled " An act to provide for the better administration of justice in the town of Fort Edward, in the county of Washington," was under consideration. This act created the office of police Justice in the town of Fort Edward and by depriving the justices of the peace in that town of fees, and by providing that such justices should not be compelled to take cognizance of criminal proceedings therein it indirectly deprived such justices of their jurisdiction, and it was held to constitute a pro tanto abolition of the office of justice of the peace, and it was to that extent unconstitutional. The court, in effect, decided that it is not in the power of the legislature to enact that justices of the peace in the state at large shall have certain powers and duties, except in one certain town, and that there only they shall not have those duties, and if they voluntarily attempt to discharge them, they shall have no power to enforce their judgment. In the case of Matter of Gertum, 109 N. Y. 170; 16 N. E. 28, the court said: " It is undoubtedly beyond the power of the legislature by direct legislation, to abolish the office of justice of the peace in towns, or shorten their term of office so long as the town exists, but they have an unquestioned right to alter and change the limits of their jurisdiction or abolish the town organization altogether, provided it be done in good faith and for proper constitutional objects. The whole force and effect of the provision in relation to justices is satisfied by enforcing it, so long as there is a town organization in ex- istence authorized under the constitution to elect justices of the peace and requiring- the performance of their functions in the government of the town." In the case of People ex rel. Clark v. Treacy, 46 App. Div. 216; 61 N. Y. Supp. 288, which arose under chapter 439 of the Laws of 1897, providing for the holding of town meetings in the towns in the counties of Orange, Rock- land and Sullivan, it was held that the provisions of that act for the election of a justice of the peace to take office before the expiration of the full term of his predecessor was unconstitutional. This act also contained a provision for the election of a justice of the peace at a town meeting to be held in the 288 TOWKS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 105. 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, § 56 ; B. C. & G. Cons. L., p. 6149.] § 8. JUSTICES IN NEW TOWNS; UPON ERECTION OF NEW TOWTIS, OR ANNEXATIONS, JUSTICES OF THE PEACE, HOW TO HOLD OFFICE. If there be one or more justices of the peace residing in a new town, when erected, they shall be deemed 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, § 104; B. C. & G. Cons. L., p. 6171.] If by the election 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 class, 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 off, the inhabitants of such town shall, at its next annual town meeting, supply the vacancy so produced in the classes to which such justices belong. [Town Law, § 105 ; B. C. & G. Cons. L., p. 6171.] year 1897, to take office on the first of January, ISffQ, instead of at a. town meeting held immediately preceding such first day of January, 189?. The court intimated that the legislature could not direct the election of a constitutional oflBcer at a date earlier than that of the election which next precedes the expiration of the term of the existing incumbent, and that, therefore, such provision of the statute was in- valid. 7. Removal of justice of the peace. Section 18, art. 6, of the constitution provides that Justices of the peace may he removed from office by such courts as may be prescribed by law, and the legislature by law prescribed the Appellate Division of the Supreme Court as the court to be vested with such power (see sec. 132 of the Code of Criminal Procedure), and it is the only court that the legislature has vested with such power. Matter of Prescott, 77 Hun, 518 ; 28 N. Y. Supp. 928. 8. Ballots for fuH term and vacancies. The provisions of the above section of the Town Law relating to ballots containing the names of candidates for TOWN OI'JICEIIS; ELECTION AND TERMS. 289 Town Law, § 105a. § 8a. REDUCTION OF NUMBER OF JUSTICES IN TOWNS OF MON- ROE COUNTY TO ONE; ELECTION AND POWERS OF TOWN TRUSTEES. Registered voters of a town in Monroe county, constituting at least five per centum of tlie total number registered, may, by written application addressed to the town clerk, and filed with him at least thirty days prior to a biennial town meeting or general election, require the submission in such town to such biennial town meeting or general election of the follow- ing proposition : " Shall the number of justices of the peace in the town of (naming the town) be reduced to one and town trustees elected therein?" Notice of the submission of such proposition shaU be given in the manner provided by law for the submission of proposi- tions at biennial town meetings or general elections, as the case may be. If a majority of the votes cast on such proposition be in the affirmative, no justice of the peace shall thereafter be elected in such town except as pro- vided in this section, but justices of the peace of such town shall continue in office until the expiration of their terms, respectively. At the biennial town meeting held next preceding the expiration of the term or terms of a justice or justices having the shortest term or terms to serve, there shall be elected one justice of the peace to hold office for a term of four years from the expiration of such term or terms. A successor 'to such justice shall in like manner and for a like term be elected at the biennial town meeting next preceding the expiration of his term of office. A justice of the peace elected in such town pursuant to this section, or theretofore elected, shall be a member of the town board of such town and shall other- wise have all the powers and duties conferred or imposed by law on justices of the peace in towns. When the number of justices of the peace in such town shall be reduced to one, as provided by this section, such justice shall in addition have power to act in bastardy proceedings without associating with himself another magistrate of the same county, as required by statute. When the number of the justices of the peace in such town shall have been reduced to one, pursuant to this section, the town board of such town may, by resolution, determine that the justice of the peace thereof shall receive an annual salary and may fix such salary, and thereupon all fees to which such justice may be entitled shall be collected by him and paid to the super- visor of the town, and be applicable to general town purposes. There shall be elected in such town at the biennial town meeting first held after the vacancies in the office of justice of the peace is to be construed in connection with sec. 331, as amended by L. 1916, ch. 537, of the Election Law. 290 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 94; Highway Law, § 40. adoption of such proposition two town trustees to hold office for terms of four years from the expiration of the term or terms of the justices of the peace of such town having on the date of such town meeting the shortest term or terms to serve. There shall also be elected in such to^vn at the second biennial town meeting after the adoption of such proposition two town trustees to hold office for terms of four years from the expiration of the term or terms of the justices of the peace of such town having on the date of such town meeting the shortest term or terms to serve. Successors of such town trustees shall be elected for full terms of four years at the biennial town meeting next preceding the expiration of the terms of their predecessors in office. Town trustees shall be members of the town board of such town, and as such members shall have all the powers and duties and receive the same compensation as the town clerk of such tovm is entitled to receive as a member of the town board. Such a town trustee shall also, within the tovm, have all the powers of a justice of the peace to administer oaths and affidavits and take acknowledgments, upon filing his autograph signature with the county clerk of the county in which such town is located, and also with the register of such county, if there be one. [Town Law, § 105a, as added by L. 1918, ch. 302.] § 9. CERTIFICATE OF ELECTION OF JUSTICE OF THE PEACE. The town clerk of each town shall, within ten days after the election of a justice of the peace has been declared, transmit to the clerk of his county a certificate showing the result of such election under his hand, which shall be presumptive evidence of the fact therein certified." [Town Law, § 94; B. C. & G. Cons. L, p. 6166.] § 10. TOWN SUPERINTENDENTS OF HIGHW^AYS, ELECTION AND TERM OF OFFICE, VACANCIES; OFFICE OF HIGHWAY COMMISSIONER ABOLISHED; DEPUTIES. Election of town superintendent of highways. At the biennial town meeting held next after the taking effect of this chapter, there shall be elected in each town a town superintendent of highways. A successor to the town superintendent, so elected, shaU be elected at each biennial town meeting held thereafter in such town, unless the town shall have adopted as provided in section forty-one a resolution that thereafter the town super- 9. For fonn of certificate of election of justices, see Form No. 19, post. Duties of county clerk. The clerk of each county is required by section 14 of the Town Law, post, to report to the district attorney of the county an omission of ". town clerk to transmit a, certificate of the election of a justice of the peace as required by the above section. TOWN OFFICERS ;. ELECTION AND TERMS. 290a Highway Law, §§ 41, 42, 43. intendent shall be appointed by the town board. [Highway Law, § 40; B. C. & G., Cons. L., p. 2181.] Submission of proposition for appointment of town superintendent. Upon the written request of twenty-five taxpayers of any town, made and filed as provided in the town law, the electors thereof may, at a special or biennial town meeting, vote by ballot upon a proposition providing for the appointment of a town superintendent in such town. Such proposition shall be submitted in the manner provided by law for the submission of questions or propositions at a town meeting. If such proposition be adopted, the town board of the town shall, upon the expiration of the term of office of the elected town superintendent, appoint a town superintendent therefor, who shall take and hold office for the term hereinafter prescribed. Upon like request the electors of any town in which the office of superintendent of highways is appointed may, in like manner, determine that the superin- tendent of highways for such town shall thereafter be elected, as provided in section forty of the highway law."* [Highway Law, § 41, as amended by L. 1916, eh. 47 ; B. C. & G. Cons. L., p. 2181.] Term of office of town superintendent. The term of office of a town superintendent elected or appointed, as provided in this article, shall be two years. If such town superintendent be elected at a town meeting held at the time of a general election, his term shall begin on the first day of January succeeding his election. If such town superintendent shall have been elected at a town meeting held at any other time, his term of office shall begin on the first Monday succeeding his election. If such town superintendent shall have been appointed pursuant to a proposition adopted, as provided in the preceding section, his term shall begin on the first day of January succeeding his appointment, and the town board shall meet prior to that day, for the appointment of such town superintendent. [Highway Law, § 42, as amended by L. 1917, ch. 562; and L. 1918, ch. 372; B. C. & G. Cons. L., p. 2182.] Vacancies; office of highway commissioner abolished. Vacancies in the office of town superintendent shall be filled for the balance of the unexpired term. The office of highway commissioner in each town is hereby abolished, to take effect on and after November first, nineteen hundred and nine. 9a. Effect of vote. This section does not have the eflfect of making the office of town superintendent of highways permanently appointive when such proposition has been approved by the electors. A subsequent election may again make the posi- tion elective. People ex rel. Dare v Howell (1916), 174 App. Div. 118, 160 N. Y. Supp. 959. 290b TOWNS, TOW X JIEETINGS AND TOWN OFFICERS. Highway Law, § 44; Town Law, § 112. Where the office of highway commissioner shall become vacant by expiration of term or otherwise, after the taking effect of this chapter, and prior to the said first day of November, nineteen hundred and nine, such vacancies ehall be filled for a term to expire on such date. Highway commissioners in office when this chapter or any section hereof takes effect shall exercise the powers and perform the duties hereby conferred and imposed upon town superintendents until the said first day of November, nineteen hun- dred and nine, and until their successors shall have duly qualified, where- upon such powers and duties shall cease and determine. [Highway Law, § 43; B. C. & G. Cons. L., p. 2183.] Deputy town superintendent. The town board of a town may, in its discretion, upon the written recommendation of the town superintendent, appoint a deputy town superintendent, to be nominated by such town super- intendent, to assist him in the performance of his duties. Such deputy superintendent shall act as such during the pleasure of the town superin- tendent." [Highway Law, § 44; B. C. & G. Cons. L., p. 2184.] § 11. OVERSEERS OF POOR; DETERMINATION OF NUMBER; RES- OLUTION TO BE VOTED FOR; APPOINTMENT OF OVER- SEER BY TOWN BOARD. The electors of each town may, at their biennial town meeting, determine by resolution whether they will elect one or two overseers of the poor, and the number so determined upon shall be thereafter biennially elected for a term of two years. Whenever any town shall have determined upon having two overseers of the poor, the electors thereof may determine by a resolution at a biennial town meeting, to thereafter have but one, and if they so determine there- after no other overseer shall be elected or appointed, until the term of the overseer continuing in office at the time of adopting the resolution shall expire or become vacant, and the oyerseer in office may continue to act imtil his term shall expire or become vacant.'^ The electors of any town 10. Superintendent of highways may not appoint a deputy. He must be ap- pointed, if at all, in the manner prescribed in this section. If appointed otherwise his acts may not be imputed to the superintendent, nor is the town liable therefor. Lynch v. Town of Rhinebeck (1913), 210 N. Y. 101, 103 N. E. 888. 11. A resolution for the determination of the question as to whether one or TOWN OFFICERS; ELECTION AND TERMS. 291 Town Law, § 112. may, at any biennial or regularly called special town meeting on the ap- plication of at least twenty-five resident taxpayers whose names appear upon the then last preceding town assessment-roll, adopt by ballot a reso- lution 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 ap- pointing an overseer 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 meeting at which such reso- lution 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 the poor so appointed shall execute and file with the town clerk an official undertaking in such form and for such sum as the town board may by resolution require and approve.^' by resolution 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 appointment 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 two overseers of the poor shall be elected In the town may be submitted to the electors upon motion without a ballot under sec. 60 of the Town Law, ante. 12. The question of the appointment of an overseer of the poor must be be submitted on a written application of at least twenty-five resident taxpayers and must be voted upon by ballot. The provisions of section 48 of the Town Law, ante, relating to the submission of propositions to be voted upon by ballot at a town meeting are applicable to the submission of such question. 13. Undertaking of overseer. The above section requires an undertaking of an overseer of the poor appointed as provided therein, which must be in such form and for such sum as the town board may by resolution require and approve. A provision for the approval of the undertaking of an overseer so appointed by the town board would, therefore, seem to supersede the provisions of section 113 of the Town Law (see post, p. 307), to the effect that an under- taking of an elected or appointed overseer must be approved by the supervisor. The undertaking of an overseer elected under the above section of the Town Law would be subject in every respect to the provisions of such section 113. The 292 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 117. sum of one thousand dollars and shall be a town charge.^* At any sub- sequent town meeting after the expiration of three years from the adop- tion 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 regulating the election of over- seers of the poor, and the term or terms of the overseer or overseers first so elected shall commence upon the expiration of the term of office of the overseer of the poor last theretofore appointed in pursuance of law, and shall expire as though each such term commenced at the time of election ; and their successors shall thereafter be elected in pursuance of law. In each town having a population of twenty thousand or over, the town board may fix the compensation of overseers of the poor at not to exceed twelve hundred dollars per year, and which shall be a town charge. The compensation so fixed shall be taken and accepted by such over- seer of the poor in lieu of any per diem or fees from the town from the- time such salary shall go into effect. [Town Law, § 112, as amended by L. 1912, ch. 203 ; B. C. &G. Cons. L., p. 6174.] § 12. SPECLaX CONSTABLES; APPOINTMENT AND POWERS. The supervisor and two justices of the peace of any town may, when in their judgment necessary for the preservation of the public peace during any period of ninety days or less, appoint five or less special con- stables of such town for such period. Duplicate certificates of the ap- pointment, signed by such supervisor and such justices of the peace as such, shall be delivered to each of such special constables, specifying the days for which he is so appointed, and one of such duplicates shall be by such special constables filed with the town clerk of said town. The supervisor of such town shall cause to be provided and furnished to each of such special constables a badge on which shall be plainly printed the words " special constable," which shall be worn conspicuously by each of such special constables while serving as such, and be delivered by him on the completion of his service to the supervisor of such town, who shall preserve the same for future use and deliver the same to his suc- cessor in office who shall preserve the same when not in use. The town board in any town where the assessed valuation of property exceeds eight million dollars may by resolution appoint such number of special con- stables of such town as there shall be election districts therein to pre- serve the public peace at the polls in such election districts throughout the holding of any general election, one such constable to serve at each said polling place, whose compensation shall be five dollars for such ser- provisions of ?ection 113 of tlie Town Law, post, apply to the undertaking of an overseer of the poor, whether elected or appointed. 14. Compensation of overseer. The compensation of an overseer appointed under the above section may be fixed by the town board. The compensation of elected overseers is fixed by section 83, as amended by L. 190?, ch. 491, L. 1915, chs. 73, 452, L. 1916, chs. 93, 554, and L. 1918, chs. 117, 123, 35?, 360, 387, of the Town Law at $2.00 per day. TOWN OFFICERS; ELECTION AND TERMS. 293 Town Law, § 118; Election Law, § 302. vice. The town clerk shall issue a certificate of appointment to each of such special constables specify the time for which he is so appointed and there shall be provided to each of such special constables, a badge on which shall be plainly printed the words " special constable," which shall be worn conspicuously by each of such special constables while serving as such and delivered by him on the completion of his service to the town clerk who shall preserve the same for future use. Such compensa- tion and the cost of such badges are hereby declared to be town charges. [Town Law, § 117, as amended by L. 1913, cL 148, and L. 1915, ch. 23 ; B. C. & G. Cons. L., p. 6178.] Each of the special constables, appointed pursuant to section one hun- dred and seventeen of this chapter, while in office as such, shall be a peace officer, and have all the powers and be subject to all the duties and liabilities of a constable of such town in all criminal actions and proceedings and special proceedings of a criminal nature, and shall be entitled to receive compensation from the tovrai at the rate of wages pre- viously established by the town board for such services. [Town Law, § 118, as amended by L. 1913, ch. 148 ; B. C. & G. Cons. L., p. 6178.] § 13. ELECTION OFFICERS; THEIR DESIGNATION, NUMBER AND QUALIFICATIONS. There shall be in every election district of this state the following election ofH- cers namely, four inspectors, two poll clerks and two ballot clerks, whose terms of office, except as hereinafter prescribed, shall be for one year from the date of their appointment or election, and who shall serve at every general, special or other elec- tion held within their districts during such term. The term of office of inspectors of election in towns shall be for two years. In a city of over one million inhabitants, tnere shall be in every election district four additional inspectors, who shall serv» at every such election after the closing of the polls and until the canvass is com- pleted and returns thereof made as provided by law. They shall be designated in the appointment as canvassing inspectors, and the same person shall not be eligible to serve, under an original appointment or vacancy appointment, at both the taking and canvassing of the vote. Such canvassing inspectors, at the closing of the polls, shall take the place of the inspectors, poll clerks and ballot clerks who have served prior thereto, except as otherwise provided in section three hundred and sixty-six-a. No person shall be appointed or elected an inspector of election, poll clerk or ballot clerk who is not a qualified voter of the county if within the city of New York, or of the city if in any other city, or of the election district of the town in which he is to serve, of good character, aisle to speak and read the English language imderstandingly, and to write it legibly, and who does not possess a general knowl- edge 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 voters of the district in which he is to serve, or who has been convicted of a felony and not restored to citizenship, or who holds any public office except that of notary public or commissioner of deeds, town or village assessor, justice of the peace, police justice of a village, village trustee, water commissioner, officer of a school district, or overseer of highways, 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.is Each class of such officers shall be equally divided between the two political parties which at the general election next preceding that for which such officers are 15. Who may serve as election officer. An elector, resident of a city, who is otherwise qualified, may serve as an inspector, poll clerk or ballot clerk in a district of the city other than that in which he resides. Eept. of Atty. Genl. (1896) 229. 294 TOWNS, TOWN MEETINGS AND TO^^^s'^ OFFICERS. Election Law, § 311. to serve, cast the highest and the next highest number of votes.is The canvassing inspectors, in a. city of over one million inhabitants, shall be so equally divided between such parties. Where election officers are appointed the qualifications re- quired of them by this section shall be determined by an examination as provided in this chapter. [Election Law, § 302, as amended by L. 19'14, ch. 239, and by L. 1918, ch. 323; B. C. & G. Cons. L., p. 1497.] § 14. ZXECTION OFFICERS IN TOWNS AT GENFBAI. ELECTIONS; POI.I. CLERKS AND BALLOT CLERKS. Except as provided in section two hundred and ninety-six, inspectors of election in towns shall be appointed by the town board in each year in which a town meeting is held for the election of town officers, and within thirty days thereafter. Such appointments shall be made from lists to be prepared, certified and filed in the manner hereinafter provided, by the two political parties entitled to representation on a board of election officers. The town caucus or primary held by each such political party for the purpose of nominating town officers shall prepare a list contain- ing the names of at least two persons, qualified to serve as inspectors of election, for each election district in said town, which lists shall be certified by the presiding officer and a secretary of said caucus or primary, and filed with the town clerk in the same manner and at the same time as the party certificate of nomination filed by said party. From each of the two lists so filed, the town board shall appoint two persona who possess the qualifications prescribed by law for election officers. If in any town more than one such list be submitted on be- iialf or in the name of the same political party, only that list can be accepted which is certified by the proper officer or officers of the fac- tion of such party which was recognized as regular by the last preced- ing state convention of such party; or if no such convention was held during the year, by the proper officer or officers of the faction of Ballot clerks and poll clerks are election officers. Rept. of Atty. Genl. (1896) 230. Candidates for office cannot serve as election officers. Rept. of Atty. Genl. (1903) 463; Rept. of Atty. Genl. (1905) 533; Rept. of Atty. Genl. (1901) 296. This section does not apply to a person who is employed by a public officer in a private capacity, clerk in store, coachman, gardener, etc. Rept. of Atty. Genl. (1896) 221. Inspector, employee of public officer ineligible. Rept. of Atty. Genl. (1899) 323. An inspector of election in a town or village may accept the office of village clerk. Rept. of Atty. Genl. (1898) 261. A deputy sheriff is a public officer within the meaning of this section. Rept. of Atty. Genl. (1897) 246. A person appointed to the office of inspector of election, who is later chosen to and serves in the office of village treasurer, may perform the duties of inspector of election while holding the other office. Rept. of Atty. Genl., May 6, 1911. A postmaster is a public officer. Rept. of Atty. Genl. (1897) 247. This provision extends to persons holding office under the laws of the United States, as a postmaster. It is not retroactive. Rept. of Atty. Genl. (1896) 226. 16. This provision as to "the highest and the next highest number of votes" refers to the votes in the state. Matter of Knollin, 59 Misc. 373, 112 N. Y. Sunn 332. Acts of election officers not reviewable by certiorari. Inspectors of elec- tions are simply ministerial officers, their acts and conduct cannot be reviewed by certiorari. People ex rel. Brooks v. Bush, 22 App. Div. 363; 48 N. Y. Supp. 13, and cases there cited. See also People ex rel. Stapleton v. Bell, 119 N. Y. 175. An irregnlarity in the appointment of inspectors will not invalidate the election at wihich they officiate. Rept. of Atty. Genl. (1895) 253. TOWN OFFICERS; ELECTION AND TERMS. 295 Election Law, § 312. such party, which at the time of the filing of such list is recognized as regular by the state committee of such party. Such appointment shall be made in writing and filed with the town clerk, who shall forthwith notify each person so appointed of his appoint- ment to said oflBee, in the manner in which he is now by law required to give notice to a person of his election to a town office when his name does not appear upon the poll list at the town meeting at which he was elected to said office. From the additional names, if any, contained on the lists so filed, of persons qualified to serve as such, the town board shall appoint inspectors of election in case of the resignation, declination or other in- capacity of persons appointed to such office. If such lists contain no ad- ditional names of such persons, the town board shall fill vacancies caused by such resignation, declination or other incapacity by appointing persons known, or proved to the satisfaction of a majority of the members of said board to be members of the same political party in which such vacancy occurred. All appointments to fill vacancies shall be made in writing and filed with the town clerk, and notices thereof given by him as hereinbefore provided in the case of an original appointment.^* [Election Law, § 311 ; B. C. & G. Cons. L., p. 1503.] At the first meeting in each year of the board of inspectors in every district in a town, one poll clerk and one ballot clerk shall be appointed by the two inspectors of election representing one of the political parties entitled to representation on such board, and one poll clerk and one ballot clerk shall be appointed by the two inspectors representing the other political party. Such appointments shall be in writing, signed by the inspectors making the appointments respectively, and shall be filed by them with the town clerk of the town in which such election district is situated, and a copy thereof with the post-office address of each person so appointed shall be mailed to the clerk of the county. The poll clerks and ballot clerks so appointed shall hold their office during the term of office of the inspectors appointing them, except as here- inafter 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 three hundred and two of this article. If at the time of any election at which poll clerks and ballot clerks are required to be present at the polling place in any election district, the office of a poll clerk or of a ballot clerk of such district shall be vacant, or a poll clerk or a ballot clerk shall be absent, the inspectors of election in such 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 constitutional and statutory oaths of office. [Election Law, § 313; B. C. & G. Cons. L., p. 1504.] 296 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. ■ Town Law, § 411. § 15. ERECTION OR DISCONTINUANCE OF POUNDS; ELECTION OF FOUNDMASTERS. Whenever the electors of any town shall determine at a biennial 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 a biennial town meeting, discontinue any pounds therein. [Town Law, § 410 ; B. C. & G. Cons. L., p. 6241. J 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, § 411; B. C. & G. Cons. L., p. 6241.] ELIGIBILITY, ETC., OP TOWN OFFICERS. 397 Explanatory note. CHAPTER XXI. "TOWN OFFICERS; ELIGIBILITY, OATHS OF OFFICE, UNDERTAKINGS, VACANCIES, RESIGNATIONS. EXPLANATORY NOTE. Persons Eligible to Town Office. Every elector of the town is eligible to any town oflSce. Inspectors of election must be able to read and write. A county treasurer, superintendent of the poor, school commissioner trustee of a school district, or a United States loan commissioner is not ■eligible to the office of supervisor. The courts have held that a school trustee who seeks election as supervisor must resign prior to election. It will not do for him to wait until after election upon the assumption that he may not be elected as supervisor. There are certain general provisions as to the qualification to hold public office which apply to town offices as well as all other public offices. For instance the person elected to a town office must be of full age, a citizen of the United States, a resident of the state and town for which he is chosen. Oaths of Office. Every person elected or appointed to town office must take and subscribe the constitutional oath of office, within ten days after receiving notice of his election. Such oath must be filed in the town clerk's office within eight days after the taking thereof. A failure to so take and file the oath of office will be deemed a refusal to serve and the office may be filled by appointment by the town board. It has been held by the courts that if a town officer takes and files his oath before his term begins there is no vacancy which the tovra board can appoint. The form of the oath is prescribed by Constitution Art. XIII, § 1. IsTo other test or oath may be required. 298 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. Official Undertakings. Supervisors, justices of the peace, town superintendents of highways, overseers of the poor, collectors and constahles are required within a prescribed time after entering upon the duties of their offices to make. and deliver to the town clerk, official undertakings in such amounts, with such sureties and upon such conditions as are prescribed by statute. All of these officers are under certain circumstances the custodians- of, or are responsible for, moneys belonging to the town or its inhabitants ;, the town is therefore protected by means of undertakings. A supervisor is required to give three separate undertakings: one a general undertaking securing generally the faithful discharge of his official duties, and the payment of moneys in his hands belonging to the town (TovtTi Law, § 100) ; one for the " faithful disbursement, safe keeping and accounting " of highway moneys (Highway Law, § 104) ; and one for the disbursement and accounting of school moneys (Education Law, § 363). The form and effect of the undertakings of other town officers are prescribed by the several sections of the town law applicable thereto. Resignations ; RemovaL Kesignations of town officers should be made to the justices of the peace of the town. Such resignations take effect when accepted by three of the justices, when so accepted notices are to be filed with the town clerk. The resignations should be in writing addressed to the justices or the town clerk. There is an apparent discrepancy between § 84 of the Town Law and § 31 of the Public officers Law as to how a town officer should resign. The latter section indicates that a resignation takes effect upon its delivery to the town clerk, while the Town Law seems to require acceptance by the justices before a resigna- tion takes effect. The safer procedure would be to deliver the resigna- tion to the town clerk, and then request an acceptance by the justices. A town officer may be removed by proceedings brought in the Supreme Court, as provided in § 36 of the Public Officers Law. Justices of the Peace are removable by the Appellate Division of the Supreme Court as provided in § 132 of the Code of Criminal Procedure. Town superintendents of highways are removable by the town board as provided in § 46 of the Highway Law. ELIGIBILITY, ETC., OP TOWN OFFICERS. 399 Town Law, § 81. Vacancies. Vacancies are created by death, resignation, removal from office, removal from the town, conviction of a crime involving a violation of an oath of office, or refusal or neglect to file an official oath or under- taking. Such vacancies are filed by appointment of the town board. Section 1. Eligibility of town oflBces; supervisors. 2. Qualifications for holding office; general provisions. 3- Oaths of office of town officers; how administered; filed in town clerk's office; effect of failure to execute and file oath and undertaking. 4. Town officers to administer oaths. 5. Supervisor's undertaking. 6. Bonds to indemnify supervisor against loss of deposits. 7. Justice's undertaking; oath of office to be taken before county clerk; certificate that he has filed undertaking. 8. Official acts legalized when justice of the peace fails to take official oath or give undertaking. 9. Undertaking of town superintendent of highways. 10. Undertaking of overseer of the poor. 11. Collector's undertaking. 12. Filing of collector's undertaking; lien on property of collector and sureties. 13. Constable's undertaking. 14. Form of undertaking and liability thereon. 15. 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 un- dertaking. 17. Validation of official acts before filing oath or undertaking. 18. Resignation of town officers; notice. 19. Removal of town officers; application to appellate division; notice. 20. Vacancies, how created. 21. Vacancies, appointment to fill, how made and when filled. 22. County clerk to report omissions of town officers to district at- torney. % 1. EIiXGIBII.ITT OF TOWN OFFICERS; SUPERVISORS. Every elector of the town shall be eligible to any town office, except that inspectors of election shall also be able to read and write.^ 1. Constitutional provision. Article 13, sec. 1, of the constitution prescribes the constitutional oath of office and declares that " no other oath, declaration or test shall be required as a qualification for any office of public trust." 300 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 81. But no county treasurer, superintendent of the poor, school commis- sioner, trustee of a school district, or United State loan commissioner, shall be eligible to the office of supervisor of any town or ward in this state.^ [Town Law, § 81 ; B. C. & G. Cons. L., p. 6158.J Inspectors of election. Qualifications of inspectors of election are prescribed by the Election Law, par. 2 of § 303, as amended by L. 1914, eh. 239", and L. 1918, ch. 323 (Jewett's Election Manual, 1918), which provides as follows: "No person shall be appointed or elected an inspector of election, poll clerk or ballot clerk who is not a qualified voter of the county if within the city of New York, or of the city if in any other city, or of the election district of the town in which he is to serve, of good character, able to speak and read the English language under- standingly, and to write it legibly, and who does not possess a general knowl- edge of the duties of the ofiice to which he is elected or appointed, or who is a candidate for any office to be voted for by the electors of the district in which he is to serve, or who has been convicted of a felony and not restored to citizen- ship, or who holds any public office except that of notary public or commissioner of deeds, town or village assessor, justice of the peace, police justice of a village, village trustee, water commissioner, officer of a school district, overseer of highway, whether elected or appointed, or who is employed in any public oflSce or by any public officer whose services are paid for out of public money other than is ex- cepted herein." Assessor need not be a taxpayer. Rept. of Atty. Genl. (1894) 150. Justice of the peace. Offices of a justice of the peace and of a deputy sheriff are incompatible. Rept. of Atty. Genl. (1895) 106. To-nm auditor need not be a taxpayer. Rept. of Atty. Genl. (1894) 261. Totrn clerk. A deputy postmaster is eligible to hold the office of town clerk. Rept. of Atty. Genl. (1892) 110. Town superintendent of higliways. A resident of an incorporated village within the boundary of a town is eligible to the office of town superintendent of highways. Rept. of Atty. (3enl., March 14, 1911. 2. Eligibility of supervisor. The disqualification imposed by the above sec- tion that " no trustee of a school district shall be eligible to the office of supervisor of any town or ward in this state," applies to the capacity of a candidate for elec- tion, as well as for holding the office. The intention of the statute is that the electors, in making the choice of a person for the office of supervisor, must be con- fined to the selection of such person only as it is not then under any legal disquali- fication to exercise its powers and perform its duties. As a trustee of a school dis- trict is incapable of being elected supervisor of a town as well as of holding the office of supervisor, no right to that office is acquired by resigning the office of tru* tee after having received a majority of the v^es cast for the office of supervisor at a town meeting, and before qualifying as supervisor. People v. Purdy, 154 N. Y. 439; 48 N. E. 821. It follows from this decision that a school trustee who has been nominated for the office of supervisor should resign such office before the town meeting. The court in discussing this question says: "The statute, we think, does not contemplate that a person who is disqualified to hold the office may, neverthe^ less, be lawfully elected upon the chance that subsequently he may, by his own act, or by the happening of some event, remove the disqualification, and thus become entitled to fill it. The general rule is that the electors, in making the choice, must be confined to the selection of such persons only as are not then under any legal disqualification to exercise its powers and perform its duties. The electors can then know that when the choice is made and legally declared the object for which the election was held has been accomplished, and that there is no legal obstruction in the way to prevent their will, as thus expressed, from becoming effective." In respect to the eligibility of a, school trustee to hold the office of supervisor reference must be made to section 222 of the Education Law, as amended by L. 1910, ch. 140, which provides that no supervisor is " eligible to the office of trustee or member of a board of education." It has been held that since this pro- vision as amended is a later enactment than the Town Law, it supersedes such law, and that therefore the law is complied with if the supervisor resigns his office as trustee prior to taking his office as supervisor. People ex rel. Martin v. Kenyon, 152 App. Div. 898. ELIGIBILITY, ETC., OF TOWN OFFICERS. 30I Public Officers Law, § 3. § 2. QUALIFICATION FOK HOLDING OFFICE; GENERAL PROVI- SIONS. Ho 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 subdivision 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 exercised.' [Public Officers Law, § 3 ; B. C. & G. Cons. L., p. 4630.] § 3. OATHS OF OFFICE OF TOWN OFFICERS; HOW ADMINIS- TERED; FILED IN TOW^N CLERK'S OFFICE; EFFECT OF FAIL- URE 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 The provision that no trustee of a school district shall be eligible to the oflSoe of supervisor of any town or ward in this state applies to the qualifications of the candidate to be voted for, as well as to his qualifications to fill the office. Kept, of Atty. Genl. (1911), vol. 2, p. 673. But see People ex rel. Martin v. Kenyon, 152 App. Div. 898; Purdy v. Purdy, 154 N. Y. 430, and Atty. Genl. Opinion, 1916, 7 Dept. Eepts. 80. The supervisor must reside in the town he represents. Bacon v. Hanna, 43 N. Y. St. Eep. 906. Supervisor who has been elected county treasurer is made eligible to the latter office by resigning his supervisorship prior to entering upon the discharge of his duties as treasurer. Eept. of Atty. Genl. (1893) 356; Kept, of Atty. Genl. (1894) 239. Section 106, of the Town Law, recognizes the right of a justice of the peace to hold the office of supervisor (dissenting opinion). People ex rel. Earwicker v. Dillin, 38 App. Div. 539, 543, 56 N. Y. Supp. 416. Coroner cannot hold the oflice of supervisor. Kept, of Atty. Genl. (1903) 460 3. Citizen of state, public officer must be. Lambert v. People, 76 N. Y. 220, 230. Attorneys must be citizens. Matter of O'Neil, 90 N. Y. 584, affg. 27 Hun 599. Residents. Eesidence is equivalent to domicile for the purpose of determining whether a public officer is a resident of the political subdivision which he serves. People V. Piatt, 117 N. Y. 159. Supervisor must reside in town in which he is elected. Bacon v. Hanna, 17 N. Y. Supp. 431, 43 N. Y. St. Rep. 906. Notary public by moving his residence to another state forfeits his office. Eept. of Atty. Genl., Feb. 20, 1911. Forfeiture of office. All candidates for town offices elected at a town meeting are required to file a statement of their election expenses with the towm clerk, within ten days after the town meeting. If the person has beenjelected to a town office and fails to file such statement, he is guilty of a misdemeanor, and forfeits his office. Penal Law, § 776, as amended by L. 1910, ch. 439. (Jewett's Election Manual, 1918.) A person who asks or receives any gratuity or reward for appointing or procuring the appointment of another person to a public office, or to a sub- ordinate position in such an office is guilty of a misdemeanor, and if such person is a public officer, upon conviction he also forfeits his office. Penal Law, § 1832. A public officer, who, for any gratuity or reward grants to another the right to discharge any function of his office, or permits another to make appointments 302 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 83. subscribe before some officer authorized by law to administer oatbs 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 under- taking, shall be deemed a refusal to serve, and the office may be filled as in case of vacancy." [Town Law, § 83 ; B. C. & G. Cons. L., p. 6160.] or perform any of its duties, is guilty of a misdemeanor, and upon conviction forfeits his office. Penal Law, § 1833. The acceptance of bribes by tlie executive officer is punishable by imprisonment in the state prison not exceeding ten years, or by a fine not exceeding $5,000, or by both; and In addition thereto, the officer if convicted forfeits his office and Is forever disqualified from holding any public office in this state. Penal Law, §§ 1823, 382. If a public officer is con- victed of a felony his office is forfeited. Penal Law, §§ 510, 511. Acting as public officer without 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. Penal Law, § 1820. But this section of the Penal Law is not construed to affect the validity of acts done by a person exercising the functions of a public office in effect where other persons than himself are Interested in maintainging the validity of such acts. 4. Constitutional oath. The form of an official oath as prescribed by the constitution, art. 13, sec. 1, is as follows: " I do solemnly swear (or affirm) that I will support the constitution of the United States, and the constitution of the state of New York, and that I will faithfully discharge the duties of the office of , according to the best of my ability." And the constitu- tion also provides in this section that all such officers who shall have been chosen at any election shall, before they enter on the duties of their respective offices, take and subscribe the oath or affirmation above prescribed, together with the following addition thereto: "And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered 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 office, and have not made any promise to influence the giving or withholding any such vote." Filing oath of office. The provisions of the above section as to the time within which a town clerk must take and file his constitutional oath of office are directory merely. If he takes and files such oath before his term begins, and before his office is declared forfeited by judicial action no vacancy exists, and the town board cannot appoint. Matter of Drury, 39 Misc. 288, 79 N. Y. Supp. 498. Oath of justice of the peace. A justice of the peace is required to take his oath of office before the county clerk after filing a certificate of the town clerk that he has filed the required undertaking. See Town Law, sec. 106, post. General provisioii as to oath of office. Public Officers Law, ! 10 as amended ELIGIBILITY, ETC., OF TOWN OFFICERS. 303 Town Law, § 88. § i. TOWN 0FFICEK8 TO ADMINISTEE OATHS. Any town officer may administer any necessary oath in any matter or by L. 1913, ch. 59, is in effect the same as the above section of the Town Law. Under section 13 of the Public Officers Law it is made the duty of the ofllcer with whom an oath of office is to be filed, in the case of :own officers the town clerk, to give notice to the town board of the lailure of a town officer to take and file an official oath within the time required by law. The failure to file the official oath creates a vacancy which the town board may fill. (See Town Law, sec. 130, postj Public Officers Law, sec. 30, sub. 7, post.) Effect of failure to file an oath. "Dhe failure of a town officer to take and file his oath as required in the above section does not affect his powers and rights as such officer. See Horton v. Parson, 37 Hun 42, 45, where the court says : " It may not appear entirely clear that a person elected to the office of overseer of the poor, who has failed to take the oath of office, and for that reason is charged with refusal to serve, which permits an election to fill the vacancy thereby occasioned, is an officer de jure in the strict sense of that term, since by the terms of the statute his right to perform the duties of the office seems dependent on his taking the oath. But it has been held in effect that the statute is not self-executing, and does not work a forfeiture for the cause it affords, but that it must come from some act, judicial or otherwise, which effectually ousts him and severs his relation to the office and that until then he is practically an officer de jure, having defeasible title to the office." This proposition seems to have been sustained in the case of Foot v. Stiles, 57 N. Y. 399, where it was held that a failure to file an official bond did not ipso faoto affect the office, and the rule was laid down that in such a case the officer holds by defeasible title and until the for- feiture is judicially declared, he is rightfully in office, at least so far as the rights of third persons are concerned', and the question cannot be raised collaterally. See, also. People v. Crissey, 91 N. Y. 635 ; In re Kendall, 85 N. Y. 305 ; People ex rel. Conlin v. Martin, 23 N. Y. Supp. 730 ; Adams v. Tator, 42 Hun, 384. It was expressly held in the case of People ex rel. Brooks v. Watts, 73 Hun 404; 26 N. Y. Supp. 280, that the rule, as it existed under the revised statutes, with reference to vacancies in office by reason of the neglect or omission of a person elected to a town office to take and iile an oath of office was not changed by the provisions of the above section of the Town Law. It therefore follows that the cases above cited are still controlling, and the rule now is that the defect or omission, if any, in regard either to an official bond Or an official oath makes the officer's title defeasible and affords a cause for forfeiture, but does not create a vacancy. A vacancy in such case can only he effected by a -direct proceeding for that purpose. Failure to file oath deemedi a refusal to serve and authorizes the filling of the vacancy. People ex rel. Williamson v. McKinney, 52 N. Y. 374. See, also, Eept. of Atty. Genl. (1896) 120. It has been held that the failure of the oath of office, filed by one duly elected to a town office, to state that he did not buy jBny votes as required by section 1 of article 13 of the Constitution, precludes him from entering upon the duties of his office, and he is not therefore entitled to maintain an action to oust one duly appointed to fill the vacancy. People ex rel. Ketor v. Preston, 169 App. Div. 368, 154 N. Y. Supp. 1007. Acceptance of office. Under the above section of the Town Law the filing of an official oath, as required therein, is to be deemed an acceptance of the office, and an omission to take and file such oath within the time required by law is a refusal to serve, and the office may be filled as in case of vacancy. In construing suoh provisions with the provisions of section 100 of the Town Law,. 304 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 100. proceeding lawfully before him, or to any paper to be filed with him as such officer.' [Town Law, § 88; B. C. & G. Cons. L., p. 6163.] § 5. SUPERVISOR'S UNDERTAKING. Every supervisor hereafter elected or appointed shall, within 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 coming 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 supervisor elect." [Town Law, § 100; B. C. & G. Cons. L., p. 6169.] providing that every supervisor shall within thirty days after entering upon his office, deliver his undertaking to the town clerk, which shall be presented to the town board for approval, and until approved none of the moneys, etc., of the town shall be delivered over to the supervisor elect, the Court of Appeals, in the case of Matter of Bradley, 141 N. Y. 527; 36 N. E. 598, said: " It is very clear that the law contemplates two steps by the candidate elected to office, the first to be taken on his filing of his oath of office. When that has been done, the office is deemed to have been accepted and that is equivalent to saying that the officer elect has entered upon its duties. It is after so enter- ing upon his office, and within a specified time thereafter, that he is required to execute and submit his undertaking. That he is regarded as in office when he has filed his oath, is perfectly clear from the provision that neglect to file the oath within the prescribed time causes a vacancy. When he has evidenced in the required manner his acceptance of the office to which elected, his predecessor is out and has no further standjng as a member of the town board." 5. A constitutional oath of office may be taken " before some officer author- ized by law to administer oaths;" it is probable that a constitutional oath of office may be taken before a town clerk. e. Official bond of supervisor. A supervisor upon receiving the school commis- sioner's certificate of appointment and before receiving the school moneys so appor- tioned to his town, must give a bond to the county treasurer conditioned for the faithful disbursement, safe keeping and accounting of such moneys. Education Law, § 373. 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. Sureties on the general bond of a supervisor will not be held liable for defaults covered by a special bond which was not given. Town of Whitestown v Title Guaranty & Surety Co., 72 Misc. 498. ELIGIBILITY, ETC., OF TOWN OFFICERS. 305 Town Law, §§ 101, 106. % 6. BOimS TO INDEMNtFT SUPERVISOR AGAINST LOSS OF DE- POSITS. The supervisor of any town may purchase a surety bond of some solvent surety company, authorized to do business in the state of New York, secur- ing to such supervisor the safety of town funds deposited by him in any bank or banking institution in this state, and indemnifying him against the loss thereof through the failure or insolvency of such bank or banking institution, and the cost of such bond shall be a town charge and shall be audited and paid in the same manner as other town charges. [Town Law, § 101; B. C. & G. Cons. L., p. 6170.] § 7. JUSTICE'S UNDERTAKIKKG; 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 Form of undertaking. The form and contents of an undertaking, the force and effect thereof, and the validation of the official acts of the oflicer before filing his oath of office and making an undertaking are prescribed in the Public Officers Law, sees. 11, 12, 15, post. See, also. Town Law, sec. 13, post, -p. 311. For form of undertaking of a supervisor, see Form No. 20, post. Sufilciency and approval of undertaking. In the case of Sutherland v. Carr, 85 N. Y. 105, a bond was given by a supervisor to a person holding the office of town clerk who was named therein as obligee, and was described as "town clerk," and the penal sum of the undertaking was made payable " to the said town clerk or his successor in office." In an action upon the undertaking it was held that the bond was not to the individual, but to the officer; and so was in compliance with the requirements of the statute and was valid. As to the interpretation of an official undertaking of a supervisor, see People ex rel. Johnson v. Martin, 62 Barb. 570; 43 How. 52. A supervisor is deemed to have accepted his office upon the filing of his oath, and at such time he has in legal effect entered upon the performance of the duties of his office. The execution and filing of an undertaking is not necessarily a condition precedent to the entering upon his duties. Upon filing his oath he becomes a member of the town board. The undertaking executed by him must be presented to the town board for its approval, but he should not act with the town board in the approval of his own bond. Such approval should be given by the other members of the board. Matter of Bradley, 141 N. Y. 527; 36 N. E. 598; affg. 21 N. Y. Supp. 167. The execution of an undertaking by a supervisor and its approval by the town board is a condition precedent to the right of the supervisor to take over the town moneys, books, etc., into his custody. An action on an official undertaking of the supervisor for a failure to pay over moneys for the local school fund must be maintained by a county treasurer. Palmer v. Roods, 116 App. Div. 66, 101 N. Y. Supp. 186. 306 TOWiNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 15. charter requires such officer to give a bond or undertaking, shall, before he enters upon the duties of his office, 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, 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 election, 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. Such justice of the peace shall take and subscribe before some officer authorized by law to administer oaths in his county, the constitutional oath of office, upon blanks to be furnished by the county clerk. Such oath shall be in duplicate, one of which shall be filed in the office of the county clerk and one in the office of the town clerk. If elected or appointed to fill a vacancy, at the time existing or in any new town, he shall file such under- taking and certificate and take the oath of office, and enter upon the duties thereof, within fifteen days after notice of his election or appoint- ment. No justice of the peace shall take his oath of office until he shall have filed such certificate with the county clerk. [Town Law, § 106; B. C. & G. Cons. L., p. 6172.] § 8. OFFICIAI. ACTS I^EGALIZED ItTHEN JUSTICE OF THE PEACE FAILS TO TAKE OFFICIAI. OATH OR GIVE UNDERTAKING. The official acts heretofore done of every justice of the peace, duly elected or appointed to the office, so far as such official acts may be af- fected, 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.' [Town Law, § 15 ; B. C. & G. Cons. L., p. 6137.] 7. Justice of the peace may be supeoisor. This section recognizes the right of a justice of tlie peace to hold the office of supervis/br (dissenting opinion). Peo- ple ex rel. Easwicker v. Dillon, 38 App. Div. 539, 543, 56 N. Y. Supp. 416. 8. Undertaking of justice of the peace. As to general provisions relating to ofiBeial oaths and undertakings, see Public Officers Law, sees. 10-15, post. For form of undertaking of justice of the peace, see Form No. 21 post. While failure of a justice of the peace to file his oath of office may be a ground for declaring the forfeiture of his office, it does not render the office vacant nor prevent such person from acting as justice of the peace. Rept. of Atty. Genl. (1911), vol. 2, p. 596. The county clerk should file papers executed or certified by a person duly elected justice of the peace, even though such person has not filed his bond. It is also the duty of the county clerk to certify that such person is a justice of the peace, but he need not certify that heis " duly qualified." Rept. of Atty. Genl., Feb. 8, 1912. 9. Official acts legalized. It is also provided in section 15 of the Public Officers Law, post, that the official acts of a public officer performed prior to the execution or filing of an official undertaking as required by law, are as ELIGIBILITY, ETC., OF TOWN OFFICERS. 307 Town Law, §§ 111, 113, 114. § 9. UNDERTAKING OF TOWN SUPERINTENDENT OF HIGHWAYS. Every town superintendent of highways shall, within ten days after notice of his election or appointment, execute an undertaking with two or more sureties, to be approved by the supervisor of his town, to the effect that he will faithfully discharge his duties 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, § 111, as amended by L. 1909, oh. 491; B. C. & G. Cons. L., p. 6174.J § 10. UNDERTAKING OF OVERSEER OF THE POOR. Every person elected or appointed overseer of the poor in any town shall, within ten days after being notified of his election or appointment, execute an undertaking with one or more sureties, to be approved by the supervisor of his town, to the effect that he will faithfully discharge the duties of his office, and will pay according to law all moneys which shall come into his hands as such overseer, which undertaking shall be delivered to the super- visor and filed by him in the office of the town clerk within ten days thereafter." [Town Law, § 113 ; B. C. & G. Cons. L., p. 6175.] § 11. COIiLECTOR'S UNDERTAKING. Every person elected or appointed to the office of collector, before he enters upon the duties of his office, and within eight days after he receives valid and of as full force and effect as if such undertaking had been executed and filed within the time prescribed by law. 10. Town superintendent of highways. The undertaking of a town super- intendent of highways is to be approved by the supervisor. See, generally, the provisions of sections 11, 12, 15 of the Public Officers Law, post. For form of undertaking of town superintendent of highways, see Form No. 22, post. Action on undertaking; pleading. Where the undertaking states that a person of a certain town had been elected commissioner [town superintendent now] of highways, without specifying the town for which he was elected, a complaint setting out such undertaking does not fail to state a cause of action on the theory that no special obligee is named. In such an action it is not necessary to join the commissioner as a party defendant. Town of Hadley v. Karner, 116 App. Div. 68, 101 N. Y. Supp. 777. 11. The overseer of the poor. The undertaking of a person elected or ap- pointed as overseer of the poor is subject to the approval of the supervisor. As to approval of undertaking of overseer appointed by the town board, see Town Law, sec. 112, ante. The provisions of sections 11, 12, 15 of the Public Officers Law also apply to such an undertaking. For form of official undertaking of overseer of the poor, see Form No. 23, post. Liability of sureties. In an action upon the bond of an overseer of the poor 308 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 115. notice of the amount of taxes to be collected by him, shall execute an under- taking 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 ana 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 undertaking to the supervisor of the town." [Town Law, § 114; B. C. & G. Cons. L., p. 6176.] § 12. FILING or COLIECTOB'S UNDERTAKING; LIEN ON PROP- ERTY OF COLLECTOR AND SURETIES. The supervisor shall, within six days thereafter, file the undertaking, with his approval indorsed thereon, in the office of the county clerk, who shall make an entry thereof, in a book to be provided for the purpose, in the same manner as judgments are entered of record; and every such under- taking shall be a lien on all the real estate held jointly or severally by the collector or his sureties within the county at the time of the filing thereof, and shall continue to be 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 the county treasurer and it is essential to show as against the sureties, not merely that their principal was indebted to the town, but that such indebtedness arose by reason of not accounting for money actually received by him during the term for which the sureties stood bound. Kellum v. Clark, 97 N. Y. 390. See, also, Bissell v. Saxton, 66 N. Y. 55. 12. Official undertaking of collector. The official undertaking of a collector is to be approved by the supervisor. The provisions of sections 11, 12, 15 of the Public Officers Law also apply to such an undertaking. For form of collector's undertaking, see Form No. 24, post. Effect of failure of collector to execute official undertaking. If the collector shall neglect or refuse to execute an official undertaking, or the supervisor shall refuse to approve it, and a new collector has not been appointed as provided by law, the board of supervisors is authorized to deliver the tax roll, with a warrant annexed, to the sheriff, who shall proceed with the collection of the taxes levied therein in the same manner as collectors are authorized to do by law. Tax Law, sec. 87. Default of collector for not executing bond. Actual notice of the amount of taxes to be collected must be given to the collector, before he is put in default for not executing the bond. People ex rel. Williamson v. McKinney, 52 N. Y. 374, 382. 13. Lien of collector's undertaking. Under the provisions of the above section, providing for the filing of a collector's bond and the entry thereof by the county clerk " in the same manner in which judgments are entered of record," and declaring that every such bond " shall be a lien on all the rfeal ELIGIBILITY, ETC., OP TOWN OFFICERS. 309 Town Law, § 115. 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 to be filed by the county treasurer in the office of the county clerk, and said county clerk shall then enter a satisfaction thereof in the book in which the filing of said bond is entered and opposite said entry of filing. [Town Law, § 115; B. C. & G. Cons. L., p. 6176.] estate held jointly or severally by the collector or his sureties," the lien so created is a general one, having no greater force than the lien of a judgment and a prior unrecorded mortgage, is entitled to priority over the bond. Cris- field V. Murdock, 127 N. Y. 315; 27 N. E. 1,046. The filing and entry of a bond, as required by the statute, is notice to all subsequent purchasers of the existence of a lien on the real estate of each surety, enforceable for the full amount of any default on the part of the principal, and while one surety has a right of action against his co-surety for contribution, he is liable to be defeated if, by reason of his neglect or misconduct, the co- surety would be injured by a judgment compelling contribution. The filing and entry is, therefore, not simply notice to a subsequent purchaser of land charged with the lien thereof, that it is liable only to a proportion of any liability accruing thereon, but he is put upon inquiry to ascertain as to the equities be- tween the co-sureties. Idem. The lien created by the filing of a collector's bond is analogous to that of a judgment creditor and not to that of a mortgagee; and the owner of the property has a right to redeem and a right to the possession, and to receive the rents and profits after a sale thereunder, the same as after a sale under an ordinary judgment. Upham v. Paddock, 13 Hun, 571; see, also, Upham v. Pad- dock, 23 Hun, 377. An unrecorded mortgage has precedence over the lien of a collector's bond. Wilder v. Butterfield, 50 How. Pr. 385. Bedemption. The right to redeem lands from sale exists only when given by statute, and while a lien created by the filing and entry of the collector's bond is a general one with no greater effect as against prior unrecorded conveyances than a judgment, it is not a judgment lien, or enforceable by sale under exe- cution, and the provisions of section 1446 of the Code of Civil Procedure au- thorizing redemption from sales under executions do not apply. Crisfield v. Murdock, supra. Effect of extension of time of collection. A surety on a collector's bond is not released by an extension of the time for collection by the legislature. See TJ. S. V. Kirkpatrick, 9 Wheat. (U. S.) 184; U. S. v. Nicholl, 12 Wheat. (U. S.) 509. The ground of these decisions is that the regulations contained in the statute, concerning the time of collection, 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, see 29 Albany L. J. 124. Continuation of lien. The bond of a collector exists as a lien on all the real estate held jointly and severally by the collector or his sureties within the county, at the time of the filing thereof, and continues to be such lien until its conditions, together with all costs and charges which may accrue by the 310 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 116. § 13. CONSTABLE'S UNDERTAKING. Every person elected or appointed to the office of constable shall, before he 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 undertaking 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 there- after." [Town Law, § 116 ; B. C. & G. Cons. L., p. 6177.] prosecution thereof, shall be fully satisfied. Muzzy v. Shattuck, 1 Denio, 233;, affd., 7 Hill, 584, note. Enforcement of lien. The statute provides no special mode of enforcing the lien. The only mode, therefore, is by a suit on the bond to recover the amount due from the collector, and judgment being obtained, the real estate may be sold by the sheriff upon execution. Uaham v. Paddock, 13 Hun, 571. In the case of Chatfield v. Campbell, 35 Misc. 355, Judge Andrews, at special term, dissented from the holding of the general term in the case of Upham v. Pad- dock, supra, and held that the statutory lien imposed upon the real estate of a town collector and that of his sureties, by the due filing of his undertaking of oflSce may, upon his default in failing to pay over the taxes which he has col- lected, be foreclosed in equity by the town supervisor, as the remedy at law is not adequate. Proceedings for enforcing the payment by the collector of taxes collected by him are provided for in §§ 303-305 of the Tax Law, post. 14. Bond of constable. The provisions of the Public OflScers Law, sections 11, 12, 15 (see post), relating generally to special undertakings apply to an undertaking of a constable. For form of undertaking, see Form No. 25, post. Sufficiency. The requirements of the above section as to the sufficiency and form of the undertaking of a constable should be complied with. But in de- termining the liability of the principal and sureties on a constable's bond the courts are liberal in the construction of the above section. In the case of Jones v. Neuman, 36 Hun, 634, a bond was given conditioned for the faithful discharge by the constable of his duties and for the faithful accounting and the payment over of all moneys received by him as such constable. Such bond was ap- proved by the supervisor and filed with the town clerk. The point was urged by the defendants that the bond did not comply with the requirements of the statute, but the court refused to relieve the surties of their liability, because of the failure to comply with the conditions required by the statute, and said: " It was the constable's duty to cause a proper bond, with sureties, to be exe- cuted, approved and filed. He and his sureties were the persons to see that It was in the right form. It would be highly unreasonable that the sureties ELIGIBILITY, ETC., OF TOWN OFFICERS. 311 Town Law, § 13. § 14. FORM OF UNDEBXAKING AND LIABILITY THUBEON Every undertaking of a town officer, as provided by this chapter or other- wise, 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 should now escape liability and thus be permitted to practice a fraud on all who might be Injured by the constable's neglect. The act of the sureties in exe- cuting the bond first enabled the constable to act as such and by his negligent act in that capacity the plaintiffs have been injured. The cases cited (Gerould V. Wilson, 81 N. Y. 573; Village of Warren v. Phillips, 30 Barb. 646) are suffic- ient authority to hold the defendants liable on this bond." As to the effect of an insufficient bond upon the eligibility of a constable, see Adams v. Tator, 42 Hun, 384. The statute prescribes the substance of the bond, but is silent as to its form. It may be in the form of an ordinary bond to the people, although it seems preferable that it should be in the form of a simple agreement without penalty. People V. Holmes, 5 Wend. 191. It is not absolutely necessary that the bond of a constable should be executed to the people. See Warren v. Racey, 20 Johns. 74; Lawton v. Brwin, 9 Wend. 233. The substance of the instrument required by the statute is that the con- stable and his sureties shall be responsible for all such sums as the constable shall become liable to pay by reason of any execution delivered to him for collection. Where the instrument contains unnecessary recitals, they do no harm and are mere surplusage. Schellenger v. Yenders, 12 Wend. 306. Neither the constable nor his sureties can object that the instrument is not under seal; nor that it is not in the form prescribed by the statute; nor that the sureties had not been bound by the clerk or supervisor of the town for which the con- stable was elected. Idem. EfiEect of bond. In the case of People ex rel. Comstock v. Lucas, 93 N. Y. 585, the court said: "It is to be observed that the bond has a specific and limited purpose. It does not cover the whole range of the constable's official duties, nor is it an indemnity against all his possible official delinquencies. There are many official duties which a constable may be called upon to discharge, affecting the rights of litigants, as, for example, duties respecting the service- of original process or the execution of attachments which by no possible construction can be covered by the condition of the bond. The law designates a constable as the official agent for the collection of executions issued at the justice's courts, and it at the same time gives to parties to the execution, who have been injured by his misfeasance or non-feasance in respect thereto, a recourse, by exactipg a bond from the constable, with sureties, to whom they may resort for in- demnity." Liability for breach of bond. Sureties do not become liable for every act of the constable, as where he wrongfully commits a trespass by seizing the prop- erty of a stranger to the execution. People ex rel. Comstock v. Lucas, 93 N. Y. 585; see also, Berry v. Shadd, 28 Misc. 389; 59 N. Y. Supp. 551; affd. 50 App. Div. 132, 63 N. Y. Supp. 349. 15. In addition to the provision contained in this section relating to the ex- 312 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Officers Law, § 11. 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, § 13; B. C. & G. Cons. L., p. 6137.] § 15. CONDITIONS, GENERALLY, OF OFFICAL UNDERTAKING; FORM AJND aiANNER OF EXECUTING; JUSTIFICATION. Every official undertaking, when required by or in pursuance of law to be here- after executed or filed by any officer, shall be to the effect that he will faithfully discharge the duties of his office and promptly accourat for and pay over all moneya or property received by him as siich officer, in accordance with law, or in default thereof, that the parties executing such undcitaking will pay all damages, costs and expenses resulting from such default, not exceeding a sum, if any, specified ir. such undertaking. The undertaking of a state officer shall be approved by the comptroller both as to its form and as to the sufliciency of the sureties, and ue filed in the comptroller's office. The undertaking of a municipal officer shall, if not otherwise provided by law, be approved as to its form and the sufficiency of the Bure'ies 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 Dy resolution, a certified copy of which shall be attached to the undertaking. The undertaking of a county officer shall, if not otherwise provided by law, be approvea as to its form and the sufficiency of the sureties by the clerk of the coun y, and filed in his office, except that the undertakings of a county clerk shall be filed in the office of the state comptroller. The undertaking of a town officer shall, if not otherwise provided by law, be approved as to its form and the sufficiency of the sureties by the clerk of the county and filed in his office. The sum specified in ar> official undertaking shall be the sum for which such undertaking shall be required by or in pursuance of law to be given. If no sum, or a difl'erent sum from that required by or in pursuance of law, be specified in the undertaking, it shall b« 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, the officer or board authorized to ap- prove the undertaking shall fix the sum to be specified therein. Every official un dertaking 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 withiij the silate, 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 he is worth over and above his just debts and liabilities and property exempt from execution. The aggregiite of the sums so stated in such affidavits must be at least double the amount speeifipri in the undertaking. If the surety on an official undertaking of a state or li'e.ii ecution of the official undertaking reference should be made to sections 11, 12, 15 of the Public Officers Law, post, containing provisions generally applicable to official undertakings. 16. Liability of sureties on official bonds. The sureties upon a bond of a public officer are liable thereon, only for the default of their principal com- mitted after the commencement of the term of office, for which they became his sureties. Although their principal held the office during a preceding term, they are not liable for a defalcation which then occurred. In such a case those who were sureties for the officer for the prior term must be looked to. Bissell V. Saxton, 66 N. Y. 55. The sureties on a supervisor's bond, with the usual con- dition that he will " account for all moneys belonging to the town coming into his hands as such supervisor," are only liable for moneys which their principal is authorized and bound by law to receive in his official capacity, not for moneys ordered by the town board, without authority of law, to be paid to him. ELIGIBILITY, ETC., OF TOWN OFFICERS. ^i^ Public Officers Law, § 12. officer, clerk, or employee of the state or political subdivision thereof or of a muni- cipal corporation be a fidelity or surety corporation, the reasonable expense of pro- curing such surety, not exceeding one per centum per annum upon the sum for which such undertaking shall be required by or in pursuance of law to be given, shall be a charge against the state or political subdivision or municipal corporation respectively in and for which he is elected or appointed, except that the expense of procuring such surety as aforesaid, on an official undertaking of any officer, clerk or employee in any city department of the city of New York, or of any office, board or body of said city, or of a borough or county within said city, including officers, clerks and employees of every court within said city, shall not be a charge upon said city or upon any of the counties contained within said city, tmless the comptroller of the said city, shall first have approved the necessity of requiring such official undertaking to be given, and shall have approved of or fixed the amount of any such official undertaking; but this exception shall not apply to an official undertaking specifically required by statute to be given, and the amount of which is specifically fixed by statute. The failure to execute an official undertaking in the form or by the number of sureties required by or in pursuance of law, or of a surety thereto to make an affidavit required by or in pur- suance of law, or in the form so required, or the omission from such an undertak- ing of the approval required by or pursuance of law, shall not affect the liability of the sureties therein.iT [Public Officers Law, § 11, as amended by L. 1911, ch. 424, L. 1912, ch. 481, L. 1913, ch. 325, L. 1914, ch. 48, and L. 1915, ch. 628; B. C. & G. Cons. L., p. 4625.] § 16. OFFICER NOT TO PERFORM DUTIES UNTII. UNDERTAKING IS GIVEN; PROPERTY OR MONEY NOT TO BE DEI.IVERED; LIABILITY OF SURETIES IF OFFICER ENTERS ON DUTIES BEFORE GIVING UNDERTAKING; DURATION OF UNDER- TAKING. 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 disposi- tion of any money or property which such officer is entitled to receive or 17. Application. This section simply makes a bond that is defective in form or date, or method of execution, valid as the personal obligation of the sureties, but it goes no farther. It does not make an invalid bond a lien on real estate even after it is validated, and the rule of strict construction does not permit the courts to extend the statute by implication beyond the letter of its command. City of Mount Vernon v. Brett, 193 N. Y. 276, 287, revg. 115 App. Div. 882, 100 N. Y. Supp. 1110. Form. Bond is good though not in the form prescribed by statute. Super- visors of Allegany Co. v. Van Campen, 3 Wend. 48. Bonds of United States Loan Commissioner, sureties thereon cannot limit their liability. Rept. of Atty. Genl. (1896) 143. Time of filing. Statute fixing the time is directory. McRoberts v. Winant, 15 Abb. N. S. 210. County treasurer may file his bond at any time before enter- ing upon the duties of his office. McRoberts v. Winant, 15 Abb. N. S. 210. Effect of failure to file undertaking. Officer who has failed to file his bond holds by a defeasible title, and is rightfully in office until forfeiture is declared by a direct judicial proceeding. Foot v. Stiles, 37 N. Y. 399 ; People ex rel. Wood V. Crissey, 91 N. Y. 616, 636; Horton v. Parsons, 37 Hun 42, 45; Matter of petition of Kendall, 85 N. Y. 302. 314 TOWN'S, TOWN MEETINGS AND TOWN OFFICERS. Public Officers Law, § 15. have the custody of, before he shall have filed such undertaking ; and any person having the custody or control of any such money or property shall not deliver the same to any officer of whom an undertaking is required until such undertaking shall have been given. If a public officer required to give an official undertaking, enters upon the 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 suffered and for all moneys and property received during such term prior to the execution of such undertaking, or if a new undertaking is given, from the time notice to give such new undertaking is served upon him. Every official undertak- ing shall be obligatory and in force so long as the officer shall continue to act as such and until his successor shall be appointed and duly qualified, and until the conditions of the undertaking shall have been fully per- formed. When an official undertaking is renewed pursuant to law the sureties upon the former undertaking shall not be liable for any official act done or moneys received after the due execution, approval and filing of the new undertaking.^^ [Public Officers Law, § 12 ; B. C. & G. Cons. L., p. 4627.] § 17. VALIDATION OF OFFICIAL ACTS BEFOKE FILING OATH OR UNDERTAKING. If a public officer, duly chosen, has heretofore entered, or shall here- after enter on the performance of the duties of his office, without taking or filing an official oath, or executing or filing an official undertaking, as required by the constitution, 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, notwithstanding the provisions 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 for omission to take or file any such oath, or to execute or file any such undertaking; but this section shall not other- wise 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 18. The design and effect of §§ 11, 12 and 15 of the Public Officers Law is to measure the liability of the sureties, not by the language of the obligation assumed by them, but by the requirements of the statutes under which the obligation may be required and in conformity with which it purports to have been given; in othor words, the obligation is to be regarded as that of the statute and not of the com- mon law. City of Mt. Vernon v. Kenlon, 97 App. Div. 191, 89 N. Y. Supp. 817. The sureties upon the hond of a county treasurer are liable for his acts in the interval between the time when the bond was required by resolution of the board of supervisors and the time when it was actually delivered. Waydell v. Hutchinson, 146 App. Div. 448. ELIGIBILITY, ETC., OF TOWN OFFICERS. 315. Town Law, § 84; Public Officers Law, § 36. the failure to take or file any such oath or to execute or file any such under- taking;, and this section shall not relieve any such officer from the criminal liability imposed by section eighteen hundred and twenty of the Penal Law, for entering on the discharge of his official duties without taking or filing such oath or executing or filing such undertaking.^® [Public Officers Law,. § 15, B. C. & G. Cons. L., p. 4628.] § 18. RESIGNATION OF TOWN OFFICERS; NOTICE. Any three justices of the peace of a town may, for sufficient 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, § 84 ; B. C. & G. Com. L., p. 6161.] § 19. REMOVAI. OF TOWN OFFICERS; APPLICATION TO APPEl- I.ATE DIVISION; NOTICE. Any town or village officer, except a justice of the peace,^! may be re- moved from office by the Supreme Court for any misconduct, maladmin- istration, malfeasance or malversion in office. An application for such re- moval 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 notice to such town officer of not less than eight days, 19. Official acts performed before filing oath or undertaking are valid. See Matter of Kendall, 85 N. Y. 302; Horton v. Parsons, 37 Hun, 42; Foot v. Stiles, 57 N. Y. 399; People v. Crissey, 91 N. Y. 616, 635. Official acts by justice of the peace before filing oath are valid. Kept, of Atty. Genl. (1903) 487. While it is the duty of a justice of the peace to comiply with the law requiring the filing of an undertaking and oath of office, and while he is liable to be punished for failure to so comply, he is not prevented from acting as such officer and his- official acts are valid. Kept, of Atty. Genl. (1911), vol. 2, p. 598. 20. Besignation of public officers generally. The Public Officers Law, sec. 31. provides that every town officer may resign his office to the town clerk. Every resignation shall be in writing addressed to the officer or body to whom it is made. If addressed to the officer, it shall take efi'ect upon delivery to him at Ms 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 resignation may be delivered, shall be a sufficient delivery thereof. Resignations of town officers are governed by section 31 of the Public Officers Law rather than by section 84 of the Town Law, which is ineff'ective because oi repug- nancy. Rept. of Atty. Genl., May 17, 1911. For form of resignation of town officers, see Form No. 26. 21. Kenioval of public officers. Where a public officer is guilty of an illegal act or omission with respect to his office he may be removed whether or no the act wa* done maliciously or corruptly. Matter of Moraii, 145 App. Div. 642. Bemoval of justice of the peace. The constitution provides that justices of the peace may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law. Constitution, 316 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Officers Law, § 30. and a copy of the charges upon which the application will be made must be served with such notice. [Public Officers Law, § 36 ; B. C. & G. Cons. L., p. 4635.J § 30. VACANCIES, HOW CREATED. Every office shall be vacant^^ upon the happening of either of the follow- ing 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 be a local officer, of the political subdivision, or municipal corporation of which he is re- quired to be a resident when chosen;'" art. 6, sec. 17. Section 132 of the Code of Criminal Procedure provides that justices of the peace are removable by the Appellate Division of the Supreme Court. Removal of town superintendent of highways, by the town board is provided for by Highway Law, sec. 46, post. 22. Vacancies; how created. The words, "before the expiration of the term of such office," though they are but words of caution still make more clear the meaning and intent. It is plain that no vacancy can be wrought in an office by the act or fault of an incumbent after the expiration of the term for which he was at first entitled to hold it; and that by no act or fault of his, while holding the office and before the expiration of his term thereof, can there be created a vacancy in the office during the term of a successor rgularly chosen. People ex rel. Jackson v. Potter, 47 N. Y. 375, 385. See People ex rel. Mitchell v. Sohraer (1913), 209 N. Y. 151, 102 N. E. 593; Matter of Troustine v. Britt (1914), 212 N. Y. 421, 431, 106 N. E. 129. Failure to elect a successor in office does not render the office vacant. People ex rel. Kehoe v. Fitchie, 76 Hun 80, 28 N. Y. Supp. 600; People ex rel. Gray v. Scott, 31 Misc. 131, 64 N. Y. Supp. 970. A tie vote in a town election does not create a vacancy. Kept, of Atty. Genl. (1895) 93. The election of an ineligible person does not vacate an office; the former incumbent holds over. Bept. of Atty. Genl. (1898) 78. An office occupied by an officer holding over after the expiration of his term is deemed vacant for the purpose of appointing to fill the vacancy. People ex rel. Lovett V. Randall, 151 N. Y. 497; People ex rel. Jackson v. Potter, 47 N. Y. 375; People ex rel. Brown v. Woodruff, 32 N. Y. 355, 362. Where residence of county officer is unknown, and he has for a long time been absent from the county and does not attempt to exercise any of the powers of his office, a vacancy exists which may be filled by the appointing power, without re- course to an action at law to determine his status. Rept. of Atty. Genl. (1914), 132, Acceptance of second office creates a vacancy in the first, if the two offices are incompatible. Offices of justice of the peace and town clerk are incompatible. People ex rel. Earwicker v. Dillon, 38 App. Div. 539, 56 N. Y. Supp. 416. Appointment of a person to a second office, incompatible with the first, is not absolutely void, but on his subsequently accepting the appointment and qualifying, the first office is ipso facto vacated. People ex rel. Whiting v. Carrlque, 2 Hill. 93.' 22a. For form of resignation, see Form No. 26, post. 23. Ceasing to be inhabitant. The word "inhabitant" is used as synony- mous with " resident." People v. Piatt, 50 Hun 454, 458, 3 N. Y. Supp. 367, affd. ELIGIBILITY, ETC., OF TOWN OFFICERS. 317 Public Officers Law, § 30. 5. His conviction of a felony, or a crime involving a violation 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 undertaking,^' if one is required, before or within fifteen days after the commencement of the term of office for which he is chosen, if an elective office, or if an ap- pointive office, within fifteen days after notice of his appointment, or within fifteen days . after the commencement of such 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 himJn pursuance of law, that such re- newal undertaking is required. When a new office ^° or an additional in- 117 N. Y. 159. Office becomes vacant upon the officer ceasing to be a resident of the state, municipality, or district for which he was elected or appointed. Peo- ple V. Board of Education, 1 Den. 647. The office of a town clerk who removes into another town thereby becomes vacant. But, if he continues to act as such town clerk and maintains his office within the town at the same place where it was located prior to his removal, without objection and with the acquiescence of the other town officers, he is a de facto town clerk, and his acts are valid. Matter of Collins, 75 App. Div. 87, 77 N. Y. Supp. 702. Supervisor must reside in the ward which he represents. People v. Hull, 47 N. Y. St. Eep. 94, 19 N. Y. Supp. 536. When a supervisor ceases to be a resident of the town for which he is elected there is a vacancy. Kept, of Atty. Genl. (1895) 92. When an inspector of election, outside of a city, removes from the district for which he was elected, his office becomes vacant. Rept. of Atty. Genl. (1896) 231. Change of residence to another county by a notary public vacates his office and he cannot legally act officially, although his certificate has been filed in the county to which he removed. Rept. of Atty. Genl., March 27, 1911. 24. Forfeitures. An officer asking or receiving bribes upon conviction forfeits his office and is disqualified from holding any other office. (Penal Law, § 1823); 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 Law, § 1864) • also a constable who allows a person to escape from his lawful custody (Penal Law, § 1697) ; also a person convicted of paying money for votes at an election at which he was elected (Penal Law, § 751). 25. Failure to file oath or undertaking. The following cases are to the effect that the omission in regard to an officer's bond or oath aflorded cause of forfeiture, but did not create a vacancy, which could only be eff'ected by a direct proceeding for that purpose. People ex rel. Brooks v. Watts, 73 Hun, 404, 407, 26 N. Y. Supp. 280; Cronin v. Stoddard, 97 N. Y. 271, 274; Horton v. Parsons, 37 Hun, 42, 45; People ex rel. Willson v. Board, etc., 59 Hun, 204, 206, 13 N. Y. Supp. 447, affd. 128 N". Y. 657; People ex rel. Woods v. Crissey, 91 N. Y. 616, 635; People ex rel! Williamson v. McKinney, 52 N. Y. 374; Matter of Taylor, 25 Abb. N. C. 143; Adams v. Tator, 42 Hun, 384. Failure to file official oath by health officer of a village vacates his office. Rent, of Atty. Genl., Sept. 9, 1910. 26. Where town is divided and a new town is erected therefrom, there is a vacancy in the offices of supervisor and town clerk in the new town until the first meeting. Matter of Collins, 16 Misc. 598; 40 N. Y. Supp. 517. 318 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 130. cumbent of an existing office, shall be created, such office shall foi' the pur- poses of an appointment or election, be vacant from the date of its creation, until it shall be filled by election or appointment. [Public Officers Law, § ?0; B. C. & G. Cons. L., p. 4629.] § 21. VACANCIES, APPOINTMENT TO FH-t, HOW MADE AND WHEN FrLI.ED. 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 biennial town meeting, unless the ap- pointment 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 appointment. 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 thi> office of the county clerk before the person appointed shall be authorized to act." [Town Law, § 130; B. C. & G. Cons. L., p. 6181. j § 22. COTJNTT CLERK TO REPORT OMISSIONS OF TOWN OFFICERS TO DISTRICT ATTORNEY. The clerk of each county shall make a report to the district attorney of th« 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 sucli 27. Appointment to fill Tacancies. In case of tie at an annual town meeting •and adjournment, it is competent for the town board of the town to appoint a suitable person to fill the vacancy. People ex rel. Simpson v. Van Home, 18 Wend. 615. Vacancies not to be filled upon justices declaring town meeting to be irregular. Matter of Baker, 11 How. Pr. 418. The provisions of this section, authorizing the town board to fill a vacancy, apply where there is u, failure to elect by reason of a tie vote. Eept. of Atty. Genl., May 25, 1911. Where there is a tie vote for the office of a supervisor at a town meet- ing, and the incumbent of the office holds over, the supervisor should be chosen by the town board, the supervisor holding over not voting. There is no authority for another election until the next town meeting. Rept. of Atty. Genl., 1912, vol. 2, p. 404. Vacancy in office of supervisor. Wiere a vacancy occurs in the office of a town supervisor by failure of the person elected to qualify, the vacancy must be filled by appointment by the justices of the peace of the town and the town clerk, and not by an election held at a special town meeting. Section 130 of the Town Law controls the manner of making such an appointment. Chapter 252 of L. 1890, amending sec. 34, tit. 3, oh. 11, pt. 1, of the Revised Statutes, which provides for the filling of vacancies in town offices by election, was repealed by the repeal of the section of the Revised Statutes which such law amended. Peoplr ex rel. Hyde v. Potter, 40 Misc. 485, 82 N. Y. Supp. 049. ELIGIBILITY, ETC., OF TOWN OFFICERS. 319 Town Law, § 14. clerk, and the district attorney shall enforce the penalty, by law imposed upon the delinquent officer. [Towa Law, § 14; B. C. & G. Cons. L., p. 6137.] Whete a superintendent of highways fails to qualify foi ofSce in that his ofScial oath is defective in omitting a statement that he has not directly or indirectly paid moneys or property to electors as a consideration for giving or withholding votes at the election, he is not entitled to hold office, and hence the town board has authority, under this section, to fill the vacancy by reappointing the former incum- bent. People ex rel. Preston v. Keator (1915), 169 App. Div. 368, 154 N. Y. Supp. 1007. Vacancies in the oflSce of school director may be filled by the Town Board, in accordance with section 130 of the Town Law. Atty. Gen'l. Opin., 6 State Dep. Rep. 425 (1915). A supervisor holding over after his term has expired cannot vote as a member of the town board to fill a vacancy in such office. Matter of Smith, 116 App. Div. 665, 101 N. Y. Supp. 993, affd., 188 N. Y. 549. For form of appointment to fill vacancy in a town office, see Form No. 27, post. For notice of appointment to town office, see Form No. 28, post. 320 TOWNS, TOWN MEETINGS AND TOWN OFFICEKS. Ejzplanatory note. CHAPTER XXII. SUPERVISOR AS TOWN OFFICER; GENERAL DUTIES. EXPLANATORY NOTE. Supervisor as Town Officer. The supervisor represents his town as a memher of the county board of supervisors. In such capacity he is in some respects a county officer. But he is primarily a town officer. His most important duties pertain to the administration of town affairs. He is in a sense the executive officer of the town. He is the town's chief fiscal officer, since he is the custodian of town funds, except those raised for the support of the poor. His powers and duties are prescribed by statute. It is proposed in this chapter to treat of his general duties. Those duties which are performed in connection with other officers and which pertain to special subjects are considered in other chapters. The supervisor is a member of the town board, and presides at its meetings. The town board is the legislative body or governing board of the town. Being identified with nearly all the governmental func- tions of the town, the supervisor is the most important member of this board and is more directly responsible for its acts than the other mem- bers of the board. Section 1. General duties of supervisor. 2. Town surveys. 3. Incorporation of villages; proceedings before supervisor. § 1. GENERAI. DUTIES OF SUPERVISOR. The supervisor of each town ' shall : 1. Eligibility, etc., of Supervisor. In a preceding chapter we have considered the provisions of the law relating to the eligibility, qualification, oath and under- taking of supervisors as well as other town ofljcerg. SUPERVISOR AS TOWN OFFICER. 321 Town Law, § 98. 1. Eeceive and pay over all moneys raised therein for defraying town Other duties of supervisors. In addition to the general duties conferred upon town supervisors as provided in this section and in the succeeding sections of this chapter, the following may be mentioned as other special duties. Each of these will be hereafter considered in this work in their proper connection. (For places in this manual where the sections referred to in this note may be found, see Table of Laws, after the Table of Contents.) Undertaking of supervisors. See Form No. 20, post. Approval of undertakings of town oflScers. Bee Town Law, sees. 114, 116, 106, 113, 111, in preceding chapter. Tovm ioard, as member of, to audit accounts, etc., see ch. XXVIII, post. Board of health, as member of, see ch. XXXII, post. School moneys, as to apportionment of, see ch. XXXII, post. Support of poor, see chs. XLIV-XLVI, post. Bale of personal property under lien, proceeds to be deposited with super- visor. Lien Law, sec. 284. Survey of nonresident lands, supervisor to cause to be made in certain cases. Tax Law, sec 31, post. Assessment-roll to be delivered to supervisor. Tax Law, sec. 39, post. Collection of taxes, supervisor to apply to county treasurer for extention of time for. Tax Law, sec. 85, post. Collector, supervisor to notify county treasurer of appointment to fill vacancy in office of. Tax Law, sec. 86, post. To sue on bond of collector, see Tax Law, sec. 305, post. Equalization of assessments by board of supervisors, supervisor may appeal from. Tax Law, sec. 175, post. Unpaid taxes, duties of supervisor in instituting supplementary proceedings for collection of. See Tax Law, sec. 299, post. Dogs, taxation of, in towns, duties of supervisor as to. County Law, sees. 113, 114, post. Temporary relief of poor persons, supervisor to give order for. Poor Law, sec. 23, post. Overseer of the poor, supervisor to present estimate of, if approved by the town board, to the board of supervisors. Poor Law, sec. 27, post. To transmit to board of supervisors abstract of accounts of overseer. Poor Law, sec. 141. post. Accounts audited by the town board to be certified and delivered to supervisor. Town Law, sec. 133, post. Town auditor, vacancy in office of, to be filled by supervisor. Town Law, sec. 156, post. Licenses for peddling, etc., to be endorsed by supervisor; fees to be paid to him. Town Law, sec. 211, post. Transient retail business, licenses for, to be issued by supervisor; fees to be paid to him. General Municipal Law, § 85, post. Uacks, shows, concerts and amusements, licenses for, to be issued by supervisor; fees to be paid to him; disposition of fees. Town Law, § 215, post. Highways and bridges, supervisor to sell bonds of town for construction or 522 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 98. charges, except those raised for the support of the poor/ in towns where the poor is not a town charge; in counties where each town maintains the poor thereof, the town board of said town may by resolution direct that the money raised by said town for the outdoor relief of said town be held and retained by the supervisor and disbursed by him upon the orders of the respective overseers of the poor of such town, and the overseers of the poor of such town shall not give, allow or grant order for a sum exceeding the amount set aside for their respective districts during any year except that the town board or supervisor thereof may consent where necessity demands that other and further orders be given, in which event the town shall provide for the payment of such further orders. repair of, when authorized by board of supervisors. Highway Law, see. 98, post. highway moneys are to be placed in the custody of the supervisor and are to be expended by him upon order of the town superintendent of highways, as provided in sees. 104-106 of the Highway Law of 1008. The supervisor is required to report as to highway moneys received and expended. Highway Law, sec. 107, posit. Railroad commissioners, to perform duties of, when office is abolished. General Municipal Law, sec. 16, post. Town indebtedness, supervisor to report amount of, to board of supervisors. Town Law, sees. 190, 191, post. Special town meeting, supervisor may make application for. Town Law, sec. 40, ante. Jurors, trial, duties of supervisors as to selection. See Judiciary Law, sec. 500, post. School funds, etc., duties. Education Law, sec. 300, post. School districis, hear- ing of alteration of boundaries, Idem, sec. 125, post. t. The supervisor of a town is in a general sense its treasurer. He is entitled to receive all moneys raised for town purposes, except those which are expressly directed to be paid to the town officers having charge of the support of the poor. He is also directed to pay all judgments recovered against the town from anj' moneys in his hands which are not otherwise specially appropriated. The statute thus assumes that he is the legal custodian of the moneys of the town and chargeable with the duty not only of receiving and keeping them, but also of guarding their disbursement, and also recognizes; to a certain extent, the corporate existence of towns and tlicir capacity to hold property, to protect their possession, and to enforce their quasi corporate rights by appropriate action. Bridges v. Board of Supervisors, 92 N. Y. 570. The supervisor has no authority, under the law, to receive moneys, even in transit raised by tax for the support of the poor. Moneys raised for such purposes arc expressly excluded from those which he is authorized to receive or pay over. A disregard of this provision of the law by a board of supervisors, and a direction by them in violation of law, in » tax warrant, to pay the moneys raised for high- ways to the supervisor does not abrogate or change the law, or in any way extend or enlarge the powers, duties or responsibilities of the supervisor. People v. Pen- nock, 60 N. Y. 421. This case is not now directly applicable since the supervisor is also made the custodian of highway and bridge funds by Highway Law, sees. 104- 106, post. The superyisor is the lawful cnstodian of the moneys of the town and charge- able with the duty not only of receiving and keeping them, but also of guarding their disbursement. Annis v. McNulty, 51 Misc. 121, 100 N. Y. Supp. 951. A supervisor of a town has no authority to retain a percentage of the public moneys passing through his hands as compensation for receiving and disbursing such moneys, and a resolution of the board of supervisors authorizing such action by one of their number is void. Matter of Town of Hempstead, 36 App. Div. 32! j 65 N. Y. Supp. 345; affd., 160 N. Y. 685. SUPERVISOR AS TOWN OFFICER. 323 Town Law, § 98. 2. Prosecute, in the name of his town, for all penalties given hj law to such town for its use, and for which no other officer is specially di- rected to prosecute.' 3. Keep a just and true account of the receipt and expenditures 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 successor 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, including highway moneys received and disbursed by him as provided in the highway law, and a copy of such account shall A town supervisor is merely the custodian of town moneys raised, in a regular iorm for a particular purpose. He may not question the propriety or legality of the expenditures underlying the levy and collection of the taxes. Attorney-General' ■V. Taubenheimer (1917), 178 App. Div. 321, 164 N. Y. Supp. 904. 3. Actions for penalties. As a general rule the town board of a town is the gov- erning board thereof, and so far as official action can go the internal aflFairs of a town are under the control of this board. The town board has exclusive authority to prosecute and defend litigation which concerns the town. An exception is, however, created to this rule by the above section of the Town Law, where it is provided that the supervisor of the town shall prosecute in the name of the town for all penalties given by law to such town for its use and for which no other officer shall be directed to prosecute. No authority is bestowed upon the supervisor to prosecute or defend any other action. Adee v. Arnow, 31 Hun, 329; 36 N. Y. Supp. 1020. Action to compel railroad commissioners of a town to account for and pay over moneys received by them on a sale of railroad stock of the town, to re- cover the balance due to the town, in their hands, is properly brought by the supervisor of the town, in his own name as such. Griggs v. Griggs, 66 Barb. 287, affd. in 56 N. Y. 504. The cases of Hathaway v. Town of Cincinnatus, 62 N. Y. 434; Sutherland v. Carr, 85 N. Y. Ill; Bridges v. Board of Supervisors, 92 N. Y. 577; Cornell v. Town of Guilford, 19 Denio, 510; Town of Lyons v. Cole, 3 T. & C. 431; Mitchell V. Strough, 35 Hun, 83, and other cases of a similar nature, holding that a town supervisor is the proper officer to bring an action in the name of the town, were decided under section 1926 of the Code of Civil Procedure, and the section of the revised statutes from which that section was derived as existing prior to the amendment of such section of the code by ch. 302 of the L. of 1897. By that amendment the authority of the supervisor to maintain an action in behalf of the town upon a contract, to enforce a liability, to recover a penalty, or to recover damages for an injury to the property or rights of the town was elim- inated. An action brought by a supervisor to recover a penalty should be brought in the name of the town. Mitchell v. Strough, 35 N. Y. 83. It is the duty of the supervisor to sue for the recovery of penalties incurred by persons illegally voting at school meetings. Education Law, § 205. It is also niRde his duty to bhc for and recover in his name of office all penalties and farf*Uwre» Imposad bv the Education Law. Edur^tloa Law, i 360, subd. 8. 324 TOWNS, TOWN MEETIN-GS AND TOWN OFFICERS. Town Law, § 98. thereupon be filed in the office of the town clerk, and attached thereto and made a part thereof shall be a certificate or certificates of the bank where the moneys of such town are deposited showing the amount of such moneys on deposit with said bank. The town board shall cause a certified copy of the report to be published in a newspaper published in the town or if there be none published therein, then in a newspaper published within the county and having the greatest circulation within the town. If the biennial town meeting in any town is held at the time of a gen- eral election, such account shall be rendered on the twenty-eighth day of December in each year, or on the day preceding when such day falls on Sunday.* [Subd. amended by L. 1916, ch. 347.] 5. Receive all accounts against the town, which shall be 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 supervsiors 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.o 4. Supervisor's accounts. The justices of the peace and town clerk are constituted by subd. 4 of this section as a special board of audit to examine the accounts of supervisors. The statute fixes the day of their meeting for this purpose, and the board cannot lawfully meet and perform its duties on any other day than the day prescribed. People ex rel. Johnson v. Martin, 62 Barb. 570; People v. Town of Westford, 53 Barb. 555. The accounting consists not in paying over any money or delivering property to the auditing board or to other officers; for the supervisor's term, at that time, is not ended ; but he is to show the condition of the town funds and property in his hands, the disbursement of moneys received, and the state of his official accounts. People ex rel. Johnson v. Martin, supra. Accounting of supervisor may be enforced by action. Town of Guilford v. Cooley, 58 N. Y. 116. A supervisor should account for all interest received on deposits of town funds. The town board cannot lawfully permit the supervisor to retain interest on de- posits as a part of his salary or compensation. Opinion of Comptroller (1916), 8 State Dept. Rep. 590. 5. Claims against town to be submitted to supervisor. The purpose of subd. 5 of the above section is to require all claims against the town to be submitted in due form to the supervisor, to be by him presented to the town board for audit, or to the board of supervisors as the case may be. The auditing of town accounts by the town board is made the subject of a subsequent chapter of this work. See ch. XXVII, post. Obtaining town moneys through conspiracy. A town supervisor who is the custodian of sewer funds may be convicted of grand larceny for signing a warrant for the payment of a fraudulent claim made by the contractors and for conspiring to defraud the town. Where such acts constitute larceny at common law and embezzlement under the statute, the offender may be prosecuted on either charge at the option of the people. People v. Lein (1912), 152 App. Div. 376, 136 N. Y. Supp. 995, affd. (1912), 207 N. Y. 667, 100 N. E. 1132. Payment of town claims by check or script. A supervisor in paying town claims may issue his check as supervisor payable at the bank where the deposit of town funds is made, or he may issue script payable at a date after taxes have been col- lected. When the latter plan is followed, the board of supervisors may, by appro- priate resolutions, authorize the various collectors to accept such script and apply the same to the payment of taxes. Opinion of State Comptroller (1916), 10 State Dept. Rep. 525. Supervisor may attack audit upon proceedings to enforce payment. A supervisor who refuses payment of an audit claim may, if proceedings to compel payment are instituted, attack the audit and show that the town board was without jurisdiction to allow all or a part of the charges therein contained. Opinion of State Comp- troller (1916), 8 State Dept. Rep. 578. 6. Supervisor as member of board of supervisors. The duties of supervisor in re- spect to the submission of town accounts, which have been audited by the town board, is prescribed by section 133 of the Town Law, post, p. 377. The general powers and duties of boards of supervisors are considered in a preceding chapter. See ch. 4, write. SUPERVISOR AS TOWN OFFICER. 3^5 Town Law, § 98. 7. Sell and convey in the name of the town, property owned by it, ■when directed by a town meeting.' 8. In towns other than those mentioned in section ninety-seven of the conservation law, the supervisor shall, by virtue of his ofBce, be superin- tendeoat of fires of his town and charged v?ith the duty of preventing and extinguishing forest fires. He shall have power to employ persons to act as forest rangers in preventing and fighting fires and to employ nec- essary assistants therefor, and shall possess all the power and authority conferred upon the conservation commission, district forest ranger, forest ranger and fire warden under sections ninety-two and ninety-three of the conservation law. Any person summoned to fight forest fires who is physically able and refuses to assist shall be liable to a penalty of twenty dollars. The town board of each town shall at its first annual meeting designate one of its members to act as such superintendent of fires for the ensuing year in case of absence of the supervisor. The town board shall fix the compensation of all forest rangers and assistants employed under the provisions of this section and all expenses incurred under the provisions of this section shall be a charge upon and paid by the town. [Town Law, § 98, as amended by L. 1909, ch. 491, L. 1910, eh. 630, L. 1912, ch. 371, L. 1913, ch. 606, L. 1914, ch. 153, and L. 1916, ch. 347; B. C. & G. Cons. L., p. 6167.] 7. Conveyance of tovm property. Under sub. 12 of see. 43 of the Town Law, ante, the electors of a town at a biennial town meeting may direct the sale and conveyance by the supervisor in the name of the town of property owned by it. Sub. 7 of the above section authorizes the supervisors to convey property when so directed by a town meeting. 326-330 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 99. $ 2. TOWN StTRVEYS. Whenever the supervisor of any town shall be required by the state engineer 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 de- sciption thereof to the state engineer and surveyor. The expense of such survey and map .shall be defrayed by the several towns whose bounds, either wholly or in part, shall be described thereby; such ex- pense 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, § 99; B. 0, &G. Cons. L., p. 6169. j SUPERVISOR AS TOWN OFFICER. 33J Village Law, §§ 2, 3. § 3. UrCOBFOBATION OF VILLAGES; PROCEEDING BEFORE SUPERVISOR. Requisite population. — A territory not exceeding one square mile, or conforming to the boundaries of a water district, lighting, fire or school district, or an entire town, or two school districts, containing in each case a population of not less than two hundred, and not including a part of a city or village, may be incorporated as a village under this chapter. [Vil- lage Law, § 2, as amended by L. 1909, eh. 555, L. 1915, ch. 31, and L. 1917, ch. 65; B. C. & G. Cons. L., p. 6365.] Proposition for incorporation and conseni of property owners. — Twenty-five adult freeholders residing in such, territory may institute a proceeding for the incorporation thereof as a village, by making and delivering to the supervisor of the town in which such territory Is situated, or if situated in two or more towns, to the supervisors of each of such towns, a proposition in substantially the following form: Proposition for the incorporation of the village of The undersigned adult resident freeholders of the territory herein- after described propose the incorporation thereof by the name of the village of The territory proposed to be incorporated does not exceed one square mile and is bounded and described as follows: (or, the territory pro- posed to be incorporated is the entire town of ; or an entire school, lighting, fire or water district, suitably describing sueh district with common certainty). Such territory contains a population of , as appears from the enumeration hereto attached. Dated, (Signatures and residences.) The proposition shall be signed by the persons proposing such incor- poration, with the addition of the town in which they respectively reside. There shall be attached to said proposition and delivered to said super- visor or supervisors concurrently therewith, a written consent to the proposed incorporation in substantially the following form : Consent to the proposed incorporation of the village of The undersigned, owners of one-third in value of the real property within the territory described in the proposition hereto attached, as assessed upon the last preceding town assessment-roll, hereby consent t© the incorporation thereof as in said proposition set forth.. Dated, Signatures. Residences. Assessments. The said consent shall be signed by owners of real property, situated within such territory constituting one-third in value thereof, as assessed upon the last preceding town assessment-roll with the addition of their places of residence and the assessment of their said real property, re- spectively. A list of the names of the inhabitants of such territory shall 332 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Village Law, §§ 4-6. be attached to and accompany, the proposition. At the time of the de- livery of the proposition the sum of fifty dollars shall be deposited with one of the supervisors for the purpose specified in this article.* [Vil- lage Law, § 3, as amended by L. 1909, ch, 555, and L. 1915, ch. 31, B. C. & G. Cons. L., p. 6365.] Notice of hearing. — Within ten days after the receipt of such proposi- tion the supervisor or supervisors shall cause to be posted in five public places in such territory and also published at least twice in each news- paper published therein, a notice, that a proposition for the incorpora- tion of the village of (naming it) has been received by him or them, that at a place in such territory and on a day not less than ten nor more than twenty days after the date of posting such notice, which place and date shall be specified therein, a hearing will be had upon such proposition ; and that such proposition will be open for public inspection at a specified place in such territory until the date of such hearing. [Village Law, § 4, B. C. & G. Cons. L., p. 6366.] Proceeding on hearing. — The supervisor or supervisors shall meet at the time and place specified in such notice, and shall hear any objections which may be presented against such incorporation upon either of the following grounds : 1. That a person signing such a proposition is not qualified therefor, or 2. That the persons signing such consent are not the owners of one- third in value of the real property within such territory, as assessed upon the last preceding town assessment-roll, or 3. That, if the territory is less than an entire town, it contains more than one square mile and does not conform to the boundaries of an entire lighting, fire, water or school district, or 4. That the population of the territory is less than two hundred. All objections must be in writing and signed by one or more resident taxpayers of a town in which some part of the proposed village is situated. Testimony may be taken on such hearing, which shall be re- duced to writing, and subscribed by the witnesses. The hearing may be adjourned, but must be concluded within ten days from the date fixed in the notice. [Village Law, § 5, as amended by L. 1909, ch. 555, and L. 1915, ch. 31 ; B. 0. & G. Cons. L., p. 6366.] Decision of supervisor. — ^Within ten day^s after such hearing is concluded the supervisor or supervisors shall determine whether the proposition, consent and papers filed therewith comply with this chap- ter, and shall within such time make and sign a written decision ac- cordingly, and file it or a duplicate thereof in the office of the town clerk of each town in which any part of such proposed village is situated. The proposition for incorporation, 8. Petition or consent must definitely describe boundaries. Wbere the description leaves the exact boundaries doubtful and uncertain, the petition is defective and the proceedings will fail. People ex rel. Underwood v. Village of Patchogue, 217 N. Y. 466. SUPERVISOR AS TOWN OFFICER. 333 Village Law, §§ 7, 8, 9. ■consent and papers attached thereto, a copy of the notice, the objections, testimony and minutes of proceedings taken and kept on the hearing ; shall also be filed with such decision in one of such town clerk's offices. If the decision be adverse to the proposition, it shall contain a brief statement of the reasons upon which it is based. If no appeal be taken from such decis- ion within ten days from the filing thereof, it shall be final and conclusive. [Village Law, § 6, B. C. and G. Cons. L., p. 6367.] Notice of appeal from decision of supervisor. — If the decision sustains the proposition for incorporation, a resident taxpayer of a town in which any part of such proposed village is situated may appeal therefrom by serving a notice of appeal upon each town clerk with whom the decision was filed, and on at least three of the persons who signed the proposition. If the decision be adverse, five of the persons who signed the proposition may join in an appeal therefrom, by serving a notice of appeal upon each town clerk with whom the decision was filed, and on each person who signed objections to the proposition. All appeals shall be taken to the county court of the ■county in which the proposition, notice, objections and testimony are filed, and the notice of appeal must be served within ten days after the filing of the decision. The town clerk with whom the proposition and other papers are filed must, within five days after service upon him of the notice of appeal, trans- mit all such papers to the county judge. [Village Law, § 7 ; B. C. and G. Cons. L., p. 6367.] Hearing and decision of appeal. — A person, except a town clerk, by or upon whom the notice of appeal is served, may bring on the appeal for argument before the county court, upon a notice of not less than ten nor more than twenty days. Such notice must be served upon all parties to the appeal, except a town clerk. The county court shall hear such appeal, and, within ten days after the date fixed in the notice of argument, shall make and file an order affirming or reversing the decision. The county judge shall file such order, together with the papers upon which the appeal was heard, with the town clerk by whom the papers were transmitted to him. Such order shall be final and conclusive. No costs of the appeal shall be allowed to any party. [Village Law, § 8; B. C. and G. Cons. L., p. 6368.] When election may be held. — An election to determine the question of incorporation upon such proposition shall be held in either of the following cases : 1. Where a decision has been made sustaining the proposition, and an appeal has not been taken therefrom. 2. Where an appeal has been taken from a decision sustaining the propo- :sition, and such decision has been affirmed by the county court. 3. Where an appeal has been taken from an adverse decision, and the 334 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Village Law, § 23. decision has been reversed by the county court. [Village Law, § 9; B. C. and G. Cons. L., p. 6368.] Compensation for services under this article. — The following compensa- tion is payable for services under this article : 1. To supervisors for services in connection with the proposition for in- corporation, two dollars for each day actually and necessarily spent by them. 2. To town clerks, the compensation allowed by law for other similar services, and for services the compensation for which is not fixed by law, two uollars for each day actually and necessarily spent by them. 3. To electors acting as inspectors of election, two dollars for each day actually and necessarily spent in such service. [Village Law, § 23; B. C. and G. Cons. L., p. 6372.] DUTIES OF TOWN CLERK, GENERALiLY. 335 Explanatory note. CHAPTER XXIII. DUTIES OF TOWN CLERK, GENERALLY. EXPLANATORY NOTE. Duties of Town Clerks. Town clerks have the custody and control of town records. They are responsihle for their safe keeping. All papers required by law to be filed or recorded in the town clerk's oflBce must be received by him and filed or entered so as to be readily accessible to the public. He must transcribe the minutes of the proceedings of town meetings in books provided for the purpose. Chattel mortgages, marriage licenses, birth and death certificates are to be filed in town clerks' offices, unless provision is otherwise made for filing them in the office of a city clerk. The town clerk has many important duties to perform as a member of the town board. These duties will be hereafter considered in con- nection with the powers and duties of that board. It is only intended to include in this chapter those matters which pertain to the office of town clerk without connection with other offices, and not relating to other subjects. SEOnoir 1. Town clerk to have custody of books, records and papers; to deliver certificate of vote on propositions to supervisor; return names of constables. la. Town clerk to transmit lists of town oflScers to state tax commissioner. 8. Furniture and blank books for clerk's of&ce. 3. Sign for clerk's oflBce. 4. Town clerk may appoint deputy; qualification, oath of office, com- pensation. 5. Filing and discharge of chattel mortgages in town clerk's office; fees of town clerks. 6. Filing and entry of marriage certificate; fees. 7. Town and city clerks to issue marriage licenses; form. 8. Duty of town or city clerk. 9. False statements or affidavits. 10. Records to be kept by town and city clerks. 11. Copies of papers filed with town clerk, evidence. 336 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 92. § 1. TOWN CI.ERK TO HAVE CUSTODY Or BOOKS, RECORDS AHI> PAPERS; TO DEI.IVER CERTIFICATE OF VOTE ON PROPOSI- TIONS 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 duly 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 attend all the meetings of the town, board, the town board of health and the board of town auditors, and act as secretary thereof. In suitable books to be provided for that purpose, he shall transcribe the min- utes of the proceedings of every such meeting. If accounts against the tovm be audited at any such meeting, he shall incorporate in such minutes a list of all such, showing the name of the claimant, the amount claimed' and the amount allowed, with such other information as the board may re- quired. Within twenty days after the holding of any town meeting, the town clerk shall certify to the county clerk the names of all the persons elected to ofQce at the town meeting, except inspectors of election, and the terms for which they were severally elected, and whether or not they have qualified. Whenever a vacancy shall occur in the office of justice of the peace, the town clerk shall immediately notify the county clerk of the happening of such vacancy, specifying the name 1. General provisions applicable to town clerk. (For places in this Manual where the sections here referred to may be founds see Schedule of Laws after Table of Contents.) Term of office. Town Law, sec, 82, ante. Eligibility and qualification to hold office. Town Law, sec. 81, ante. Public Officers Law, sec. 3, ante. Oath of office. Town Law, sec. 51, ante. notice of neglect to file. Public Officers Law, sec. 13. effect of failure to file, validation of acts before filing. Public OfBcers Law, sec. 15, ante. Removal of town clerk. Public Officers Law, sec. 36, ante. Resignation. Town Law, sec. 84, ante. Vacancy, how created. Public Officers Law, sec. 30, ante. how filed. Town Law, sec. 130, ante. Delivery of papers by outgoing town clerk. Town Law, sen. 91, as amended by L. 1909, oh. 491. Clerk of town meeting. Town Law, sec. 50 ante. 2. Eridence of matters required to be recorded. Minutes and records kept by them are only competent evidence of matters which they are bound by law to record and file, and any paper not required by law to be filed, does not become evidence by such filing. Jackson v. Collins, 41 N Y. St. Rep. 590, 16 N. Y, Supp. 651. 3. OtJier duties of town clerk. Town board, as member of. Chapter XXVIII, post. Special town meetings, to give notice of. Town Law, sec. 47, ante. DUTIES OF TOWN CLERKS, GENERALLY. 337 Town Law, § 92. of the justice of the peace whose office has become vacant, the date when the same became vacant and the cause of the vacancy. He shall deliver to the supervisor, before the annual meeting of the board of supervisors of the county in each year, certified 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.^ Immediately after the quali- fying 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 Town meetings, to give notice of propositions to be submitted at. Town Law, sec. 48, ante. to prepare ballots, provide stationery, etc. Election Law, sec. 341 (Jewett's Election Manual, (1916), ante. See, also, on subject of town meetings generally, ch. Ill, ante. General elections, to distribute ballots at. Election Law, see. 343, as amended by L. 1916, ch. 537 (Jewett's Election Manual (1916).. compensation for services performed. Election Law, sec. 319, as amended by L. 1915, oh. 678 (Jewett's Election Manual (1916). Justice of the peace, town clerk tp certify to election of. Town Law, sec. 94, ante. Undertakings, approval of, by town clerk. Town Law, sees. 116, 106, ante. Strays and beasts doing damage, duties of town clerk as to. Town Law, sees. 380, 381, post. notice of lien on account of, to be filed with town clerk. Town Law, sec. 381, post. Floating tirnber, wrecks, etc., notice of lien on account of, to be filed with town clerk. Town Law, sec. 394, as amended by L. 1915, oh. 439. Justice of the peace, books and papers of, to be deposited with town clerk, upon his removal from town, or if removed from office. Code Civ. Proc, sees. 3144-3148. Accounts audited by town board to be certified and filed with town clerk. Town Law, sec. 133, post. To%Dn poor. Accounts of overseer of the poor to be filed with town clerk. Poor Law, sec. 26, post. (See Gumming *, Gilbert's Poor, Insanity and State Charities Law, p. 23.) Jury lists, duties of town clerk, supervisor and assessors, as to. See chapter X, post. Town clerk to furnish justices of the peace with jury lists. Code Civ. Pro., sec. 2990. Water works corporations, town clerk, supervisor, justices of the peace and high- way commissioners to grant permits to. Transportation Corporations Law, sees. ^0, 81. Highways, duties of town clerk as to. See Part VIII, post. Schools, duties of town clerk as to. See Education Law, Art. 12. Sidewalks, authority to expend highway tax for, to be filed with town clerk. Highway Law, sec. 62, post. Highways, papers relating to laying town, altering or discontinuing, to be filed in office of town clerk. Highway Law, sec. 239, post. Dogs, duties in respect to, where board of supervisors has adopted provisions of County Law relating to registration of dogs. See County Law, sec. 131, post. Tax notices. Notices of place of residence of non-resident taxpayers to be filed in office of town clerk; town clerk to deliver statement to collector; fees of town clerk therefor. See Tax Law, sec. 70, post. 338 TOWNS, TOWN JIEETINGS AND TOWN OFFICERS. Town Law, §§ 92a, 96, 97. dollars to be recovered by the supervisor in the name of and for the use of the town.4 [Town Law, § 92, as amended by L. 1918, ch. 73; B. C. & G. Cons. L., p. 6166.] § la. TOWN CLERK TO TRANSMIT LISTS OF TOWN OFFICERS TO STATE COMMISSION. It shall be the duty of the town clerk annually, between the fifteenth day of November and the fifteenth day of December, to transmit to the tax commission a list containing the names of each supervisor, town superintendent, justice of the peace, town clerk, assessor and collector, showing his post office address, the date of his appointment or election and the expiration of his term of officS. [Town Law, § 92a, as added by L. 1917, ch. 582.] § lb. TOWN CLERKS' UNDERTAKINGS. Every town clerk hereafter elected or appointed shall, within thirty days after entering upon the duties of his office, make and deliver to the supervisor of the town his undertaking, with such sureties as the town board shall prescribe, in a penal sum not exceeding one thousand dollars, to be determined by the town board, to the effect that he will well and faithfully discharge his official duties as such town clerk, and that he will well and truly keep, pay over and account to the proper board, officer or commission of the town, state or county, and account for, all moneys and prop- erty going into his hands in his official capacity ; and such undertaking shall, after its execution, be presented by the supervisor to the town board for their approval as to its form and the sufficiency of the sureties thereon. Until such undertaking shall have been approved, none of the moneys, books, documents, papers or property of the town, county or state shall be turned over or delivered to such town clerk elect. After the approval of such undertaking, the supervisor shall file the same in the office of the county clerk. [Town L., § 92a, as added by L. 1912, ch. 136.] § 2. FURNITURE AND BLANK BOOKS FOR CLERK'S OFFICE. 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 entering 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, § 96; B. C. & G. Cons. L., p. 6167.] § 3. SIGN FOR CLERK'S OFFICE. There shall also in like manner be furnished and kept for every town clerk'9 office a sign with the name of the town, followed by the words, " town clerk's office " in plain characters thereon, with sufficient board space immediately below for post- ing 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 lefjal notice in the town may be posted. [Town Law, § 97; B. C. & n. Cons. L., p 6167.] 4. Qualification of constable. The town clerk is required by the above section to return to the clerk of the county the name of each constable qualifying as such. Under section 116 of the Town Law, ante, constables are required to file with the town clerk an undertaking to be approved by the supervisor or town clerk. Imme- diately upon the filing of such undertaking the town clerk should return to the county clerk the name of such constable. By section 14 of the Town Law ante the county clerk is required to report to the district attorney all omissions by any town officer to make and transmit any return required by law. The penalty pre- scribed by the above section for a failure to make such return is to be recovered bv the supervisor in the name and for the use of the town. The town clerk of the town of Niagara, county of Niagara, is required to keep a book in which abstracts of conveyances of lands within the town are to be entered See Town Law, § 95. 5. Claim for furniture must be audited. A person selling office furniture for the use of a town clerk must bring a proceeding under this section and require the claim to be audited ; he cannot sue the town directly without an audit Peck v Town of Catskill, 119 App. Div. 752, 104 N. Y. Supp. 540. DUTIES OF TOWN CLERK, GENERALLY. 339 Town Law, § 93; Lien Law, §§ 232, 233. § 4. TOWN CliERK MAY APPOINT DEPUTY; QUALIFICATION, OATH OF OFFICE, COMPENSATION. Every person hereafter elected or appointed to the office 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 twenty-one years of age or over, a citizen of the United States and a resident of the tovm and shall take and sub- scribe 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 section shall prevent any town clerk from appointing his wife or daughter as such deputy.® [Town Law, § 93, as amended by L. 1916, ch. 340 ; B. C. & G. Cons. L., p. 6166.] § 5. FILING AND DISCHARGE OF 'CHATTEIi MORTGAGES IN TOWN CLERK'S OFFICE; 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.^ [See Lien Law, § 232 in part, as amended by L. 1910, ch 182, and L. 1915, oh. 27 ; B. C. & G. Cons. L., p. 3247.] The town clerk shall file every such Instrument presented to him for that pur- pose, and Indorse thereon its number and the time of its receipt. He shall enter in a book, provided for that purpose in separate columns, the names of all par- ties to each mortgage so filed, arranged in alphabetical order, under the head of " mortgagors " and " mortgagees," the number of such mortgage or copy and the date of the filing thereof, except in the city of New York such ofiicers (the town clerk) at the time of filing of such instrument shall upon request issue to the person filing the same a receipt in writing, which shall contain the names of the parties to the mortgage, its date, amount and the date and time of filing thereof, and if the mortgage be upon a craft navigating the canals, and filed in the office of G. Town clerk may appoint his son as deputy. Rept. of Atty. Genl. (1895), 339. A female, other than a wife or daughter of a town clerk, is not eligible to hold the office of deputy town clerk. Rept. of Atty. Genl., May 9, 1911. But since a woman may now vote for town officers she is qualified to hold any town office. 7. Place of filing chattel mortgage. A chattel mortgage must be filed in the clerk's office of the town in which the mortgagor resided at the time of its execu- tion. Hicks v. Williams, 17 Barb. 523; see, also, Baumann v. Libetta, 3 Misc. 518; 23 N. Y. Supp. 1; Piatt v. Stuart, 101 U. S. 737. If the county clerk's office is in the town or city where the niortgagor resides the mortgage must be filed in such office, and it is not suffieient in such case to file it in the town or city clerk's office. Martin v. Rothschild, 42 Hun, 410. Records of chattel mortgages in the offices of mnnicipal recording officers should not be destroyed, even after the mortgages have been destroyed. Such records as are not in general use should be transferred to the division of public records under the control of the Regents. Rept. of Atty. Genl., Jan. 27, 1912. 340 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Lien Law, § 238. the superintendent of public works, the name of the craft shall also be inserted.^ [See Lien Law, § 233, in part, as amended by L. 1910, ch. 182 ; B. C. and G. Cons. L., p. 3249.] The officer with whom the mortgage, or a copy thereof is filed, must, on receipt of the certificate setting forth the payment or satisfaction of such mortgage, file the same in his office, and write the word " discharge " in the book where the mortgage is entered, opposite the entry thereof, and the mortgage is thereby discharged. [Lien Law, § 238, in part ; B. C. and G. Cons. L., p. 3256.] 8. Duties of town clerk as to chatlel mortgages. It is made the duty of the town clerk in whose ofl5ce chatel mortgages are required to be filed, to provide proper books in which the names shall be entered in alphabetical order of the parties to every mortgage and also to indorse thereon its number and the time of its receipt, and enter such number in a separate column in the books in which the mortgages shall be entered. But the failure of the clerk to do these things does not affect the rights of the mortgagee, as he has done all he can do when he delivers the mortgage to the clerk in the proper office to be filed, and he ought not to be held liable for the default of the clerk, a public oflScer, over whose acts he has no control. Manhattan Co. v. Laimbeer, 108 N. Y. 578; 15 N. E. 712. Where a mortgage was written on the inside of a large account book partly filled with accounts, and labeled " Day Book " which book because of its bul- klness, was not placed in the pigeon hole where other chattel mortgages were filed, it was held that such a filing was not sufficient. Griswold v. Sheldon, 4 N. Y. 580. The delivery of the chattel mortgage to the clerk while absent from his office, and an indorsement made t}iereon that it is then and there filed, is not a filing. It is not filed in reality until it is deposited in the clerk's office. Hathaway V. Howell, 54 N. Y. 103. Where the office of town clerk is vacant, a filing of a chattel mortgage made by a person having charge of the office will be valid under the statute. Bishop -vr. Cook, 13 Barb. 326. The filing by a clerk in the store of the town clerk, who is in charge of the town clerk's office, is a sufficient filing. Dodge v. Potter, IS Barb. 201. To constitute a proper filing requires the act of the clerk or some person in charge of the office. An unsuccessful attempt to file a chattel mortgage when tho office is closed, or depositing the mortgage on the clerk's table in the office when no one is present, does not constitute a filing within the requirements of the statute. Crounse v. Johnson, 65 Hun, 337; 20 N. Y. Supp. 177. The mortgagee is not bound to do anything more than to deliver the mort- gage at the proper office, and to the proper officer, or to any person of proper age who has charge of the office. 2 Wait's Actions and Defenses, p. 195. Temporary removal of a chattel mortgage from the Town Clerk's office after it has been duly filed does not affect its validity as against the person causing its removal. Rogers v. Dwight, 71 Hun 547, 25 N. Y. Supp. 39. Refiling chattel mortgages. By section 235, as amended by L. 1915, ch. 608, of the Lien Law it is provided that a chattel mortgage is invalid as against credit- DUTIES OF TOWN CLERK, GENERALLY. 341 Lien Law, § 234; Domestic Relations Law, § 13. The several clerks and registers are entitled to receive for services here- Tinder, the following fees: For filing each instrument, or copy, six cents; for issuing a receipt for the same, six cents ; for entering the same as afore 5aid, 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 No officer is required to file or enter any such paper or furnish a copy "thereof, or issue a receipt therefor, until his lawful fees are paid. [Lien •ora of the mortgagor and subsequent purchasers or mortgagees in good faith after the expiration of the first or any succeeding term of one year, reckoning from the time of the first filing, unless within thirty days next preceding the expiration of «ach such term, a statement containing a description of such, mortgage, the names of the parties, the time and place where filed, the interest of the mortgagee or of any person who has succeeded to his interest in the property claimed by virtae thereof; or a copy of such mortgage and its indorsements, together with a state- ment attached thereto or indorsed thereon, showing the interest of the mortgagee ■or of any person who has succeeded in his interest in the property claimed by virtue thereof; or a copy of such mortgage and its indorsements, together with a statement attached thereto or iadorsed thereon, showing the interest of the mortgagee or of any person who has succeeded in his interest in the mortgage, is filed in the proper ofiice in the city or town where the mortgagor then resides, if he is then a resident of the town or city where the mortgage or copy thereof or such statement issued was last filed; if not such resident but a resident of the state, a true copy of such mortgage together with such statement shall be filed in the proper office of the town or city where he then resides, and if not a resident of the state, then in the proper oflBce of the city or town where the property so mortgaged was at the time of the execution of tbe mortgage. The town clerk should perform the same duties as to such re-filed mortgages as are prescribed by the above section 233 of the Lien Law. Filing other liens on personal property. Contracts for the conditional sale of personal property are to be filed in the office of the town clerk in the same manner as chattel mortgages. Personal Property Law, § 64, as amended by L. 1915, ch. 455. This section provides that " the officers with whom such contracts are filed shall enter the future contingency or event required to occur before the ownership of such goods and chattels shall pass from the vendor to the vendee, and the amount due upon such contract, and the time when due. The name of the con- ditional vendor shall be entered in the column of ' mortgagees ' and the name of the conditional vendee in the column of ' mortgagors.' The officers performing services under this article are entitled to receive the same fees as for like services relating to chattel mortgages." A notice of a lien on a mare and foal has to be filed in the office of the town clerk in the same manner as chattel mortgages are required by law to be filed. [Lien Law, see. 160, as amended by L. 1916, ch. 301.] A notice of lien for labor performed in quarrying, mining, dressing and cutting stone must be indorsed, filed and entered by the town clerk in the same manner as chattel mortgages and the same fee shall be charged therefor. [Lien Law, sec. 140.] 342 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Domestic Relations Law, tS 13, 14. Law, § 234, in part as amended by L. 1910, ch. 182 ; B. C. & G. Cons. L., p. 3250.] § 6. MABEIAGE LICENSES. It shall be necessary for all persons intending to be married to obtain a marriage license from the town or city clerk of the town or city in which the woman to be married resides and to deliver said license to the clergyman or magistrate who is to officiate before the marriage can be performed. If the woman or both parties to be married are non- residents of the state such license shall be obtained from the clerk of the town or city in which the marriage is to be performed ; or, if the woman to be married resides upon an island located not less than twenty-five miles from the ofiBce or residence of the town clerk of the town of which such island is a part, and such office or residence is not on such island such li- cense may be obtained from any justice of the peace residing on such island, and such justice, in respect to powers and duties relating to marriage li- censes, shall be subject to the provisions of this article governing town clerks and shall file all statements or affidavits received by him while acting under the provisions of this section with the town clerk of such town. [Domestic Eelations Law, § 13, as amended by L. 1914, ch. 230, and by L. 1918, ch. 236; B. C. & G. Cons. L., p. 1027.] § 7. TOWN AND CITT CXERKS TO ISSUE MAERIAGE LICENSES; FOEM. The town or city clerk of each and every town or city in this state is hereby empowered to issue marriage licenses to any parties applying for the same who may be entitled under the laws of this state to contract matrimony, authorizing the marriage of such parties, which license shall be substantially in the following form : STATE OF NEW YORK, County of City or town of } Know all men by this certificate that any person authorized by law to per- form marriage ceremonies within the state of New York to whom this may come, he, not knowing any lawful impediment thereto, is hereby authorized and empowered to solemnize the rites of matrimony between °^ in the county of and state of New York and of '° the county of and state of New York and to certify the same to be said parties or either of them under 9. Fees for filing chattel mortgages. The fees of town clerks for filing and entering chattel mortgages and other liens on personal property are prescribed by the above section of the Lien Law. In a subsequent portion of this work there is included a table of fees allowed to town officers which may be referred to for the purpose of ascertaining the amount of fees chargeable by town rlprita in respect to papers filed In their offices. ^ ^ '^'^'^'^^ Mortgagee must tender fee before the clerk can be compelled to Indorse and file a chattel mortgage. People ex rel. Stevens v. Hayt, 66 N. Y. 606. DUTIES OF TOWN CLERK, GENERALLY. 343. Domestic Relations Law, § 15. his hand and seal in his ministerial or official capacity and thereupon he is required to return his certificate in the form hereto annexed. The statements endorsed hereon or annexed hereto, by me suhscrihed, contain a full and true abstract of all the facts concerning such parties disclosed by their affidavits or verified statements presented to me upon the application for this license. In testimony whereof, I have hereunto set my hand and affixed the seal of said town or city of this day of nineteen Seal. The form of the certificate annexed to said license and therein referred to shall be as follows: I, a residing at in the county of and state of New York do hereby certify that I did on this day of in the year A. D., 19 . . , solemnize the rights of matrimony between of in the county of and state of New York and of in the counts^ of .- and state of New York in the presence of and as witnesses and the license therefor is hereto annexed. Witness my hand at in the county of this day of A. D. 19 . . In the presence of There shall be endorsed upon the license or annexed thereto at the end thereof, aubscribed by the clerk, an ab. tract of the facts concerning the parties as disclosed in their affidavits or verified statements at the time of the application for the li- cense made in conformity to the provisions of section fifteen of this chapter. The license issued, including the abstract of facts, and the certificate duly signed by the person who shall have solemnized the marriage therein authorized shall be returned by him to the office of the town or city clerk who issued the same on or before the tenth day of the month next succeeding the date of "the solemnizing of the marriage therein authorized and any person or persons who shall wilfully neglect to make such return within the time above required shall be deemed guilty of a mis- demeanor and upon conviction thereof shall be punished by a fine of not less than twenty-five dollars or more than fifty dollars for each and every oflFense.l" [Domestic Relations Law, § 14, as amended by L. 1912, ch. 216; B. C. & G. Cons. L., p. 1027.] § 7. DUTY OF TOWN AND CITY CLERKS. It shall be the duty of the town or city clerk when an application for a mar- riage license is made to him to require each of the contracting parties to sign and verify a statement or affidavit before such clerk or one of his deputies, containing the following information. From the groom: Full name of husband, color, place of residence, age, occupation, place of birth, name of father, country of birth, maiden name of mother, country of birth; number of marriage. From the bride: Full name of bride, place of residence, color, age, occupation, place of birth, name of father, country of birth, maiden nam© of mother, country of 10. ITarriage in another state. — Where parties to a marriage contract procure a license in a town of this state and are married in Pennsylvania, the town clerk should not file the license and the certificate showing the performance of the mar- riage returned by the person performing the ceremony. Rept. of Atty. Genl. (1912), Vol., 2. p. 542. Betnm of certificate of marriage to town or city clerk. — A minister or other person performing a marriage ceremony is required to return the certificate of the marriage to the town or city clerk who issued the marriage license, and in addition in the city of New York he is required to make a report of such marriage to the Department of Health. Rept. of Atty. Genl., Feb. 15, 1912. 344 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Domestic Relations Law, § 15. birth, number of marriage. From each: A statement in the following words: "I have not to my knowledge been infected with any venereal disease, or if I have been so infected within five years I have had a laboratory test within that period which shows that I am now free from infection from any such disease." The said clerk shall also emhody in the statement, if either or both of the applicants have been previously married, a statement as to whether the former husband or hus- bands, or the former wife or wives of the respective applicants are living or dead and as to whether either or both of said applicants are divorced persons, if so when and where the divorce or divorces were granted and shall also embody therein a statement that no legal impediment exists as to the right of each of tlie applicants to enter into the marriage state. The town or city clerk is hereby given full power and authority to administer oaths and may require the applicants to produce wit- nesses "to identify them or either of them and may also examine under oath or otherwise other witnesses as to any material injury pertaining to the issuing of the license; provided, however, that in cities of the first class the verified state- ments and aff.davits may be made before any regular clerk of the city clerk's office designated for that purpose by the -city clerk. If it appears from the affidavits and statements so taken, that the persons for whose marriage the license in question is demanded are legally competent to marry the said clerk shall issue such license, except in the following cases. If it shall appear upon an application of the applicants as provided in this section that the man is under twenty-one years of age or that the women is under the age of eighteen years, then the town or city clerk before he shall issue a license shall require ithe written consent to the marriage from both parents of the minor or minors or such as shall then be living, or it the parents of both are dead then the written consent of the guardian or guardians of such minor or minors. If one of the parents has been missing and has not been seen or heard from for a period of one year preceding the time of the application for the license, al- though diligent inquiry has been made to learn the whereabouts of such parent, the town or city clerk may issue a license to such minor upon the sworn state- ment and consent of the other parent. If the marriage of the parents of such minor has been dissolved by decree of divorce or annulment, the consent of the parent to whom the court which granted the decree has awarded the cus- tody of such minor shall be sufficient. If there is no parent or guardian of the minor or minors living to their knowledge then the town or city clerk shall require the written consent to the marriage of the person under whose care or government the minor or minors may be before a license shall be issued. The parents, guardians or other persons whose consents it shall be necessary to obtain before the license shall issue, shall personally appear before the town or city clerk and execute the same if they are residents of the state of New York and physically able so to do. If they are nonresidents of the state the re- quired consents may be executed and duly acknowledged without the state but the consent with a certificate attached showing the authority of the officer to take acknowledgments must be duly filed with the town or city clerk before a license shall issue. Before issuing any license herein provided for, the town or city clerk shall be entitled to a fee of one dollar which sum shall be paid by the applicants before or at the time the license is issued; and all such fees so received by the clerks of cities shall be paid monthly to the treasurer of the city wherein such license is issued. Any town or city clerk who shalj issue a license to maTry any persons one or both of whom shall not be at the time of the marriage under such license legally competent to marry without first requiring the parties to such marriage to make such affidavits and statements or who shall not require the procuring of the consents provided for by this article, which shall show that the parties authorized by said license to be mar- DUTIES OF TOWN CLERKS, GENERALLY. 345 Domestic Relations Law, §§ 16, 19 ; Code Civil Proc, § 934. Tied are legally competent to marry shall be guilty of a misdemeanor and on con- viction thereof shall be fined in the sum of one hundred dollars for each and every offense. In any city the fees collected for the issuing of a marriage license, or for solemnizing a marriage, so far as collected for services rendered by any officer or employee of such city, shall be paid into the city treasury and may by ordinance be credited to any fund therein designated, and said ordinance, ■when duly enacted, shall have the force of law in such city.ii [Domestic Relations Law, § 15, as amended by L. 1912, ch. 241, and by L. 1917, ch. 503; B. C. & G. Cons. L., p. 1029.] § 8. FAI.se statements OB AFFIDAVITS. Any person who shall in any aflfidavit or statement required or provided for in this article wilfully and falsely swear in regard to any material fact as to the competency of any person for whose marriage the license in question or concerning the procuring or Issuing of which such affidavit or statement may be made shall be deemed guilty of perjury and on conviction thereof shall be punished as provided by the statutes of this state. [Domestic Relations Law, § 16; B. C. & G. Cons. L., p. 1030.] § 9. BECOieilS TO BE KEPT BT TOWN Ain) CITIT CI.EBKS. Each town and city clerk hereby empowered to issue marriage licenses shall keep a, book in which he shall record and index all affidavits, statements, con- sents and licenses together with the certificate attached showing the perform- ance of the marriage ceremony which book shall be kept and preserved as a part of the public records of his office. Wihenever an application is made for a search of such records the city or town clerk may make such search and fur- nish a certificate of the result to the applicant upon the payment of a fee of fifty cents for a search of one year and a further fee of ten cents for each addi- tional year, which fees shall be paid in advance of such search. All such affidavits, statements and consents, immediately upon the taking or receiving of the same by the town or city clerk, shall be recorded and indexed and shall be public records and open to public inspection. On or before the fifteenth day of each month the said town and city clerk shall file in the office of the county clerk of the county in which said town or city is situated the original of each affidavit, statement, consent, license and certificate, which have been filed with or made before him during the preceding month. He shall nqt be required to file any of said docu- ments with the county clerk until the license is returned with the certificate showing that the marriage to which they refer has been actually performed.12 [Domestic Relations Law, § 19, as amended by L. 1912, ch. 241, and L. 1916, oh. 381; B. C. & G. Cons. L., p. 1031.] § 11. COPIES OF FAFEBS FII.ED WITH TOWN CLEBK, EVIDENCE. A copy of a paper filed, pursuant to law, in the office of a town clerk, or transcript from a record kept therein, pursuant to law, certified by the town clerk, is evi- dence, with like effect as the original. [Code Civ. Pro., § 934.] 11. Age of female to whom license may be issued. — This section does not place any limitation' upon the age of a female to whom a license may be issued. If the applicant is a woman under eighteen years of age, the town clerk must procure the consent specified in the statute. Rept. of Atty. Genl. (1911), Vol. 2, p. 632. 12. Affidavits for marriage licenses need not be made public by the city or town clerk until after the ceremony has been performed and the certificate filed. Rept. of Atty. Genl., March 11, 1911. 346 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Constitution, Art. VI, J 17. CHAPTER XXrV. JUSTICES OF THE PEACE; GENERAL, DUTIES AS TOWN OFFICERS: POLICE JUSTICES IN CERTAIN TOWNS. Section 1. Constitutional provisions relative to justices of the peace. 2. Removal of justice of the peace. 3. Justice of the peace to deposit hooks with town clerk, if he removes from town or is removed from office; town clerk to demand hooks. 4. Buying demands hy a justice or constable, for suit before a justice; forfeiture of office. 5. Payment of fines and penalties. 6. Police justices in certain towns. 7. Jurisdiction and powers of police justices. 8. Creation of office of police justice. S 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.'^ 1. Election and terms of office of justices. The election, number and terms of office of justices of the peace, and the eligibility, qualifications, oaths of office and undertakings of such justices have been considered in a former chap- ter in connection with other town officers. See 3 Wait's Law and Practice, 7th ed. (1903), p. 1. (For places in this Manual where the sections referred to may be found, see Table of Laws, after the Table of Contents.) Keferences. As to the number of justices to be elected at each biennial town meeting, see Town Law, sec. 80, ante; as to the number and terms of justices of the peace, see Town Law, sec. 103, ante; as to the ballots for justices elected for a full term and to fill vacancies, see Town Law, sec. 56, ante; as to the election or appointment of justices in new towns, see Town Law, sec 104, ante; as to the filing of the certificate of election of a justice of the peace with the county clerk, see Town Law, sec. 94, ante; as to the eligibility and the quali- fications of persons to the office of justices of the peace, see Town Law, sec. 81, ante, and Public Officers Law, sec. 3, ante; as to the undertakings of justices, see Town Law, sec. 106, ante, Town Law, sec. 13, ante. Public Offi- cers Law, sec. 11, ante, sec. 15, ante; as to oath of a justice of the peace, see Town Law, sec. 106, ante; as to the legalizing oC official acts JUSTICES OF THE PEACE; GENERAL DUTIES. 347 Code Criminal Procedure, § 132. 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 as are or may be prescribed by law. [State Constitution, art. VI., §17; B. C. and G. Cons. L., p. 135. J § 2. REMOVAIi OF JUSTICES OF THE PEACE. How removable. — Justices of the peace, police justices, justices of jus- tice's courts, and their clerks, are removable by the appellate division of the supreme court. [Code of Crim. Pro., § 133.] of a justice of the peace performed before filing his oath and undertaking, see Town Law, sec. 15, ante.. Public Officers Law, sec. 15, ante; as to the creation of a vacancy in the offico of a justice, see Public Officers Law, sec. 30, ante; as to the filing of such vacancies by the town board, see Town Law, sec. 130, ante. Duties of justices of the peace in common with other town officers. It is not the purpose of this work to treat of the powers and duties of a justice of the peace as a judicial officer. The purpose is to consider such office in its con- nection with other town offices and to state the powers and duties of a justice m this connection only. As to the jurisdiction of justices of the peace and as to the law and practice in their courts reference is made to Wait's Law and Practice, 7th ed. (1903) ; Baileys' Law and Practice for Justices of the Peace (1909), Town board. Justices of the peace as town officers act generally in connection with the supervisor and town clerk in forming the town board of the town. The town board is the chief governing body of the town and its powers and duties are numerous and varied. Subsequent chapters of this work are de- voted to the powers and duties of such board. Justices have other duties in conenction with other town officers which are considered in other parts of this work in their proper connection. Among these duties are the following: Town meetings. Justices are the presiding officers at town meetings not held in election districts or at the time of a general election. See Town Law sec. 49, ante. (As to the powers of town meetings, the manner of conducting the same, and other provisions relating thereto, see chapter 19, ante.) Special constables may be appointed by justices of the peace and the super- visor. Town Law, sec. 117, ante. Resignations may be accepted by any three justices of the peace of a town for sufficient cause shown to them. Town Law, sec. 84, ante. Fires in woods. Justices of the peace in connection with the supervisor and commissioner of highways of a town may order out the inhabitants of a town to assist in extinguishing a fire in the woods in any such town. Town Law, sec. 89, ante. Coroners. Justices of the peace to act as coroners in case of the disability of all the coroners, or in case of an emergency, see Code Crim. Proc, § 789-a, ante. 348 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Code Civil Procedure, §§ 3144-3147; Penal Law, §§ 1852, 1853. § 3. JUSTICE OF THE PEACE TO DEPOSIT BOOKS WITH TOWN CLERK, IF HE REMOVES FROM TOWN OR IS REMOVED FROM OFFICE; TOW^N CLERK TO DEMAND BOOKS. If a justice of the peace, either before or after the expiration of his term of office, removes from the town or city wherein he was elected, he must forthwith deposit, with the clerk of that town or city, his docket book, and all other books and papers in his custody, relating to an action or a special proceeding, which has been heard by him, or commenced before him. A justice, who is removed from office, must make a like deposit, within ten days after receiving notice of his removal, or afterwards, upon the demand of the clerk of the town or city. But the omission of the justice to make the deposit does not affect the validity of any book or paper, so required to be deposited, or of any proceeding to which it 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 certificate under his hand, to the effect that each judgment or order, entered therein, was duly rendered or made as therein stated ; and that the sum, appearing by the book to be due there- upon, has not been paid, to his knowledge. [Code Civ. Pro., § 3145.] If a justice of the peace dies, or his office becomes otherwise vacant, the town or city clerk must demand and receive all books and papers, which belonged to the justice in his official capacity, from any person having them in his possession, and suoh clerk may make and issue a transcript of a judgment so rendered by such a justice of the peace and appearing upon the docket of such justice of the peace so on file in his office, and issue an execution upon any such judgment which has not been docketed in the office of the county clerk, upon receiving his fees for the same, which shall.be the same now allowed ^ justice of the peace for issuing a transcript or transcripts, as the case may be, and such transcript or execution so issued by such clerk shall have the same force and effect as 'though the same had been, issued by such justice of the peace during his term of office. [Code Civ. Pro., § 3146, as amended by L. 1916, ch. 448.] 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 prescribed by law, where an officer refuses or-neglects to deliver a book or paper in his custody as such officer, to his successor in office. [Code Civ. Pro., § 3147.] § 4. BUYING DEMANDS BY A JUSTICE OB CONSTABLE, FOB SUIT BEFORE A JUSTICE; FOBFEITUBE OF OFFICE. A justice of the peace or a constable who, directly or indirectly, buys or is interested in buying, anything in action, for the purpose of com- mencing a suit thereon before a justice, is guilty of a misdemeanor. [Penal Law, § 1852 ; B. C. and G. Cons. L., p. 4048.] A justice of the peace or constable who, directly or indirectly, gives, or JUSTICES OF THE PEACE; GENERAL DUTIES. 34f> Penal Law, §§ 1854-1856; County Law, § 12, subd. 21. promises to give, any valuable consideration 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 Law, § 1853; B. C. and G. Cons. L., p. 4048.] A person convicted of a violation of either of the two preceding sections, in addition to the punishment, by fine and imprisonment prescribed therefor by this article, forfeits his office. [Penal Law, § 1854; B. C. and G. Cons. L., p. 4048.] Nothing in the three 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 antecedently contracted; or the buying or receiving of anything in action for the purpose of remittance, and without any intent to violate the three preceding sections. [Penal Law, § 1855; B. C. and G. Cons. L., p. 4048.] The provisions of sections two hundred and seventy-four, two hundred and seventy-five, eighteen hundred and fifty-three, and eighteen hundred and fifty-five, relative to the buying of claims by a justice of the peace or constable, with intent to prosecute them, 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 Law, § 1856; B. C. and G. Cons. L., p. 4049.] § 5. PAYMENT OF FINES AND PENALTIES. The board of supervisors shall have power to direct the payment, by justices of the peace, of all fines and penalties imposed and received by them, to the supervisors of their respective towns, on the first Monday in each month, and to direct justices of the peace to make a verified report of all fines and penalties collected by them to the board of town auditors of their respective towns on Tuesday preceding the annual town meeting. Upon such payment as herein prescribed to the supervisor of any town, he shall immediately pay over such part of such fines and penalties to any person or corporation who shall be entitled to receive the same by virtue of any statute, special or otherwise. The residue of such amount shall be applied to the support of the poor of such town. This subdivision shall not apply to the county of Kings. [County Law, § 12, subd. 31 ; B. C. and G. Cons. L., p. 714.] § 6. * POIilCE JUSTICES IN CERTAIN TOWNS. In any town of this state containing one or more incorporated villages of the aggregate population of at least eight thousand inhabitants, the office of police justice shall be created upon the adoption of a proposition therefor 350 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 122, 123. at any regular town election. The term of office of said police justice shall be four years. Such police justice shall receive no fees, but shall be paid an annual salary to be fixed by resolution of the town board of such town, which salary shall not be increased nor diminished during his term of office. [Town Law, § 122, as added by L. 1909, ch. 528.] § 7. JURISDICTION AND POWERS OF POUCE JUSTICE. 1. Such police justice may hold a court of special sessions in said town, outside the corporate limits of the village or villages, and shall have in the first instance exclusive jurisdiction to hear, try and determine all charges of misdemeanor committed within such town and without the cor- porate limits of the village or villages therein, and triable by a court of special sessions, subject to the right of removal, as provided by the code of criminal procedure, to a court having authority to inquire by the interven- tion of a grand jury into offenses committed within the county. 2. Such police justice shall have exclusive jurisdiction to take the ex- amination of a person charged with the commission in such town, without the corporate limits of the village or villages therein, of a crime not triable by a court of special sessions; and also to hear, try and determine charges against a person of being a vagrant or disorderly person within such town without the corporate limits of the village or villages therein, or of having committed disorderly conduct therein; and to take such proceedings in either of such cases as may be taken by a justice of the peace, with all the powers and subject to all the duties and liabilities of a justice of the peace in respect thereto. 3. Such police justice shall have all the power and authority and be subject to all the duties and liabilities of a justice of the peace in issuing warrants for the arrest of a person charged with the commission of a crime or disorderly conduct in a county including such town, but if the offense is charged to have been committed outside of that portion of the town lying without the corporate limits of the village or villages in such town, the person arrested by such process shall be taken before a magistrate of the town or village in which such offense is charged to have been committed and the papers on which such process was issued shall be delivered to such magistrate who shall proceed thereon as though such warrant had been issued by him on such papers. 4. A person arrested on a criminal warrant issued by a justice of the peace or other magistrate upon a charge of committing a crime or an offense of a criminal nature within that portion of a town wherein such office of police justice has been or may be established lying without the corporate limits of the village or villages therein, shall be taken before the police justice of such town and the papers on which the process was JUSTICES OF THE PEACE; GENERAL DUTIES. 351 Town Law, § 124. issued shall be delivered to him and he shall proceed thereon as though such warrant had been issued by him on such papers. 5. In case of the absence of the police justice or his inability to act any justice of the peace of the town shall have jurisdiction. 6. The term " proceeding," as used in this section, also includes a special proceeding of a criminal nature. [Town Law, § 123, as added by L. 1909,. ch. 528.] § 8. CREATION OF OFFICE OF POUCE JUSTICE. The town board of any town specified in section one hundred and twenty- two of this article may, and on the petition of twenty-five electors qualified to vote on the proposition shall,cause to be submitted at any regular town meeting or town election a proposition for the creation of such office of police justice in such town. Should such provision be adopted, then within ten days thereafter the town board of such town shall appoint a competent elector of such town and a resident of the portion thereof lying without the corporate limits of the village or villages therein, police justice; the person so appointed shall hold office until the thirty-first-day of December next after the regular town election next succeeding that at which such proposi- tion shall have been adopted. At the regular town election next succeeding that at which such proposition shall have been adopted a police justice shall be elected. [Town Law, § 124, as added by L. 1909, ch. 528.] 352 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 85. CHAPTEE XXV. COMPENSATION OF TOWN OFFICERS; MISCELLANEOUS PROVISIONS AS TO TOWN OFFICERS. Section 1. Compensation of town officers. 2. Per diem allowances of town officers. 2a. Payment of salaries monthly. 3. Compensation of town clerks in certain towns. 4. Expenditures of surplus moneys by certain town officers. 5. Powers and duties of assessors in certain towns of Nassau County. 6. Fence viewers. 7. Peace officers in towns of counties adjoining cities of the first-class. 8. Delivery of books and papers by outgoing supervisor, town clerk, super- intendent of highways or overseer of poor to successor. § 1. COMPENSATION OF TOWN OFFICERS. Town officers shall be entitled to compensation at the following 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 service, as follows : 1. a. The supervisor,^ except when attending the board of supervisors, town clerk, justices of the peace and overseers of the poor, each, two dollars 1. Per diem alloiraiioe to totm officers. A supervisor of a town is not en- titled to a percentage upon town moneys received and paid out by him, nor to any compensation beyond the per diem allowance fixed by statute for advising and directing overseers of the poor, for consulting with highway commissioners and town assessors, and for services in employing counsel in proceedings taken to compel the board of supervisors to correct the town assessment- roll. People ex rel. Keeffe v. Town Auditors, 24 App. Div. 579; 49 N. Y. Supp. 525. A board of supervisors in a resolution authorizing a town to borrow money and issue bonds therefor cannot give to the supervisor for his services a commission on the proceeds of the bonds sold under such resolution. Ghiglione v. Marsh, 23 App. Div. 61 ; 48 N. Y. Supp. 604. In this case it was held that the services performed by the supervisor in respect to bonds so sold siould be paid for on the per diem basis under the provisions of the above section and the court remarked : " Such services are performed for the town, and no compensation is provided therefor by any provision of law. It would seem, therefore, that the provision of the statute for per diem compensation for services rendered the town by a supervisor has direct application and embraces the case." Section 3280 of the Code of Civil Procedure provides that "each public officer upon whom! a duty is expressly imposed by law must execute the same without fee COMPENSATION OF TOWN OFFICERS. 353 Town Law, § 85. per day, and assessors three dollars per day, unless a different rate be fixed by or pursuant to this section; [Subd. amended by L. 1917, eh. 573.] b. The board of supervisors of any county may, by resolution, fix the compensation of any of such officers in the towns of such county at the rate of more than two but not more than four dollars per day, notwithstanding any provision of this section fixing or authorizing the fixing of a different per diem rate; [Subd. amended by L. 1917, ch. 573.] c. The town board of any town may, by resolution, fix the compensation of the assessors in such town at more than three but not more than five dollars per day each; [Subd.. amended by L. 1917, ch. 573.] d. Assessors in the county of Monroe shall receive compensation at the rate of not less than three dollars nor more than five dollars per day each to be fixed by the town board; e. Assessors in the county of Nassau shall receive compensation at the rate of three dollars per day each ; f. The town board of any town in which the assessed valuation of real estate is over twenty million dollars may, by resolution, determine that the assessors thereof shall each receive an annual salary of not more than one thousand dollars in lieu of per diem compensation ; or reward, except where a fee or other compensation therefor is expressly allowed by law," In the case of People ex rel. Keeffe v. Town Auditors, supra, the court held that such section of the code applied to services performed by supervisors in re- ceiving and paying out town moneys, and concluded that a supervisor was not en- titled to any compensation for such services other than a per diem allowance as given by the above section, and, unless that section can be made applicable it was held that he could make no charge whatever against the town for such services. See, also, Matter of Town of Hempstead, 36 App. Div. 321; 55 N. Y. Supp. 345. A supervisor is entitled to cominissions for paying out moneys for park pur- poses, authorized by a statute making the supervisor one of the park commissioners to serve without compensation, because his function as supervisor in paying out the money is separate and distinct from his function as a park commissioner. People ex rel. Studwell v. Archer, 142 App. Div. 71, 126 N. Y. Supp. 750. The supervisor of a town is not entitled to a commission of one per cent, on money raised for highway and bridge purposes. Kept, of Atty. Genl., May 22, 1911. Members of the town board are entitled to no greater compensation while audit- ing accounts than while performing other duties as a town board, such compensa- tion being two dollars per day. Rept. of Atty. Genl. (1911), vol. 2, p. 663. Right of town officer to employ assistant at expense of the town, A town officer has no right to employ an assistant at the expense of the town to do any part of the work which devolves upon him by virtue of his office and for which he is com- pensated as such town officer; nor has the town board a, right to employ any person at the expense of the town to do the work of any town officer. Daly v. Haight (1914), 87 Misc. 425, 149 N. Y. Supp. 940, rev'd on other grounds, 170 App. Div. 469', 156 N. Y. Supp. 538. 354 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 85. g. The town board of any town in the county of Nassau having a population, as appears by the last federal census, of seventeen thousand inhabitants or more, may fix the annual compensation! for assessors of such town, at not more than twelve hundred dollars each, and provide for the payment of such compensation in quarterly installments; h. The town board of any town in which the assessed valuation of taxable real and personal property is ten million dollars or more may dertermine by resolution that the overseers of the poor in such town shall receive an annual salary, to be fixed by such resolution, not exceed- ing one thousand dollars, in lieu of the per diem compensation provided by this section ; i. The town board of any town in a county adjoining a city of the first class may by resolution fix the compensation of the persons ap- pointed and serving as inspectors of election at a sum not exceeding twelve dollars for the hours fixed by law for each day of registration, and of revision of registration for a special election, and six dollars for the count and return: of the votes, said claims to be allowed and paid in the same manner as other town charges are allowed and paid. Ballot clerks shall receive the same compensation for their attendance Jnstlcea of tlie peace and toim clerks are entitled to a per diem compensa- tion of two dollars. People ex rel. Earwicker v. Dillon, 38 App. Div. 539, 56 N. Y. Supp. 416. Town clerk is entitled to compensation for services in carrying out the provi- sions of the Election Law. He is not entitled to compensation for allowing town assessment rolls to be placed in his ofiSce. People ex rel. Gedney v. Sippell, 116 App. Div. 753, 102 N. Y. Supp. 69. Compensation of toxra clerk as cnstodain of records. A town clerk is en- titled to certain fees for filing papers required to be filed with him, for registering the same, for searching for papers ; and for certified copies of instruments or records required to be kept by him, he is entitled to the same fees as are allowed by law to county clerks. In addition to these fees he is, by the above section, entitled to $2 for each day actually and necessarily devoted to the service of the town in the duties of his office when no fee is allowed by law for such service. It is quite evident that the above section does not contemplate an allowance of $2 per day as custodian of papers required to be filed with him. Matter of Town of Hempstead, 36 App. Div. 319 ; 55 N. Y. Supp. 345. Town assessors in Nassau connty. L. 1900, ch. 292, amending former section, providing for the compensation of assessors in towns generally, and excepting there- from the county of Monroe, was held to repeal the provisions of L. 1893, ch. 629, § 2,. relating to the compensation of assessors in Queens county, so far as the same related to the county of Nassau, notwithstanding L. 1898, ch. 588, § 18, applying acts relating to Queens county to the county of Nassau. People ex rel. Hegeman v. Jones, 68 App. Div. 396, 74 N. Y. Supp. 294. COMPENSATION OH TOWN OFFICERS. 354^ Town Law, § 85. at an election as inspectors of election for the election and be paid in like manner. Poll clerks skall receive the same compensation for their attendance at an election and canvass of the votes as inspectors of election and be paid in like manner. The compensation of la town officer now fixed pursuant to this section shall continue as so fixed until changed pursuant to this section as amended. If the compensation of a town officer be fixed by or pursuant to statute on a per diem basis, he shall not be entitled to receive more than one day's compensation on account of services performed on the same calendar day. j. The town board of any town in a county having a population of two hundred thousand or less, according to the last federal or state census or enumeration, adjoining a city of the first class having a population of one million and upwards may, by a resolution, fix the compensation of the town clerk at not more than thirty-five hundred dollars per annum. The town clerks in such towns may, with the approval of the town board, appoint a deputy town clerk at a salary to be fixed by the town board not exceeding the sum of fifteen hundred dollars per annum. Such town clerk and deputy town clerk shall re- ceive and collect the fees allowed by law and shall keep an accurate record of the same. At the end of each month, he shall make a verified report of such fees giving the date and amount of each fee and the person from whom received, which he shall file with the supervisor of the town, and pay over to such supervisor all the moneys so received during such month, to be paid by the supervisor into the tovra, fund of such town. 2. If a different rate is not otherwise established as herein provided, each inspector of election, ballot clerk and poll clerk is entitled to three dollars per day ; but the town board may establish in its town a higher rate, not exceeding six dollars per day, but such election officers shall receive compensation for one day only for all services rendered on the day of election and in canvassing the votes thereafter, and in completing the return's.^ 2. Pay of election officers. Although town election officers have ■worked from, about half-past five in the morning until nearly midnight on the day of a general elec- tion, they are only entitled' to one day's pay, as the statute, fixing the number of hours which shall constitute a day's work, has no application to such officers. People ex rel. Kleet v. Town Board, 27 Misc. 470; 59 N. Y. Supp. 234. 354b COMPENSATION OF TOWN OFFICERS. Town Law, §§ 86, 87a. j. The supervisor of each town shall be allowed and paid, in the same manner as other town charges are allowed and paid, a fee of one per centum on all moneys paid out by him as such supervisor, including school moneys disbursed by him as provided in the education law, moneys paid out by him for damages arising from dogs killing or injuring sheep as pro- vided in article seven of the county law, moneys in his hands paid out by him for the relief of the poor, and all other town moneys paid out by him for defraying town charges, except moneys expended under the highway law. But no such fees shall be allowed or paid upon moneys paid over by him to his successor in oflBee. Such fees shall be in full compensation for all services rendered by him in respect to moneys received and paid out by him as such supervisor as provided by law except the compensation pro- vided in section one hundred and ten of the highway law. [Town Law, § 85, as amended by L. 1909, ch. 491; L. 1915, chs. 73 and 453; L. 1916, chs. 93 and 554; B. C. & G. Cons. L., p. 6161.] k. The constables hereafter elected in any town of a county containing two hundred thousand inhabitants or less, according to the last federal cen- sus or state enumeration, adjoining a city of the first class containing a population of over one million, shall receive annual salaries to be fixed by the town board at not exceeding fifteen hundred dollars each. The salaries of the constables in any such town shall be imiform. Such salaries shall be • determined before the first biennial town meeting hereafter held, but may be diminished or increased, within such limitations, by the town board from time to time, with respect to constables to be thereafter elected. The town board may provide for the payment of such salary in either monthly or quarterly installments. The constables hereafter elected in any such town shall not receive to their own use any other compensation for their services, but shall be allowed their actual and necessary expenses incurred in the per- formance of their duties. The accounts for such expenses shall be audited and paid by the town board monthly. All fees or charges payable by law to constables of any such towns for any services in their official capacity shall be collected by such constables, but shall belong to the town, and the amount collected shall be paid over, on or before the fifth day of each month, to the supervisor. [Subd. added by L. 1917, ch. 44.] 1. The town board of any town in a county containing a town having a population of sixty thousand or over according to the last federal census or state enumeration, adjoining a city of the first class containing a population of over one million, may by resolution fix the compensation of all town officers except the compensation of the members of such town board, not- withstanding the provisions of any other subdivision of this section. The COMPENSATION OF TOWN OFFICERS. 355 Town Law, § 86. compensation of the members of any such town board shall continue as now provided by law. Any town board adopting such resolution shall de- termine such compensation before the first biennial town meeting hereafter held, and such compensation may be diminished or increased by such town board from time to time, with respect to officers to be thereafter elected or appointed, except that all town officers of the same class or title shall receive the same compensation. Such town board may provide for the payment of such compensation in either monthly or quarterly .installments. [Subd. 1 added by L. 1918, eh. 123.] 1. The town board of any town in a county having a population of more than three hundred thousand according to the last federal or state census, or enumeration, adjoining a city of the first class having a population of one million and upwards, may determine by resolution that the overseer of the poor, or overseers of the poor, elected or appointed, shall receive an annual salary to be fixed by such resolution; provided, however, such an- nual salary of such overseer of the poor, or of each of said overseers of the poor, shall not exceed one thousand dollars in such a town having a popu- lation of less than seventy-five himdred, and shall not exceed one thousand five hundred dollars in such a town having a population of seventy-five hundred or over; except, however, in such a town having a population of twenty thousand or over and an assessed valuation of forty million or over and having but one such overseer of the poor such annual salary may be fixed at not to exceed three thousand dollars, and further that when such a salary has been so fixed as herein provided, it shall be in lieu of any other or different compensation or method of compensation notwithstanding any general or special law. [Subd. 1 added by L. 1918, ch. 359.] 1. The town board of any town having a population of fifteen thousand or more, according to the last federal or state census or enumeration, and an assessed valuation of fifteen million dollars or more, may, by resolution, fix the compjensation of the town clerk at an annual salary, to be prescribed by the resolution and payable in stated installments. [Subd. 1 added by L. 1918, ch. 360.] 1. Town clerks of any town in Erie county shall receive compensation at the rate of three dollars per day each. [Subd. 1 added by L. 1918, ch. 387.] n. The town board of a town having a population of twenty thousand or over, and an assessed valuation of forty millions or over, in a county having a population of more than three hundred thousand according to the last federal or state census, or enumeration, adjoining a city of the first class having a population of one million and upwards, may determine by resolution that the town superintendent of highways shall receive an annual 356 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 87, 87a, 8«, 90. salary to be fixed by Buch resolution ; provided, however, such annual salary of the said town superintendent of highways shall not exceed three thou- sand dollars. [Subd. n added by L. 1918, ch. 117.] § 2. PER DIEM AIiLOlVANCES OF TOWN OFFICERS. No town ofBcer shall be allowed any per diem compensation for his ser- vices unless expressly provided by law. [Town Law, § 87; B. C. & G. Cons. L., p. 6163.] § Sa. PAYMENT OF SAI,ARIES MONTHLY. If, by or in pursuance of law, a town officer is entitled to receive an annual salary, the supervisor of such town may, notwithstanding the provisions of any such law as to the time for payment of such salary, or the audit or allowance thereof, pay to such officer monthly the proportion of such salary to which he shall be entitled out of any moneys of the town in his hands not needed for other purposes, and receipts therefor shall be presented by the supervisor to the board of town auditors, if any, and otherwise to the town board, which receipts if found to be correct shall be audited and al- lowed at the amount thereof. [Town Law, § 87a, as added by L. 1915, ch. 13.] § 3. COMPENSATION OF TOWN CLERKS IN CERTAIN TOWNS. The town clerk of each town containing a population of twenty thou- sand or upwards, except the counties of Kings and Richmond, shall be entitled to receive the same compensation for attending all meetings of town boards in his town as each other member of such board in addition to all compensation, salary and fees to which he is now entitled by law for the performance ol all the other duties of said office.* [Town Law, § 86 ; B. C. & G. Cons. L., p. 6163.] § 4. EXPENDITURES OF STTRPLUS MONEYS BY CERTAIN TOWN OFFICERS. The supervisor, town clerk and justices of the peace, or a majority thereof in any town in this state, may expend any surplus moneys for which no provisions for expenditure is made, belonging to said town, for the purposes 3. Additional compensation cannot be awarded to the town clerk for attending meetings of the boards of assessors, auditors and highway commissioners; nor to the supervisor for attending meetings of the town board; nor to the assessors for making up jury lists in conjunction with the supervisor and town clerk. Wilson v. Bleloch, 125 App. Div. 191, 109 X. Y. Supp. 340. COMPENSATION OF TOWN OFFICERS. 356a Town Law, § 108. of redemption of outstanding bonds or for improvements La said town If not so used, the town board shall apply such surplus in reduction of taxa- tion in the manner provided in section one hundred and thirty-three of this act.* [Town Law, § 90, as amended by L. 1918, ch. 73; B. 0. & G. Cons> L., p. 6164.] § 5. POWERS AND DUTIES OF ASSESSORS IN CERTAIN TOWNS OF NASSAU AND ERIE COUNTIES. The assessors of Nassau county in the towns having a population, as appears by the last federal census, of seventeen thousand or more, may in their discretion employ two clerks at salaries to be fixed by them, subject to the approval of the town clerk and supervisor, also additional clerk hire at a sum not to exceed annually a sum approved by the town clerk and supervisor, and the assessors of Erie county, in the town contiguous to the city of Buffalo, may employ one clerk, to be approved by the town board, at a salary to be fixed by said town board, and the salaries of said clerks shall be paid by the supervisor of the town in equal quarterly payments, and shall be a town charge and shall be levied and collected in the same manner as other town charges. The assessors of Nassau county in the towns having a population, as appears by the last federal census, of seventeen thousand, or more, shall devote all their time during business hours to their official duties. They shall keep their office open for the convenience of the public €very week day of the year, except public holidays and Saturdays, from nine o'clock in the morning till four o'clock in the afternoon, and on Sat- urdays from nine o'clock in the morning until one o'clock in the afternoon, and shall cause one of their number or the clerk of the board to be in at- tendance during said office hours. Between the first day of September in «ach year, and the first day of July in the year next following, the assessors 4. Application. Money received by a town for damages to certain highway and ■water rights is surplus money within the meaning of this section, and may be ex- pended for the improvement of highways. McConnell v. Allen, 193 N. Y. 318, 322, revg. 120 App. Div. 548, 105 N. Y. Supp. 16. Moneys received by a town from the State as refunds of State taxes on railroads for the construction of which the town had issued so-called " railroad aid bonds," the indebtedness of the town incurred for the purpose of encouraging and aiding the construction of the railroad having been entirely paid, belong to the town and constitute a surplus in its funds and may lawfully be used in reduction of taxation by the town board, although there is no express statutory authority there- for. Opinion of State Comptroller (1916), 10 State Dept. Rep. 534. 356b TOWXS, TOWN ilEETES'GS AND TOWN OrFl'CERS. Town Law, §§ 121, 122, 91. shall proceed to ascertain by diligent inquiry the names of all taxable in- habitants in their respective towns and also all the taxable property, real or personal, within the same. [Town Law, § 108, as amended by L. 1914, ch. 157; B. C. & G. Cons. L., p. 6173.] § 6. FENCE VIEWERS. The assessors and town superintendent of highways elected in every town shall, by virtue of their offices, be fence viewers of their town. [Town Law, § 121, as amended by L. 1909, ch. 491.] § 7. PEACE OFFICERS IN TOWNS OF COUNTIES ADJOINING CITIES OF THE FIRST CLASS. The town board of any town within a county adjoining a city of tlie first class may, upon the petition of twenty-five taxpayers of the town, an- nually raise by taxation a sum of money not to exceed one-tenth of one per centum of the assessed valuation of the taxable property of the town for the purpose of defraying the expenses necessary for the preservation of the public peace of the town. The town board of any such town may there- after annually appoint for a term not extending beyond the current official year competent persons who shall be termed peace officers for such town, and who shall have all the powers and be subject to all the duties and lia- bilities of a constable of such town in all criminal actions and proceedings and special proceedings of a criminal nature. The compensation for the services of such peace officers shall be fixed by said town board at a yearly salary and shall be paid by such board in equal monthly payments, and bills for expenses and equipments of such officers shall be audited and paid by said town board monthly. The town board may dispense with the ser- vices of any or all persons who may be appointed hereunder whenever said board shall deem that their services are unnecessary. No person shall be appointed as a peace officer under this section who is not a citizen of the United States or who has ever been convicted of a crime or who cannot understand English, or read and write the English language. [Town Law, § 122, as added by L. 1909, ch. 147.] § 8. DELIVERY OF BOOKS AND PAPERS BY OUTGOING SUPER- VISOR, TOWN CLERK, SUPERINTENDENT OF HIGHWAYS OR OVERSEER OF THE POOR, TO SUCCESSOR. Whenever the term of office of any supervisor, town clerk, superintendent of highways or overseer of the poor shall expire, or when either of such COMPENSATION OF TOWN OFFICERS. 357 Town Law, § 91. ffl&ers shall resign, and another person shall be elected or appointed to the office, the succeeding officer shall, immediately after he shall have entered on the duties of his office, demand of his predecessor all the records, books, and papers under his control belonging to such office. Every person so going out of office, whenever so required, shall deliver upon oath to his successor all the records, books and papers in his possession or under his control belonging to the office held by him, 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 officer 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 possession, 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 prescribed by ]aw.° [Town Law, § 91, as amended by L. 1909, ch. 491; B. C. and G. Cons. L., p. 6164.J 5. For form of oath of town officers and delivery of books, etc., see Form No. 29. Proceedings to compel delivery of books. The following section of the Public Officers' Law prescribes the procedure for compelling the delivery of books by a public officer to his successor. § 80. A public officer may demand from any person in whose possession they may be, a delivery to such officer of the books and papers belonging or apper- taining to such office. If such demand is refused, such officer may make com- plaint thereof to any justice of the Supreme Court of the district, or to the county judge of the county in which the person refusing resides. If such justice or judge be satisfied that such books or papers are withheld, he shall grant an order directing the person refusing to show cause before 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 of 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 proceedings 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 until he delivers such books and papers, or is otherwise discharged according to law. On such commitment,. 358 TOWNS, TOWN MEETINGS AND TOWN OrFICEKS. Town Law, § 125. § &. ADDITIONAI. CLERKS AND ASSISTANTS IN CERTAIN TO'RrNS. The supervisor of eacli town having a population, as appears by the last federal census, of fifteen thousand or more and where the assessed .valuation of real estate is over fifteen million dollars, may in his discre- tion employ a clerk at a salary to be fixed by the town board of such town, except that in the county of Westchester such clerks may be employed in towns where the population, as appears by the last federal census, is ten thousand or more or where the assessed valuation of real estate is over six million dollars. The assessors of each town having a population, as appears by the last federal census, of fifteen thousand or more and where the assessed valuation of real estate is over fifteen million dollars, may also, in their discretion, employ a clerk at a salary to be fixed by the town board of such town. The assessors in each town in Suffolk county may also, in their discretion, employ clerks, for the pur- pose of copying the original assessment roll and making such copy or copies thereof as may be authorized by law, at a salary to be fixed by the town board of such town. The salaries of said clerks shall be paid by the super- visor of said town in equal monthly payments and shall be a town charge and shall be levied and collected in the same manner as other town charges. [Town Law, § 125, as added by L. 1913, ch. 163, amended by L. 1915, ch. 107, L. 1916, ch. 21, and L. 1918, ch. 541.] such justice or judge, if required by the complainant, shall also issue his warrant ■directed to any sheriff or constable, commanding him to search in the day time, the places designated therein, for such books and papers, and to bring them before such justice or judge. If any such books and papers are brought before him by virtue of such warrant, he shall determine whether they appertain to such ofiBce, and if so shall cause them to be delivered to the complainant. In proceedings under § 2471-a of the Code (Public Officers Law, § 80) to compel 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 elec- tion, and that he has duly qualified. Questions as to the validity of the election may not be determined in such a proceeding. Matter of Bradley, 141 N. Y 527 ; Matter of Foley, 8 Misc. 196, 28 N. Y. Supp. 611, aff'd in 86 Hun 621, 33 N. Y. Supp. 1134, aff'd 148 N. Y. 675; Matter of Dudley, 33 App. Div. 465, 53 N. Y. Supp. 742; Matter of Sells, 15 App. Div. 571, 44 N. Y. Supp. 570. Proceedings to compel delivery of books and papers are a.pplicable as against officers de facto, only, to cases where the title of the relator to the office is clear. Matter of Baker, 11 How. Pr. 418. Mandamus will not lie to compel the delivery of books and papers. People t. Martin, 62 Barb. 570, 576. Payment of money. An outgoing commissioner (now superintendent) of high- ways is bound to account to the town authorities and pay over to his successor in office all moneys remaining in his hands as such commissioner. Victory v. Blood, 25 Hun 515. COMPENSATION OF TOWN OFFICERS. 35 g^ Town Law, §§ 127, 142-a. In a town having a population of fifteen thousand or more, accord- ing to the next preceding federal or state census or enumeration, and in which the assessed valuation of real estate is or shall he over fifteen million dollars, the toAvn board may, by resolution, provide from time to time for the appointment of clerks, stenographers or other assistants for one or more town officers, in addition to other subordinates for any such officer provided^for by law, and fix their salaries or compensation. A position so established may be abolished by the town board at any time. The town board may designate a particular officer or officers whom any such clerk, stenographer or assistant is to assist and may direct their transfer from one officer to another. Appointments to any such position shall be made by the town board. The salaries or com- pensation of any such clerk, stenographer or assistant shall be paid by the supervisor of the town in equal monthly payments and shall be a town charge and levied and collected in the same manner as other town charges. [Town Law, § 127, as added by L. 1916, ch. 157.] § 10. TOVrW PHYSICIAN; APPOINTMENT BY TOWN BOAKD IN TOWN IN WHICH NO PHYSICIAN BESIDES. The town board of any town containing a village or hamlet in which there is not a practicing physician residing within its boundaries or within a radius of eight miles thereof, may, at a special meeting called for that purpose, establish the office of town physician and fix the salary of such physician at not more than one thousand dollars per annum, and appoint to the office so created a duly qualified physician upon con- dition that he shall reside in such village or hamlet. The compensation of such tovtTi physician shall be a town charge and the sum necessary to pay the same shall be levied, collected and paid at the time and in the manner that other charges against the town are levied, collected and paid. It shall be the duty of a town physician so appointed to render to all poor persons within the town medical relief and attendance when requested so to do by the superintendent of the poor of the county in which the town is situated, or the supervisor of the town or an overseer of the p'oor of the town. If such town physician is also a local health officer he shall receive in addition the compensation of such officer as provided by law. [Tovra Law, § 14:2-a, added by L. 1916, ch. 413, in effect May 3, 1916.] 358b TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 142, 143. CHAPTEK XXV-A. TRANSACTIONS OF TOWN BUSINESS IN CERTAIN TOWNS ADOPTING PRO- VISIONS OF ARTICLE VI-A OF TOWN LAW. Section 1. Application. 2. Resolution of town board. 3. Fiscal year, departmental estimates. 4. Annual estimate. 5. Public hearing. 6. Annual appropriations. 7. Tax budget. 8. Temporary loans. 9. Contracts and expenditures prohibited. 10. Penalties for violation of preceding section 11. Duties of supervisor. 12. Claims against town. 13. Saving clause. § 1. APPLICATION OF PROVISIONS OF ARTICLE VI>A OF TOWN LAW. This article shall apply to any town having more than five thousand inhabitants in which the assessed valuation of taxable property exceeds five million dollars and which by resolution of the town board, hereafter adopted, shall elect to make its provisions applicable to such town. [Town Law, § 142, as added by L. 1916, ch. 396, in effect May 2, 1916.] § 2. RESOLUTION OF TOWN BOARD. The town board of any such town at a special meeting called for that purpose by any of its members upon at least ten days' written notice of the time and place of holding the meeting and the purpose or object thereof served personally upon the o^her members of the board, may, by an afiirmative vote of two-thirds of all the members of the board, elect to make this article applicable to such town. There shall be filed with the town clerk and incorporated in the minutes of meetings of the to-(vn board a copy of such notic6, with proof of service thereof, upon each member of the board, and a copy of the resolution of the board showing the names of each member of the board present and voting, the number of votes cast for and against the resolution and the names of the members voting for and against it. TOWN BUSINESS IN CERTAIN TOWNS. 3580 Town Law, §§ 144, 145. Upon the adoption of such resolution, the town clerk shall imme- diately make and certify copies of the resolution and of the record of its adoption and file the same as follows: One copy in the office of the county derk of the county in which the town is situated ; one copy with the clerk of the board of supervisors of the county in which the town is situated, which copy shall be reported by said clerk to the board of supervisors and published in its proceedings ; and one copy in the office of the state comptroller. [Town Law, § 143, as added by L. 1916, ch. 396, in effect Miay 2, 1916.] S 3. FISCAI. YEAR; DEPARTMENT AI. ESTIMATES. The fiscal year of each such town shall hereafter commence and end on the days which may be now or hereafter prescribed by law for such town. All officers, boards and commissioners of such town shall annu- ally, at least forty days and not more than sixty days immediately pre- ceding the date of the meeting of the board of supervisors at which taxes are levied in the county in which the town is situated, make and file with the town clerk of the town estimates in writing of the amount of expenditures for the next fiscal year in their respective offices, bureaus and departments, including a statement of their salaries and the salaries of all their subordinates, which estimates the town clerk shall lay before the town board at a meeting called for that purpose by him not less than twenty-five and not more than forty days preceding the date of snch meeting of the board of supervisors in the county. The town clerk shall enter all such estimates in the minutes of the proceedings of the town board. [Tovm Law, § 144, as added by L. 1916, ch. 396, in effect May 2, 1916.] § 4. ANNUAX ESTIMATES. The town board of the town shall, at least ten and not more than forty days prior to the date of the meeting of the board of supervisors at vrhich taxes are levied in the county in which the town is situated, make an itemized statement in writing of the estimated revenues and expenditures of the town for the fiscal year for which estimates were filed with the town clerk, which shall be known as its annual estimate. The estimate of revenues shall contain an estimate of the probable revenues which in the judgment of the town board will be received by the town during the fiscal year, except from general taxes, less the amount required to be deposited to the credit of the sinking fund, i2 358d TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 146. any; a statement of the amount of the sinking fund which in the judg- ment of the town board is available and should be applied to pay the principal of any bonded indebtedness of the town falling due during the said fiscal year; and a statement of all unexpended balances or estimated unexpended balances of the previous or current fiscal year remaining to the credit of the- towii or of any office, board or depart- ment thereof. The estimate of expenditures shall contain an estimate of the several amounts of money which the town board deems necessary to provide for the expenses of conducting the business of the town in each board, department and office thereof, separately stated, and for other purposes contemplated by this chapter and otherwise by law for the said fiscal year; to pay the principal and interest of any bonded or other indebtedness of the town falling due during the said fiscal year; and the amount of any judgment recovered against the town and payable during the said fiscal year. And there shall be included in the first annual estimate compiled after the provisions of this article shall be made applicable to a town, a sum or sums sufficient to pay all accounts, claims and demands against the town audited by the town board or board of town auditors or otherwise payable by the town for the fiscal year in which such resolution is adopted. After said annual estimate shall have been completed, it shall be entered in full upon the minutes of the tovsm board. [Town Law, § 145, as added by L. 1916, ch. 396, in effect May 2, 1916.] § 5. PUBLIC HEARING OF FBOFOSED EXFENDITTJBES. Immediately after the annual estimate has been completed, the town board shall give notice of a public hearing at which any person favoring or objecting to said estimate or any part or item thereof will be heard. Such hearing shall be given upon ten days' notice. The notice shall specify the time and place where the hearing is to be held and the pur- pose thereof and it shall be stated therein that the annual estimate has been compiled by the town board and is on file in the office of the town clerk where any person interested therein may examine the same. Copies of such notice shall be posted in six conspicuous public places in the town, and published twice in not more than four newspapers published, having general oirculati'on within the town, if the town board shall so determine, such posting and first publication to be at least ten days before the date of such public hearing. At the time and place in Buch notice mentioned, the town board shall convene and review the said estimate. At such hearing, taxpayers may be heard in favor or TOWH BUSINESS IN CERTAIN TOWNS. 353© Town Law, § 147. against the estimate as compiled or for pr against any item therein con- tained. After such hearing anid within ten days, the town board shall adopt such estimate as so originally compiled or shall diminish or reject any items therein contained and adopt said estimate as so amended. It shall have the power to diminish or reject any item con- tained in the estimate as originally compiled except those relating to salaries, the indebtedness of the town or the estimated revenues, but it shall not have the power to increase any estimated appropriation for expenditures except the estimate for highways which the board may increase or reduce any of the items contained therein as prescribed by section ninety-one of the highway law. Thereupon, the estimate, as adopted shall be entered in detail in the minutes of the proceedings of the town board. [Town Law, § 146, as added by L. 1916, eh. 396, in effect May 2, 1916.] § 6. ANinrAI. APFBOFRIATIONS. When the town board shall have adopted the annual estimate origin- ally compiled by it or said estimate as amended, after public hearing, the several sums estimated for expenditures therein shiall be and become appropriated in the amounts and for the several departments, offices and purposes therein specified for the said fiscal year. The several sums therein enumerated as estimated revenues and the moneys neces- sary to be raised by tax in addition thereto, to pay the expenses of con- ducting the business of the town and for the purposes contemplated by this chapter and otherwise by law, shall be and become applicable in the amount therein named for the purpose of meeting said appropriations. In case the revenues received by the town exceed the amount of such estimated revenues named in said annual estimate, or in case there remain any unexpended balances of apjiropriations made for the sup- port of the town government or for any other purpose, then such surplus revenues or such unexpended balances, or both, shall, except as other- wise provided by law, remain upon deposit and be included as a part of the estimated revenues for the succeeding year, except that the town board may by a vote of two-thirds of its members at a regular or special meeting regularly convened, determine to apply such surplus revenues or unexpended balances, excepting those of the highway fund, toward and in addition to the funds appropriated as aforesaid and in such manner as in the judgment of two-thirds of the members of the town board may be most beneficial to the town. [Town Law, § 147, as added by L. 1916, ch. 396, in effect May 2, 1916.] 358f TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 148-149-a. § 7. TAX BUDGET. The amount of estimated expenditures contained in the annual estimate adopted by the town board less the amount of estimated revenues applicable to the payment thereof and the amount of all judg- ments payable prior to the tax levy, shall constitute the tax budget. The town clerk shall make and certify in duplicate, a transcript of the minutes of the proceedings of the town board upon the adoption of the estimate, including the estimate in detail, and shall deliver one copy thereof to the supervisor of the town to be by him laid before the board of supervisors for the purpose of levying the annual tax and trans- mitting the other copy thereof to the clerk of the board of supervisors of the county, who shall cause the same to be printed in the proceedings of the board of supervisors. The board of supervisors of the county in which the town is situated shall levy and cause to be raised the amount specified in said annual estimate to be levied by tax, and the amount shall be levied, assessed and raised by tax upon the real and personal property liable to taxation in the town at the time and in the manner provided by law. [Town Law, § 148, as added by L. 1916, du 396, in effect May 2, 1916.] § 8. TEMFORART I.OANS. In the interval, after the adoption of said ami.ual estimate and the commencement of the fiscal year but before the revenues are received, the town board shall have the power to borrow money for any of the purposes for which funds are appropriated within the amounts appro- priated therefor for the fiscal year in anticipation of the receipt of the said taxes and revenues applicable to such purposes. The town board may provide for the issue of certificates of indebtedness or revenue bonds to be signed by the supervisor and countersigned by the town clerk for such purposes. Such certificates or bonds, together with the interest thereon to date of maturity, shall be paid out of the moneys received on account of taxes and revenues applicable to such purposes and shall in no case be made to run for more than sixteen months. [Town Law, § 149, as added by L. 1916, ch. 396, in effect May 2, 1916.] § 9. CONTRACTS AND EXPENDITURES PROHIBITED; PENALTIES. ^o officer, board or department shall during any fiscal year expend or contract to be expended any money or incur any liability or enter into any contract which by its terms involves the expenditure of money for any purpose, unless provisions therefor shall have been made in TOWN BUSINESS IN CERTAIN TOWNS. 3580. Town Law, §§ 149-b, 149-e. the annual estimate or pursuant to section one hundred and forty-seven of this chapter, and in no case in excess of the amounts appropriated in said estimate as adopted by the town board or pursuant to section one hundred and forty-seven aforesaid for such officer, board, depart- ment or purpose for such fiscal year. Any contract, verbal or written, made in violation of this section, shall be null and void as to the town and no money belonging to the town shall be paid thereon, provided, however, that nothing hereia contained shall prevent the making of contracts for special district purposes as may now or hereafter be pro- vided by law for periods exceeding one year, nor be held to prohibit the proper officers of the town from expending such sums or incurring such debts as may be actually necessary to prevent the spread of or to sup- press any contagious or infectious diseases or any epidemic in the town, in addition to the amount appropriated for such purpose. [Town Law, § 149-a, as added by L. 1916, ch. 396, in effect May 2, 1916.] Any officer or member of any board or department of any such town wilfully violating any of the provisions of the preceding section shall be guilty of a misdemeanor. [Town Law, § 149-b, as added by L. 1916, ch. 396, in effect May 2, 1916.] § 10. DUTIES OF SUPERVISOR. The supervisor of any such town shall demand, collect, receive and have the care and custody of, and shall disburse all moneys belonging to or due the town from every source, except as otherwise provided by law. All moneys of the town received by the supervisor shall be deposited by him in such bank, banks or trust companies as shall be designated by the town board for such purpose. The interest on all deposits shall be the property of the town and shall be accounted for and credited to the proper fund. No money shall be drawn from a town depositary except on checks or drafts signed by the supervisor and made payable to the person entitled to receive the same. In addition to the several fund accounts required to be kept, the supervisor shall keep in his records a separate account with every appropriation for which funds are appro- priated or raised by tax, and in every check or draft drawn by him he shall state particularly against which fund it is drawn and the appro- priate amount chargeable therewith. He shall at no time permit any fund or any appropriation account to be overdrawn nor draw upon one fund or appropriation account to pay a claim chargeable to another. 358h TOWNS, TOWN MEETrNTGS AND TOWN OFFICERS. Town Law-,.§ 149-d. No money shall be paid out by him except upon the -warrant, order or draft of the town board, or of the board of town auditors if there be such board in the town, except payments out of the town highway fund, shall be made by the supervisor upon the order of the town superin- tendent of highways, and that the supervisor may pay the principal and interest of funded debts and temporary loans, laAvfuUy issued, without prior audit. The supervisor shall render to the town board at the end of each month a detailed statement of all money received and paid out by him for such month, and file a copy thereof in the office of the town clerk and with the board of town auditors if the town has such a board. [Town Law, § 149-e, as added by L. 1916, oh. 396, in effect May 2, 1916.] § 11. CLAIMS AGAINST TOWN. No claim against the town, except for a fixed salary, for the principal or interest on a bonded or funded debt or other loan or for the regular or stated compensation of officers or employees of the town, shall be paid unless an itemized claim therefor, verified by or on behalf of the claim- ant, in such form as the town board or board of town auditors shall pre- scribe, and approved by the officer whose action gave rise or origin to the claim, shall have been presented to the town board, or board of town auditors if one exists in the town, and shall have been audited and allowed by it except the form of claim for highway purposes shall be prescribed by the state highway commission and paid as provided by sections one hundred and five and one hundred and six of the highway law. If there be a board of town auditors in such town, the town clerk shall be and act as clerk of that board. He shall cause each claim pre- sented to the town board or to the board of town auditors for audit to be numbered consecutively, and the number, date of presentation, name of claimant and a brief statement of the character of each claim to be entered, in a book kept for such purpose, which shall at all times during office hours be so placed as to be convenient for and open to public in- spection. No claim shall be audited or paid by the town board or board of town auditors until five days have elapsed after its presentation to the town clerk, and the town board or board of town auditors shall not be required to audit any claim until thirty days after the expiration of such period of five days. The town board or board of town auditors is authorized in considering a claim to require any person presenting the same for audit to be sworn before it or any member thereof, relative TOWN BUSINESS IN CERTAIN TOWNS. 353^ Town Law, § 149-e. to the justness and accuracy of such claim, and to take evidence and examine the witnesses in reference to the claim, and for that purpose subpoenas for the attendance of witnesses may be issued by said board, except as otherwise provided by law., When a claim has been finally audited by the town board the town clerk or if the audit be made by the board of town auditors the chairman of said board or the town clerk shall endorse thereon or attach thereto a certificate of such audit and the same shall thereupon be filed in and remain a public record in the town clerk's ofiice. The town clerk shall also prepare a warrant, order, draft or certificate of audit to be signed by a majority of the members of the town board or the board of town auditors and to be countersigned by him stating the fact of such audit, the number of the claim, the name of the claimant, the amount allowed and the fund and appropriation account chargeable therewith and such other information as may be deemed necessary or essential, directed to the supervisor of the town, authorizing and directing him to pay to the claimant the amount al- lowed upon his claim. No fund and no appropriation account shall be overdrawn nor shall any warrant be drawn against one fund or appro- priation account to pay a claim chargeable to another fund or appro- priation account. It shall be the duty of the town clerk to keep a separate account with each appropriation for expenditure for which funds are appropriated or raised by tax, in such manner as the town board or board of town auditors and the comptroller of the state of New York may direct and determine. For all his services rendered to or for the town, under or pursuant to- the terms of this chapter, the town clerk shall receive an annual salary to be fixed by the town board of the town in lieu of all other compensa- tion or fees which may now or hereafter be provided by law to be paid by the town for such services. [Town Law, § 149-d, as added by L. 1916, ch. 396, in effect May 2, 1916.] § 13. SAVING CLAUSE. Nothing contained in this article shall be construed to alter or change the method or plan of determining the sum to be levied upon the special water, light, sewer, fire and other special districts, if any, nor the method of certifying such sums for the purpose of causing amounts to be inserted in the annual tax levy. All matter pertaining to the finances of such special districts shall be handled and trans- acted in the manner which may now or hereafter be provided by law.. 358j TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 149-u. The provisions of the state highway law shall be carried out with the same force and eifect irrespective" of anything mentioned in this article. Nothing contained' in this article shall be construed to repeal any statute of the state or lawful resolution of the board of supervisors of the county in which the town is situated, or of the town board, or rule or regulation of the board of health of the town, not inconsistent with the provisions of this article, and the same shall remain in full force and effect, when not inconsistent with the provisions of this article, to be construed and operated in harmony with its provisions. [Town Law, § 149-e, as added by L. 1916, ch. 396, in effect May 2, 1916.] TOWN HOUSES. LOCK-UPS AND TOWN CEMETERIES. 359 Town Law, § 310. CHAPTER XXVI. TOWN HOUSES; LOCK-UPS; TOWN CEMETERIES; POUNDS. Section 1. Town meeting may vote sums of money for town house. 2. Purchase of site for and erection of town house. 3. Erection of lock-ups; town hoard may select temporary lock-up; uss of lock-up. 4. Town hurial grounds; trustees may he elected; powers of trustees. 5. Trustees to lay out grounds; free lots; sale of lots. 6. Burial grounds.; when to helong to town. 7. Burial grounds In district annexed to city, village or another town. 8. Town hoard may purchase soldiers' hurial plot; care of plot a town charge; proceedings to ohtaln removal of soldiers' remains to soldier's plot; expense to he audited hy town hoard. 9. Erection and discontinuance of pounds. 10. Election of pound masters; fees; refusal to serve. § 1. TOWN MEETING MAY VOTE SVMS OF MONEY FOB TOWTT HOUSE. The electors of any town in which there shall not be a town house, at any biennial town meeting, or 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 erec- tion of a building for the joint use of the town and of 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 a sum is not raised by tax in one instalment the town board of 1. Effect of section upon special act. In the case of Barker v. Town of Tloyd, 61 App. Dlv. 92; 69 N. Y. Supp. 1,109, it was held that chapter 360 of the Laws of 1865, which was a special act authorizing the town of Floyd to erect a town hall, and to make provision for the payment of the expense thereof, was -passed to provide for the present necessity and was superseded hy the above section of the Town Law which prescribes a uniform rule upon the subject. The court said: "We think it manifest, therefore, that the Town Law was designed to prescribe a general rule uniform throughout the state with reference 360 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 340. 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 annum 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 consecutively numbered from one to the highest number issued, and the town clerk shall keep a record of the number of each bond, its date, amount, rate of interest, when and where payable, and the purchaser thereof or person to whom they are issued. The board of supervisors of the county may cause the sum so voted or the amount of any bonds issued for such purpose to be collected with the- to expending money for the purchase of sites and the erection of town halls, and that there no longer remains any necessity for the existence of the spioial act of 1805. It is now a well settled rule of statutory construction that a general statute covering the same subject matter and containing new provisions and manifestly designed by the legislature to embrace the entire law upon the subject, operates to- repeal by implication a former general or special statute, even though the two are not repugnant." ErecUuu of building for storing highnay machinery must be brought about under tliis section. Tlie provisions of the Highway Law do not contemplate such an undertaking. Eept. of Atty. Gen. (1912), Vol. 2, p. 448. Form of proposition. The above section of the Town Law permits the voting by the electors of the town of money for the purchase of a site and the building of a town house, and authorizes the voting of money for the erection of a town house alone, where the town expects a suitable site to be donated. The proposi- tion submitted to the electors need not include the location of the contemplated Bite. People ex rel. Cromwell v. Seaman, 59 App. Div. 76; 69 N. Y. Supp. 55. Special town meetings. Special town meetings for the purpose of voting upon a proposition for tne ereciion of a town house must be called in accordance with the provisions of section 46 of the Town Law, wnte, that is upon written application signed by twenty-five taxpayers, addressed to the town clerk. Notice of a special town meeting must be posted ten days prior thereto in the manner prescribed by section 47 of the Town Law, ante. A proposition for the erection of a town hall must be voted upon by ballot and the notice that such a proposition is to be so voted upon at a town meeting must be posted by the town clerk in the manner provided by section 48 of the Town Law, ante. Such section 48 of the Town Law also requires a written application of the taxpayers demand- ing a vote upon the proposition and plainly stating its terms, to be filed with the town clerk at least twenty days before the town meeting at which it is to be voted upon. TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 361 Town Law, §§ 341, 350. other expenses of the town." [Town Law, § 340; B. C. and G. Cons. L.^^ p. 6238.] § 2. PURCHASE OF SITE FOR AND ERECTION OF TO\7N 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 portion of the town-house for town and village purposes respectively.* [Town Law, § 341 ; B. C. and G. Cons. L., p. 6229.] § 3. ERECTION OF LOCK-UPS; TOWN BOARD MAT SELECT TEM- PORARY LOCK-UP; USE OF LOCK-UP. The electors of each town, upon the application of ten freeholders of the town, may, by ballot, at their biennial town meeting, direct the erection of one or more houses of detention, or lock-ups, for the detention of persons committed by the magistrates thereof, and direct such sums to be raised in 2. Issue of bonds. This section contains directions in detail for the borrowing of money and the issue of bonds for the payment of the cost of the erection of a town house. The General Municipal Law, sections 5-12, provide generally for the issue of municipal bonds and will control bonds issued for the erection of town houses unless the provisions thereof are in conflict with the provisions of the above section. Qualifications of electors. An elector shall not be entitled to vote upon a propo- sition submitted for the purposes of section three hundred and forty of this chapter, unless he or his wife is the owner of property in the town assessed to him or her upon the last preceding assessment-roll thereof. [Town Law, § 54, as amended by L. 1913, ch. 124; B. C. & G. Cons. L., p. 6149.] 3. Selection of site. In the case of People ex rel. Cromwell v. Seaman, 59' App. Div. 76; 69 N. Y. Supp. 55, the court said: "Section 191 [341] of the statute pro- vides that: ' 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.' While the law is wholly silent on the express subject of the selection of a, site, the authority here conferred is sufficient to include the choice of a site as a necessary incident to its purchase, just as the adoption of a plan, including the selection of material, design, etc., must be deemed to be embraced within the authority given to build the house." The selection of a site cannot be delegated by the town board to others. Rept. of Atty. Gcnl. (1892), 129. Control of town house. A supervisor has no independent control or jurisdiction over a town hall or town house, but as a member of the town board participates in its exercise of jinrisdiction. Opinion of State Comptroller (1916), 8 State Dcpt. Rep. 571. If a town hall is joint village and town property the jurisdiction of the town board is shared with that of the board of trustees of the village. Opinion of State Comptroller (1916), 8 State Dept. Rep. 571. 362 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 351, 352, 330. their town by tax, for the expense of building, or of maintaining the same as they may deem necessary. [Town Law, § 350; B. C. and G. Cons. L., p. 6230.] In case any town has no house of detention or lock-up, the town board of such town may lease a house of detention or lock-up, located either in said town or in an adjoining town, for a term not exceeding five years at a time. [Town Law, § 351; B. C. and G. Cons. L., p. 6230.] 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 cannot be made, and only until he can be con- veniently removed to such jail. [Town Law, § 352; B. C. and G. Cons. L., p. 6230.] § 4. TOWX BTTRIAI, GROUNDS; TRUSTEES MAT BE ELECTED; PO'WERS OF TRUSTEES. The electors of any town may, at a biennial town meeting, choose three 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 supervisor 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 purpose of enlarging such grounds. Such trustees shall hold office for a term of two years. Such boards of trustees and all boards of trustees heretofore created, pursuant to chapter forty-six of the laws of eighteen hundred and seventy-three," are hereby declared to be corporate 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 improvement of the cemeteries under their charge, or any lot therein. [Town Law, § 330; B. C. and G. Cons. L., p. 6223.] 4. Use of lock-ups. Town lock-ups can only be used for the purpose of tem- porarily keeping and confining persons arrested by peace officers prior to trial or examination. No sentence of a prisoner can be made to the lock-up. As soon as the prisoner is convicted he must be committed and taken immediately to the county jail or other penal institution to which he is sentenced. 5. Laws of 1873, ch. 46. referred to in this section was repealed by the Town Law of 1890, and its provisions were incorporated In the above section and the section following. TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 353 Town Law, §§ 331, 332. S 5. TRUSTEES TO LAY OUT GROUNDS; FREE LOTS; SALE OF LOTS. Such board of trustees shall lay out into burial lots any grounds so con- veyed to them ; and within one year after the conveyance to them shall cause to be recorded in the office of the clerk of the county in which they reside a plot or plots of the ground so laid out by them, which shall clearly indicate the number and location of the several lots, which plots shall be duly cer- tified to, under the hands and seals of the chairman and secretary of the board, and acknowledged before an officer authorized to take proof and ac- knowledgment 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 direction of a majority of the board, under the hands and seals of its chairman and secretary, burial lots, at such terms' 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. All moneys realized from the sale of burial lots shall, upon the receipt thereof, be paid over to the supervisor of the town to be retained by him as a separate fund and paid out only on the order of a majority of such board of trustees. [Town Law, § 331 ; B. C. and G. Cons. L., p. 6224.] § 6. BURIAL GROUNDS; VrHEN TO BELONG TO TOWN. 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 subject in the same manner as other corporate property of towns, to the government and direction of the electors in town meeting. In any town in which trustees of burial grounds have not been chosen as provided in sec- tions three hundred and thirty and three hundred and thirty-one of this chapter, the town board may adopt regulations for the proper care of any such cemetery and burial ground, and regulating the burial of the dead therein. It shall be the duty of the supervisor of any such town to remove the grass and weeds from any such cemetery or burial ground in any such town at least twice in each year, and to erect and maintain suitable fences around such cemetery or burial ground at a cost not to exceed fifty dollars unless authorized by a majority vote of such town. The town board of any town must also provide for the removal of grass and weeds at least twice in each year from any cemetery or burial ground, by whomsoever owned, in such town, where such control is not vested by other provisions of law in the town or in trustees or other corporate body and provide for the preser- 6 Exception. All provisions of sections three hundred and thirty, three hundred and thirty-one and three hundred and thirty-two which are inconsistent 364 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 334. vation, care and fencing of any such cemetery, all at cost not to exceed fifty dollars in any one year, unless authorized by a majority vote of such town, and such duties shall be performed under the supervision of the su- pervisor of the town, or a person whom the town board may designate ; 'pro- vided, however, that such duties shall not be exercised in respect to any pri- vate ground or particular lot or lots therein after the true owner or owners thereof file written objections thereto with the town clerk. The cost and expenses of any oflBcer or person in performing any duties under or pur- suant to the provisions of this section, shall be a town charge and shall be paid in the same manner as other town charges. [Town Law, § 333, as amended by L. 1909, ch. 473, and L. 1917, ch. 229 ; B. C. & G. Cons L., p. 6224.] § 7. B1TRIAI. GROUNDS IN DISTRICT ANNEXED TO CITY, TIIXAGE OR ANOTHER TOWN. Where the whole of any town has been or shall hereafter be annexed to or consolidated with any city, village or other town, after having purchased and maintained a burying ground or grounds as public property of such town but which ground or grounds shall not have been conveyed to trustees as provided in section one of chapter forty-six of the laws of eighteen hun- dred and seventy-three, or section three hundred and thirty of this chapter, but which ground or grounds are or were at the time of such annexation or consolidation under the charge of the town board of said town, as public property thereof, then the rights and powers conferred by section three hundred and thirty of this chapter, on a meeting of the electors of such town to elect three or five persons as trustees of said burying grounds, and on the supervisor of such town to convey the land embraced in such grounds to such trustees, shall devolve upon the mayor or other chief magistrate of the city or village or other town with which such town shall have been or may hereafter be consolidated or annexed; and on the petition of not less than twenty citizens, each of whom shall have been a resident of such town for at least two years previous to such annexation or consolidation, the mayor or other chief magistrate of the city, village or town to which such town shall have been annexed or with which it shall have been con- solidated, shall appoint three or five persons, each of whom shall have been a citizen of such annexed or consolidated town for at least two years pre- vious to such annexation or consolidation, as trustees of such burying ground with the provisions of chapter four hundred and thirty-two of the laws of eighteen hundred and ninety-nine or chapter seventy-six of the laws of eighteen hundred and sixty-nine shall not apply to Greenfield cemetery in Hempstead, Queens county, or to the trustees or management thereof. [Town Law, § 333; formerly L. 1899, ch. 432.] TOWN HOUSES, LOCK-UPS AND TOWN CEMETERIES. 365 Town Law, §§ 335-337. or grounds, and shall cause the lands embraced and included in such bury- ing ground or grounds to be conveyed to such trustees and their successors in ofRce as provided in section three hundred and thirty of this chapter, and such trustees and their successors shall have the same powers and per- form the same duties as trustees elected at a town meeting as provided in sections three hundred and thirty and three hundred and thirty-one of this chapter. [ToWn Law, § 334; B. C. and G. Cons. L., p. 6225.] Term of office of trustees. — The term of office of trustees so appointed shall be fixed by the appointing officer and he shall fill any vacancy that may occur in said board. The trustees shall each furnish a bond satisfactory to the appointing officer for the faithful performance of their duties, and shall render an annual report to the financial officer of the municipality of all receipts and disbursements of money and of all investments of surplus funds to the credit of the burying grounds in their charge. [Town Law, § 335 ; B. C. and G. Cons. L., p. 6326.] § 8. TOAVN BOABD MAY PURCHASE SOLDIERS' BURIAL PLOT; CARE OF PLOT A TOWN CHARGE; PROCEEDINGS TO OB- TAIN REMOVAL OF SOLDIERS' REMAINS TO SOLDIERS' PLOT; EXPENSE TO BE AUDITED BY TO'WN BOABD. The town board in each of the towns of this state may upon the application in writing of any veteran soldiers' association in the town, or upon a petition in writ- ing of five or more veteran soldiers in towns where no veteran soldiers' organization exists, purchase or provide a soldiers' plot in one or more cemeteries where no burial plots are now owned by soldiers' organizations, in which burial plots de- ceased soldiers may be interred, and may also provide for the annual care of soldiers' burial plots in cemeteries, at the rate of not to exceed fifty cents for each soldier's grave in such burial plot or plots and the expense shall be included in the town expenses, assessed, levied and collected in the same manner as other town expenses are levied and collected.7 In the county of Broome, the board of supervisors shall provide for the annual care of soldiers' burial plots, either heretofore or hereafter established, in all cemeteries in such county, at the rate aforesaid, and the expense thereof shall be a county charge audited, assessed, levied and collected in the same manner as are other county charges. [Town Law, § 336, as amended by L. 1914, ■ch. 235; B. C. & G. Cons. L., p. 6226.] Upon a verified petition presented to a judge of a court of record by any soldiers' organization in any town or city in this state by a majority of its officers, or a majority of any memorial committee iri any town or city where there are two or more veteran soldiers' organizations, or in towns or cities where there are no veteran soldiers' organizations, upon the petition of five ■or more veteran soldiers, the judge to whom said verified petition is pre- sented shall make an order to show cause, returnable before him at a time and place within the county in not less than fourteen nor more than twentv days from the date of presentation of said petition, why the remains of any aw, § 133. inspection during the office hours of such town clerk.* [Town Law, § 132 ; E. C. & G. Cons. L., p. 6183.] § 3. MEETING OF TOWN BOARD FOB AUDITING ACCOUNTS; CER- TIFICATES OF REJECTION AND AILOAVANCE; CERTIFI- CATES OF ALLO'WANCE TO BE FILED; ONE TO BE DELIV- ERED TO SUPERVISOR. The meeting of the town board held on the Thursday preceding the an- nual meeting of the board of supervisors, shall be for the purpose of audit- ing accounts and allowing or rejecting all charges, claims and demands against the town..^ No member of the town board or board of town auditors shall present a claim or demand against the town for audit which has been assigned to him by another, or for labor, services or material rendered or furnished by himself, or by another as his servant or agent or under con- 4. Effect of certification. Where a supervisor pays claims unlawfully the subsequent certification of the supervisor's account does not prevent the bring- ing of a taxpayer's action against the claimant for the money received. Annis V. McNulty, 51 Misc. 121, 100 N. Y. Supp. 951. 5. Section to be strictly enforced. This section was passed for the benefit -of taxpayers as well as for the persons having claims against the towns. It is a wise statute and should be strictly enforced. People ex rel. Remington v. Manning, 37 App. Div. 141, 55 N. Y. Supp. 781. Meeting for audit. Unless otherwise especially authorized by law the town board can only audit claims against the town at its annual meeting, held on the Thursday preceding the annual meeting of the board of supervisors. People ex rel. Lowell v. Town of Westford, 53 Barb. 555; aftd., 41 N. Y. 619; see, also. People ex rel. Myers v. Barnes, 114 N. Y. 317; 20 N. B. 609. Power of town board of audit. The power of a board to audit includes the power to hear and to examine an account, and in its broader sense it includes its adjustment by allowance, disallowance or rejection. People ex rel. Myers T. Barnes, 114 N. Y. 317; 20 N. E. 609; People ex rel. Read v. Town Auditors, 85 Hun, 114; 32 N. Y. Supp. 668. The town board is a tribunal created by statute to hear and to allow or reject any claims presented against the town. The examination of the account by the board is the trial, and its allowance or disallowance is the judgment of this tribunal. No claim against a town is obligatory upon or is enforceable against the town until it has been audited or examined and allowed. Its juris- diction over a claim against the town is not only original but it is conclusive until brought under review in another court in the manner prescribed by law. Osterhoudt v. Rigney, 98 N. Y. 234; see, also. People ex rel. Cochrane v. Board of Auditors, 74 Hun, 83; 26 N. Y. Supp. 211. There is no mode of procedure pre- scribed by statute by which a board of town auditors is to take proof or obtain knowledge respecting the validity of any claim presented for audit. It is the habit of such bodies to seek information from any quarter where it is obtain- able, and presumably the practice is legitimate. Its members must acquire knowledge to enable them to act with wisdom in subservience to establish rules. They may act upon their own knowledge acquired by observations. Peo- ple ex rel. Oppenheimer Pub. Co. v. People, 81 Hun, 383; 30* N. Y. Supp. 878; 378 TOWN BOARD. Town Law, § 133. tract with, him, or any claim or demand of any namd or nature wherein he has an interest, direct or indirect, excepting his per diem compensation for attendance upon meetings of the town board of said town and the fees al- lowed to him by law for services rendered in his official capacity; and no claim or demand in which a member has an interest or which is based wholly or partly on the services or material rendered or furnished by such member shall be audited or allowed by said board in favor of any person or corporation. If an account is rejected wholly or partly, the board shall indicate thereon the items or parts thereof disallowed and the reason or reasons for such disallowance. The board shall make, verify and file in the office of the town clerk a list or abstract in duplicate of all accounts, charges, claims or demands presented thereto and audited, allowed or re- jected at any meeting of the year, showing in respect to each account or claim the name of the claimant, the general nature of the service performed, material furnished, or other matter on which the demand was based, the amount claimed and the amount allowed. To the total of claims so allowed, the town board shall (a) add sums necessary to pay the principal and in- terest of loans negotiated pursuant to section one hundred and forty-one of this act, and (b) deduct surplus moneys available for the payment thereof and the total of such claims or loans, if any, paid during the year, thereby determining the amount necessary to be raised by tax. The dupli- cate lists or abstracts, when so completed, shall be certified by the members of the town board, or a majority thereof, and one of the duplicate copies retained on file in the office of the town clerk and the other delivered to the supervisor of the town, to be by him laid before the board of supervisors of the county at their annual meeting." People ex rel. Cochrane v. Town Auditors, 74 Hun, 83; 26 N. Y. Supp. 122. In the case of People ex rel. McMillen v. Vanderpoel, 35 App. Dlv. 73; 54 N. Y. Supp. 436, a claim had been presented to a town board for legal services rendered by an attorney for town assessors and in the audit of the claim it was materially reduced. It was held that a town board need not call witnesses to- determine the value of the services rendered by the attorney, but could acquire the knowledge necessary to audit the bill by consultation with other attorneys familiar with the value of such services, or act upon the knowledge of such value possessed by the individual members of the board. Where the town board has made a valid and complete allowance their au- thority ceases and they are powerless thereafter to disallow the claim. The members of a town board of auditors derive their power solely from the statute, and their act in allowing a claim is quasi-judicial. Central Bank v. Shaw, 121 App. Div. 415, 106 N. Y. Supp. 94. Board may determine legality of the claim. Tenney v. Mautner, 24 Hun, 340. The town board, has no authority to contract for telephone service for use of the Justices of the peace and constables, and a bill therefor should not be audited. Rept. of Atty. Genl., Apr. 20, 1911. So, the superintendent of high- ways should not be allowed compensation for his own team or hired man on the highway. Rept. of Atty. Genl., Apr. 14, 1911. Mileage and expenses incurred while attending meetings of the town board and board of health should not be allowed to a supervisor and justices of the peace. Rept. of Atty. Genl., Apr. 20, 1911. 6. How audit should be made. An arbitrary deduction from the gross amount of a bill for various items of services the compensation for which is regu- lated by statute, without passing upon and disallowing any specific item is not an audit. People ex rel. Thurston v. Town Auditors, 82 N. Y. 80. The board must pass upon each Item of the account, and if it fails to do so a proper audit may be directed by mandamus. People ex rel. Hamm v. Board of Auditors, 43 App. Div. 22; 59 N. Y. Supp. 615. But where the services rendered AUDITING OF TOWN ACCOUNTS. 379 Town Law, § 133. The board of supervisors shall cause to be levied and raised upon the town by an attorney were in a single suit and under one retainer a claim therefor, altliough made out in items, is in fact a single claim, and the town board is not compelled to pass on each item thereof. People ex rel. McMillen v. Vanderpoel, 35 App. Div. 23; 54 N. Y. Supp. 436. Effect of verification. A board of town auditors may disregard the verifica- tion of 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 Wk. Dig. 410. The verification of a claim has no obligatory force and may be dis- regarded. People ex rel. Cochrane v. Town Auditors, 74 Hun, 83; 26 N. Y. Supp. 122. Se-examination. Same town board may re-examine an account once passed upon, and in fact, reject it, or reduce the amount first allowed. It is the final action of the board, which consists in making and signing a certificate, that terminates their right to reconsider and re-examine accounts. People v. Stocking, 50 Barb. 573; People ex rel. Smith v. Town of Delhi, 5 Hun 647. Certificate. When at a regular meeting the town board unanimously passes and signs the resolution allowing a claim of the town clerk for services ren- dered, the resolution is equivalent to the certificate required. And the trans mission of the resolution to the town clerk's oiPce as part of the record of the proceeding of the auditors, open to public inspection, must fie considered as the filing of the certificate. And the making out by the town clerk, as such, of a certificate of the claim and the countersigning by all the town auditors of such certificate and delivery of the same to the supervisor, must be considered as the giving of a duplicate certificate to the supervisor as required by law. Central Bank v. Shaw, 121 App. Div. 415, 106 N. Y. Supp. 94. Effect of certificate of audit. The certificate of town auditors allowing an account, which is regular on its face, is a sufficient authority for the board of supervisors to proceed and cause the amount certified to be levied on the town. If such certificate is in due form, it precludes the supervisors from Inquiring as to the merits of the particular items allowed, and they are bound to act upon it without modification as to its amount. Such a certificate is sufficient, although it does not apear on its face that the board met at the proper time and place, if in point of fact their meeting was regular in those respects. People ex rel. Onderdonk v. Supervisors, 1 Hill, 195; see, also, McCrea v. Chahoon, 54 Hun, 577; 8 N. Y. Supp. 88. When a claim against the town has been audited by the town board and the amount thereof raised by levy and paid to the supervisor, the supervisor cannot refuse payment on the ground that he believes the audit was too large. The audit of the town board is conclusive unless reversed by a competent tribunal. Matter of Mefford, 113 App. Div. 529, 99 N. Y. Supp. 400. Effect of audit upon action against town. Where a town board audits at a reduced amount a claim against the town for services rendered the board of as- sessors by an attorney, and such audit is confirmed by the appellate division upon a writ of certiorari, an action cannot thereafter be brought upon such claim in the supreme court. Barber v. Town of New Scotland, 64 App. Div. 229, 71 N. Y. Supp. 1052 (1901). No claim can be enforced against a town unless it has been audited by board 380 TOWN BOARD. Town Law, § 133. the amount specified in the certificate, in the same manner as they are of auditors. People ex rel. Myers v. Barnes, 114 N. Y. 317 (1889) ; People ex rel. Everett v. Supervisors, 93 N. Y. 397 (1883) ; Goodfriend v. Town of Lyme, 90 App. Div. 344, 86 N. Y. Supp. 422 (1904). No action will lie upon a contract against a town until the claim of the con- tractors has been presented to the town board and action taken thereon by it. Colby V. Town of Day, 75 App. Div. 211, revd. 177 N. Y. 548; see also. Town Law, sec. 11, post, and notes thereunder. Certificate of rejection of claim. The provisions of this section, requiring a ,town board in rejecting a claim to make a certificate to that effect signed by at least a majority of them, and to file the same in the office of the town clerk, is not complied with by making an abstract of claims presented and rejected as required by § 155 of the Town Law. People ex rel. Canton Bridge Co. v. Board of Auditors of Town of Horicon, 89 App. Div. 116, 85 N. Y. Supp. 1093. A certificate stating that an account is wholly rejected must be made and filed as required in this section. The fact that under the words " amount allowed," in the abstract, there is inserted on the line describing the claim the word " disallowed," does not constitute a compliance with the section. People ex rel. Boyce v. Page, 105 App. Div. 212, 94 N. Y. Supp. 660. Auditing rejected claims. A board has no power to readjudge any part of a claim which has been rejected by a prior board upon its merits. Osterhoudt V. Rigney, 98 N. Y. 222; People ex rel. Myers v. Barnes, 114 N. Y. 317, in which cases it was held that if bills had been rejected by a town board upon their merits, such rejection bars a re-audit by a subsequent board. See, also. People ex rel. Peck v. Town Board, 27 App. Div. 476; 50 N. Y. Supp. 533. But a presen- tation of a claim to a board which through inadvertence is so informal or de- fective as to justify its disallowance for that reason, is not a bar to a subse- quent representation of the same claim in proper form. People ex rel. Andrus v. Town Auditors, 33 App. Div. 277; 53 N. Y. Supp. 739. Xffandamus to compel issuance of certificate. Where a town board fails to make a certificate that it has allowed claims in part and rejected them in part, as required by the above section, a writ of mandamus will issue to compel such action by the board. People ex rel. Rlpp v. Town Board, 27 Misc. 469, 59 N. Y. Supp. 248. A person who has presented a claim against a town board which has been al- lowed in part, is entitled to a writ of mandamus commanding the town board to cause duplicate certificates of audit to be made and delivered. People ex rel. Remington v. Manning, 37 App. Div. 141, 55 N. Y. Supp. 781. Compelling audit by mandamus. — Where a claim presented to a board %t town auditors is rejected after an examination, not because of any determination as to the merits thereof, but because the claimant refused to appear before the board, or to offer any other evidence in support of the claim than the statutory affidavit, the action of the town board is tantamount to a refusal to audit the claim, and the claimant is entitled to a writ of mandamus compelling audit. People ex rel. Rhodes v. Mole, 85 App. Div. 33, 82 N. Y. Supp. 747. Where a town 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 perform its duty. Matter of Ryan, 6 Misc. 478, 27 N. Y. Supp. 169. AUDITING OF TOWN ACCOUNTS. 381 Town Law, § 133. directed to levy and raise other town charges.'' Such determination cannot be reviewed by mandamus unless the claim is one existing by virtue of an absolute statutory liability. People ex rel. Read v.. Town Auditors, 85 Hun 114, 32 N. Y. Supp. 668. But see People ex rel. Slater v. Smith, 83 Hun 432, 31 N. Y. Supp. 749. Audit reviewable by certiorari only. The hearing by a board of town audi- tors of a claim against the town, the examination and discussion of the ques- tion involved and the rejection of the claim upon the ground of its illegality, constitute an audit; such an audit is a guasi-juctioial determination of the claim and is reviewable by certiorari only; mandamus will not lie to compel the board to re-examine and allow the claim. People ex rel. McCabe v. Matthies, 179 N. Y. 242, affg. 92 App. Div. 16, 87 N. Y. Supp. 196. Where the board has acted as the statute directs, its determination can only be reviewed by certiorari. People ex rel. Hamm v. Town Auditors, 43 App. Dlv. 22, 59 N. Y. Supp. 615, citing People ex rel. Govers v. New Rochelle, 17 App. Div. 603, 45 N. Y. Supp. 836. A writ of certiorari must be obtained before the abstract of accounts has 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, 26 N. Y. Supp. 122. Certiorari will issue to review action of board in refusing to allow the full amount of a claim. People ex rel. Groton Bridge Co. v. Town Board, 92 Hun 585, 36 N. Y. Supp. 1062. A board of town auditors which audited a claim on a certain day reconsidered such action and reaudited the claim, although a writ of certiorari to review the original audit had been issued prior to the reconsideration. Such a writ does not bring up for review the reaudit of the claim, but the fact that the original audit was reconsidered may be considered by the court on the return of the writ. Matter of Weeks, 106 App. Div. 45, 94 N. Y. Supp. 468. Where a board of town auditors audited and allowed certain claims for work done upon a town highway under the direction of the supervisor of the town, and without authority of the highway commissioner, certiorari will not lie at the instance of the highway commissioner either individually as a taxpayer, or as such olficer, to review such action. His proper remedy as a taxpayer is under § 51 of the General Municipal Law. Such writ should also be dismissed upon the ground that the claims allowed by the town auditors had passed beyond their jurisdiction into that of the board of supervisors, which board was not before the court. People ex rel. Cole v. Cross, 87 App. Div. 56, 83 N. Y. Supp. 1083. Certiorari may be issued after four months, notwithstanding the provisions of § 2125 of the Code, where the action of a town board upon a claim was sought to be reviewed by mandamus, and the determination made was not upon the merits. People ex rel. McCabe v. Snedeker, 106 App. Div. 89, 94 N. Y. Supp. 319, affd. 182 N. Y. 558. The determination of a town board will not be overruled by the court unless error clearly appears. People ex rel. Oppenheimer Pub. Co. v. People, 81 Hun, 383; 30 N. Y. Supp. 878. 7. Concurrent jurisdiction of board of supervisors. Under the Revised Statutes, pt. 1, eh. 12, tit. 2, sec. 4, boards of supervisors were authorized to 383 TOWN BOARD. Town Law, §§ 133a, 177. Immediately after final adjournment of the annual meeting of the town board or board of town auditors the town clerk shall prepare a copy of such list or abstract and attach thereto a certificate subscribed by him to the effect that the same is a true and complete record of accounts, charges, claims and demands presented to the board for audit and of the action of said board thereon, and shall cause to be printed in pamphlet form and kept in his office for general distribution to applicants such reasonable num- ber of copies of said list as the town board shall by resolution prescribe. Such resolution shall also provide for the publication or posting, or both, in the town, in a suitable manner, of public notice of the completion of said printed list and of the place where copies can be obtained. The town clerk shall receive a fee of ten cents per folio for preparing said list. Notwithstanding any general or special provision of law to the contrary, the town board or, if there be a board of town auditors, then the board of town auditors shaU have the authority to audit accounts, claims or de- mands against the town at any regular or special meeting of the board. [Town Law, § 133, as amended by L. 1910, eh. 316, and L. 1918, ch. 73 ; B. C. & G. Cons. L., p. 6184.] Duty of town cleric. When the town board or, if there be a board of town auditors, then that body, shall have audited an account, claim or de- mand against the town, the town clerk shall draw a warrant on the super- visor of the town for the amount allowed. Such warrant shall specify the date when it is payable, the fund chargeable therewith, the appropriation account, if any, to which it' is to be charged and the purpose or object of the expenditure. It shall be executed in the name of the town board or board of town auditors, as the case may be, by the chairman thereof, and counter- signed by the town clerk. [Town Law, § 133a, as added by L. 1918, ch. 73.] § 4. AFPEAI.S FROM TO'WS BOARD TO BOARD OF SUPERVISORS FROM AUDIT OF ACCOUNTS OF JUSTICES OF THE PEACE AND CONSTABLES IN CRIMINAL PROCEEDINGS. If any account of a justice of the peace, or town constable, police justice of a village or village policeman, for fees in criminal proceedings, iff audited audit the accounts of town officers and other persons against their respective towns. This section of the Revised Statutes was repealed by the County Law, and in sec. 12 of that act, sub. 3, boards of supervisors are authorized to audit accounts and charges against the county only. It would seem, therefore, that AUDITING OF TOWN ACCOUNTS. 383 Town Law, § 177. 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 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 ap- peal shall be taken within fifteen days after fiUng the certificate of allow- ance 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 thfe town clerk shall forthwith there- after transmit the account to the board of supervisors 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 as- sessed and collected the same as other tovm charges.^" [Town Law, § 177; as amended by U 1910, ch. 61, B. C. & G. Cons. L., p. 6199.] the power of boards of supervisors to audit town accounts no longer exists. See Tinder former law, MdCrea v. Chahoon, 54 Hun, 577; 8 N. Y. Supp. 88. The only duty which remains for the board of supervisors after the audit of a town account by a town auditing board is to cause to be levied and raised upon the town the amounts specified in the certificates of the town boards. 8. Right to appeal. The right given to appeal from the "action taken by a town board in respect to accounts of justices of the peace or town constables for fees in criminal proceedings does not aflFect the right to compel an audit of an account by mandamus. People ex rel. Fraser v. Broad of Auditors, 71 Hun 461; 24 N. Y. Supp. 974; People ex rel. Misselpaugh v. Town Auditors, 1 How. (N. S.) 234. 9. Notice of appeal to claimant. Where an appeal is taken by taxpayers to the board of supervisors from a determination of a board of town auditors allow- ing a claim filed against the town, notice of such appeal is not required to be given to the claimant; the section is not unconstitutional because it neglects to require such notice. The board of supervisors is not required, upon the appeal, to sum- mon the claimant to appear personally and explain the items of his account. People ex rel. Rice v. Supervisors, 98 App. Div. 390, 90 N. Y. Supp. 318. For form of notice of appeal to board of supervisors, see Form No. 30, post. 10. Audit by the board of supervisors in the first instance is not authorized. Eept. of Atty. Genl. (1894) 361. Waiver of judicial review. Where a town constable after audit by the town board and by the board of supervisors, after appeal to them, accepts payment of the amount allowed, he waives right to a judicial review of the items disallowed; and it makes no difference that a protest was made, whether he took it as payment in full or as part payment, or whether the payment was not accepted until after 384 TOWN BOARD. Town Law, §§ 107, 107a. § 5. ACCOUNTS OF JUSTICES IN CRIMINAL MATTERS, VTHAT 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 complauiant, the offense charged, the action of the justice on such com- plaint, 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 accomit shall also show the final action of the justice in the prem- ises." [Town Law, § 107; B. C. & G. Cons. L., p. 6173.] § 5a. SALARY OF JUSTICES OF THE PEACE IN LIEU OF FEES IN CRIMINAL CASES. The town board of any town containing a population of twenty thou- sand or more according to the last preceding federal census may, in its dis- cretion, by resolution, provide that the justices of the peace in such town shall from the date of the adoption of such resolution receive an annual salary as fixed therein, not exceeding the sum of fifteen hundred dollars, for all services rendered by them in criminal actions or proceedings had before them as such justices of the peace in which a charge would other- wise be made against the town or county. The board of town auditors of any town having a board of town auditors and containing a population of more than eight thousand and less than twenty thousand in a county hav- ing a population of more than one hundred and seventy-five thousand and less than two hundred thousand, according to the last preceding federal census, may, in its discretion, by resolution, provide that the justices of the determination of the board of supervisors. People ex rel. Long v. Board of Supervisors, 120 App. Div. 552, 105 N. Y. Supp. 19. Inclusion of claim in tax-roll. The inclusion by the board of supervisors in the tax-roll of a, town, of the amount of a constable's claim against the town, as audited by the town board, pending an appeal to such board of supervisors by two taxpayers of the town from such audit, pursuant to the above section when suoli claim upon such appeal was rejected by the board of supervisors, does not authorize the payment of the claim by the collector, although the amount thereof is raised by levy. Adams v. Town of Whcatfield, 46 App. Div. 466; 61 N. Y. Supp. 738. 11. For form of justices' accounts against a town in criminal matters, see Form No. 31, post. AUDITING OF TOWN ACCOUNTS. 384a Town Law, § 107b. the peace in such town shall from the date of the adoption of such resolu- tion receive an annual salary as fixed therein, not exceeding the sum of six hundred dollars each, for all services rendered by them in criminal actions or proceedings had before them as such justices of the peace in which a charge would otherwise be made against the town. Such annual salary shall be in lieu of all charges and fees under section seven hundred and forty-a of the code of criminal procedure or any other statute, which would otherwise be chargeable against the town or county for services in criminal actions or proceedings. The amount of such salary shall be a town charge, pay- able monthly by the supervisor of such town out of any moneys in his hands applicable thereto, and receipts therefor shall be presented by the supervisor to the board of town auditors, and shall if found to be correct be audited and allowed at the amount thereof. [Town Law, § 107a, as added by L. 1915, ch. 11, and amended by L. 1917, ch. 418.] Salary of justices of the peace in lieu of fees in criminal cases. 1. The town board of any town in a county having a population of over three hun- dred thousand inhabitants adjoining a city of the first class having a popu- lation of over one million inhabitants, such justice not sitting, may, in its discretion, by resolution provide that any justice of the peace in such town shall, from the date of the adoption of such resolution, receive an annual salary as fixed therein not exceeding the sum or rate of fifty dollars for each one thousand population or major fraction thereof within such town, to be determined according to the last preceding state census, for all services rendered by him in criminal actions or proceedings had before him as such justice of the peace, in which a charge would otherwise be made against the town, or county. Such annual salary shall be in lieu of all charges and fees under section seven hundred and forty-a of the code of criminal pro- cedure or any other statute, which would otherwise be chargeable against the town or county for services in criminal actions or proceedings. The amount of such salary, when so fixed, shall be a town charge payable monthly by the supervisor of such town out of any moneys in his hands applicable thereto and receipts therefor shall be presented by the supervisor to the board of town auditors and shall, if found to be correct, be audited and allowed at the amount thereof, but no annual salary as herein provided shall exceed the sum of twelve hundred dollars. 3. Each such justice of the peace shall keep an account of all criminal business done by him which by law is now made a charge upon the county, and the same shall be audited in like manner as other charges and ordered 384b TOWN BOARD. Town Law, § 171. paid to the supervisor of such town. [Town Law, § 107b, as added by L. 1918, eh. 398.] § 6. FEES OF OFFICERS IN CBIMINAI. PROCEEDINGS, WHEN TOWN OR COUNTY CHARGE. The fees of magistrates and other officers for services in criminal pro- ceedings, for or on account of an offense which a court of special sessions has not jurisdiction to try, shall be a county charge, if the magistrate had jurisdiction of the proceedings in which the services were rendered. The fees of magistrates and other officers in other criminal proceedings, or in crimiual 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 a magistrate or officer in issuing or serving process for an of- fense committed 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 examination 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 offense 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 12. The purpose of the statute is primarily to make the expenses of the criminal cases follow the jurisdiction and locality of the offense. People ex rel. McGrath V. Supervisors, 119 N. Y. 126; 23 N. E. 489. The jurisdiction of courts of special sessions is prescribed by section 56 of the Code of Criminal Procedure, and in- cludes a large part, if not all, of the several offenses classed as misdemeanors. In the trial of all crimes mentioned in such section the fees of the magistrates and other officers are chargeable against the town' where the offense is charged to have been committed. County charges. The fees of magistrates and other officers in proceedings for the examination and commitment of persons charged with a felony or with offenses not specified in such section 56 of the Code of Criminal Procedure are chargeable against the county. In. the case of People ex rel. Post v. Supervisors AUDITING OF TOWN ACCOUNTS. 385 Town Law, § 171. as provided in this section no fees shall he allowed either as a town or county charge to a magistrate or other officer, 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 officer in connection with the arrest, examination, conviction and commitment of a tramp, or of a vagrant un- der subdivisions one, five or six of section eight hundred and eighty- seven of the code of criminal procedure, or of a person charged with a violation of section nineteen hundred and ninety of the penal law, and any other criminal action or proceeding of which a court of special ses- sions has jurisdiction to try, or which a magistrate has jurisdiction to hear and determine, may be fixed by the board of town auditors, if any, and otherwise by the town board of the town, or the board of super- visors of the county, to which the same are chargeable, not exceeding the amount now 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 siieh case. ^^ [Town Law, § 171, as amended by L. 1909, ch. 523, and L. 19l3, ch. Ill ; B. C. and G. Cons. L., p. 6196.] of Ontario, 4 Denio, 260, it was held that fees of magistrates are a charge upon the county: (1) Where the proceedings are not had in the county in which the offense was committed; (2) where the proceedings are for felony; (3) where the proceedings or trial for the offense is had in the County or Supreme Court. In all other cases the expense is a town charge. The expense of transporting prisoners convicted in court of special sessions in a town is a town charge. People ex rel. McGrath v. Supervisors of West- chester, 119 N. Y. 126, 129. Transportation of juvenile delinquents to a house of refuge upon their conviction and sentence by a justice of the peace is a town charge. People ex rel. Andrus v. Town Auditors, 33 App. Div. 277, 53 N. Y. Supp. 739. Sheriff's fees for hoarding prisoners are county charges. Ross v. Supervisors of Cayuga, 38 Hun 20; People ex rel. Van Tassel v. Supervisors of Columbia, 67 N. Y. 330. But the fees of a deputy sheriff acting as a peace officer are a town charge. People ex rel. White v. Clinton, 28 App. Div. 478, 51 N. Y. Supp. 115. Fees of a justice of the peace are a town charge. People ex rel. Fraser v. Bd. of Auditors, 71 Hun 461, 24 N. Y. Supp. 974. 13. Vagrants defined. The subdivisions of section 887 of the Code of Criminal Procedure referred to in the above section are as follows : " The follow- ing persons are vagrants: 1. A person who, not having visible means to main- tain himself, lives without employment; 5. A person wandering abroad and begging, or who goes about from door to door, or places himself in the streets, highways, passages, or other public places, to beg or receive alms; 6. A person wandering abroad and lodging in taverns, groceries, ale houses, watch or station houses, outhouses, market places, sheds, stables, barns or uninhabited buildings, or in the open air, and not giving a good account of himself." The intent of the above provision as to the arrest of vagrants under such sub- divisions of such section is to permit the town board, or board of supervisors of 336 TOWN BOARD. Town Law, § 175. § 7. FORM OF ACCOTJNTS; VERIFICATION BY AFFIDAVIT OF CliAIMANX; 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 affidavit attached thereto, and to be filed with such account, made by the person the county, to fix, in such cases, the fees and mileage of officers for duties per- formed in connection with the arrest of such persons. Tramp defined. By section 887a of the Code of Criminal Procedure a tramp is defined as " any person, not blind, over sixteen years of age, and who has not resided in the county in which he may be at any time for a period of six months prior thereto, who: 1. Not having visible means to maintain himself lives without employment; or, 2, wanders abroad and begs or goes about from door to door, or places himself in the streets, highways, or passages or public places to beg or receive alms; or, 3, wanders abroad and lodges in taverns, groceries, ale houses, watch or station houses, outhouses, market places, sheds, stables, barns or inhabited buildings, or in the open air, and does not give a good account of himself." By Penal Law, § 2370, it is provided that: " Every tramp, upon conviction as such, shall be punished by imprisonment at hard labor in the nearest peniten- tiary for not more than six months, and the expense during such imprisonment shall be paid by the state at the rate of thirty cents per day per capita." It follows, therefore, that where a person is arrested and convicted as a tramp he must be committed to a penitentiary and is there supported at the expense of the state. A person convicted as a vagrant under subs. 1, 5 and 6 of sec. 887 of the Code of Criminal Procedure, if committed to a penitentiary, would be there supported at the expense of the county from which he is sent. In the county of tJlster the fees of officers in the arrest, trial or examination of persons charged with a criminal offense are in every case a charge against the town in which the offense was committed, and the above section of the Town Law, and subs. 6 and 14 of sec. "240 of the County Law do not apply to such county. Sections 172 to 174 of the Town Law control this question in the county of Ulster. Such sections are as follows: § 172. Fees if officers in Ulster County. In the county of Ulster the fees of magistrates and other officers in criminal proceedings, or in criminal actions tried before a magistrate of any town in such county where the offense is charged to have been committed, shall be a charge against such town. The fees of a magistrate or officer in issuing or serving process for an offense com- mitted in a town in such county other than that in which such magistrate resides, and the fees of a magistrate in the trial or examination 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 offense committed in a town in such county other than that in which the magis- trate before whom such person is brought resides, shall, in either case, be a charge against the town in which the such offense was committed. Except as provided in this section no fees shall be allowed to a magistrate or other AUDITING OF TOWiN ACCOUNTS. 337 Town Law, § 175. presenting 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 ad- minister any oath required under this section." Nothing in this section. oflacer for services in a criminal action or proceeding before a magistrate of one town in such county for or on account of an offense charged to have been com- mitted in another town therein. The fees of a magistrate and the fees and mileage of a peace officer in connection with the arrest, examination, convic- tion and commitment of a tramp, or of a vagrant under subdivision 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 in such county to which the same are chargeable, not exceed- ing the amount now allowed by law; and when so fixed, shall supersede as to such town any other provision of law fixing fees or mileage in such case. § 173. Constable's fees in Ulster county. In the county of Ulster, the com- pensation allowed by law to constables and other ofiicers, for executing process on persons charged with a felony, for services and expenses in conveying such persons to the jail in such county, and for other services in relation to criminal proceedings and the support of prisoners in transit, for which no specific com- pensation is prescribed by law, shall be a charge upon the town in such county where the crime was committed. The charges and accounts for services ren- dered by justices of the peace in any town in such county, in the examination of felons, and in other proceedings mentioned in section one hundred and seventy-one shall be a charge upon the town wherein the crime was committed,, and shall be paid in the same manner as other town charges. § 174. Exception. The provisions of section one hundred and seventy-one of this chapter and of subdivisions six and fourteen of section two hundred and forty of the county law, as far as they are inconsistent with the provisions Of the last two sections, shall not apply to the county of Ulster or any of the towns therein. 14. Accounts against county. Section 24 of the County Law, ante, also provides that no account shall be audited by a board of supervisors or by super- intendents of the poor unless it shall be made out in items and verified. For form of accounts of town officers and verification thereof, see Form No^ 32, post. For form of certificate of examination of town officers' accounts, see Form No. 33, post. For form of affidavit to be annexed to account presented to town board for audit, see Form No. 34, post. Defective accounts. The town board may refuse to audit an account unless it is in the form prescribed by statute. See People ex rel. Mason v. Board of Supervisors, 45 Hun, 62. If an account is not in proper form the board would not be justified in absolutely rejecting the claim and thus deprive the claimant of that which might be honestly and fairly due to him. The board should permit the claimant to withdraw his claim and present it in the form and manner prescribed by the statute. As we have already seen a presentation of a claim which, through inadvertence, is so informal or defective as to justify its dis- 388 ■' TOWN BOARD. Town Law, I 170 shall be construed to prevent any board from disallowing any account, in wliole or in part, when so rendered and verified, nor from requiring any other or further evidence of the truth and propriety thereof, as such board may think proper.i* [Town Law, $ 175; B. C. & G. Cons.'L., p. 6198.] § 8. TOWN CHARGES, WHAT ABE. The following shall be deemed town charges: 1. The compensation of town officers for services rendered for their respective towns.16 2. The contingent expenses necessarily incurred for the use and benefit of the town',17 and all moneys necessarily expended by any town officer in executing the duties of his offiee, in cases where no specific compensation for such service is pro- vided by law, and including in any town having a population, as appears by the last federal census of five thousand or more, and where the assessed valuation of real estate in such town is over five million dollars, the actual and necessary ex- penses of such town officers for vehicle hire, traveling expenses, office rent, janitor service, light, heat, telephone, postage, furniture, stationery or supplies, as may be incurred by authority of the town board of such town. allowance for that reason, Is not a bar to a subsequent re-presentation of the same claim in proper form. People ex rel. Andrus v. Town Auditors, 33 App. DlY. 277; 53 N. Y. Supp. 739. Where bills against a town are presented in such a manner that the auditing board is unable to separate the illegal from the legal charges, it is its duty to refuse to audit any of the charges. Matter of Town of Hempstead, 36 App. Div. 321, 337, 55 N. Y. Supp. 345, a£fd. 160 N. Y. 685. Verification. After audit objection cannot be made that items were not verified. People ex rel. Sherman v. Bd. of Sup'rs, 30 How. Pr. 173. 15. See notes to section 133 of the Town Law, ante, relating to the manner of auditing accounts by town board. Subsequent audit of claim rejected for defect. If a claim was disallowed because it was improper or defective in form as where it was neither verified nor itemized as required by this section, or if the claim disallowed was pre- sented without the authority of the claimant, the town board may pass upon It when again presented in proper form by the claimant himself. People ex rel. Brooklyn Cooperage Co. v. King, 116 App. Div. 89, 101 N. Y. Supp. 782. 16. Compensation of town officers generally is prescribed by section 85 of the Town Law, post. Claim for statutory percentages on moneys paid out by a supervisor should be audited. People ex rel. Acheson v. Bullard, 146 App. Div. 282. BiUs of constables for certain services are town charges. Osterhout v. Hy- land, 27 Hun, 167, 172, aftd. 98 N. Y. 222. Compensation of superintendent of highways is a town charge. Kept, of Atty. Genl. (1903) 263. But his expenses in excess of his annual appropriation are not a town charge. Rept. of Atty. Genl. (1902) 258. 17. Contingent expenses. Services performed by a supervisor in advising and directing overseers of the poor and in consulting with highway commissioners and town assessors and in employing counsel in proceedings taken to compel the board of supervisors to correct the town assessment-roll do not come under the head of contingent expense necessarily incurred for the use and benefit of the town. People ex rel. Keeffe v. Town Auditors, 24 App. Div. 579; 49 N. Y. Supp. 525, affd. 156 N. Y. 689; People ex rel. Coon v. Wood, 35 N. Y. St. Rep. 840, 12 N. Y. Supp. 436. The contingent expenses referred to are evidently those which town officers have incurred in the actual performance of their AUDITING OF TOWN ACCOUNTS. 389 Town Law, § 170. 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 purpoae.is 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-i' 7. The costs 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 eases where the officer is required by law to so prosecute or defend, or to do such act, or is instructed to so prosecute or defend, or do such act, by resolution duly adopted by the town board, or at a town meeting duly held-^o All town charges specified in this section shall be presented duties, and which imless paid by the town would result in pecuniary loss to the officers themselves. Contingent expenses are those which the commissioners could not ascertain. Ex- penses which were unknown, which were uncertain, and which might or might not be incurred thereafter. People v. Yonkers, 39 Barb. 266, 272. An amount alleged to be due under an agreement for the support of a pauper child is a town charge, and under the above section the exclusive remedy of the claimant is to present his claim to the town board for audit, and to review their action by certiorari or mandamus. Goodfriend v. Town of Lyme, 90 App. Div. 344, 86 N. y. Supp. 422. Payment of bridge tenders to operate a lift bridge over the Erie canal is not «, town charge. Matter of Town of Ridgeway v. Treman, 72 Misc. 452. Employment of assistants by board of assessors. There is no authority in the law for the employment by the board of town assessors of a clerk or other as- sistant, nor has the town board any power to authorize the employment by the town assessors of a clerk or other assistant. People ex rel. Anderson v. Snedeker (1912), 75 Misc. 194. Traveling expenses of members of town boards. The town board of a town hav- ing a population of more than 5,000 and in which the assessed valuation of real property is more than $5,000,000, may not lawfully adopt a fixed or stated allowance per mile to be paid to members of the town board for the use of their own con- veyances, in lieu of actual expenses incurred in traveling from their residences to the meetings of the town board. Opinion of State Comptroller (1916), 8 State X)ept. Rep. 564. Expenses of a justice of the peace in traveling to and from meetings are not a town charge for " specific compensation " as provided by law. Opinion of State Comptroller (1916), 8 State Dept. Rep. 575. 18. Appropriation of town moneys. Where town moneys have been specifically appropriated for a town purpose by the collectors of the town at a town meeting, the expenses incurred in carrying out such purpose are a town charge. Berlin Iron Bridge Co. v. Wagner, 57 Hun 346; 10 N. Y. Supp. 840. 19 Judgments against supervisor may be audited by town board as a town charge. Hulbert v. Defendorf, 58 Hun 585, 12 N. Y. Supp. 673. And see § 1931 of the Code of Civil Procedm-e, which has been held not to impose an absolute lia- bility against a town for all judgments recovered against a commissioner of high- ways in his official capacity. People ex rel. Myers v. Barnes, 114 N. Y. 317. A town may borrow money and issue bonds for the payment of judgments against it. See Town Law, § 139, post. In order to make a judgment against commissioners of highways a town charge, it must have been recovered upon a liability incurred by them acting within the scope of their authority, and in such case the claim therefor must be presented, passed upon and audited by the board of town auditors. People ex rel. Everett v. Supervisors, 93 N. Y. 397. 20. Expenses of assessors in defending certiorari proceedings, without the 390 TOWN BOARD Town Law, §§ 155, 176. to the town board for audit, and all moneys necessary to defray such charges shall be levied on the taxable property in such town by the board, of supervisors."^ 8, Actual expenses necessarily incurred by the supervisor of a town in the forest preserve, when authorized by resolution of the town board, in connection with lihe distribution of fish and game birds furnished by the conservation department of the state or by the federal government, not exceeding fifty dollars in any one year. [Town Law, § 170 ; subd. 8 repealed by L. 1909, ch. 491 ; section amended by L. 1914, ch. 440 ; new subd. 8 added by L. 1916, ch. 158 ; B. C. and G. Cons, L,, p. 6194.] § 9. TRAVELING FEES FOB SUBPOENAING WITNESSES, WHEN TO BE ALLOW^ED. No traveling fees shall be allowed for traveling to subpoena a witness, beyond the limits of the county in which the subpoena was issued, or of an adjoining county, unless the board auditing the account, shall be satisfied, by proof, that suoh witness could not be subpoenaed without additional travel ; nor shall any traveling fees for subpoenaing witnesses be allowed, except such as the board auditing tbe account, shall be satisfied were indispensably necessary. [Town Law, § 176 ; B. C. & G. Cons. L., p. 6199.] § 10. BOARDS OF AUDIT TO MAKE ABSTRACT OF NAMES OF PER- SONS WHOSE ACCOUNTS HAVE BEEN AUDITED. Boards of town auditors, shall annually make brief abstracts of the names of all persons who have presented to them, accounts to be audited, the direction or resolution of the town board to review a grossly excessive assess- ment, made in bad faith and with malice, are not town charges and cannot be legally audited. A ratification after audit will be ineffectual. The payment of the claim may be enjoined in a taxpayer's action. Rockefeller v. Taylor, 69 App. Div. 176, 74 N. Y. Supp. 812. See also People ex rel. McMillen v. Vander- poel, 35 App. Div. 73, 54 N. Y. Supp. 436. Superintendent of high-ways cannot of his own motion continue an action and recover his expenses from the town. People ex rel. Van Keuren v. Town Auditors, 74 N. Y. 310. Overseers of the poor may employ an attorney and the expense will be a town charge. Rept. of Atty. Genl. (1904) 271. 21. Other town charges. Among other town charges than those in the above section the following may be mentioned: Amounts expended for the support of town poor. See Poor Law, sees. 23-28. Costs and damages awarded in proceedings to lay out, alter and discontinue highways. See Highway Law, sec. 93, ante. Damages for injuries sustained by defects in highways and bridges. See High- way Law, sec. 18, ante. BJxpense incurred in the erection of mile stones and guide boards, in the pur- chase of road machines, stone crushers, and materials used on highways. See Highway Law, sec. 51, ante. Amount expended in the acquisition of gravel for use on the highways. See Highway Law, sec. 68, ante. AUDITING OP TOWN ACCOUNTS. 391 Town X,aw, §§ 150, 151. amounts claimed by each of such persons, and the amounts finally audited by them respectively, and shall deliver such abstracts to the clerk of the board of supervisors, and the clerk shall cause the same to be printed, with the statements required to be printed by him,^^ provided, however, that it shall be a sufficient compliance with the provisions of this section for such board of town auditors to deliver to said clerk of the board of supervisors a copy of the printed list provided for in section one hundred and thirty-three of this chapter. [Town Law, § 155; as amended by L. 1910, eh. 316; B. C. & G. Cons. L., p. 6193.] § 11. WHEN TO'WN AUDITORS ABE TO BE ELECTED; APPLICA- TION THEBEFOB. The electors in each of the towns may, on the application of twenty freeholders residing therein, at any biennial town meeting, determine by ballot whether there shall be elected, at the next succeeding biennial town meeting, held in the town, a board of town auditors, in and for the town independent of the town board in the manner, and under the restrictions hereinafter prescribed.^^ [Town Law, § 150; B. C. & G. Cons. L., p. 6191.J § 12. NUMBEB OF TOWN AUDITOBS; TEBM OF OFFICE. If a majority of the ballots so cast, shall be in favor of electing a board of town auditors there shall be elected at the next succeeding biennial town meeting, and at every biennial town meeting held thereafter, until other- wise determined, three town auditors, who shall form the board of town auditors of the town whose term of office shall be two years. [Town Law, § 151 ; B. C. & G. Cons. L., p. 6192.] The expenses of local boards of health. See Public Health Law, sec. 35, post. The compensation and expenses of town clerks in relation to public schools. See Education Law, p 261. Expenses incurred in the proper observance of memorial or decoration day. Town Law, §§ 136, 137, post. Compensation of fire wardens. Forest, Pish and Game Law, sec. 71. 22. For form of abstract of names of persons who have presented accounts for audit, see Porm No. 35, post. 22. Delivery of the abstract of accounts to the clerk of the board of super- visors is the last act of the board of auditors and terminates their jurisdiction. People ex rel. Cochran v. Town Auditors, 74 Hun 83, 88, 26 N. Y. Supp. 122. 23. Town clerk is not a member of the board of town auditors when such board is separately elected. Rept. of Atty. Genl. (1893) 363; (1895) 285. 393 TOWN BOARD. Town Law, §§ 152, 153. § 13. IF EIiECTORS OF TOVTN VOTE TO ELECT A BOARD OF AUDI- TORS, TOWN BOARD TO MAKE TEMPORARY APPOINT- MENT. 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 deteiTnined, 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 elerk.^* 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 biennial town meeting to be held in the town after their appointment. [Town Law, § 152; B. C. & G. Cons. L., p. 6193.] § 14. TOWN AUDITORS TO AUDIT ACCOUNTS; TOWN AUDITOR TO HOLD NO OTHER TOWN OFFICE. Upon the election or appointment and qualification of any such board of town auditors in any town, the powers of the town board of that 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, and making provision for preparing and publishing or posting lists of all such accounts, charges, claims or demands after the audit or rejection thereof, 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.^' N'o person so elected or appointed shall hold any 24. This provision is directory and the appointment, after the time pre- scribed by law, may not be illegal. Rept. of Atty. Genl. (1895) 167. For form of appointment of board of town auditors by town board, see Form No. 36, post. 25. Power of town auditors to act in conjunction with commissioner (now town superintendent) of highways. Rept. of Atty. Genl. (1903) 400. Board of town auditors may legally meet whenever necessary for the purpose of auditing town accounts. Rept. of Atty. Genl. (1896) 144. Town auditor can hold no other town office. Rept. of Atty. Genl. (1896) 135. Employment of counsel. A town board of auditors has the same power to AUDITING OF TOWN ACCOUNTS. 393 Town Law, §§ 154, 156, 157, ■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, § 153, as amended by L. 1910, oh, 316; B. C. & G. Cons. L., p. 6192.] § IS. MEETINGS AND COMPENSATION OF TOWN AUDITOBS. The board of town auditors, or town board where no regular town board of audit has been chosen, in a town having a population of four thousand and upwards, or in a town which had a population of four thousand prior to the inclusion of a portion of such town within the boundaries of a city, may meet quarterly in each year on the first Mondays of February, May, August and November, for the purpose of auditing, allowing or rejecting all charges, claims and demands against the town. Each town auditor shall be entitled to receive for his services three dollars for each day, not exceeding in the aggregate twelve 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 and except that in towns having a population of eighteen thousand and upwards, in which towns each of such town auditors shall be entitled to receive for his services such compensation as shall be fixed by the town board of such town, and not less than three nor more than five dollars for each day, but not to exceed sixty days in. any one year and except that in towns having a population of forty thousand and upwards, in which towns each of such town auditors shall be entitled to receive for his services not less than three nor more than five dollars for each day, but not to exceed eighty days in any one year, except that in any town in a county adjoining a city of the first class the town board of such town may fix the compensation and number of days of service of the town auditors at not less than three nor more than five dollars per day, but not to exceed one hundred days in any one year; and also except in towns with a population of sixty thousand or more, the town board shall have authority to designate the niimber of days of service of the town auditors of such town, actually and necessarily devoted by him to the service of the town, in the duties of said office.28 [Town Law, § 154, as amended by L. 1910, ch. 34, L. 1912, chs. 72, 258, and L. 1913, ch. 17, L. 1916, ch. 100, and L. 1917, ch. 368 ; B. C. & G. Cons. L., p. 6193.] The supervisor of the town shall appoint some suitable and competent person to fill any vacancy occurring in the board of town auditors until the next biennial town meeting. [Town Law, § 156; B. C. & G. Cons. L., p. 6193.] § 16. TOWN MEETING MAY VOTE TO DISCONTINUE BOARD OF TOW^N AUDITOBS. At any subsequent town meeting, after the expiration of five years from the deter- mination to elect a board of town auditors, the electors of the town may determine by ballot to abolish such board in the same manner as they determine to establish such board; and thereupon such board shall be abolished. [Town Law, § 157; B. C. & G. Cons. L., p. 6193.] § 17. ACTIONS ON BEHALF OF AND AGAINST TOWNS TO BE BROUGHT IN NAME OF TOWN; CONTRACTS IN NAME OF TOWN. Any action or special proceeding for the benefit of a town, upon a con- employ counsel to resist claims against the town as that possessed by the regular town board. Matter of Comesky v. Blackledge, 114 App. Div. 834, 100 N. Y. Supp. 241. Beviev of action of board of town auditors. — After a board of town auditors has judicially passed upon the merits of a claim and has allowed or disallowed it, the claimant's only remedy is by an appeal, in some cases to the board of supervisors, and in others by certiorari to the Appelate Division of this court. The court, at Special Term, has no power to review the action of the board of town auditors in allowing or disallowing a claim. People ex rel. Anderson v. Snedeker (1912), 75 Misc. 194. 26. Section applies only to separate boards of town auditors. Kept, of Atty. Genl. (1895) 244. The board of town auditors is separate and distinct from the town board, and the provision making the compensation of its members three dollars per day has no application to the town board. Kept, of Atty. Genl., Vol. 2, p. 663. 394 TOWN BOARD. Town Law, § 11. tract 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 represented 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.^' [Town Law, § 11 ; B. C. & G. Cons. L., p. 6135.] 27. Effect of section. The above section modified the existing rule as to actions by and against town officers. Under the law as it existed prior to the enactment of this secrtion towns had a very limited corporate power and could only sue and be sued in respect to the exercise of such power. The purpose of the above provision was to place the town as a party plaintiff or defendant in the same relation to actions as town officers had before such act in respect to like actions for causes legitimately arising out of and relating to the per- formance of their official powers or duties. Miller v. Bush, 87 Hun, 507; 34 N. Y. Supp. 286. The section cannot be construed to enlarge or increase the liabilities of towns except to the extent specifically prescribed therein. Robinson v. Town of Fowler, 80 Hun, 101; 30 N. Y. Supp. 25. This section creates no liability on the part of the town where it would not have been liable except for its provisions, but simply provides that where the town is liable proceedings must be taken against it directly. Thus, the fact that a commissioner of highways (now town superintendent) has made a valid contract to purchase a road machine, having sufficient funds in his hands for the purpose, does not make the town liable therefor. Acme Road Machinery Co. V. Town of Bridgewater, 185 N. Y. 1, revg. 104 App. Div. 597', 93 N. Y. Supp. 949. Actions in behalf of town must be brought in the name thereof. Cornell v. Town of Guilford, 1 Den. 510; Palmer v. Ft. Plain & Cooperstown P. R. Co., 11 N. Y. 376, 390. Bodies created by the legislature have an incidental capacity to sue and be sued, independently of any express power. Clarissy v. Met. Fire Department, 7 Abb. N. S. 352. Prior to the act of 1890 the towns had a very limited corporate power. In cases coming within such powers the town could sue and be sued except where the town officers were authorized to sue in their names of office for the benefit of the town. Miller v. Bush, 87 Hun 507, 34 N. Y. Supp. 286. Where there is a liability to the town for moneys, it can only be enforced by an action in the name of the town. Town of Chautauqua v. Gifford, 8 Hun, 152. Trustees of town lands do not possess legal capacity to bring a suit for the cancellation of a lease of lands executed by their predecessors. Tuma v. Piepenbrink 160 App. Div. 225. Actions by and against towns. Where town has no interest In the lands in dispute, action against commissioner of highways cannot be brought in name of the town. Riley v. Brodie, 22 Misc. 374, 50 N. Y. Supp. 347. This section may be construed to authorize n suit against a former supervisor to compel him to account for moneys that came into his hands by virtue of his office. Town of Pelham v. Shinn, 129 App. Div. 20, 113 N. Y. Supp. 98. AUDITING OF TOWN ACCOUNTS. 395 Town Law, § 10. All contracts made by town officers for and in behalf of their towns shall be in the name of the town. When such contracts are otherwise Overseer of the poor of a town cannot sue or Tae sued as such. Rept. of Atty. Genl. (1894) 303. Actions under statute prior to Town Law. See Griggs v. Griggs, 66 Barb. 287, affd. in 56 N. Y. 504; Town of Chautauqua v. Gilford, 8 Hun 152; Hathaway V. Town of Horner, 5 Lans. 267; Town of Lewis v. Marshall, 56 N. Y. 663; Town of Guilford v. Lewis, 58 N. Y. 116, 121; Moray v. Town of Newfane, 8 Barb. 645. Actions would not lie against towns for errors of assessors. Lorillard v. Town of Monroe, 11 N. Y. 392, affg. 12 Barb. 161. Action against town upon contract. Where a town has issued bonds in a certain sum for the construction of a town hall and any part of the fund so created remains unexpended an action may be brought against the town by a subcontractor to compel the payment of his claim for labor performed upon the town hall, where the town board refuses to apply any of such fund to the pay- ment of his claim. If all of the fund so created had been expended the only remedy is a presentation of the claim to the town board for audit, and a subse- quent review of their determination by a certiorari. Bragg v. Town of Victor, 84 App. Div. 83, 82 N. Y. Supp. 212, affd. 158 N. Y. 739. Action upon contract legalized by legislature. An action will not lie against a town upon a contract confessedly illegal, and afterwards legalized by an act of the legislature, made by the town board for the construction of abutments for a bridge. Such an action is purely upon contract notwithstanding such legaliza- tion, and like any other contract against the town must be presented to the town board for audit. Colby v. Town of Day, 75 App. Div. 211, 77 N. Y. Supp. 1022, revd. on question of practice, 177 N. Y. 548. Action for injuries to bridge between towns. Although it is provided by § 73 of the Highway Law, that town superintendents of highways m.ay bring an action in the name of a town against any person or corporation to sustain the rights of the public in and to any highway of the town, the above section of the Town Law requires an action for injuries to a bridge between towns to be brought in the names of the towns, and not in the names of their superin- tendents; and this is so, although by a special act such bridge is placed under the joint control and direction of the town superintendents of the towns. Town of Palatine v. Canajoharie Water Supply Co., 90 App. Div. 548, 86 N. Y. Supp. 412; affd. 184 N. Y. 582. A town has sufficient property in the highways and bridges to maintain an action for injury thereto, and such an action is, under the above section, prop- erly brought in the name of the town. The fact that a supervisor verifies the complaint in such an action affords no presumption that the action was not brought by and is not in the charge of a highway commisioner as any officer who knows the facts is competent to verify the complaint. Town of Ft. Coving- ton V. U. S. & Canada R. R. Co., 8 App. Div. 223; 40 N. Y. Supp. 313; affd., 156 N. Y. 702. See also Bidelman v. State of New York, 110 N. Y. 232. Penalties for use of town to be recovered by supervisor in action brought in name of town. Adee v. Arnow, 91 Hun 329, 36 N. Y. Supp. 1020. Duties of supervisor to lay before town meeting statement of proceedings only apply when action is against town in the name thereof. Hulburt v. 396 TOWN BOARD. Town Law, §§ 12, 138. lawfully made, they shall be deemed the contracts of the town, notwith- standing it is omitted to be stated therein that they are in the name of the town.''* [Town Law, § 10; B. C. & G. Cons. L., p. 6134.J § 18. ACTIONS FOB TRESPASS ON TOWTN LANDS. Whenever an action is brought by a town to recover a penalty 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, § 12 ; B. C. & G., Cons. L., p. 6137.] § 19. TOWN BOARD MAY BORROW MONET FOR HIGHW^AY PUR- POSES WHEN TOWN MEETING HAS VOTED TO RAISE MORE THAN $500; STATEMENT OF INDEBTEDNESS CREATED TO BE RENDERED TO BOARD OF SUPERVISORS. Whenever a town meeting shall vote a special appropriation of money in the sum of five hundred dollars or more, or an appropriation for high- way 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 appropriated upon the faith and credit Defendorf, 58 Hun, 585, 12 N. Y. Supp. 673. See People ex rel. Van Keuren t. Town of Esopus, 74 N. Y. 310. Other provisions relating to actions by and against tonrns and town offi- cers. Actions may be brought against town officers to prevent any illegal official act on their part, or to prevent waste or injury to, or to restore and make good any property, funds or estate of the town, by any person or corporation or by any number of such persons or corporations whose assessment shall jointly equal the sum of $1,000. See General Municipal Law, § 51. As to actions generally by or against town officers, see Code Civ. Proc, sees. 1925-1928. Actions against towns for injuries caused by defective highways and bridges, see Highway Law, sec. 74, post. Actions by towns against persons or corpora- tions injuring highways or bridges, see Highway Law, sec. 73, post. 28. Effect of section. This section has not changed the old rule that a com- missioner of highways (now town superintendent of highways) cannot create any liability upon the part of his town to pay for materials ordered by him for the ordinary repair of town highways. Highway commissioners are charged with the duty of keeping town highways in repair as independent officers, and not as agents of the town, and when they contract for such ordinary repairs no liability is created against the town, and the commissioners themselves as such officers and not the town, should be, sued for the debt. Lyth & Sons v Town of Evans, 33 Misc. 221; 68 N. Y. Supp. 356. 29. A town may sue to enjoin repeated trespasses upon lands owned by it, where previously authorized by resolution of the town board. Town of Hemp- stead V. Lawrence, 138 App. Div. 473, 122 N. Y. Supp. 1073. AUDITING OF TOWN ACCOUNTS. 397 Town Law, § 138a. of the town, and to issue therefor a certificate ©r certificates of indebted- ness, bearing interest and payable at such, date or dates as may be fixed by said board, and the proceeds of such loan shall be placed to the credit of the public officers charged by law with the expenditure of said moneys. A statement of the amount maturing on such certificate 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 tovim charges. [Town Law, § 138 ; B. C. & G. Cons. L., p. GIOO.] § 19-a. POWER OF TOWN BOARD TO BORROW MONEY FOR EX- PENSES IN THE SUPPRESSION OF FOREST FIRES AND FOR OTHER EMERGENCIES. If at the time any services are rendered for the town or expenses incurred in the suppression of forest fires or in connection with the performance of any other duty imposed by sitatute upon the tovTn, and requiring immediate action, there be no town funds available for the payment therefor, or such funds be insufficient therefor, or the applica- tion thereof to such purposes would, in the opinion of the town board, unduly deplete the funds applicable to the payment of other town expenses and charges, the town board may borrow on the faith and credit of the town a sum sufficient to pay such debts or expenses. The amount to be borrowed shall be determined by the town board by a resolution and shall be based either upon the aggregate of claims, charges and demands previously audited at a regular or special meeting, or upon an estimate of the.probable amount needed, to be filed with the town clerk and subscribed by a majority of members of the town board. If the amount to be borrowed does not exceed one thousand dollars, a certificate or certificates of indebtedness shall be issued in the manner prescribed by section one hundred and thirty-eight of this chapter, and the amounts maturing thereon certified to the supervisor from time to time as provided in section one hundred and thirty-eight for the purpose of including the amount thereof maturing in the sums to be raised by taxation at the ensuing tax levy. If the amount to be borrowed equals or exceeds one thousand dollars, the same shall be borrowed upon bonds of the town in the same mianner as provided by law for borrowing money 398 TOWN BOARD. Town Law, §S 141, 136. to pay judgments. Moneys may be provided under this section for more than one lawful purpose by a single issue of such town certificates or bonds, but the proceeds shall be divided into separate funds, each for a separate purpose, and each such purpose shall be set forth in the resolu- tion authorizing the borrowing of such money. [Town Law, § 138-a, as added by L. 1913, ch. 571.] § 19-b. POWER OF TOWN BOARD, IN CERTAIN TOWNS, TO BOR- ROW MONEY FOR THE PURPOSE OF PAYING CHARGES, CliAIMS OR DEMANDS AGAINST THE TOWN. Whenever a town board or board of town auditors of any town, having a population of four thousand and upwards, shall have audited any account, and shall have allowed in whole or in part any charge, claim or demand against such town, and shall have made and filed a certificate to that effect in the office of the town clerk, and such account shall thereby have become a legal obligation and charge against such town, the town board, in anticipation of the taxes for the current fiscal year, shall have power to borrow upon the faith and credit of the town a sum of money sufficient to pay the aggregate amount of the accounts so audited and allowed at any one of the regular meetings held for that purpose, by issuing a temporary certificate or temporary certificates of indebtedness therefor, bearing interest and payable at such date or dates as may be fixed by such town board, but not for a longer period than sixteen months; and the proceeds of such loan shall be placed to the credit of the public officers charged by law with the payment of to-wn claims. [Town Law, § Ml, as added by L. 1912, ch. 258, and amended by L. 1916, ch. 81.J § 20. TOVm BOARDS MAY VOTE MONEY FOR MEMORIAX DAY; EX- PENDITURE. It shall be lawful for the town boards of any town in this state at any regular or special meeting to vote any sum of money not exceeding fifty dollars in any year, or in towns of over five thousand inhabitants accord- ing to the last preceding state enumeration, in which are maintained two or more posts of the Grand Army of the Republic, a sum not ex- ceeding one hundred dollars in any year, for the purpose of defraying the expenses of the proper observance of Memorial or Decoration day, Avhich 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 AUDITING OF TOWN ACCOUNTS. 399. Town Law, §§ 136, 137. manner as the town board of suci 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 supervisors shall pay the expense thereof upon the order or orders of the commander 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 Eepublic 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 propor- tion shall be paid by such supervisor upon the order or orders of the commander and quartermaster of each of such posts. . In ease there is a post in a town adjoining a town in which no post is located, whose membership includes at least three residents of such town, having no post, the post shall appoint a committee of not less than three of its members who are residents of the said adjoining town in which the post is not located, and the supervisor of said town shall pay the expenses of observance of Memorial or Decoration day upon the order or orders of said committee or a majority thereof, which orders shall be his vouchers for such payment. [.To^vn Law, § 136 ; B. C. & G. Cons. L., p. 6189.] § 21. APPROPRIATION BY TOWN BOABD IN LIVINGSTON, ONEIDA, ORI.EANS, 'WAYNE AND GREENE COTJNXZES FOR ROOMS FOR POSTS. It shall be lawful for the town board of any town in the counties of Livingston, Orleans or Greene at any regular or special meeting to vote a sum of money not exceeding one hundred dollars in any year, and for the town board of any town in the counties of Oneida or "Wayne at a regular or special meeting to vote a sum of money not exceeding two hundred dol- lars in any year, for the purpose of assisting in defraying the rental of rooms for the -holding of meetings of any post of the Grand Army of the Eepublic, located in such town. In case there is a post in a town adjoin- ing a town in which no post is located, whose membership includes at least ten residents of such town having no post, it shall be lawful for the town board of such town having no post, at any regular or special meeting, to vote any sum of money, not exceeding fifty dollars in any year, for the purpose of assisting in defraying the rental of rooms in such adjoining town, for the holding of meetings of a post of the Grand Army of the Ee- public. All moneys hereby authorized shall be assessed, levied and col- 399a TOWN BOARD. Town Law, §§ 139, 136a. lected the same aS' other town expenses and shall be paid to the quarter- master of such post by the supervisor, on proof to such supervisor that the post is not receiving under the provisions of this article from a town or towns more than the actual rental of such rooms. [Town Law, § 137, as amended by L. 1911, ch. 465, L. 1914, eh. 156, L. 1915, ch. 413, and L. 1917, ch. 339; B. C. & G. Cons. L., p. 6189.] § 22. TOWN BOARD MAY BOBRO'W MONEY TO FAY JUDGMENTS AGAINST TOWN. Whenever a final judgment recovered against a town exceeds one thou- sand dollars, th« town board of such town may borrow the sum necessary to pay such judgment by the issue of bonds to be signed by the super- visor 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 instalments, the first of which shall be payable not more than five years from their date. They shall bear interest at a rate not exceeding five per centum per annum, and shall be sold for not less than their par value. They shall be sold on sealed proposals or at public auction, upon notice published in a paper printed in the town, if any, and also in such other papers as may be designated by the town board, and posted in at least five public places in the town, at least ten days before the sale, to the person who will take them at the lowest rate of interest. Such bonds shall be consecutively numbered from one to the highest number issued, and the town clerk shall keep a record of the number of each bond, its date, amount, rate of interest, when and where payable, and the purchaser thereof or the person to whom they are issued. [Town Law, § 139; B. C. & G. Cons. L., p. 6190.J § 23. ADDITIONAL APPROPRIATIONS FOR MEMORIAL DAY UPON THE ADOPTION OF A PROPOSITION THEREFOR. Upon the adoption of a proposition therefor, by the qualified electors of the town entitled to vote thereon, as hereinafter provided, the town board of any town may appropriate from town funds a sum not exceed- ing the amount which- it is authorized by the provisions of this section to raise by tax for the purpose of defraying the expenses of the proper ob- servance of Memorial or Decoration day, in addition to any moneys AUDITING OF TOWN ACCOUNTS. 399}, TOWN LAW, § 136a. which such town board is authorized to provide for by section one hun- dred and thirty-six of this chapter. A proposition directing the appro- priation of town moneys for the additional expenses of the proper ob- servance of Memorial or Decoration day, under the provisions of this section may be submitted to the electors of the tovTn qualified to vote thereon at a biennial or special town meeting in the manner provided in this chapter for the submission of propositions for raising or appro- priating money, except that no such proposition shall be submitted un- less at least ten per centum of the qualified voters of the town unite in a written application therefor addressed to the town clerk. Such proposi- tion shall be deemed adopted if it receive the afSrmative vote of a ma- jority of the qualified electors voting thereon. Moneys appropriated for the purposes of this section shall be raised by taxation in the same manner as other town expenses, but shall not exceed in any one year a sum equal to twenty-five hundredths of a mill on each dollar of the assessed valuation of property in the tovsra according to the assessment- roll last preceding the date of submission, of the proposition. A propo- sition adopted as aforesaid shall continue in force until rescinded by a proposition submitted and adopted in like manner, but not more than one such proposition either directing the appropriation or rescinding a former proposition shall be adopted in any one year. Moneys appro- priated under the provisions of this section shall be kept separate and apart from those provided for in section one hundred and thirty-six of this chapter and shall be expended under the direction of the town board. [Tovra. Law, § 136-a, as added by L. 1912, ch. 185, and amended by L. 1915, ch. 412.] 400 TOWN BOARD. Explanatory note. CHAPTER XXIX. LICENSES BY TOWN BOARDS. EXPLANATORY NOTE. Licenses in Towns. A town board as the governing board of a town has mnch the same power in regulating the granting of licenses to peddlers and other persons desiring to transact business in streets and public places as is possessed by common councils in cities and boards of trustees in villages. The Town Law authorizes a town board to prohibit hawking and peddling of goods and produce, either in the streets or by calling from house to house, without a license. There are certain limitations on this power, as in case of selling meats, fish, fruit or farm produce. If a person peddles goods, wares or merchandise produced in any foreign country, other than groceries and provisions, he must not only be licensed as provided by regulation of a town board, but he must also have a license issued by the Secretary of State. It is expressly provided by § 81, post, of the General Municipal Law that a town board shall not regulate or prohibit the hawking and peddl- ing of farm produce. Where a town board has passed an ordinance or regulation requiring a license for peddling or hawking, a person who' refuses to show such a license when demanded by a peace officer for the purpose of inspection, is liable to a penalty of twenty-five dollars, re- coverable by the supervisor. He is also guilty of a misdemeanor. A town board may also regulate the transaction of a transient retail business in any store in the town, for the sale of damaged or bankrupt goods. 'No such business may be conducted without a license to be is- sued upon the payment of a license fee to be fixed by the town board, at not exceedino; fifty dollars and not less than ten dollars a month. LICENSES BY TOWN BOARDS. 401 Town Law, § 210. Town boards are also authorized, in towns of more than 3,000 population outside of villages, to license hacks, shows, concerts and public amusements. Section 1. Town board may prohibit hawking and peddling without a license; not to apply in certain cases. 2. Licenses to be issued by town clerk and endorsed by supervisor; effect of license. 3. Hawking and peddling by soldiers, sailors and marines; license therefor. 4. Peddling and hawking farm produce. 5. Penalty for peddling or hawking without a license; refusal to show license, effect of. 6. Unlawful hawking or peddling, or refusal to produce a license a mis- demeanor. 7. Transacting retail business for sale of bankrupt or damaged goods without a license; town board to fix license fee; supervisor to issue license. 7a. Taxation of transient merchants. 8. Town board may license hacks, venders, shows, concerts and public amusements; rules and regulations therefor; penalty for violation. 9. Regulation of junk business; junk dealers to be licensed by town supervisor. 10. Restrictions or regulations not to discriminate against non-residents. 11. Exhibitions and entertainments on fair grounds to be exempt from license. § 1. TOWN BOARD MAY PROHIBIT HAWKING AND PEDDLING WITHOUT A LICENSE; NOT TO APPLY IN CERTAIN CASES. The town board of any town may, by resolution, prohibit the hawking and peddling of goods or produce in public streets or places, or the vending of the same by calls from house to house, without a license ; but such prohibition shall not apply to the 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, cloth- ing, drugs or articles of food, and all sales are wholly or partly by barter for merchandise, or so as to require a license from an honorably discharged soldier, sailor or marine of the military or naval service of the United 1. Peddling of farm produce. General Municipal Law, sec. 81, post, p. 403, prohibits a town board from regulating by ordinance the hawking and peddling of farm produce. 402 TOWN BOARD. Town Law, § 211. States, who has obtained a license from the county clerk to hawk, peddle, vend or solicit trade, in pursuance of law.^ [Town Law, § 210; B. C. & G. Cons. L., p. 6202.] § 2. I.ICENSES TO BE ISSUED BT TOWN CLERK AND ENDORSED BY SUPERVISOR; EFFECT OF LICENSE. If any such occupation in any town shall be so prohibited, the town board thereof shall establish uniform annual fees for such licenses, and the town clerk shall issue a license, specifying the fee to be paid therefor, to any citizen of the United States, applying therefor, that he deems a suitable person to pursue such calling. Upon the presentation of such license to the supervisor of the town, and the payment to him of the fee specified therein, the supervisor shall endorse upon the license a receipt of such payment and the date thereof. Such license shall take effect from the date of such payment, and shall continue in force for the term specified therein. Such license shall not be issued for a longer term than one year nor for a shorter term than three months. Any applicant that has been refused such license by the town clerk may apply to the town board therefor, and the same may be granted or refused by the board. [Town Law, § 211; B. C. &. G. Cons. L., p. 6202.J § 3. HAWKING AND PEDDLING BT 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 2. Hawking and peddling generally. As to hawking and peddling by soldiers, sailors and marines, see General Business Law, § 31. By article 4 of the General Business Law, a person traveling from place to place within this state for the purpose of selling or exposing for sale ol any goods, wares or merchandise of the growth, product or manufacture of any foreign country, other than family groceries and provisions, must secure a license as a peddler from the secretary of state. The provisions of such article do not affect the application of any ordinance, by-law or regulation adopted by a town board relating lo hawkers and peddlers within the limits of such town. But the provisions of such article are to be complied with in addition to the requirements of any such ordinance, by-law or regulation. See General Business Law, § 35. It follows, therefore, that no person can peddle from house to house in a town goods, wares, or merchandise of the growth or manu- facture of a foreign country without securing a license from the secretary of state, and also complying with the rules and regulations of the town board as to peddling in the town. Liability for false imprisonment. Where information is presented to a jus- tice of the peace, alleging the violation of a resolution or ordinance passed by a town board, jurisdiction is given to the justice; if the person arrested is discharged because the resolution related only to non-residents of the town, the person who presented the information is not liable for false imprisonment. Gilbert v. Satterlee, 101 App. Div. 313, 91 N. Y. Supp. 960. LICENSES BY TOWN BOARDS. 403^ General Business Law, § 32. a veteran of the late rebellion, or of the Spanish-American war, or who shall have served beyond the sea, shall have the right to hawk, peddle, vend and sell by auction. hia own goods, wares or merchandise or solicit trade within this state, by procuring a license for that purpose to be issued as herein provid-ed. On the presentation to the clerk of any county in which any soldier, sailor or marine may reside, of a certificate of honorable discharge from the army or navy of the United States, which discharge shall show that the person presenting it is a veteran of the late rebellion, or of the Spaniah-American war, or that he has served beyond the sea, such county clerk shall issue without cost to such soldier, sailor or marine a license certifying him to be entitled to the benefits of this article.3 A license issued without cost, under the provisions of this section, shall be personal to the licensee, and any assignment or transfer thereof shall be absolutely void. A person assigning or transferring, or attempting to assign or transfer any suoh license contrary to the provisions of this section shall be guilty of a misdemeanor. [General Business Law, § 32, as amended by L. 1915, ch. 175; B. C. & G. Cons. L., p. 1810.] § 4. PEDDLING AND HAWKING FARM FBODtTCE. The governing board of a mimicipal corporation shall not by ordinance or othe?"- wise regulate or prohibit the pursuit or exercise of hawking and peddling farm pro- duce except hay and straw within the limits of any such municipal corporation, if such farm produce is hawked or peddled by the producer thereof, or his servants or employees; nor shall the governing board of any such municipal corporation pass an ordinance requiring such producer of farm produce to secure a license for peddling and hawking such farm produce within the limits of such municipal corporation. 3a Nothing contained herein; shall aflfect any pending action or proceeding to Sale of goods, through orders given to deUverymeii, does not come within the meaning of this provision. Rapt, of Atty. Genl. (1899) 229. 3. Mnnicipal regulations. A license to peddle granted under this article does not relieve the licensee from compliance with municipal regulations as to licenses. City of Buffalo v. Linsmann, 113 App. Div. 584, 98 N. Y. Supp. 737. A veteran who holds a license under this section which entitles him to peddle goods anywhere in the state, must nevertheless observe such municipal ordi- nances as are designed to prevent obstruction of the public streets. Eggleston V. Scheihel, 60 Misc. 250, 112 N. Y. Supp. 114. An ordinance which prohibits any person from selling peanuts or popcorn from a vehicle, unless drawn by a horse or horses. Is unlawful, because it un- reasonably discriminates against those who might engage in such business from vehicles drawn by hand. People v. Gilbert, 68 Misc. 48, 123 N. Y. Supp. 264. Bights under license. Veteran holding a license cannot solicit trade on the Niagara Reservation. Rept. of Atty. Genl. (1899) 291. See also Rept. of Atty. Genl. (1904) 427. An honorably discharged soldier of the United States, who has procured a license from the county clerk pursuant to this section, is not guilty of a mis- demeanor on account of the violation of a municipal ordinance forbidding all persons from occupying or obstructing any portion of any street for the sale of certain specified commodities, in the absence of proof of his having obstructed the street. People v. Gilbert, 68 Misc. 48, 123 N. Y. Supp. 264. 3a. Constitutionality of the provision requiring certain transient retail dealers to obtain licenses from local authorities before doing business, cannot be sus- tained as an exercise of either the police power or of the power of taxation. People ex rel. Moskowltz v. Jenkins, 202 N. Y. 53, revg. 140 App. Div. 786, 125 N. Y. Supp. 817. Hawking and peddling of farm produce by persons who have purchased the same from others, cannot be prohibited by a village. Rept. of Atty. Genl., Apr. 25, 1911. Elarmers peddling milk, which they produce on their own farms, cannot be compelled to take out a license by local boards of health operating under city ordinances. Rept. of Atty. Genl., Aug. 11, 1910. 404 TOWN BOARD. General Municipal Law, § 81; Town Law, §§ 212-214. Teeover penalties imposed for violations of existing ordinances and regula- tions. Nothing in this section shall be construed to permit wagons from which farm produce is sold to stand in front of stores or private residences for a longer time than may be necessary for the sale and delivery of produce purchased by the occupants of such stores or residences; nor to permit the congregating of such wagons upon any street or thoroughfare not set apart by the municipality as a public market for the sale of farm produce. This section shall not apply to cities of the first class. [General Municipal Law, § 81 ; B. C. & G. Cons. L., p. 2135.] § 5. FENAI.TY FOK PEDDI.ING OB HAWKING WITHOUT A I.I- CENSE; KEF1TSAX TO SHOW^ I.ICENSE, 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 presumptive evi- dence that such person is hawking, peddling or vending without a license. An action for a penalty imposed by this section shall not be maintained unless it is brought within sixty days after the commission of the offense charged.* [Town Law, § 212; B. C. & G. Cons. L., p. 6202.] § 6. UirLAWFUl4 HAWKING OB PEDDLING, OB BEFUSAI. TO FBO- DUCE A LICENSE A MISDEMEANOB. Any person who hawks, peddles or vends wtihout a license in any town, as re- quired by this article, or contrary to the terms of his license, or who refuses to produce his license on the demand of a peace officer is guilty of a misdemeanor. [Town Law, § 213; B. C. & G. Cons. L., p. 6203.] Niagara and Orleans counties excepted. Niagara and Orleans counties are hereby excepted from the provisions of the last four sections of this chapter. [Town Law, § 214; B. C. & G. Cons. L., p. 6203.] § 7. TBANSACTING BETAIL, BUSINESS FOB SALE OF BANKBUFT OB DAMAGED GOODS WITHOUT A LICENSE; TOW^N BOABD TO FIX LICENSE FEE; SUPEBVISOB 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 other- ^vise, or by any such like representation or device, without first taking out a license therefor from the mayor of such city, president of such village or the supervisor 4. Penal provision. Bjr section 1610 of the Penal Law it is provided that: "A person who is found trading as a peddler without a license or contrary to the terms of his license, or who refuses to produce his license on demand of any officer or citizen is guilty of a misdemeanor." LICENSES BY TOWN BOARDS. 405 General Municipal Law, § 85a; Town Law, § 215. •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 month and it shall be renewed monthly during the continuance 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 iof city, village or town purposes. Any person as principal or agent conducting a transient retail business as de- scribed in this section, without obtaining a license therefor, shall be guilty of a misdemeanor and upon conviction thereof shall be fined a sum not less than one hundred dollars nor more than two hundred dollars, and in default of the payment thereof shall be imprisoned for a period of not more than sixty days.^a [General Municipal Law, § 85; B. C. & G. Cons. L., p. 2136.] § 7a. TAXATION OF TRANSIENT BIEBCHANTS. The legislative body of a, city, the town board of a town or the board of trustees ■of a village has power to provide that a tax shall be levied upon all persons or cor- porations conducting transient retail business therein, and may provide for the collection of such tax by requiring a permit and bond, cash deposit or other secur- ity before the commencement of business by such persons or corporations. Such iax shall be based upon the gross amount of sales and shall be at the same rate as other property is taxed for the year in such city, town or village. If at the time such tax becomes due and payable, the tax rate for the current year of such city, town or village has not been fixed, the same shall be estimated by the assessors thereof. An ordinance or resolution providing for a tax hereunder may require veri- fied reports to be filed from time to time relating to stock and sales, and may make such further requirements as may be necessary in order to determine the amount of such tax, and to provide for the collection thereof. A transient business is one conducted in a store, hotel, house, building or structure for the sale at retail of goods, wares or merchandise, excepting food products, and which is intended to be conducted for a temporary period of time and not permanently. If the place in which a business is conducted is rented or leased for a period of two months or less, such fact shall be presumptive evidence that the business carried on therein is a transient business. Any person or corporation failing to pay said tax, or failing to obey the provisions of an ordinance or resolution adopted hereunder, shall be guilty of a misdemeanor. [General Municipal Law, § S5a, as added by L. 1917, ch. 199.] § 8. TOWN BOAKB MAY LICENSE HACKS, TENDERS, SHOWS, CONCERTS AND PUBLIC AUTUSEMENTS; RULES AND REGULATIONS THERE- FOR; PENALTY FOR VIOLATION. License fees, how fixed, collected and applied. — The supervisor, jus- tice of the peace and town clerk of any town are hereby authorized and ■empowered to license and regulate all public hacks, vehicles, vendors, shows, concerts, public amusements, merry-go-rounds, carousals, tobog- gan slides, ferris wheels, rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entert ainment of the stage, or any part or parts thereof, or any 4-a. Constitutionality of the provision, requiring certain transient retail de.iiers to obtain licen&es from local authorities before doing business, cannot be sus aiiied as an exercise of either the police power or of the power of taxation, and. hence .^s unconstitutional. People ex rel. Moskowitz v. Jenkins (1911) 202 N. Y, 53, revg. 140 App. Div. 786, 125 N. Y. Supp. 817. 406 TOWN BOARD. Town Law, §§ 216-218. equestrian, circus or dramatic performance, or any performance of jugglers or acrobats in such town outside of an incorporated city or village, and to fix the fee to be paid for the persons so licensed to said oiScers, which money so collected shall be paid over to the supervisors of such town within thirty days after the receipt of the same, and the said supervisor shall, after deducting the necessary expenses for carrying out the provisions of this article place the same in the general town fund. [Town Law, § 215, as amended by L. 1913, ch. 496 ; B. C. and G. Cons. L., p. 6203.] 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 regula- tion of such hacks, vehicles, venders, shows, concerts, public amusements,, merry-go-rounds, carousals, toboggan slides, ferris wheels, rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts thereof, or any equestrian, circus or dramatic performance^ or any performance of jugglers or acrobats. Such rules, regulations and ordinances shall be posted in at least ten public places in such town. [Town Law, § 216; B. C. & G. Cons. L., p. 6203.] Licenses required, and violation of act a misdemeanor. — It shall not be lawful, in any town where the officers mentioned in this article shall have made and established rules, regulations and ordinances as in this article provided for, to conduct, or operate, any public hacks, vehicles or peddling or to maintain, operate, carry on or exhibit any shows, concerts, public amusements, merry-go-rounds, carousals, toboggan slides, ferris wheels, rope dancing, loop-the-loop, public gardens, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts thereof, or any equestrian, circus or dramatic perform- ance, or any performance of jugglers or acrobats, until a license lor conducting, maintaining, carrying on, and exhibiting the same shall have been first had and obtained, signed by the supervisor and town clerk of any such town, and each and every violation of the provisions of this article shall be a misdemeanor. [Town Law, § 217; B. C. & G. Cons. L., p. 6204.] Offenders: where tried. — Subject to the power of removal provided for in part one, chapter one, title six of the code of criminal procedure, courts of special sessions in any such town have, in the first instances, exclusive jurisdiction to hear and determine charges of violating the pro- visions of this article and all violations of any rule, regulation or ordinance established by the officers of any such towns as provided for in this article ; and any person violating the provisions of this article, or any rule, regula- tion or ordinance established by said officers as in this article provided LICENSES BY TOWN BOARDS. 407 Town Law, § 219; General Business Law, §§ 60, 61. for, shall be guilty of a misdemeanor. [Town Law, § 318; B. C. & G. Cons. L., p. 6204.J Injunction by town authorities. — In case any person shall operate or conduct any public hack, vehicle or peddling or shall open, advertise to open, operate, maintain or conduct any show, concert, public entertain- ment, merry-go-round, carousal, toboggan slide, ferris wheel, rope dancing, loop-the-loop, public garden, tragedy, comedy, opera, ballet, play, farce, minstrelsy or dancing, or any other entertainment of the stage, or any part or parts thereof, or any equestrian, circus, or dramatic performance or any performance of jugglers or acrobats in any town without first obtaining a license therefor as provided for by this article or as provided for by the rules, regulations and ordinances adopted by any town as herein provided for, it shall, and may be lawful for the town, in its corporate name, to apply to the supreme court, or any justice thereof, for an injunction to restrain the opening, carrying on, or maintaining thereof, until he shall have complied with the requisites of this article and of the rules, regulations and ordinances adopted by any said town in obtaining such license, which injunction may be allowed upon a complaint to be in the name of the town in the same manner as injunctions are now usually allowed by the practice of said court ; and the said town is not required to give any undertaking on any such application granted or applied for under the provisions of this article. [Town Law, § 219; B. C. & G. Cons. L., p. 6204.] § 9. REGULATION OF JUNK BUSINESS; JUNK DEALERS TO BE LI- CENSED BY TOAVN SUPERVISOR. It shall be unlawful for any person, association, partnership or corpora- tion to engage in the business of buying or selling old metal, which business is herein designated junk business, and which person, association, partnership or corporation is herein designated junk dealer, unless such junk dealer shall have complied with the provisions of this article and obtained a license so to do from the mayor of the city, if the principal place of business of such junk dealer is in a city, or the president of the village if such place of business is in an incorporated village, other- wise from the supervisor of the town in which such place of business is located ; for which license shall be paid such mayor, president or supervisor for the use of such city, village or town, the sum of five dollars, which license shall expire on June thirtieth of each year. [General Business Law, § 60; B. C. & G. Cons. L., p. 1816.] Persons not entitled to license. — No person, association, partnership or corporation shall be entitled to or receive such license who or which. 408 TOWN BOARD. General Business Law, §§ 62-64; General Municipal Law, § 80. and in case of a partnership or association any member of which, has been since January first, nineteen hundred and three, or who or which shall hereafter be convicted of larceny or knowingly receiving stolen property, or of a violation of this act. [Idem, § 61 ; B. C. & G. Cons. L., p. 1816.] Statement required from persons selling certain property. — On purchas- ing any pig or pigs of metal, bronze or brass easting or parts thereof, sprues or gates or parts thereof, copper wire or brass car journals, such Junk dealer shall cause to be subscribed by the person from whom purchased a statement as to when, where and from whom he obtained such property, also his age, residence by city, village or town, and the street and number thereof, if any, and otherwise such description as will reasonably locate the same, his occupation and name of his employer and place of employ- ment or business, which statement the junk dealer shall forthwith file in the office of the chief of police of the city or village in which the purchase was made, if made in a city or incorporated village, and otherwise in the office of the sheriff of the county in which made. [Idem, § 62, as amended by L. 1918, ch. 20; B. C. & G. Cons. L., p. 1816.] Certain property to he kept in certain piles. — Every junk dealer shall on purchasing any of the property described in the last section place and keep each separate purchase in a separate and distinct pile, bundle or package, in the usual place of business of such junk dealer, without re- moving, melting, cutting or destroying any article thereof, for a period of five days immediately succeeding such purchase, on which package, bundle or pile shall be placed and kept by such dealer a tag bearing the name and residence of the seller, with the date, hour and place of purchase, and the weight thereof. [Idem, § 63; B. C. & G. Cons. L., p. 1816.] Penalty. — Each violation of this act, either by the junk dealer, the agent or servant thereof, and each false statement made in or on any statement or tag above mentioned shall be a misdemanor, and the person convicted shall, in addition to other penalties imposed, forfeit his license to do business. Hut nothing herein contained shall apply to cities of the first class. [Idem,' § 64; B. C. & 6. Cons. L., p. 1817.] § 10. KSSTRICTIONS OB REGULATIONS NOT TO DISCRIMINATE AGAINST NONRESIDENTS. Any restriction or regulation imposed by the governing board of a municipal corporation upon the inhabitants of any other municipal cor- poration 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 regu- LICENSES BY TOWN BOARDS. 409 Membership Corporations Law, § 197. lations in reference to traveling circuses, shows and exhibitions, shall be void.= [General Municipal Law, § 80; B. C. & G. Cons. L., p. 2134.J § 11. EXHIBITIOIfS AND ENTERTAimVIENTS ON FAIR GROUNDS TO BE EXEMPT FROM lilCENSE. The provisions of any special or local law or municipal ordinance, requiring the payment of a license fee for exhibitions or entertainments, shall not apply to any exhibition or entertainment held on the grounds of a town or county fair association, if the association derives a pecuniary profit from such exhibition or entertainment by the lease of its grounds for such purpose, or otherwise. [Membership Corporations Law, § 197; B. C. & G. Cons. L., p. 3449. J ' 5. This section is operative except as inconsistent with the preceding sec- tions of this chapter. Sections 210-213 of the Town Law, and General Munici- pal Law, § 85, supersede in a measure the provisions of this section. Xicenses of vendors which discriminate against non-residents are void. Rept. of Atty. Genl. (1894) 189, 200. 410 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. CHAPTER XXX. FIRE PROTECTION; WATER, LIGHT AND SEWER SYSTEMS; SIDE- WALKS. EXPLANATORY NOTE. Fire Companies in Towns. It is sometimes desirable in towns having thickly settled communities which are not incorporated as villages, to provide therein for fire pro- tection. The law authorizes the town board in such cases to organize fire companies. Such companies are permitted to choose their own officers and adopt rules for their government. All vacancies in such companies are filled by the tovsm board, although it would be proper to make such appointments on recommendation of the companies. Where such a company is organized the electors of the district served by such company may vote to purchase necessary fire apparatus. The cost thereof is to be levied upon the taxable property of the district. Water Supply District ; Water- Works. A town board may establish a water supply district outside of any incorporated village in the town. Where such a district is established, the town board may contract with village water commissioners to furnish water for fire, sanitary or other public purpose to such district. Such a contract may also be made with a water works company. The rental to be paid for the use of the water is primarily a charge upon the town, hilt must be levied upon the taxable property in the district. Provision is also made in the Tovm Law for the purchase of existing water works. Town bonds may be issued therefor which are to be paid, principal and interest, by tax levied against the taxable property of the district. It is also provided that a town may construct its own water works system at the cost of a water supply district established bv the town board. FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 41I Explanatory note. Street Lighting Districts. Lighting districts may be established in towns where circumstances warrant it. In such cases the town board may contract for the lighting of streets and public places in such districts, upon such terms and for such periods, not exceeding ten years, as they may deem proper or expedient. iN'o such contract may be made unless petitioned for by a majority of the taxpayers of the district. The expense incurred is assessed and levied on the taxable property in the district. Establishment of Sewer System. A sewer system may be established by a town board in a prescribed district in the town, outside of an incorporated village. The town board acts upon the petition of a majority of the taxpayers representing a majority of the taxable property in the district. The petition must describe the proposed district. The town board upon establishing the system must appoint three taxpayers of the district as sewer com- missioners. These commissioners are to construct the sewer as provided hj law. Section 1. Town board may appoint members of fire companies outside of incor- porated villages; electors of highway district may vote to pin:- chase fire apparatus. 8. Town board may establish water supply districts. 3. Water works corporations must furnish water to town; town board may establish water supply district; expense chargeable upon district. 4. Purchase of water works by town. 5. Establishment of water districts in towns. 5a. Town boards may establish joint water supply districts; petition; map; expenses, how paid; action by joint town boards; contract for water supply; levy of taxes for payment of amount of contract. 6. Town boards may establish street lighting districts and contract for the lighting of streets therein; petition therefor; notice to be pub- lished; amount of contract, how raised. 6a. Lighting contracts in town and village. 7. Town board may establish sewer system; petition. 8. Sidewalk districts established. 9. Contracts for improvements; improvements, how paid for. 10. Control over sidewalks. 11. Proceedings for constructing sidewalks not constructed under the pre- ceding sections. i 1. TOWN BOARD MAY APPOINT MEMBERS OF FIRE COMPANIES OUTSIDE OF INCORPORATED VILLAGES; ELECTORS OF HIGHWAY DISTRICT MAY VOTE TO PURCHASE FIRE AP- PARATUS. The town board of any town may appoint in writing, any number of inhabitants of their town, which they may deem necessary, to be a fire com- pany or companies for the extinguishment of fires in their town. [Town Law, § 310, as amended by L, 1910, ch, 408, and L. 1912, ch. 238 ; B. C. & G. Cons. L., p. 6221.] 412 TOWKS, TOWX MEETINGS AND TOWN OFFICERS. Town Law, §§ 311, 312, 313. Establishment of rules and regulations by fire company. — Each fire com- pany, thus formed, shall choose a captain and clerk thereof, and may es- tablish such by-laws and regulations as may be necessary to enforce the per- formance, by such firemen, of their duty, and may impose such penalties, not exceeding five doUars for each ofEense, as may be necessary for that purpose. Such penalties may be collected by and in the name of the cap- tains, in any court having cognizance thereof, and, when collected, shall be expended by the companies for the repair and preservation of their en- gines and apparatus for the extinguishment of fires. [Town Law, § 311; B. C. & G. Cons L., p. 6221.] Vacancies in fire company. — All vacancies which may, at any time hap- pen in such companies by death, resignation or otherwise, shall, from time to time, be filled by the town board. [Town Law, § 312 ; B. C. & G. Cons. L., p. 6221.] Appropriations for fire company. — The electors of any water district, highway district, town fire district or water supply district, in which any town fire company shall have their headquarters, at a special meeting law- fully called by the town clerk, who is hereby authorized to call such special meeting, may vote, by ballot, a sum of money, not exceeding four thousand dollars, except that in any such district in a town within a county having more than three hundred thousand inhabitants according to the last state census, and adjoining a city of the first class, such sum shall not exceed ten thousand dollars, for the purchase of a fire engine and apparatus for the extinguishment of fires, and for the purchase or lease or other acqui- sition of suitable buildings and groimds for keeping and storing such fire engine and apparatus for the extinguishment of fires, and other property of said water district, highway district or water supply district, and an additional sum for the maintenance and operation of the engines, apparatus and buildings and of said fire company or companies within such district for the ensuing year. And whenever said electors shall so vote said money for the purchase of a fire engine and apparatus for the extinguishment of fires, and for the purchase or lease or other acquisition of suitable build- ings and grounds for keeping and storing such fire engine and apparatus for the extinguishment of fires, and other property of said water district, highway district, town fire district or water supply district, the water com- missioners in water districts and the town boards in highway and water supply districts or town fire districts where no board of town fire commis- sioners has been established, and the boards of town fire commissioners in town fire districts may contract for and purchase for such district a good and sufficient fire engine and apparatus for the extinguishment of fires, and may contract for and purchase or lease or otherwise acquire for such dis- trict suitable buildings and grounds for keeping and storing such fire en- gine and apparatus for the extinguishment of fires, and other property of said district at a price not to exceed the sum so voted therefor, which en- FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 413 Town Law, §§ 313, 313a, 313b, 314. gine and apparatus for the extinguishment of fires, and buildings and grounds, shall be the property of said water district, highway district, town fire district or water supply district, but may be used and eared for by such fire company or companies under the direction and control of the water commissioners in water districts and the town board in highway and water supply districts and in town fire districts where no board of town fire commissioners has been established; all of which boards shall in such cases respectively have such powers and duties as are hereafter in this ar- ticle provided for boards of town fire commissioners. [Town Law, § 313, as amended by L. 1910, ch. 408, L. 1912, ch. 238, L. 1916, ch. 326, and L. 1917, ch. 577; B. C. & G. Cons. L., p. 6221.] In any such district authorized to raise more than four thousand dollars, as in the last section provided, if the amount so voted shall exceed in amount one-fourth of one per centum of the aggregate assessed valuation of the real property within such district, as shown by the last preceding town assessment roU, and request so to do is made of the town board by the governing commission, or board, of such district, it shall be the duty of such town board to raise the amount of money so voted by the issue and sale of bonds. Such bonds shall be signed by the supervisor and attested by the town clerk, and shall be paid in five equal annual installments, the first of which shall become due not more than eighteen months from their date. Such bonds shall bear such rate of interest not exceeding sis per centum per annum, and be in such form as the town board of such town may approve and shall be sold at public sale by the supervisor of such town for not less than their par value. Such bonds shall be consecutively num- bered from one to the highest nimiber 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. Such bonds shall be a charge upon the town and the amount necessary to pay said bonds and the interest thereon as the same becomes due shall be collected from the property within such district. [Town Law, § 313a, as added by L. 1917, ch. 677.] In any town in which bonds are issued as in the last section provided, the town board shall annually transmit a statement of the amount due for the payment of said bonds and interest to the board of supervisors of the county. Such board of supervisors shall levy such sums against the prop- erty liable, and the amount of such taxes shall be extended against such property in a separate column of the annual tax roll of such town. Such taxes when collected shall be paid to the supervisor and by him applied in payment of such bonds and interest. [Town Law, § 313b, as added by L. 1917, ch. 577.] Assessments for expense of maintaining fire company. — The purchase price of said fire engine and apparatus or other apparatus for the extin- guishment of fires, and buildings and grounds, and the expense of main- 414 TOWKS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 314a, 314b. taining said fire engine and apparatus for the extinguishment of fires and other property and apparatus and for maintaining said fire company or companies shall be assessed 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 in the case of a v^ater district, highway district or water supply district the amount thereof shall be put in a separate column upon the tax-roll, and the board of supervisors of the county shall cause tile sum as certified by the town board, to be levied upon the taxable prop- erty of such water district, highway district or water supply district. The funds so collected shall be paid by the collector to the supervisor of the town who shall apply the same to the expenses incurred pursuant to the provisions of this article, by paying the same on the order of the board authorized by the provisions of this article to purchase, direct and control said engines, apparatus, buildings and grounds.^ [Town Law, § 314, as amended by L. 1910, ch. 408, L. 1912, ch. 238, and L. 1916, ch. 226; B. C. & G. Cons. L., p. 6322.] Town fire companies in incorporated cities and villages. — No such fire company, as herein provided, shall be formed in any incorporated city or village unless such incorporated city or village pays a highway tax in or to such highway district, in which case such fire company or companies may be formed to include the whole or any part of such incorporated city or village, with the consent of the board of trustees or other body perform- ing like duties of such city or village. [Town Law, § 314a, added by L. 1912, ch. 238, in effect April 9, 1912.] Incorporated fire companies. — TJpon the written petition of a majority of the resident taxpayers of any water district, highway district or water supply district in which any incorporated fire company shall have its head- quarters, the town board of any town may make a contract with any such incorporated fire company for fire protection to be furnished within such (water district, highway district or water supply district for a sum not to exceed in any one year ten cents upon each one hundred dollars of assessed valuation of taxable property lying within such water district, highway district or water supply district, as appears by the last preceding town as- sessment-roll of said town, and for a period not exceeding five years at any one time. The amount of any contract that may be entered into pursuant to the provisions of this section shall be assessed, levied and collected upon the taxable property in said district in the same manner, at the same time 1. Fire districts. Fire districts outside of incorporated villages are established by- boards of supervisors upon the petition of the taxable inhabitants of a proposed fire district. In districts so established fire commissioners are elected by the electors re- siding therein who have control of all matters pertaining to fire protection includ- ing the organization of fire, hook and ladder, and hose companies. See County Law, sec. 38, ante, p. 74. The above sections contemplate the organization of town fire companies. And it is also provided that the electors of any highway district may appropriate money for the purchase of a fire engine and apparatus. The above section is independent of section 38 of the County Law, and provides for fire protection without the estab- lishment by the board of supervisors of a fire district. FIKE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 414a Town Law, §§ 314c, 315. and by the same oflBcers as the taxes, charges or expenses of said town are now assessed, levied and collected and the same shall be paid oyer by the supervisor to the corporation or incorporated fire company furnishing such fire protection. This section shall apply to a water supply district formed under the provisions of section eighty-one of the transportation corpora- tions law, as well as to water districts, highway districts or water supply districts formed under the provisions of this chapter. No such contract shall be made, however, with any such fire corporation unless it has, in the opinion of the town board, suitable apparatus and appliances for the fur- nishing of such fire protection in said district. [Town Law, § 314b, as added by L. 1913, ch. 392.] Town hoard may contract for fire protection, et cetera. — The town board of a town, upon the written petition of a majority of the resident taxpayers iu territory adjoining a city or incorpftrated village and wholly without such city or village, may establish such territory as a fire district for the purposes of this section, by filing in the office of the town clerk a certificate describing the boundaries thereof. Upon the written petition of a majority of the resident taxpayers of any water district, highway district, water supply district or fire district adjoining a city or an incorporated village, having a fire department or an incorporated fire company therein, the town board of any town may make a contract with any such city or incorporated village for fire protection to be furnished within such water district, high- way district, water supply district or fire district for a sum not to exceed in any one year ten cents upon each one hundred dollars of assessed valu- ation of taxable property lying within such water district, highway district, water supply district or fire district as appears by the last preceding town assessment-roll of said town and for a period not exceeding five years at any one time. The amount of any contract that may be entered into pur- suant to the provisions of this section shall be assessed, levied and collected upon the taxable property in said district in the same manner, at the same time and by the same officers as the 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 city or incorporated village furnishing such fire protection. This section shall apply to a water supply district formed under the provisions of section eighty-one of the transportation corpora- tions law, as well as to water districts, highway districts, water supply dis- tricts or fire districts formed under the provisions of this chapter. No such contract shall be made, however, with any such city or incorporated village unless it has in the opinion of the town board suitable apparatus and appli- ances for the furnishing of such fire protection in said district. [Town Law, § 314e, as added by L. 1917, ch. 364, and amended by L. 1918, ch 69.] Ordinances. — The board of water commissioners in any water dis- trict, established' pursuant to this chapter, and the town board in any highway district, town fire district or water supply district may adopt ordinances, not inconsistent with law, relating to fire protection, the 414b TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 316, 317. prevention and extinguishment of fires and conduct thereat within said district, and to regulate or prevent the discharge of fireworks and fire- arms and to regulate the use of inflammable materials and the storing, sale and transportation of gunpowder and other explosives within said district, and may eniforoe the observance thereof by the imposition of penalties, [Town Law, § 315, as added by L. 1910, ch. 408, and amended by L. 1912, cL 238, and L. 1916, cL 226.J Town fire districts; hoards of town fire commissioners. — The town board of a town may, witE the consent of the proper board or officers of any water supply district, or highway district, or fire district, main- taining fire apparatuses, and the boards of trustees, or other like bodies performing such duties, of all incorporated cities or villages wholly within such town, establish a town fire district, the boundaries of which shall be the same as the boundaries of the town, and transfer to said town fire district all property held by the town for the purpose of extinguishment of fires. The town board of any town where such town fire district is established may, on like consent, by resolution establish a board of town fire commissioners, consisting of three members, and shall appoint the first members of such board for the term of one, two and three years, respectively; and shall thereafter appoint successors to such members for the term of three years, and shall fill vacancies in said board of town fire commissioners. [Town Law, § 316, as added by L. 1916, ch. 226.] Powers and duties of boards of town fire commissioners. — Such board of town fire commissioners shall have the care, custody and control of all property belonging to the town fire district; may, on the conditions prescribed in this article, purchase fire engines, and other apparatus for the extinguishment of fires within the tovra, purchase, lease, otherwise acquire and maintain suitable and necessary buildings and grounds for the keeping and storing thereof; may construct and maintain reservoirs and cisterns and supply them with water for use FIRE; WATER, LIGHT, SEWER SYSTEM; SIDEWALKS. 41 ^g Town Law, § 281. at fires ; shall have the exclusive power to organize a town fire company or companies by appointment in the manner provided in this article for appointment by the town board, and to fill vacancies in such com- pany or companies; may adopt rules for the admission, suspension, removal and discipline of the members and officers of such company or companies; may prescribe their respective powers and duties and fix their compensation; may appoint persons other than members or officers of the company or companies to take charge of and operate the property of the fire district, and may fix their compensation; shall have the control and supervision of such members, officers and em- ployees, may direct their conduct at fires and prescribe methods for extinguishing fires; and may inquire into the cause and origin of fires occurring in the town and may take testimony in relation thereto ; and may expend for the maintenance and operation of the engines, and other apparatus for the extinguishment of fires, and other property and for maintaining said fire company or companies a sum in each year, not exceeding the sum voted for such purposes as prescribed in this article. [Town Law, § 317, as added by L. 1916, ch. 226.J § 2. TOWN BOARD MAT 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, describing the bounds of any such district, in the office 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 waterworks, of a supply of water through hydrants or otherwise, for fire, sanitary or other public purposes, to such districts, and the whole town shall be bound by such contract, but the rental or expense thereof shall annually, in the same manner as other expenses of the town are raised, be assessed, levied upon and collected only from the taxable 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 414rd TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Transportation Corporations Law, § 81. commissioners 'by the supervisor of the town, according to the terms and conditions of any such contract.^ [Town Law, § 281 ; B. C. & G. Cons. L., p. 6215.J f § 3. WATER VrOBKS CORPORATIONS MUST FURNISH AVATER TO TOWN; TOW^N BOARD MAY ESTABLISH W^ATER SUPPLY DISTRICT; EXPENSE CHARGEABLE 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 euch town outside of a city or incorporated village therein, by filing a certificate describing the bounds thereof, in the ofiice 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 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 2. Water districts are also to be established when the town board contracts with a water works corporation for furnishing water for fire, sanitary or other puplic purposes to any portion of the town. See Transportation Corporations Law, sec. 81. And' a water district may also be established by the town board upon the petition of a majority of the owners of taxable real property in a proposed district for the purpose of making contracts for the construction and maintenance of a water system by such district. See Town Law, § 282. The law then provides for the establishment of water districts in three cases: ( 1 ) Where it is desired to contract with the water commissioners of a village for the furnishing of water as in the above section; (2) where it is desired to contract with a water works companj', and (3), where it is desired to construct and oper- ate water works for the furnishing of water to the district and inhabitants thereof by the district itself. FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 415 Town Law, §§ 270, 271. such corporation by the supervisor of the town, according to the terms and conditions of any such contract, JSTo 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, provided, however, that where the population of the water supply district does not exceed one thousand inhabitants such -contract may be made for a period not longer than ten years.^ [Trans- portation Corporations Law, § 81, in part, B. C. & G. Cons, L., p. 6326.] § 4. P1TRCUASE OF WATER WORKS BY TOWN. 7'oion may acquire waterworlcs.—Any town in this state which has a contract with a water-works company for supplying such town, or any portion thereof, with water, may acquire the worlts, franchises and property of such water- works company, in the manner specified in sections two hundred and seventy- one to two hundred and eighty of this article. [Town Law, § 270; B. C. & G. Cons. L., p. 6212.] Petition of taxpayers, submission of proposition. — Upoii the written petition of not less than one-tenth in number of the taxpayers of such town, who shall _ be assessed for at least one-tenth of the total amount of the property assessed in said town, the supervisor of the town shall ascer- tain the price which the water-works company will accept for its works, franchises and property, and shall submit to the lawful voters of such town 3. Establishment of water snpply district. The territory supplied with water under a contract with a water company should correspond in area with the terri- tory designated as the water supply district. A district cannot be established as including the whole town and a contract be made by the town for the supply of water to two villages occupying a very small portion of the territory of the town. Such a contract is invalid, and does not bind the town, although the company sup- plies water to the village in pursuance of its terms. People ex rel. Tupper Lake Water Co. v. Sisson, 75 App. Div. 138, 77 N. Y. Supp. 376 (1902), affirmed 173 :N'. Y. 606. Reasonable rules and regulations may be made by a water company in order that it may fulfill its obligations. Pond v. New Roehelle Water Co., 143 App. Div. 69, 127 N. Y. Supp. 582. There is not necessarily an unjust discrimination because different rates are charged to diflFerent consumers if the circumstances under which the water is fur- nished differ and the price charged in each case is reasonable. People v. Albion Water Works Co., 140 App. Div. 646, 125 N. Y. Supp. 589. Contract with town for water supply; liability of company to taxpayer for failure to supply. — Where a water-works company contracts with a town to furnish water for fire protection to the inhabitants thereof, a taxpayer, whose buildings are destroyed by fire because of the failure of the company to keep its hydrants in good working order, and to h&ve a sufiicient head or force of water for the extinguish- ment of fires, cannot sue the company to recover the value of the buildings destroyed. The contract between the town and the water-works company was not made for his benefit. Smith v. Great South Bay Water Co., 82 App. Div. 427, 81 N. Y. Supp. 812 (1903). Contracts made by a town board with reference to a water system constructed Tinder the provisions of the Town Law, are the contracts of the town and the town, alone is liable under them. People ex rel. Farley v. Winkler, 203 N. Y. 445. ^16 TOWNS, TOWN MEETINGS AND TOWTST OFFICERS. Town Law, §§ 272, 273, 274, 275. at the next town meeting the question whether such works, franchises and property shall be purchased at the price specified as aforesaid. [Town Law, § 271 ; B. C. & G. Cons. L., p. 6213.] Notice of submission of question. Notice that such question will be so- submitted to the voters of the town shall be given by publishing the same once a week, for at least four weeks, 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 thirty days prior to the day for voting; and the clerk of such town shall see that such notice is so published and posted. [Town Law, § 272; B. C. & G. Cons. L., p. 6213.] If vote is favorable supervisor to contract for purchase of worhs. — At such election each qualified voter shall be given an opportunity to vote either for or against such proposed purchase. If a majority of the votes cast on the question shall be for making the proposed purchase, the super- visor 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 enter into such contracts and to bind their respective towns thereby. And such companies are authorized and empowered to make such contracts and to do whatever is necessary to fulfill them. [Town Law, § 273 ; B. C. & G. Cons. L., p. 6213.] Company to furnish statement of debts, etc. — At the time of the 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, obligations and responsibilities of every sort, and such statement shall be verified by the president or treasurer of said company. 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 purchase 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. [Town Law, § 274; B. C. & G. Cons. L., p. 6213.] Town board to raise money for purchase of worhs. — As soon as the amount of the company's liabilities has been thus ascertained and deducted and the net amount remaining to be paid for said company's works, property and franchise has been thus determined, the town board of the town shall proceed to raise the money and carry out in behalf of the tovm the contract so made. [Town Law, § 275 ; B. C. & G. Cons. L., p. 6213.] Issuance of bonds for purchase money. — Such town board shall make and issue bonds for the town for the entire amount of the purchase price FIRE; WATER, LIGHT, SEWER SYSTEMS; dIDBWALKS. 417 Town Law, §§ 276, 277, 278, 279. of the property, works and franchises to be purchased as agreed on and voted for as aforesaid. Such bonds shall run for not more than thirty years and shall bear interest at a rate not exceeding five per centum per annum, and shall be a valid and binding obligation upon the town in behalf of which they shall be issued. They may contain such provisions as to 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. [Town Law, § 276 ; B. C. & G. Cons. L., p. 6214.] Sale of bonds; proceeds of sale. — Said town board shall proceed 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-works 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 section two hundred and seventy-four, upon receiving an assignment or transfer of all the works, property and fran- chises 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. [Town Law, § 277 ; B. C. & G. Cons. L., p. 6214.] Stockholders' consent to sale of works. — Before naming the price for the property, franchises and works of any company under this article, as con- templated in section two hundred and seventy-one, the officers thereof must obtain authority so to do from a majority in number and amount of the stockholders; such consent shall be given in writing and duly signed and acknowledged by the stockholders. [Town Law, § 278; B. C. & G. Cons. L., p. 6214.] Upon sale, debts, etc., are a charge upon town. — •"Upon making such trans- fer and conveyance to the town the debts, liabilities and obligations of said company, which have been included in the statement referred to in sec- tion two hundred and seventy-four of this article, 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 account of such debts, liabilities or obligations, it may enforce the same against the town. [Town Law, § 279 ; B. C. & G. Cons. L., p. 6214.] Works to be managed by town board. — The works, franchises and property thus purchased, shall be managed and controlled for and in behalf of such town by the town board which purchased the same and their respective successors in ofBce. [Town Law, § 280; B. C. & G. Cons. L., p. 6214.] 418 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 282, 283, 284. § 5. ESTABLISHMENT OF WATEK DISTRICTS IN TOWNS. Town board may establish water district; petition. — The town board on the petition of a majority of the owners of taxable real property in a proposed district, as appears by the last preceding completed assessment- roll, may establish a water district outside any incorporated village or city and wholly within such town. The petition must describe the proposed district and state the maximum amount proposed to be expended in the construction of such water system. The petition must be signed by the petitioners and acknowledged in the same manner as a deed to be recorded. [Town Law, § 282 ; B. C. & G. Cons. L., p. 6215.] Map and plans. — There shall be annexed to the petition above provided a map and plan showing the sources of water supply and a description of the lands, streams, water or water rights to be acquired therefor, and the mode of constructing the proposed waterworks and the location thereof, including reservoirs, mains, distributing pipes and hydrants. The petition, map and plans shall be filed with the town clerk, and a certified copy of such map shall also be filed in the county clerk's office. Such map and plan shall be prepared by a competent engineer. [Town Law, § 383; B. C. & G. Cons. L., p. 6215.] Expenses, how paid. — The reasonable expenses of the necessary proceed- ings on the organization of a water district, as herein prescribed, are a charge against the district so organized. If a water district is not organ- ized, the persons who signed the petition for the establishment o'f a water district are jointly and severally liable for such expenses. [Town Law, § ■?84 ; B. C. & G. Cons. L., p. 6215.] Action by town board. — When the petition, map and plans are filed in the town clerk's office the town clerk shall cause notice of the filing of said petition and the object thereof to be published for one week in a newspaper published in such town or if no newspaper be published therein, then by posting said notice in at least six public and conspicuous places in the proposed water district described in such petition. Such notice shall also specify a time and place where the town board will meet to consider the petition, which meeting shall not be less than ten or more than twenty (lays after the petition is filed. At such meeting the town board shall determine if said petition is in fact signed and acknowledged by a majority of the owners of taxable real property in said proposed water district. Such determination shall be in writing signed by said board and recorded in the minutes of said meeting. If the decision be that the petition is signed and acknowledged by a majority of the owners of taxable real property in the proposed district, then the town board shall make an order establish- ing such district and appointing three taxpayers therein as water com- missioners. The order shall be filed with the town clerk and recorded in the minute book of said board. Such commissioners first appointed shall FIKE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 419 Town Law, §§ 285, 286, 287, 287a. hold office for terms of one, two and three years, to be determined by the town board in making the appointments. The town board shall thereafter appoint each year one commissioner who shall hold office for the term of three years and shall fill any vacanciea that ma,y occur. [Town Law, § 285; B. C. & G. Cons. L., p. 6215.] Oaths, undertakings and compensation of commissioners. — Each commissioner be- fore entering on the duties of his office shall take the constitutional oath of office and execute to the town and file with the town clerk an official undertaking in such sum and with such sureties as the town board shall direct. The town board may at any time require any such commissioner to file a, new official undertaking far such sum and with such sureties as the board shall approve. Such water commis- sioners may each be paid for their services, at sueh times as the towa board may designate, an amount to be fixed by the town board, not exceeding three dollars per day for each day actually and necessarily spent in the business of the water dis- trict. Such compensation shall be deemed an expense of maintaining the water dis- trict, and shall be levied against the taxable property in the water district and collected annually at the same time and in the same manner asi provided in section two hundred and eighty-nine of this chapter for the levy and collection of taxes for payment of bonds and interest. [Town Law, § 286, as amended by L. 1915, ch. 379; B. C. & G. Cons. L., p. 6216.] Contracts for the construction of water system. — ^The water commissioners of such district shall advertise for proposals for the construction of a water system either under an entire contract or in parts or sections as the board may determine. Such advertisements shall be published once in each of two successive weeks in each newspaper published in the town and if no newspaper is publis'hed therein, in two newspapers published in a city or village nearest to such town. The commissioners may require a bond or deposit from each person submitting a proposal, the lia- bility on such bond to accrue or such deposit to be forfeited to the town in case such person shall refuse to enter into a contract in accordance with his proposal. The commissioners may accept or reject any proposal, and make contracts with other than the lowest bidder or may reject all proposals and advertise again. No contract shall be made by which a greater amount shall be agreed to be paid than the maximum amount stated in the petition for the construction of such water system. Each contract shall be executed in duplicate one of which shall be given to the contractor and the other shall be filed in the office of the town clerk. The water commissioners shall immediately after letting the contract or contracts for the construction of the water system serve on the town board a written notice, speci- fying the amount of such contract or contracts and the amount of money needed for the construction of such water system. It shall be the duty of the town board to raise the money necessary by the issue and sale of bonds as provided in this article.* [Town Law, § 287; B. 0. & G. Cons. L., p. 6216.] Acquisition of water works. — The water commissioners of any such water district may acquire the works, franchises, contracts and property of any water works com- pany supplying such water district or a portion thereof, in which the construction of water works has been or may be authorized at an expense not exceeding the amount authorized for such construction in the manner following: 1. In the event such water commissioners agree with the owner or owners of such works, franchises, contracts and property as to the purchase price thereof, 4. Liability of town for breach of contract made by water commissioners. A town is not liable for damages caused by a breach of contract made by water commissioners appointed in a water district in a town for the construction of water- works. Such a contract is not a contract of the town and is not for its benefit. Holroyd v. Town of Indian Lake, 180 N. Y. 318, affg. 85 App. Div. 246, 83 N. Y. Supp. 533 (19-03). The town is not liable for contracts made by district water commissioners. They themselves are liable in their official capacity upon contracts made by them in that relation. District water commissioners need not be sued in actions at law, as they are not personally liable upon their official contracts. Farley v. Winkler, 203 N. Y. 445. 420 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town LaAv, §§ 288, 288a, 289. they may with the consent of the majority of the town board of the town wherein euch water district is situate, acquire the same by purchase. 2. In the event such water commissioners are unable to agree with such owner or owners as to the purchase price of such works, franchises, contracts and prop- erty, they may, with the consent of a majority of the town board of such town, by proceedings in the supreme court, acquire such works, franchises, contracts and property by condemnation. 3. The purchase price may be paid out of any moneys in the hands of or to the credit of such water district or the commissioners thereof or moneys raised or au- thorized to be raised for the construction of a water-works system in such dis- trict. In the event of condemnation, the appraisal or award may be paid_ out of any such moneys or out of moneys hereafter raised or authorized to be raised for the construction of a water-works system in such district. [Town Law, § 287a, as added by L. 1917, ch. 588J Issue and sale of ionds. — Town bonds issued under authority conferred by thi8 article shall 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 pay- able 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 leas 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, and also in such other papers as may be designated by the town board, and posted in at least five public places in the town, at least ten days before the sale, to the person who will take them at the lowest rate of interest. Such bonds shall be consecutively numbered from one to the highest number issued and the town clerk shall keep a record of the number of each bond, its date, amount, rate of interest, when and where pay- able and the purchaser thereof or the person to whom they are issued. The bonds shall be a, charge upon the town and shall be collected from the property within the water district. [Town Law, § 288 ; B. C. & G. Cons. L., p. 6217.] Refunding of indebtedness. — The town board of a town containing a water supply district in behalf of which bonds shall have been issued under authority conferred by this article may, upon the petition of the water commissioners of such district, refund the whole or any part of such indebtedness and cause new bonds of the town to be issued in substitution for such outstanding bonds or to realize money by the sale thereof for the payment of such outstanding bonds. Such new bonds shall become due within twenty years from the date of issue, shall bear interest at a rate not to exceed five per centum per annum and shall be sold for not less than their par value. Such bonds shall be a charge upon the town and shall be collected from the property within the water supply district and be otherwise sub- ject to the provisions of this article in relation to the issue, sale and payment of the bonds originally issued. [Town Law, § 288a, added by L. 1912, ch. 22, in eifect March 6, 1912.] Tax for payment of bonds and interest. — The water commissioners shall annually apportion the amount to be raised for the payment of the principal and interest of the bonds upon the taxable property in the water district as the same appears on the assessment-roll and present a statement thereof to the town board on the Thursday preceding the annual meeting of the board of supervisors. Such state- ment shall give the names of the persons liable to pay the same and the amount chargeable to each. The town board shall transmit such statement to the board of supervisors at its next annual meeting. The board of supervisors shall levy such sums against the property liable and shall state the amount of the tax in a separate column in the annual tax-roll under the name of "water tax." Such tax when collected shall be paid to the supervisor and be by him applied in payment of the bonds. [Town Law, § 289; B. C. & G. Cons. L., p. &217.] Assessment of property partly in district. — In all cases where a farm Action for breach of contract; pleadings. A complaint in an action brought against a town for breach of a contract for the construction of a water system, en- tered into pursuant to the above section, which merely states that the contract was executed by the town officers, without alleging that any of the preliminary steps required by the act were taken, is demurrable. Holroyd v. Town of Indian Lake, 75 App. Div. 197, 77 N. Y. Supp. 672. FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 421 Town Law. §§ 290-295. or lot or the real property of a corporation or joint stock association is divided by the boundary line of a water district, it shall be the duty of the town assessors after fixing the valuation of the whole of such real property as now required by law to determine what proportion of such valuation is on account of that part of such real property lying within the limits of the water district, and shall designate the same upon their assessment-roll. The valuation of real property lying within such water district so fixed and determined by the assessors shall be the valuation on which the water commissioners of the water district shall levy the water tax. [Town Law, § 290; B. C. & G. Cons. L., p. 6218.] Supervising engineer and inspectors. — The water commissioners may employ a supervising engineer to superintend and inspect the construction of the water system or works connected therewith, and also such inspectors as may be necessary and fix the compensation of such engineer and inspec- tors. Such compensation shall be treated as a part of the expense of construction. [Town Law, § 291; B. C. & G. Cons. L., p. 6218.] Acquisition of property ly condemnation. — If the water commissioners are unable to agree with the owners for the purchase of real property necessary for the construction of the water system, they may acquire the same by condemnation. [Town Law, § 292; B. C. & Gr. Cons. Li, p. 6218.] Establishment of water rents. — The board of water commissioners shall establish a scale of rents for the use of water, to be called "water rents," and to be paid at such times as the board may prescribe. Such rents shall be a lien on the real property upon which the water is used. [Town Law, § 293; B. C. & G. Cons. L., p. 6218.] Beservoirs.-^ln the construction of a storage reservoir connected with the system of waterworks, all vegetable or other matter subject to decay shall be removed from the banks thereof between its highest and lowest possible flow line or such space be covered by gravel or stone to prevent such decay. [Town Law, § 294; B. C. & G. Cons. L., p. 6218.] Connection with mains. — Supply pipes connecting with mains and used by private owners or occupants shall be laid and kept in repair at their expense. Such pipes can only be connected with the mains by the permis- sion and under the direction of the board of water commissioners. A member of the board or its authorized agent may at any time enter a building or upon premises where water is used from supply pipes, and make necessary examinations. [Town Law, § 295; B. C. & G. Cons. L., p. 6219.] Ordinances: — The board of water commissioners may adopt ordinances, not inconsistent with law, for enforcing the collection of water rents and relating to the use of water, and may enforce observance thereof, by cutting 422 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 296, 297. off the supply of water, or by the imposition of penalties. [Town Law, § 296; B. C. & G. Cons. L., p. 6219.] Annual report of water commissioners. — The board of water commis- sioners shall on the thirty-first day of October file with the town clerk a report for the year ending that day, containing a statement of the follow- ing facts: 1. The amount of money on hand at the beginning of the year, and the receipts from all sources during such year. 2. An itemized statement of the amount paid out during such year, and the balance on hand. 3. The outstanding indebtedness of the district, either bonded or other- wise, separately stated. 4. The estimated deficiency in the amount necessary to pay principal or interest or the expenses of the district during the next year, after applying thereto the probable amount of water rents. 5. The improvements and extensions made during such preceding year, and the general condition of the waterworks. 6. Such other facts as the board deems important for the information of the water district, together with such recommendations concerning such district as may be deemed proper. [Town Law, § 297; B. C. & 6. Cons. L., p. 6219.] Enlarging water district. Granting permission for use of water out- side the district. — After the establishment of a water district under the provisions of sections two hundred and eighty-two to two hundred and eighty-five, inclusive, of this article, the water commissioners thereof, with the consent of the town board and upon the application of a majority of the owners of taxable real property in the new district, owning more than one-half, measured by its assessed valuation, of suck taxable real property, and upon the written application of the person or persons owning one or more parcels of taxable real property in tho town outside of and adjoining said water district, may annex and add to said district the territory comprising such outside real estate. An amended map of the proposed enlarged district shall be submitted with said applications and shall be filed as prescribed in section two hundred and eighty-three for the filing of the map of the original district. All applications under this section must be by petition or petitions subscribed by the petitioners and acknowledged in the same manner as a deed to be recorded. The reasonable expenses of the neces- sary proceedings on the extension of a water district, as herein pre- scribed, are a charge against the enlarged district ; excepting that if the extension is not granted, such expenses shall be borne by the petitioners owning such outside real estate. A notice, upon such application, shall be given and a hearing and determination made by and before the water commissioners in the manner, as nearly as may be, as is provided in FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 433. Town Law, §§ 298, 299. section two hundred and eighty-five. The determination, if favorable t» the applicants, shall, when approved by the town board at any regular or special meeting, be to the effect that the district is extended to include the outside real estate described in the application. From the time such terri- tory is annexed it shall be subject to annual taxation for the raising of money for interest and installments on the balance of unpaid bonds of the original district, with the other property in the district, as enlarged, in the manner prescribed by section two hundred and eighty-nine, and the owners shall enjoy all the water privileges, subject to the same rents and restrictions as the owners of property in such original district. A water district may be repeatedly enlarged and extended under the provisions of this section as often as an application, in conformity thereto, may be made and approved by the water commissioners and town board. The water commissioners, with the consent of the town board, may also, if authorized by a majority vote of the electors owning real estate in the district, taken at a public meeting, of which notice has been given by publication in a newspaper in the town once a week for the preceding four weeks, or, if there be no such newspaper, then by posting for twenty-eight days in twenty public places in the town, permit any person or persons residing or owning real estate outside of the district to use water from the district system outside of the district, for a rental and subject to restrictions, to be prescribed by the commissioners. Such a meeting shall be called and notice given by the town clerk at the request of a majority of the water com- missioners or at the request of twenty-five taxpayers of the district. The notice of the meeting, in addition to stating the time and place where the same is to be held, shall specify the purpose thereof. There shall be a chair- man and two inspectors of election at such meeting to take charge thereof,, who shall be chosen by the persons entitled to vote on said proposition. The voting shall be by ballot. The chairman shall announce the result and certify the same in writing to the water commissioners. Such certificate shall be prima facie evidence of the statements therein contained, and if the result of the vote as certified authorizes the commissioners and town board to grant the water permits hereinabove mentioned, they may do so unless restrained by a court or judge having jurisdiction in the premises. [Town Law, § 298 , as added by L. 1909, ch. 356, and amended by L. 1915, eh. 49 ; B. C. & G. Cons. L., p. 6220.] Enlarging water supply system. — After the establishment of a water district and the construction of a water system therein as provided by this article, the water commissioners thereof with the consent of the town board and on the petition of the owners of more than one-half of the taxable real property in such district as appears by the last preced- ing completed assessment-roll, may enlarge the water supply system in such district as provided by this section. The petition must state the maximum amount proposed to be expended in the construction of such enlargement of the water system, must be signed by the petitioners and. 424 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 260. acknowledged in the same manner as a deed to be recorded. The peti- tion shall also be accompanied by a map showing the proposed enlarge- ment of the water supply system, which map shall be filed as prescribed in section two hundred and eighty-three for the filing of the map of the original district. A notice upon such petition shall be given and a hear- ing and determination had by and before the water commissioners in the manner as nearly as may be as is provided in section two hundred and eighty-five. The determination if favorable to the petitionerB shall be approved by the town board at any regular or special meeting to the effect that the water supply system in such district shall be enlarged in accordance with the petition. All the provisions of this article in rela- tion to contracts for the construction of the original water system in such district, and issue and sale of bonds therefor and the payment of such bonds shall apply to the enlargement of such water supply system, as authorized by this section. [Tovra Law, § 299, as added by L. 1912, ch. 275.] § Sa. TOWN BOARDS MAY ESTABLISH JOINT WATEK SUPPLY DISTRICTS; PETITION; MAP; EXPENSES, HOW PAID; AC- TION BY JOINT TOWN BOARDS; CONTRACT FOR W^ATER SUPPLY; LEVY OF TAXES FOR PAYMENT OF AMOUNT OF CONTRACT. Town hoards may establish joint water supply districts. — It shall be law- ful for the town boards of two or more adjoining towns in this state to form a joint water supply district whenever a petition for the establishment signed by a majority of the owners of taxable real property in the proposed district owning more than one-half, measured by its assessed valuation according to the last assessment roll, shall file with the town clerk of one of said towns in which proposed district lies, and cause a certified copy or copies thereof to be filed with the town clerk of the other town or towns within which such proposed district lies. Such proposed water supply dis- trict may be either an entirely new district or the extension of a water supply district heretofore formed whoUy in one of said towns, or as a joint water supply district in two or more towns. A joint meeting of the town boards of such towns shall be held after the filing of the petition as aforesaid upon the written request of the supervisor of any such town, or upon the written request of a majority of the town board of any such town filed with the town clerk of such town, and upon the filing of such a written request such Fl-RE;. WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 425 Town Law, §§ 301, 302, 303. town clerk shall call a meeting at the usual meeting place of the town board of the town whose official, or officials, presented the request therefor, by giv- ing ten days' notice of the date, hour and place of such meeting, which notice shall be either given personally or by mailing the same to the mem- bers of such town boards at least ten days before the date of such meeting and addressed to such members at their last known post office address. [Town Law, § 300, as added by L. 1917, ch. 423.] Petition; map. — The petition to be filed as in the last section provided must describe the proposed district, be signed by the petitioners and ac- knowledged in the same manner as a deed to be recorded, and there shall be annexed thereto a map of such proposd district, which map shall also show the proposed method of procuring a water supply for said district, and the proposed line of mains, distributing pipes and hydrants, and the parties presenting the petition shall present sufficient additional copies of the petition and maps in order that the town clerk with whom they are first filed may make the necessary certified copies. [Town Law, § 301, as added by L. 1917, ch. 433.] Expenses; how paid. — The reasonable expenses of the necessary proceed- ings on the organization of a joint water supply district, as herein prescribed, shall be a charge against the district, if organized; if such water district is not organized the persons who signed the petition for the establishment of such joint water supply district shall be jointly and severally liable for such expenses. [Town Law, § 302, as added by L. 1917, ch. 423.] Action by joint town boards. — When the petition and map as herein- before provided have been filed, the town, clerk of the town, with whom a request for a meeting of the joint town boards has been filed shall cause notice of the filing of such petition to be published for one week in a news- paper published in each of such towns, or if no newspaper be published in any or all of such towns then by posting such notice in at least six public and conspicuous places in each of said towns within the proposed water district described in such petition. Such notice shall also specify a time and place where the joint town boards will meet to consider the petition, which meeting shall not be less than ten days nor more than twenty days after the filing of the request for a meeting and the publishing or posting of the notices. At such meeting the joint town boards shall determine if said petition is in fact signed and acknowledged by a majority of the owners of the taxable property in said proposed water district, measured by its 425a TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 304, 305. assessed valuation according to the last assessment rolls of such towns. Such determination shall be in writing, signed by said joint town boards or a majority of both of them, and recorded in the minutes of said meeting. If the decision be that the petition is signed and acknowledged by a majority of the owners of the taxable property in the proposed district, measured by its assessed valuation according to the last town assessment rolls, then the joint town boards shall make an order establishing such joint water supply district. [Town Law, § 303, as added by L. 1917, ch. 423.] Contract for water supply. — If the town boards establish a joint water supply district as in the last section provided, it shall be lawful for the supervisors of the towns, any part of which is within such district, to enter into a contract on behalf of such towns with any water company, or other party or person, to supply water for such district for fire, sanitary or other public purposes. Any water company authorized to supply water to any one of such towns may enter into such contract and lay its conduits, mains and distributing lines, and set its hydrants as in the contract provided, the same as if such water supply district was wholly within the town in which it was authorized to supply water. Such water company may supply water to persons or corporations residing within such water supply district, if an order be procured from the public service commission fixing the maxi- mum price to be charged therefor. Application for such order may be made to the public service commission either by such town boards or by such water company. The public service commission shall fix a time and place for a hearing on such application, of which due notice shall be given to the supervisors of such towns or to such water company, as the case may be, at which shall be heard all persons interested in such application, including any corporation or person residing within such water supply district. After such hearing the public service commission shall, by order, fix the maximum price which may be charged for water by such water company, which order shall be binding on such company and the price fixed therein shall remain unchanged until a different price shall have been fixed by the public service commission, in like manner, upon application either by such town boards, such water company or a corporation or person residing within such water supply district. [Town Law, § 304, as added by L. 1917, ch. 423.] Levy of taxes for payment of amount of contract. — The annual amount due under and pursuant to any contract that may be entered into for a joint water supply district shall be apportioned on the basis of the assessed valu- Fl-RE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS.' 425b Town Law, § 260. ation of the real property within said district between each of said towns by the supervisors of the towns affected, on the basis of the equalized valuation and the amount of such expense shall be assessed and levied on the taxable property in such water supply district in each of said towns, and collected in the same manner and at the same time and by the same officers as the other town taxes or charges or expenses of the towns in which such district is located are now assessed, levied and collected, and such money, when collected, shall be kept as a separate fund and be paid over by the super- visors of said towns to the corporation, company, person or persons furnish- ing such water, pursuant to the terms of the contract therefor. [Town Law, § 305, as added by L. 1917, ch. 433.] § 6. TOWN BOARDS MAT ESTABLISH STREET LIGHTING DIS. TBICTS AND CONTRACT FOR THE LIGHTING OF STREETS THEREIN; PETITION THEREFOR; NOTICE TO BE PUB- LISHED; AMOUNT OF CONTRACT, HOW RAISED. Town hoards may establish lighting districts. — It shall be lawful 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 lamp or lighting districts therein. It shall be lawful for the town boards of two or more adjoining towns in this state, whenever a petition for the estab- lishment of a lamp or lighting district shall cover territory lying in two or more adjoining towns in this state> to contract for the lighting of the streets, avenues, highways, public places and public buildings therein, outside of the 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 payment of the expenses thereof.^ [Town Law, § 360; B. C. & G. Cons. L., p. 6310.] 5. Town board cannot construct or purchase a plant. Rept. of Atty. Genl. (1901) 237. Where a, town board illegally establishes a lighting plant with moneys of the town and repays such town with money raised by tax in the lighting district, res- 425c TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 261. Petition. — No such contract shall be made unless a petition 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, but in the counties of Nassau, Suffolk and West- chester no such contract shall be made unless the petition for such lighting is signed by a majority of the resident taxpayers in such lamp or hghting district, unless it be a renewal or extension of such a con- tract. In case such proposed lamp or lighting district lies in two or more adjoining towns, a petition signed by a majority of the taxpayers of such lighting district may be filed with the clerk of any such towns, and a copy of such petition and its signatures, certified to be such by the clerk of the town with whom the original petition is filed shall there- upon be filed with the town clerk of each other such town, and such peition shall not be deemed filed within this section xmtil so filed with the clerk of each such town. A joint meeting of the town boards of such towns for the purpose of transacting any business of such joint lamp or lighting district, shall be held at any time upon written request of the supervisor of any such town to the clerk of each such town. It shall be lawful, however, for the town board of each town, a part of which is included in a joint lamp or lighting district so established, to transact aU business thereof in separate session, except that the establishment of the district and the adoption of an initial contract for lighting, shall be done in joint meeting as provided in section two hundred and sixty. For the purposes of such joint action in separate session a majority vote at a meeting of each such town board, upon the same resolution, shall be necessary. The town clerk of each such town shall file a copy of such minutes of separate meetings as refer to such lighting district with the town clerk of each other town, a part of which is included in such joint lighting district, and the action of the several town boards shall thereupon become effective for such joint district. [Town Law, § 261, as amended by L. 1910, ch. 671, L. 1916, ch. 99, and L. 1917, ch. 19 ; B. C. & G. Cons. L., p. 6211.] toration of the funds to the lighting district must be sought under § 1969 of Code of Civil Procedure. But a taxpayer's action under § 51 of the General Municipal Law will lie to enjoin the further operation of the plant. Montgomery v. Bmead (1916), 97 MUc. 283, 161 N. Y. Supp. 431. rmE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 435d Town Law, §§ 261a, 262, 262a. Consolidation of lighting districts.- — Two or more adjoining lighting districts in the same town may be combined in a single lighting district by a resolution of the town, board of said town, and two or more adjoin- ing lighting districts, any one of which lies in two or more adjoining towns, may be combined in a single lighting district by resolution of the town boards of said towns in joint session. In case the existing contracts for lighting difEerent parts of such combined district are, by the terms thereof, to expire at different times, no renewal of any such contract shall be for a period longer than the unexpired portion of the term of the other such contract, if there be but two, or in case there be more than two such contracts, for a period longer than the unex- pired portion of that one of such contracts which has the longest time to run. [Town Law, § 361-a, added by L. 1916, ch. 99.] Notice of filing petition. — The town board, or if such district shall lie in two or more adjoining towns, then the town boards of each such towns 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 published 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 peitition, and the time and place when the same will be acted upon by said town board, or if such lighting district lies in two or more adjoining 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. [Town Law, § 263; B. C. & G. Cons. L., p. 6211.] Consolidation of lighting districts. — Any existing lighting district may be extended by resolution of the town board of the town in which such district is situated, or by resolution in joint session of the town boards of the several towns in which such district is situated, so as to include there- in any part of such town or towns, adjoining such district, upon the writ- ten petition of a majority of the owners of the real property to be included in such proposed extension, duly filed with the clerk of the town in which such district is situated; or if such district lies in two or more adjoining towns, with the clerk of any one of such towns. A lighting district may be repeatedly enlarged and extended in accordance with the provisions of this section. Fo contract for lighting such extension shall be made for a period of time longer than the unexpired portion of the term of the existing con- 425e TOWNS, TOWiH MEETINGS AND T0^^^" OFFICERS. Town Law, §§ 263, 264. tract for lighting said district; or, in case there shall be at the time of euch extension more than one existing contract for lighting said district, for a period longer than the unexpired portion of that one of such contracts which has the longest time to run. [Town Law, § 262-a, added by L. 1916, ch. 99.] Amount of contract, how collected. — The amount of any contract that may be entered into pursuant to the provisions of this article shall be assessed, levied and collected upon the taxable property in said town or district in the same manner, at the same time, and by the same officers 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 corpor- ation, company, person or persons furnishing or supplying said light. If the 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 expense of such lighting which shall be borne by each of said towns, and the amount of such expense shall be assessed and levied on the taxable property in such lighting district in each of said towns, and collected in the same manner and at the same time, and by the same officers as the town taxes or charges or expenses of the town in which said district is located, are now assessed, levied and collected, and such relative expense shall -be paid over by the supervisor of each of said towns to the corporation, company, person or persons furnishing or supplying the light."* [Town Law, § 263; B. C. & G. Cons. L., p. 6211.] § 6a. LIGHTING CONTBACTS IN TOWN AND VILLAGE. Whenever a town board has established a lighting district in a town, and, thereafter, a portion of said town containing a part of said lighting dis- trict, shall have been included within the boundaries of an incorporated 6a. Misappropriation of moneys collected by board of supervisors; remedy against town. Where a party contracted with a town board, under section 260 of the Town Law, for the lighting of a district, and a tax therefor was levied and collected under this section, and the supervisors into whose hands the money was paid, mis- appropriated it, the claim for the lighting is a liquidated indebtedness of the town, and the remedy is by an action at law and not by mandamus against the town officers to compel levy and collection of another tax. Dunn v. Town of Whites- town (1911), 185 Fed. 585. FITIE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 425f Town Law, § 243. village, it shall be lawful for said town board and the board of trustees of said village, in joint session, without petition therefor, to jointly make, renew or extend a contract for the lighting of the whole of said village and the portion of said district in said town, not included in the village, for a period not to exceed five years. For the purpose of such joint action, in separate session a majority vote at a meeting of each town board and village board, upon the same- resolution, shall be necessary. If the town board and village board of trustees in joint session, shall make, renew, or extend such a contract, they shall determine the relative proportion of the expense of such lighting which shall be borne by such town and village, respectively, and the amount of such expense to be borne by such town shall be assessed and levied on the taxable property in said lighting district in said town and collected in the same manner and at the same time and by the same officers as town taxes, charges and expenses of such town in which a portion of said district is located, are now assessed, levied and collected, and such relative expense shall be paid over by the supervisor of said town to the corporation, company, person or persons supplying or furnishing said light. The portion of the expense to be borne by said village, shall be assessed, levied and collected at the same time and in the same manner as other village charges, expenses and taxes are levied, assessed and collected and shall be paid in annual installments commencing with making, renewal or extension of said contract to the corporation, company, person or persons furnishing or supplying said light to the amount of the contract. The expense of such lighting in such village shall not, for each fiscal year, exceed three and one-half mills on every dollar of the taxable property of said village as appears on the last preceding assessment-roll before the making, renewal or extension of such a contract, unless authorized by a village election. [Town Law, § 364, as added by L. 1917, ch. 380.] § 7. TOWN BOARD MAY ESTABLISH SEWER SYSTEM; PETITION. The town board of any town on the petition of owners of real property in a proposed district, or in a proposed extension of an existing district, representing more than one-half in value of the taxable real property therein as appears by the last preceding completed assessment-roll, may establish a sewer system outside an incorporated village or city, or ex- Exemptions. The property of corporations or associations falling within subdi- vision 7 of section 4 of the Tax Law, is exempt from payment of the tax levied pursuant to this section. Rept. of Atty. Genl. (1915), p. 44. 426 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 230. tend the boundaries of an existing district and the sewer system therein accordingly. The petition must describe the proposed district, or pro- posed extension of an existing district, and state the maximum amount proposed to be expended in the construction of such sewer system or ex- tension. Each petitioner shall state opposite his name the assessed val- uation of the real property owned by him in such district, or extension of an existing district, according to the last preceding completed assess- ment-roll. The petition must be signed by the petitioners and proved or acknowledged in the same manner as a deed to be recorded, and if it be a petition to extend an existing district and the sewer system therein shall, in addition to the foregoing provisions, be approved in writing by the sewer commissioners of such district. There shall be annexed to and presented with such petition a map and plan of the proposed sewer sys- tem, or extension, with specifications of dimensions and connections and outlet or sewage disposal works prepared by a competent engineer at the expense of the petitioners. The petitioners may, however, present to the town board with such petition, map, plan and specifications, a state- ment, verified by one of the petitioners having personal knowledge of the correctness thereof, showing the amount of the actual cost to them of said map, plan and specifications and the cost of the acknowledgments of the signatures to such petition, and by whom paid, which said amount, if found by the town board to be just and reasonable, and if the said town board shall make one of the orders as provided by section two hundred and thirty-one of this chapter, shall be and become a part of the expense of construction, and shall be included in the first tax levy therefor, and shall be refunded to the person or persons by whom paid, as shown by the aforesaid statement, by the supervisor of the town, who shall take a receipt therefor. At any time after the town board has made an order establishing such district, or extending an existing dis- trict, the maximum amount proposed to be expended in the construction of such sewer system in said district, or extension, may be increased by a petition of owners of real property in said district or extension, repre- senting more than one-half in value of the taxable real property therein, as appears by the last preceding completed assessment-roll, setting forth the additional amount proposed to be expended, in excess of the maxi- mum amount set forth in the petition upon which the said district or extension was established. Such petition must be signed and proved or acknowledged in the same manner as the petition for the .establishment of said sewer district or extension, and shall be filed in the office of the town clerk. Every petition made as provided in this section shall con- tain a statement conspicuously printed thereon as follows : " The cost of construction and maintenance of sueh sewer system or extension, as the case may be shall be assessed, from year to year, by the sewer com- missioners to be appointed, upon the lands within the sewer district or extension in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom." Any petition made as herein pro- FIRE; WATER. LIGHT, SEWER SYSTEMS; SIDEWALKS 426a Towa Law, § 230a. ■vided shall be legal for all purposes herein, although some of the peti- tioners therein may have signed and acknowledged the same before this section, as hereby amended, takes effect.^ [Town Law, § 230, as amended by L. 1910 ch. 134, and L. 1911, eh. 507 ; B. C. & G. Cons. L., p. 6205.] Town board may direct construction of portions of seiuer system; ex- tension, notice of, petition. — If in the petition for the establishment of •a sewer district or for an extension to an existing district, the petitioners shall pray that a portion or portions only of the system designed ulti- mately to serve the entire district or an extension to the said district, shall be constructed in the first instance, and shall describe the said portion or portions in their said petition, and indicate the same on the said map and plan, and shall specify the maximum amount proposed to be expended in the construction of such portion or portions of the said system, the town board may include in its order establishing the said ■district or extension, a direction that the sewer commissioners shall con- struct only the portion or portions of the said system designated in the said petition, until extensions thereto shall be authorized as hereinafter provided. In case the town board shall make an order establishing the said district and containing the said direction, the provisions of this chapter shall be applicable thereto in all respects, except that the town board shall not issue bonds to provide for the cost of such portion or por- tions to an amount exceeding the amount mentioned in the said petition as the maximum amount proposed to be expended in the construction of such portion or portions. Thereafter extensions to the said system may, from time to time, be authorized by the town board upon the petition of the owners of real property within the area in said district to be served by any proposed extension or extensions to the said system, representing more than one-half in value of the taxable real property within such area, as appears by the last preceding completed assessment-roll, which said petition shall comply in form, substance, and in the manner of exe- cution, so far as applicable thereto, with the requirements of the petition for the establishment of a sewer district, and shall state the maximum amount proposed to be expended for such extension or extensions, and shall have endorsed thereon a written approval of a majority of the isewer commissioners of such district, and there shall be presented with the said petition a map prepared by a competent engineer, showing the area proposed to be served by any such proposed extension, and in case such proposed extension or extensions involve a change from the plans shown by the map and plan attached to the petition for the establish- ment of the said sewer district such petition shall be accompanied by a map and plan of such extension or extensions prepared in the same man- ner as the original map and plan, and approved by the state board of health. Before acting upon a petition to extend the system in any dis- trict or extension thereof, the town board shall give notice of the time 6. Outlet for the system may be outside of the district created. Rept. of Atty. ■Genl. (1902) 346. 426b TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 231. and place at which it will meet to act thereon, by posting at least twenty- one days before the day fixed for the said meeting a notice thereof in at least four public places in the said district, and by publishing a notice thereof once in each of the three calendar weeks immediately preceding^ the week in which the said meeting is to be held in at least one news- paper published in the said town, if a newspaper is published therein. The cost to the petitioners of the maps, plans, specifications, and of the acknowledgments of the signatures to such petition may be made a part of the expense of constructing the said extension or extensions as pro- vided in section two hundred and thirty of the town law with respect to the like expenditures of the original petitioners, and the maximum amount proposed to be expended in the construction of any such exten- sion or extensions to the sewer system in any such district may be in- creased by the petition of the owners of real property in the area pro- posed to be served thereby, representing more than one^half the taxable real property therein as appears by the last preceding completed assess- ment-roll of said town, in the manner specified in section two hundred and thirty of the town law for increasing the maximum amount pro- posed to be expended for the construction of the original system. In case said extension or extensions to the said sewer system in any such district shall be authorized by the town board of any such town, such ex- tension or extensions, shall thereafter, for all purposes, be regarded a& part of the original system, and shall be constructed and maintained by the sewer commissioners of the said district, and the cost of the construc- tion thereof shall be provided for by the issue and sale of town bonds in the same manner as provided in section two hundred and thirty-seven of the town law for the payment of the cost of the original system, which said bonds shall be a town charge, and the principal and interest thereof, together with the cost of maintenance of such extension or extensions, shall be collected from the real property within the said district by the said sewer commissioners, in the same manner as though said extension, or extensions had formed a part of the original system constructed in. the said district. [Town Law, § 230a, as added by L. 1912, ch. 205.] Order of town- hoard; appointment of commissioners. — If the town board is satisfied that the petitioners are owners of real property in tb© proposed district or extension, and own more than one-half in value of the taxable real property therein, they shall make an order establishing such district, or extending the boundaries of an existing district, and if establishing a new district, appointing three taxpayers therein as sewer commissioners, who shall hold their offices at the pleasure of the town board. Such sewer commissioners shall each be paid for their services, at such times as the town board may designate in said order, an amount to be fixed by the town board, which amount shall not exceed three dol- lars per day for each day actually and necessarily spent in the businesa of the sewer district and shall be deemed an expense of maintaining the sewer system and shall be collected and paid as provided in section two hundred and forty-three of this chapter for expense of maintenance- PIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 427 Town Law, §§ 232, 233, 234. [Town Law, § 231, as amended by L. 1910, ch. 134, and L. 1911, ch. 607 ; B. C. & G. Cons. L., p. 6206.] Oath of office and undertaking of commissioners.^Each. commissioner before entering on the duties of his office shall take the constitutional oath of office and execute to the town and file with the town clerk an official undertaking in such sum and with such sureties as the town board shall direct. The town board may at any time require any such commissioner to file a new official undertaking for such sum and with such sureties as the board shall direct. [Town Law, § 232; B. C. & G. Cons. L., p. 6206.] Map and plan of system; approval of state hoard of health. — The sewer commissioners shall cause a copy of the map and plan of the proposed sewer system, or proposed extension thereof, to be submitted to the state board of health, and if approved, it shall be filed in its office. Such map and plan may be amended with the approval of the state board of health, and if amended, it shall be filed in the offices of the state board of health and of the town clerk. [Town Law, § 233 as amended by L. 1910, eh. 134; B. C. & G. Cons. L., p. 6206.]' Contracts. — The sewer commissioners of such district shall advertise for proposals for the construction of a sewer system, or an extension thereof, according to such map and plan, finally filed, either under an entire con- tract or in parts or sections as the board may determine. Such advertise- ment shall be published once in each of two successive weeks in each news- paper published in said sewer district and extension thereof, and if no news- paper is published therein, in the two newspapers published nearest thereto. The commissioners may require a bond or deposit from each person sub- mitting a proposal, to be not less than twenty-five per centum of the amount involved, the liability on such bond to accrue, or such deposit to be forfeited to the town, in case such person shall refuse to enter into a contract in accordance with his proposal. The commissioners may accept or reject any or all proposals, and when the contract is let it shall be let to the lowest bid- der. No contract shall be made by which a greater amount shall be agreed to be paid than the maximum amount stated in the petition for the construc- tion of such sewer, as amended by supplemental petition, if any, including the expense of superintendence and inspection as provided in section two hundred and thirty-five. Each contract shall be executed in duplicate, one of which shall be given to the contractor and the other shall be filed in the office of the town clerk. [Town Law, § 234 as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6206.] Engineers and inspectors. — The sewer commissioners may employ an attorpey, a supervising engineer to superintend and inspect the construction of any sewer, or extension thereof, or works connected therewith, and also such inspectors as may be necessary and fix the compensation of such attorney, engineer and inspectors. Such compensation, together with the 428 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, 11 235, 236, 237. fees, charges and expenses of the engineer employed to prepare the map, plan and specifications, and the cost of the acknowledgments of the signatures of the peti- tioners, as provided for in section two hundred and thirty of this chapter, shall be treated as a part of the expense of construction. [Town Law, § 235, as amended by L. 1910, eh. 134; B. C. & G. Cons. L., p. 6207.] Condemnation of real property. — If sewer commissioners are unable to agree with the owners for the purchase of real property necessary for the construction of the sewer system, they may acquire the same by condemnation system, they may acquire the same by condemnation, whether it be necessary to acquire the fee or an ease- ment for a right of way therein, and whether the property and easements necessary to be acquired are within the territorial limits of the sewer district as established; said sewer commissioners may enter into an agreement with the board of trustees or other duly authorized ofiBcers of an adjoining incorporated village, to sewer some part or portion of such incorporated village, and to lay and maintain pipes therein, and when pipes are laid and maintained, and sewer system constructed within the limits of an adjoining incorporated village pursuant to an agreement so made, the sewer commissioners shall have the same control and exercise the same rights and privileges in connection with the system constructed within the limits of an in- corporated village as they have in connection with the system established within the sewer district as laid out. [Town Law, § 236, as amended by L. 15113, ch. 73; B. C. & G. Cons. L., p. 6207.] Apportionment of local Q,ssessment for construction. — The sewer commissioners shall prepare and file in the office of the town clerk a map and plan of such dis- trict, or extension, which shall show the highways and the several parcels of land therein. The commissioners shall report to the town board the amount of the cost of construction of such sewer system as determined under the foregoing provisions hereof. The town board shall direct the issue and sale of bonds for the amount of the cost of construction as so reported to said hoard by the said commissioners, which said bonds shall be redeemable in such equal yearly instalments, the interest thereon to be paid semi-annually, as said town board shall prescribe, and shall he a town chaBge. In the nionth of July in each year the town board shall notify the sewer commissionerB of the amount to become due for principal and interest during the- ensuing year on the bonds so issued. The sewer commissioners shall forthwith proceed to assess such, amount on the lands within such district, or extension of an existing district, in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom. After making such apportionment, said commis- sioners shall forthwith serve on each land owner a notice of at least ten days of the completion thereof and of the filing of such map and plan, and that at a specified time and place a hearing will be had to consider and review the Same. Such notice must be served upon said land owners personally or by mailing the same to their last known respective stresses or by publishing the same once each week for two weeks, in a newspaper which circulates in said district, or by either or any of said methods. The commissioners shall meet at the time and place specified to hear ob- jections to such- apportionment, and may modify and correct the same. The sewer commissioners upon the completion ajid correction of such apportionment shall forth- with file the same in the otfice of the to*'n clerk, and. shall give notice of the filing of such completed and corrected apportionment in the manner provided for by section thirty-nine of the tax law as to towns. The apportionment shall then be •deemed final and conclusive unless an appeal is taken therefrom, as hereinafter provided, within fifteen days after the filing thereof. The town board shall present to the board of supervisors at its annual meeting, a statement of such apportionment FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 429 Town Law, §§ 238, 239, 240, 241. as so corrected and filed, showing the amount due, or to become due, for principal and. interest during the ensuing year, on the honds issued under this article; feaeh lot or parcel liable to pay the same, and the amount chargeable to each. Tlje board of supervisors shall levy such sums against the property liable, and shall state the amount of the tax in a separate column m the annual taxroll under the name " sewer tax." Such tax when.oollected shall be paid to the supervisor and be by him applied in payment of the bonds. An unpaid assessment shall be collected in the same manner and shall subject the land and land owner liable therefor, to the same interest, burdens and penalties, as other town taxes in arrears. [Town Law, § 237, as amended by L. 1910, ch. 134, and L. 1915, ch. 368; B. C. & G. Cons. L., p. 6207.] Appeal. — A person aggrieved by an apportionment may within fifteen days aiter the filing thereof, appeal therefrom to the County Court of the county in which such district is situated. Such appeal shall be taken by a notice stating the grounds thereof, served personally or by mail upon each of the sewer commis- sioners and filed with the town clerk. [Town Law, § 238; B. C. & G. Cons. L., p. 6208.] Notice of appeal; reversal. — ^Either party may bring on the appeal on a notice of not less than ten nor more than twenty days. All appeals from the same apportionment must be consolidated and heard as one appeal. The County Court may aflirm or reverse the apportionment. If it be reversed on the ground that it is erroneous, unequal or inequitable, the court shall, by order of reversal, appoint three disinterested freeholders of the district as commis- sioners to make a new apportionment and no appeal shall be allowed from such order. [Town Law, § 239; B. C. & G. Cons. L., p. 6208.] Reapportionment. — A reapportionment shall be made in the following cases: 1. By the commissioners appointed by the County Court where the original apportionment is reversed on the ground that it is erroneous, unequal or inequitable. 2. By the sewer commissioners of the districts where the original apportion- ment is reversed on any other ground. A reapportionment under this subdi- vision shall be made in like manner as the original. 3. Reapportionments shall also be made by the sewer commissioners in like manner as original apportionments are made upon the petition of the owners of real property in said district representing a majority of the taxable prop- erty therein, as appears by the last preceding completed assessment roll, when the said petition shall state that the existing apportionments have become unequal or inequitable; such reapportionments shall be made from time to time, but not oftener than once in three years. [Town Law, § 240, as amended by L. 1911, ch. 251; B. C. & G. Cons. L., p. 6208.] Meeting of commissioners. — The commissioners appointed by the County Court shall give notice of the time and place at which they will meet to make such reapportionment, and shall serve notice thereof, either personally or by mail, at least ten days before such meeting, upon each owner of land within such district or extension of an existing district, as finally fixed by the board of sewer commissioners. They shall meet at the time and place specified and make such reapportionment in the manner herein prescribed 430 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, §§ 241, 242, 243. for the sewer commissioners. They shall file such reapportionment in the office of the town clerk, and it shall be final and conclusive. [Town Law, § 241, as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6208.] Compensation of commissioners. — Each commissioner appointed by the County Court is entitled to five dollars for each day necessarily spent in making such reapportionment, besides his actual necessary expenses. Such fees and expenses are a charge against the town, and must be audited by the town board. The amoimt thereof shall be added to the portion of the expense of constructing such sewer or sewer system, which is to be assessed against property in such sewer district, or extension. [Town Law, § 242, as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6208.] Assessment on property benefited. — After the sewer system is constructed it shall be maintained by the commissioners, and the cost of such main- tenance shall be a charge upon the sewer district. In July of each year, the sewer commissioners shall present to the town board an estimate of the amount of money required by said commissioners to meet the expenses of maintaining the sewer system for the ensuing year. The town board shall formally pass upon such estimate and approve, or correct and approve, the same. The sewer commissioners shall thereupon assess the amount of the estimate as so approved, and corrected, on the lands within their dis- trict, in proportion, as nearly as may be, to the benefit which each lot or parcel will derive therefrom, and shall give the same notice thereof, and shall correct and file such apportionment in the same manner, and shall give the same notice of the filing of such corrected apportionment, as is pro- vided for in section two himdred and thirty-seven of this chapter. An appeal may be taken from such corrected apportionment within the same time, and the procedure thereupon shall be the same as specified in sections two hundred and thirty-eight to two hundred and forty-two, both inclusive, of this chapter, except that the fees of the commissioners appointed by the county court to readjust the apportionment made pursuant to this section shall be a charge upon the sewer district, and shall be included in the ex- penses of maintenance. Whenever an apportionment is to be made to meet an instalment of principal and interest on the bonds issued pursuant to section two hundred and thirty-seven of this chapter, any proceedings for the correction, review or readjustment thereof shall be consolidated with the like proceedings, if any, with respect to the apportionment made as provided in this secetion. The town board shall present such estimate to the board of supervisors at its annual meeting, with a statement of each property or parcel liable for the same and the amount chargeable to each. The board of supervisors shall levy such sums against the property liable and shall state the amount of tax in the annual tax roll under the name " sewer tax," with the sewer tax to be raised for payment of bonds as pro- vided in section two hundrel and thirty-seven of this chapter, and after FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 43 1 Town Law, §§ 244, 129. such bonds shall have been entirely paid in a similar column headed " sewer tax." This tax for maiatenance, when collected, shall be paid to the super- visor of the town and by him paid to the sewer commissioners to meet the expense of maintenance of the sewer system. An unpaid assessment under this section shall be collected in the manner provided for in section two hundred and thirty-seven of this chapter. The sewer system as so con- structed, or as hereafter added to or changed, shall be under the charge and control of the sewer commissioners, under whose supervision it shall be used by property owners, and no person shall enter into, open or interfere with or use said sewer system except under the inspection and direction of said sewer commissioners and after formal permission shall have been given by said commissioners. The sewer commissioners shall adopt rules and regulations to govern the maintenance and use of the sewer system and shall therein fix the amount of fees that shall be chargeable to individuals or property owners, who may wish to enter or use the sewer system, which fees shall be Bufi&cient in amount to pay for the cost of inspection of such entry or entries. Any person violating any provisions hereof and inter- fering with, entering or using said sewer system without obtaining such permission shall be guUty of a misdemeanor and liable to punishment accordingly. [Town Law, § 243 as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6309.] Antmal statement of commissioners. — The sewer commissioners shall in the month of December in each year file in the ofBee of the town clerk a detailed statement, under oath, of the moneys received and paid by them eince their last statement under the provisions of this chapter, together with the names of the persons or parties from whom the same were received and to whom the same were paid, and the object of each payment, with the vouchers therefor. Such statement shall show the balance remaining in their hands, which balance shall be applied to maintenance account for the following j^ear. [Town Law, § 344, as amended by L. 1910, ch. 134; B. C. & G. Cons. L., p. 6310.] § 7a. WATER AND SEWER COMMISSIONERS IN TOWNS OF CER- TAIN COUNTIES. The town board of any town in a county adjoining a city of the first class and containing not more than five towns, upon the written request of at least ten taxpayers in each of the water and sewer districts in such town, shall cause to be submitted at a biennial town meeting in such town the following proposition : " Shall there be established in the town of (nam-. ing the town) a water and sewer commission?" If such proposition be adopted by the affirmative vote of a majority of the qualified voters voting thereon there shall be established in such town a water and sewer commis- sion with the powers prescribed by this section. Such commission shall consist of three members. The supervisor of such town shall on or before the first day of December following the biennial town meeting at which such proposition shall have been adopted appoint three water and sewer commissioners for such town to hold ofSce for the terms of one. two and three years, respectively, from the first day of December, and &nnually thereafter the supervisor of such town shall on or before December first appoint a water and sewer commissioner to hold office for a full term of three years from such date. The members of such commission shall each receive an annual salary to be fixed by the town board, not exceeding twenty- 432 TOWNS, TOWK MEETINGS AND TOWN OrFICERS. Town Law, §§ 250, 251. five hundred dollars. Sucli salary shall be apportioned among tlie several water and sewer districts in such town in the proportion of the aggregate assessed valuation of the real and personal property in such districts as appears by the last preceding town assessment roll, and the portion thereof apportioned to a district shall be levied and collected therein in the same manner as town taxes are levied and collected, and when collected shall be paid to the supervisor of such town to be applied toward the payment of such salary. On the first day of December succeeding the adoption of a proposition establishing such commission the terms of office of all the water and sewer commissioners in the several water and sewer districts of such town shall expire, and all the powers and duties of such commissioners in respect of the water and sewer districts for which they were appointed shall be vested in the water and sewer commission of such town; and thereupon such water and sewer commissioners shall turn over to the water and sewer commission of such town all books, records, documents and other property of their respective districts. Pending proceedings shall not be affected by reason of the creation of such commission, but shall be continued in the same manner and with the same effect as if such commission had not beea created, except that such commission shall be substituted for the district commissioners. [Town Law, § 129, as added by L. 1918, ch, 397.] §~8.' SIDEWAIiK DISTRICT ESTABLISHED; IMPROVEMENTS TS SUCH DISTRICT. The town board of any town, on the petition of twenty-five owners of real property in a proposed district, whose names appear upon the last preceding completed assessment-roll, may establish a sidewalk district out- side of an incorporated village or city ; such petition must be filed with the town clerk of said town at least ten days before it is acted upon by the town board as hereinafter mentioned and must bound the territory outside of the corporate limits of any incorporated village or city in said town, which is to be included in said district, and thereafter said district is to be known as a sidewalk district, and the taxable property within said district is to thereafter become subject to the charges and assessments hereinafter mentioned ; and after receiving such petition, the town board may adopt the same by resolution and lay out the portion of the town described in said petition as a sidewalk district. [Town Law, § 250, as added by L. 1910, ch. 183, in effect April 28, 1910.] Improvements in such districts. — The town board of any town in which a sidewalk district is laid out as aforesaid may cause a sidewalk on any street or part thereof in said sidewalk district to be graded and a sidewalk to be built, curbed or guttered, or any one or more of such acts performed, partly at the expense of the taxable property in said side- walk district, and partly at the expense of the owners of the land front- ing on said street or part thereof, improved as aforesaid, but such sidewalk shall not be so graded, built, curbed or guttered unless a petition therefor be presented to said town board signed by at least a majority of the owners of property fronting on said street or portion thereof, proposed to be so im- proved. The town board shall upon the receipt of such petition as afore- said give a public hearing thereon to all persons interested on a notice of at least ten days, which notice shall specify the time and place said hearing shall be held, and shall be served upon said persons personally by mailing FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 433 Town Law, §§ 252, 253. the same to their last known respective addresses, or by publishing the same ■once each week for two weeks, in a newspaper which circulates in said dis- trict, or by either or any of said methods. If said town board shall act favorably upon said petition, it shall by resolution define the width of the sidewalk, the kind and character of materials of which the same shall be constructed, and whether the same shall be curbed or guttered, or both, and the kind and character of curb or gutter, or both, that shall be laid. It shaU. cause the sidewalks upon said street or portion thereof to be graded and a sidewalk, curb and gutter, or either, to be constructed and laid there- upon, and such sidewalks, curbs or gutters as may be already laid upon said street or portion thereof, to be repaired and made to conform to the estab- lished grade. [Town Law, § 251, as added by L. 1910, ch. 183, and amended by L. 1917, ch. 593.] § 9. CONTRACT FOB IMFBO VEMENTS ; IMPBOVEMEXTS, HOW PAID FOB. The tovm board of any town wherein a sidewalk district is laid out and defined as aforesaid is hereby empowered and authorized, after it has favorably acted upon a petition presented by the property owners on a street or portion thereof as aforesaid, to cause a survey to be made, grade to be established, plans and specifications to be drawn and to advertise for bids to grade and build a sidewalk, lay a curb or gutter on the street or portion thereof described in said petition, or do any one or more of said acts and award a contract therefor to the lowest bidder; or the said town toard may with or without a survey, plan or specifications obtain from the superintendent of highways of the town, an estimate of the costs of making said improvements, and after- approving the estimate, cause the same to be made under the supervision of the said superintendent of highways without a contract; all expenses incurred by the town board in connection with such improvements or any of them, shall be a charge upon said district. [Town Law, § 252, as added by L. 1910, ch. 183, and by L. 1917, ch. 593.] Improvements J how paid for. — After a town board has ascertained the expense of the improvements provided for herein, it may borrow upon the credit of the town wherein said district is located a sum equal to the total thereof, for a period not exceeding eight months from the date thereof, at a rate of interest not exceeding six per centum and use the same to pay the expense thereof, which certificate with interest is to be paid out of the moneys derived as herein provided. After the town board has ascertained the expense of grading and building the sidewalks and laying the curbs and gutters upon any street or portion thereof as contemplated herein, it shall apportion and assess three-fourths of the expense thereof upon the property fronting upon the street or portion thereof improved as aforesaid. Notice of such assessment shall be given to the owners of said real property in the same manner as the notice above mentioned is given, which notice shall state, among other things, that said expenditures have been made, the pur- pose and the amount thereof, and that at a specified time and place the town board will meet for the purpose of making said assessments. The town board shall meet at the time and place specified in said notice and shall determine all objections made to such assessment, including the amount thereof, and shall assess upon the land benefited and fronting upon said street or portion thereof, the amount it may deem just and reasonable, 434 TOWXS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 254. not exceeding in case of default the amount stated in the notice. After the- expiration of thirty days from the time said assessment is finally made and assessed, the town board shall direct or issue a sale of bonds, pledging the credit of the town wherein said district is located for the aggregate amount of the assessments remaining unpaid, which bonds shall mature within a period of five years and bear interest at a rate not exceeding six per centum and shall be a town charge. The town board shall thereafter annually apportion the amount to be raised for the payment of such bonds on the lots or parcels in default, so that the tax thereon will be the same as if an equal portion of the general assessment was then paid. Interest on the un- paid assessment shall be added to such tax at the rate payable on the bond or certificate of indebtedness, which amounts shall be computed to the time when the principle or an instalment will become due, or if no principal will become due during the ensuing year, then the interest accrued during that year upon the assessment or bonds must be levied upon such lot or parcels. The town board shall annually report to the board of supervisors at its annual meeting, and submit a statement showing the amoimt due or to become due with principal and interest the ensuing year on bonds issued under this act, and the lots or parcels liable to pay the same and the amount chargeable to each. The board of supervisors shall levy such amounts against the property liable and shall state the amount of the tax in a sepa- rate column, in the annual tax roll under the name " sidewalk tax ;" such tax when collected shall be paid to the supervisor and be by him applied in payment of the bonds. The amount apportioned by the said town board on any lot or parcel and any tax levied for collection thereof shall be a lien prior and superior to any lien or claim except the lien of an existing tax or local assessment. The remaining one-fourth of said expense shall be levied and assessed upon the taxable property within said sidewalk district, the same as town charges are levied and assessed upon the taxable property within the town wherein said district is located. An aggregate amount, however, to be levied and assessed upon a sidewalk district during any one year, shall not be in excess of two per centum of the assessed valuation of when the principle or an installment will become due, or if no principal the taxable property within said district as appears upon the last preceding assessment-roll. [Town Law, § 253, as added by L. 1910, ch. 183, and amended by L. 1911, ch. 139, and L. 1917, ch. 593.] § 10. CONTBOI. OVER SIDEWAIiKS. After a sidewalk district has been established as herein provided, all sidewalks constructed and curbs and gutters laid within said district shall be done under the supervision of the superintendent of highways of the town wherein said district is located. He is hereby authorized, if in his judgment he believes it to be necessary, to establish the necessary grades therefor. It shall be the duty of the owner or occupant of each and every lot or parcel of land situate upon a street or avenue, or a portion thereof, which has been graded, sidewalked, curbed or guttered as herein provided, to remove within twelve hours, all snow, ice or other obstructions upon the sidewalk in front thereof. If such owner or occupant fails to remove such snow, ice or other obstructions as provided herein, the superintendent of highways of a town in which such lots are situate shall cause the same to be removed and the expense thereby incurred shall be paid in the first instance out of moneys provided by the town board for such purposes available therefor, and the amount thereof shall be charged against such owner or occupant, and levied and collected as follows : Such super- FIRE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 435 Town Law, § 254. intendent of highways shall serve personally or by mail upon such owner, occupant or company a written notice stating that at a time and place therein mentioned, he will assess such cost against the owner, occupant or company neglecting to perform such duties. Such notice shall be served at least eight days previous to the time specified therein. If directed to a company it may be served upon it at its principal place of business, or upon an agent of the company within the town. If the property be unoccupied and the name and address of the owner is un- known, it may then be served by posting the same upon the property affected at least eight days previous to the time specified therein. At the time and place so specified, he shall hear the, parties interested and shall thereupon complete the assessment stating therein the name of each owner, occupant or company, if he can ascertain the same and the amount assessed against him or it, and shall return such assessment to the town clerk, who shall present the same to the town board of his tovm at its meeting held on the Thursday preceding the annual meeting of the boar.d of supervisors. Such town board shall certify such assess- ment to the board of supervisors, who shall cause the amount stated therein to be levied against such owner, occupant or company, and any uncollected tax shall be a lien upon the lot or parcel of land affected. The amount so levied shall be collected in the same manner as other taxes levied by such board and shall be paid to the supervisor of the town, to be applied in reimbursing the fund from which such cost was defrayed. The town board of any town in which a sidewalk district is laid out as herein provided shall annually estimate the amount necessary each year to remove snow, ice and other obstructions from the sidewalks in said district as herein provided, which sum so estimated shall be levied and assessed upon the taxable property vnthin said side- walk district as town taxes are levied and assessed upon the taxable property within said town, which sum after the same is collected shall be paid to the supervisor of said tovm. and retained by him for the pur- poses herein provided. [Town Law, § 254, as added by L. 1910, eh. 183, in effect April 28, 1910.] 4:35 a TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Town Law, § 255. § 11. PROCEEDINGS FOR CONSTRUCTING SIDEWALKS NOT CON- STRUCTED UNDER THE PRECEDING SECTIONS. If the town board of any town shall determine that any sidewalks should be constructed outside of a sidewalk district or within a side- walk district and upon a street or portion of street as to which no petition is filed under the provisions of section two hundred and fifty- one, of stone, cement, brick oa- similar substance, it may cause such sidewalk to be so constructed along the front of one or more parcels of real property at the joint and equal expense of such property and of the town. The board shall allow to each land owner an opportunity to appear and object to such proposed action, upon five days' notice of the time and place of the hearing. If the town board shall finally deter- mine to construct such sidewalk, it may cause the same to be constructed. The board shall assess fifty per centum of the cost of such construction upon the land in front of which the sidewalk is constructed. The other fifty per centum of such cost shall be borne by the town, and moneys provided therefor by taxation in the same manner as other town charges. The entire expense shall be paid in the first instance by the town. Such expense may be raised in an entire amount or in small amounts from time to time as the town board may determine. Bonds or certificates of indebtedness of the town may be issued, if the town board deem it neces- sary, to provide for such expense. The board may apportion the part to be assessed upon adjoining land and assess the same as. a whole or by installments. Where one parcel of land only, owned by the same party, is affected by the improvement, the share to be paid by such land owner shall be one-half of the cost of the improvement ; otherwise, the propor- tion payable by the several land owners shall be determined according to the linear feet of sidewalk in front of each parcel. Xotice of an assessment shall be given to the land owner or land owners, who may pay the amounts assessed within ten days after such notice. At the expira- tion of that time, town bonds or certificates of indebtedness may be issued for the aggregate amount of such assessment then remaining unpaid. The town board shall include in its annual budget reported to the riEE; WATER, LIGHT, SEWER SYSTEMS; SIDEWALKS. 435^ Town Law, § 255. board of supervisors, of taxes to be levied in tbe town, the principal or interest accruing during tbe same fiscal year upon bonds or certificates of indebtedness issued on account of default in tbe payment of local assessments under tbis section, and tbe board of supervisors sball levy tbe same upon the lots or parcels in default. Such principal sball be apportioned among tbe lots or parcels in default in such manner that the tax thereon will be tbe same as if an equal portion of tbe assess- ment were then to be paid. Interest on an unpaid assessment sball be added to such tax at tbe rate payable by the bond or certificate of in- debtedness, which must be computed to tbe time when tbe principal or an installment will become due; or if no principal will become due during tbe fiscal year, then the interest accruing during that year upon tbe assessment must be levied upon such lot or parcel. Tbe town board sball annually estimate the probable amount neces- sary each year to enable tbe town to pay for construction work in tbe first instance under tbis section, which sum so estimated sball be levied and assessed upon tbe taxable property of the town and paid to tbe supervisor, to be disposed of by him as hereinafter provided. [Town Law, § 255, as added by L. 1915, cb. 513.] 436 TOWNS, TOWX MEETINGS AND TO^YN OFFICERS. General Municipal Law, §§ 72, 77, CHAPTER XXXI. OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. Section 1. Acquisition of lands by town board for soldiers' or other monument or memorial structures. 2. Leases of public buildings to grand army posts. 2a. Military equipment for local military organizations, etc. 2b. Convention expenses of municipal oflBcers and employees. 3. Lease of buildings for justices of the peace. 4. Collection and disposition of garbage. 5. Penalty for violating ordinance relating to garbage. 6. Assessments for expenses of disposition of garbage. 7. Purification of water and sewerage. 7a. Sewerage and sewage systems. 8. Appropriation by town board for shade tree fund. 9. Acquisition and development of forest lands. g 1. ACQUISITION OF LANDS BT TOWN BOARD FOR SOI-DIERS' OR OTHER MONUMENT OR MEMORIAL STRUCTURES. The governing board of a village or town, or the trustees of a monument aBBOciation, may acquire not to exceed three acres of land, for the erection of a soldiers' monument, or a monument or other structure as a memorial of some distinguishing or 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 thereon not exceeding two thousand five hundred dollars in value, and if a judge of the county, or a justice of the supreme court of the district, in which such memorial is to be erected, shall give his written approval of the acquisition of such lands for such purpose. [General Municipal Law, § 72; B. C. & G. Cons. L., p. 2132.] § 2. LEASES OF PUBLIC BUILDINGS TO GRAND ARMY POSTS. A municipal corporation may lease, for not exceeding five years, to a post or posts of the Grand Army of the Eepublic, or other veteran organiza- tion of honorably discharged Union soldiers, sailors or marines, a public building or part thereof, belonging to such municipal corporation, except schoolhouses in actual use as such, without expense, or at a nominal rent, OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 437 General Municipal Law, §§ 77a, 77b. fixed by the board or council having charge of such buildings and provide furniture and furnishings, and heat, light and janitor service therefor, in like manner. [General Municipal Law, § 77, as amended by L. 1917, ch. 583; B. C. & G. Cons. L., p. 3134.] § 3a. MUilTARV EQUIPMENT FOR LOCAI. MIUTART OBGANIZA- TIONS AND TO PROVIDE FOR EMERGENCIES AND THE SUPPORT OF PERSONS DEPENDENT UPON MEN ENLISTED IN THE FEDERAL SERVICE, NATIONAL GUARD OR NAVAL MILITIA DURING THE PRESENT 'WAR. A county, city, town or village may provide arms, uniforms and equip- ments for military organizations raised within the municipality, and for the purposes of security, defense, mobilization of resources and emergency aid during the continuing of the present war and may, in its discretion, provide for the support of any person or persons residing in such municipal- ity who may be dependent for support upon a man enlisted in the federal service, national guard or naval militia. The governing board may appro- priate necessary moneys therefor and provide the same by taxes to be levied upon the taxable property of the municipality in the same manner as other municipal taxes. Such board may borrow the amount of any such appropriation upon certificates of indebtedness, one-half of which shall be payable within two years and the remaining half part within four years from date of issue. [General Municipal -Law, § 77-a, as added by L. 1917, ch. 235.] § 2b. CONVENTION EXPENSES OF MUNICIPAL OFFICERS AND EM- PLOYEES. The governing board of any municipal corporation, except of a city •of the first class or of a county contained wholly within a city of that class, may by a majority vote of its members, authorize any one or more of its officers, or either the executive head or deputy of a department, or the executive head of a bureau, to attend an official or unofficial conven- tion of municipal officers if believed to be of benefit to the municipality. Such authorization must be by resolution adopted prior to such attendance, duly entered in the record of the proceedings of the board. All sums actually and necessarily expended by any person so authorized to attend a convention, for railroad fare and hotel expenses, shall be a charge against his or her municipality, and the amount thereof shall be audited, allowed and paid in the same manner as are other claims against such municipality. No such person shall be entitled to any compensation for the time spent in attending such a convention, except that no deduction shall be made 438 TOWNS, TO^VN MEETINGS AND TO^^T^ OFFICERS. Town Law, §§ 135, 320, 321. from the salary of a person so attending because of such attendance. [Gen- eral Municipal Law, § 77-b, as added by L. 1918, ch. 637.] § 3. LEASE OF BUILDINGS FOR JUSTICES OF THE PEACE. The town boards of any town in a county adjoining or containing a city of the first or second class may from time to time lease buildings or parts of buildings in any portion of said town for the use of justices of the peace of said town to hold court therein. There shall not be leased for the purposes set forth in this section more than one building for each justice of the peace in said town. [Town Law, § 135; B. C. & G. Cons. L., p. 6189.] § 4. COLLECTION AND DISPOSITION OF CABBAGE AND ASHES. Within any town having over five thousand inhabitants or within any town adjoining a city of the first class, or within any district in any such town established by the town board of such town, it shall be lawful for the town board of such town to provide for the collection of and to cause to be consumed by fire or heat or disposed of in such other manner as the town board may determine, and to prohibit the throwing, casting or de- posit in any body or stream of water, or upon any ash heap or other place than such as may be provided by them within such town or district, any animal or vegetable refuse, dead animal, carrion, offal, swill or garbage. And it shall be lawful for the town board of any such town, to contract for the collection and for the consumption by heat or fire or for the dis- position in such other manner as the town board may determine of any such refuse or other aforesaid matter, or for the purchase, maintenance and ope- ration of any appliances for the collection and disposition thereof. Such town board may also provide for the collection and disposition of ashes and may contract for such collection and disposition, or for the purchase, main- tenance and operation of any appliances for the collection and disposition thereof. [Town Law, § 320, as amended by L. 1917, ch. 55, and L. 1918, ch. 432; B. C. & G. Cons. L., p. 6223.] § 5. PENALTY FOB VIOLATING ORDINANCE RELATING TO GARB- AGE. Any person offending against any such provision as aforesaid made by any such town board for the collection, or for the prohibition of the throw- ing, casting or deposit, of any such refuse or other aforesaid matter shall be deemed guilty of a misdemeanor. [Town Law, § 321 ; B. C. & G. Cons.. L., p. 6223.] OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438a Town Law, § 322; General Municipal Law, § 120. § 6. ASSESSMENTS FOB EXPENSES OF DISPOSITION OF GARBAGE. Any expenses incurred in any town, or any district in any town, pur- suant to the provisions of the last two sections shall be levied, assessed and collected upon the taxable property in the town or district as to which the same is incurred in the same manner, at the same time and by the same officers as the town taxes, charges or expenses of such town are assessed, levied and collected, and shall be paid over to the supervisor of such town, and by him applied to the payment of such expenses. [Town Law, § 322; B. C. & G. Cons. L., p. 6223.] § 7. PURIFICATION OF WATER AND SEWERAGE. The local authorities of the several cities, towns and villages of the state having charge of the supply of water and the care of sewerage in their re- spective localities, are hereby authorized, on behalf of their cities, towns and villages, respectively, to enter into contracts with the owners of any process or apparatus for the purification of water and sewerage whether protected by patents or not, and either contract for the use of apparatus and process for a term of years or for the purchase of the same, as to them shall seem advisable. It shall be lawful for any two or more of such municipalities in this state, excepting only cities of the first and second class, without regard to the form of their incorporation, including towns or sewer districts of towns, to jointly construct, provide, maintain and operate a compre- hensive system of sewerage including trunk lines and laterals, or a system of conveying or conducting sewerage from said municipalities from a point or points to be agreed upon to a common destination or disposal plant or plants, and to construct, maintain and operate within or without the said municipalities or any of them one or more outlet or trunk sewers, plants, works or stations for the treatment, disposal, or rendering of sewer- age, or any such municipality or any such municipalities may jointly or severally contract for the construction for it or them of any such system, extension or part thereof, including any such sewers, plants, works or sta- tions, and agree to pay annually, semi-annually or quarterly for the use or possession thereof, by way of permanent rental reserved therefor; or such lawful authorities of the respective municipalities may jointly or severally contract with any person, persons or corporations or with other municipali- ties or sewage districts for the removal of sewage within the boundaries of such local government, upon such reasonable terms as they may agree upon. And to that end the governing bodies or boards of any two or more municipalities, including sewer districts of a town, authorized by law to have charge of sewer systems established or to be established in said mu- 438b TOWNS, TOWN MEETINGS AND TOWN OFFICERS. General Municipal Law, § 120a. nieipalities, or sewer districts of a town, respectively, may unite and jointly cause to be made at tbeir joint expense (each district bearing a part of the €xpense in proportion to the assessed valuation of real estate in such dis- trict, or on such other basis or division as may be jointly agreed upon) by competent engineers, mechanics and others, surveys, maps, plans, reports and estimates of proposed works and improvements relating to such con- templated public improvement or works authorized by this act, which such municipalities may desire to jointly provide, maintain, operate or lease under the authority conferred by this act, and for such purpose they may determine upon the final route and plan for the building or construction of such sewerage system and for the making of such surveys, maps, plans, reports and estimates as provided in this section. It shall be lawful for the officers and agents of such municipalities to enter at all times upon any lands or waters for the purpose of exploring, surveying, and laying out the route of such sewerage system. [G^neraal Municipal Law, § 130, as amended by L. 1917, ch. 709.] § 7a. SEWERAGE AND SEWEB SYSTEMS. Contracts for sewerage disposal. — The respective municipalities and dis- tricts may contract with each other, or they may jointly or severally con- tract with a third person, corporation or municipality, either for the con- struction, operation, maintenance or leasing of a complete comprehensive system for the removal and disposal of sewerage, or of a trunk line system with or without lateral connections, with or without the sewerage disposal plant or of a sewerage disposal plant; each of the boards or commissioners, however, binding only the municipalities or districts which they respectively represent. Such municipalities jointly acting through such board or com- missioners, if they deem it expedient so to do, may contract with any other municipality or municipalities through or over whose territory such trunk sewer or sewers are intended to pass, for the construction of said outlet, trunk 'sewer or sewers and appurtenances located within the territory of such other municipality, in such manner as may be agreed upon between such other municipality, and the municipality theretofore jointly contract- ing as herein authorized, or such jointly contracting municipalities may contract in writing with any other municipality or municipalities for the privilege of connecting its or their sewers and drains with such outlet or trunk sewer or sewers so to be jointly constructed by the municipalities originally contracting for the public improvements or works hereby author- ized, and it shall be lawful for such other municipality or municipalities to enter into a contract for such purpose, upon such terms and for such OTHER POWERS AND DUTIES OF TOWN BOARDS; UARBAGE. 438c General Municipal Law, § 120c. consideration and length of time as may be mutually agreed upon between all the contracting municipalities. [General Municipal Law, § 130-a, as added by L. 1917, ch. 709.] Supervision of sewage system. — If the public works herein provided be constructed and operated by the municipalities acting jointly, the local authorities of the contracting municipalities or districts having charge of sewage shall jointly supervise the construction and operation of such sew- age system, or they may jointly engage or employ a competent sanitary engineer for such purpose. They shall jointly elect or appoint all neces- sary employees at the disposal plant and for the care of the trunk line sewer, and severally appoint such employees as they may be authorized so to do by the respective governing bodies to work on the system within the boimds of such municipality. [General Municipal Law, § 130-b. as added hy L. 1917, ch. 709.] Obligations and privileges relating to sewerage contracts. — No contract for the construction, use or possession of any such sewer system extension or part thereof, including any such sewers, plants, works or stations, au- thorized by section one hundred and twenty, or for the removal of sewage, or agreement to pay any annual, semi-annual or quarterly sum by way of permanent rental reserved therefor, shall be deemed to create an indebted- ness of such city, town or village under any act limiting the amount of such indebtedness, unless and to the extent that such municipality or mu- nicipalities shall covenant to pay for such system, extension or part thereof, including any such sewers, works, plants or stations under any right re- served in such contract or otherwise. Such system, extension or part thereof shall, when accepted under such contract, and such works, plants or stations, may if so provided therein, pass into the use, possession, man- agement and control of such municipality or municipalities, and it or they shall, by proper provision in the said contract, subject such contract to its or their right at any time to terminate all its or their liability under the same for such rental by paying for such system, extension or part thereof a price named therein or to be determined in accordance with the provi- sions thereof, and it or they may by proper division in such contract, cove- nant to terminate its or their liability in such manner at a time or within a period named therein, but the sum or rental to be paid for such use and possession or the price which must be paid for such system, extension or part thereof in order to terminate the liability of such municipality or municipalities under such contract, shall not be fixed by said contract beyond a period of thirty years, after which and at any time thereafter, if such municipality or municipalities shall not have terminated its or their 438d TOWNS, TOWN MEETINGS AND TOWN OFFICERS. General Municipal Law, §§ 120d, 120e. liability under said contract^ the sum or rental to be paid for the continued use and possession of such system, extension or part thereof or the price at which the same must be paid for in order to terminate such liability, which sum or rental and which price shall be based on the value of such system, extension or part thereof at any such time, shall be fixed by agreement, or in the absence of agreement by application to a competent court and under its order, but each such agreement or order shall be limited to a period not exceediag ten years. And such local authorities may also at any time contract for the maintenance and operation of any such system, extension or part thereof, including any such works, plants or stations or of any sewerage or sewage disposal system or part thereof owned or used by any such municipality or municipalities. [General Municipal Law, § 120-c, as added by L. 1917, ch. 709.] Officers of meeting. — In order to facilitate business procedure, the local authorities of the several municipalities or districts meeting jointly for the purposes herein provided shall, at a meeting at which all the municipal- ities and districts intending to act jointly are represented, choose from among their number a chairman, who shall act as such until his successor is chosen in a similar manner. Such meeting, when organized, shall elect a secretary who may or may not be a member of one of the local boards meeting jointly. [General Municipal Law, § 120-d, as added by L. 1917, ch. 709.] By whom proposed district meeting represented. — Until a sewer district of a town is organized as provided by the tovni law, the supervisor, or a member of the town board appointed by the supervisor, of the town in which the proposed sewer district is located, may act for and on behalf of the people of the territory proposed to be embraced in a sewer district, when requested bo to do by a petition in writing signed by not less than five per centum of the voters of such proposed district, at such joint meet- ing of municipalities and districts; provided, however, that neither the town nor any property within the town, except such property as may be within such proposed district, shall be chargeable with any debt or expenses created by such municipalities or districts acting jointly. [General Munic- ipal Law, § 120-e, as added by L. 1917, ch. 709.] • Contract; how executed. — No municipality or district acting jointly as herein provided shall be bound by any contract or agreement unless such contract or agreement be signed and executed by a majority of the local authorities of such municipality having care of sewerage in such munici- OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438e General Municipal Law, §§ 120g, 120h, 120i. pality or district. [General Municipal Law, § 130-f, as added by L. 1917, ch. 709.] Apportionment of cost. — Before any such contract for construction men- tioned in section one hundred and twenty-c shall become effective, such local authorities shall determine the part or proportion of the annual cost thereof, if any, which is to be assessed upon the property benefited thereby, and the method of such assessment, and shall provide that any part thereof not actually paid out of such assessment shall be paid out of the general funds to be raised by a tax m such city, town, village or sewer district. In the case of a town, the petition for the creation of such sewer district, or supple^ mental petition, shall request the construction of such sewer system, exten- sion or part thereof, as herein provided, and such petition shall comply in form, substance and in the manner of execution, so far as applicable thereto, to the requirements of section two hundred and thirty of the town law, except that it may state that the annual sum or rental to be paid for the use of said plant or for the removal of sewage as herein provided shall be fixed and assessed in the first instance for the full period named in any such con- tract, not exceeding thirty years, and that any part thereof not actually paid out of such assessment may be reassessed upon the property in such district. Before acting on any such petition, the town board shall give the notice provided in section two hundred and thirty-a of the town law, and the assessment shall be made in form and substance so far as applicable thereto •as provided in section two hundred and thirty-seven of said law. [General Municipal Law, § 120-g, as added by L. 1917, ch. 709.] Further provisions as to apportionment of cost. — Each of the contract- ing municipalities or districts shall pay its just and proportionate share for -the public improvement authorized by this act and the general laws, includ- ing its just and proportionate share of the cost for the removal of sewage and of maintenance and carrying charges of the system. The manner of arriving at the share each local government shall bear and the method of payment thereof as hereinafter provided shall be determined by its local board or commissioners having charge of sewage, before such contract for construction or for sewage removal becomes effective, as hereinafter pro- vided. [General Municipal Law, § 120-h, as added by L. 1917, ch. 709.] Bond issues and assessments. — The indebtedness created for such public (works may be paid by each contracting municipality, including a sewer district of a town, wholly by a bond issue ; or partly by a bond issue, and partly by assessment on the property deemed specially benefited by such improvement and partly by money raised by general taxation; or partly by> a bond issue and partly by assessment on the property deemed specially 438f TOWNS, TOWN MEETINGS AND TO\VN OFFICERS. General Municipal Law, §§ 120j, 120k, 1201. benefited by such improvement. In the case of a sewer district of a town the petition for the creation thereof or a supplemental petition may state the means of payment as above provided and the assessment therein shall be made in form and substance so far as applicable as provided in section two hundred and thirty-seven of said law, except that such sewer commis- sioner shall assess a part of the district's proportionate share of the total cost of such system on the lands within such district, or extension of an existing district in proportion, as nearly as may be, to the benefit which each lot or parcel will derive therefrom. Such sewer commissioners shall determine the amount to be raised by general taxation for such expense and the amount to be raised by bond, if any. [General Municipal Law, § 120-i, as added by L. 1917, ch 709.] Notes in anticipation of assessments. — For the purpose of defraying the costs and expenses of such public improvement as is authorized hereby in respect of which an assessment for benefits may be made on lands and real estate situated in any such contracting municipality, the governing body or board "having charge of the finances of any such contracting municipality may, if necessary, borrow money and secure the payment of the same by the notes or other temporary obligations of such municipality; these notes and obligations may be renewed from time to time until such improvement or works be completed or the assessment for benefits confirmed; when so con- firmed the said governing body or board of such municipality shall provide the cost and expenses of such improvements in the manner herein or in general laws provided. [General Municipal Law, § 130-j, as added by L. 1917, ch. 791.] Payments; how made. — It shall be lawful for the governing body or board having control of the fitnances of such contracting municipality, in lieu of issuing the bonds of such municipality, to pay its proportion of the costs and expenses of any improvements jointly contracted for and made imder this act, with money to be raised by taxation, after the making of the public improvements herein authorized have been determined upon and a joint contract made and entered into pursuant to the provisions of this act, or by paying the whole or part of such indebtedness out of all moneys belonging to such contracting municipality not otherwise appropriated or required. [General Municipal Law, § 120-k, as added by L. 1917, ch. 791.] Letting of contracts. — Whenever any work to be performed or materials to be furnished in or about any improvement to be made by two or more municipalities under the provisions of this act shall involve an expenditure of any sum of money exceeding five hundred dollars, the municipal bodies or boards of the contracting municipalities, by their official action taken OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438g- General Municipal Law, §§ 120in, 120n, 120o. in joint meeting as herein provided, shall designate a time when they will meet at their usual place of meeting to receive proposals, in writing, for doing the work or furnishing the materials, and such joint meeting shall order the chairman and secretary thereof to give notice, by advertisement inserted in one or more newspapers published or circulating in the munici- palities jointly contracting, at least two weeks before the time of such meeting, of the work to be done or materials to be furnished, of which at the time of such order they shall cause to be filed in the office of such joint meeting particular specifications; all proposals received shall be publicly opened by such chairman in the presence and during a session of such joint meeting, and of all others who choose to attend the said meeting; not more than one proposal shall be received from any one person, directly or indirectly, for the same contract work or materials; and the said joint meeting may reject any and all of said proposals and direct its chairman and secretary to advertise for new proposals and accept such as shall in th& opinion of a majority of the municipalities represented in said joint meet- ing be deemed most advantageous for the said municipalities, subject, how- ever, to the reservations herein provided; the board may require a bond or deposit from the person submitting a proposal, the liability of such bond to accrue, or such deposit to be forfeited to the municipality, or munici- palities, in case such person shall refuse to enter into a contract in accord- ance to his proposal. The proposal so accepted shall be reduced to a con- tract in writing, and a satisfactory bond to be approved by such joint meeting shall be required and given for its faithful performance, but all contracts when awarded shall be awarded to the lowest responsible bidder offering satisfactory security; this section shall not apply to any engineer or agent of the joint contracting municipalities engaged in supervising or directing the work of such improvements. [General Municipal Law, § 120-1, as added by L. 1917, ch. 709.] Application of other laws to procedure. — Except where inconsistent with this act, or otherwise permitted hereunder the apportionment of local assess- ments and the manner of payment of the expense of construction of such public works shall be as provided in the town law, the village law, the general cities law, or in the manner provided in any special city and of any contract- ing city. [General Municipal Law, § 120-m, as added by L. 1917, ch. 709.] Map and plan, etc. — Before taking any proceedings for the construction of any sewer or of any system of sewers or of any addition thereto or alter- ation thereof, such municipality or municipalities acting severally or jointly shall cause to be made a map and plan therefor, or an amendment of any map and plan previously approved, as the case may be, and shall submit the 438h TOWNS, TOWN MEETINGS AND TOWN OFriGERS. General Municipal Law, §§ 120o, 120p. same to the state commissioner of health for his approval, and upon his approval the same shall be filed in his office. A copy of such map and plan or of any such amendment thereof shall also be filed in the office of the clerk of each such municipality. Any such map and plan shall include specifications of dimensions, connections and outlets or sewage disposal works and may also include any existing sewer which it shall be found feasible and proper to incorporate or include in the proposed system. No work of any kind shall be done on or for the construction, extension, recon- struction, removal or modification of any system of sewers or of any sewer thereof until a map and plan covering the entire system shall first have been duly approved and tiled as above provided, and in the execution of the construction, extension, reconstruction, removal or modification of any system of sewers or of any sewer thereof no deviations from the plans as finally approved and filed shall be made until plans or descriptions ade- quately showing such deviations are first approved and filed as above pro- vided. The state commissioner of health, in approving said map and plan or by a certificate supplementing any such approval, may authorize such municipality or municipalities to temporarily omit or defer the construction of any portion of any such sewer or system of sewers. A copy or copies of his approval or of any such supplemental certificate shall be certified to each Buch municipality and filed in the ofiBce of the clerk thereof. [General Municipal Laws, § 120-n, as added by L. 1917, ch. 709.] Definitions. — The words "joint meeting" as used in this act shall be construed to mean the meeting or assembly of the members of the governing bodies or boards of the several municipalities having authority to make and enter into a contract for the construction jointly of public improvements, pursuant to and by virtue of the pro.visions of this act. [General Municipal Law, 120-O, as added by L. 1917, ch. 709.] Referendum in cities and villages. — In any such city or village, whether acting severally or jointly, a copy of such contract, for construction men- tioned in section one hundred and twenty-c, with a copy of the determination required in section one hundred and twenty-g, shall be published at least twice in one or more newspapers published therein, including the official newspaper or newspapers, if any, of such city or village, or posted in not less than five public places, and published at least twice in a newspaper circulat- ing in such municipality if no newspaper is published therein. If, within fifteen days after the publication or posting of such contract and determi- nation, a protest or protests against such contract shall be filed in the office of the clerk of such city or village signed either by not less than one-third of the governing body adopting such resolution or by a three per centum OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438i General Municipal Law, § 120p. in number of the taxpayers thereof whose names appear on the last preced- ing assessment roll of real property, excluding special franchises, then such contract shall not become effective unless the governing body shall by a fur- ther resolution provide for the submission to the taxpaying voters of a proposition to ratify such contract, nor unless, within sixty days after such publication or posting such proposition shall be adopted at a general election or at a special election to be called and held for that purpose, by a majority of the voters voting on such proposition. At any such election only voters entitled to vote for an officer and women qualified to vote for an officer except as to sex, owning real property other than special franchises assessed in their names upon the last preceding assessment roll of such city or village, shall be entitled to vote upon such proposition. At least ten days' notice of any election imder this section shall be given by the clerk of the city or village by publication at least twice in one or more news- papers, including the official newspaper or newspapers, if any, of such city or village, or by posting in at least five public places, if no newspaper is published therein. Such election may be held and the result canvassed and certified as may be required by any general or special law applicable to an election upon a proposition in any such city or village, or in the absence of any such law as may be prescribed by any general ordinance. The voting shall be by ballot prepared, in the form prescribed by the election law. The facts as to the filing and sufficiency of any protests under this section, and as to the calling, holding or result of any election which may be required or held under this section or under any other statute with respect to the authorization of any such improvement or the ratification of any ordinance authorizing the same, and all facts affecting the validity of any contract mentioned in section one hundred and twenty-c, including the organizations or acts of any town or sewer district shall, for the purpose of this section, be conclusively determined by a resolution of the governing body of any such city, town or village. A copy of such resolution shall be published twice in one or more newspapers, including the official newspaper or newspapers, if any, of such city, town or village, or posted in not less than five public places if no newspaper is published therein, and the facts therein stated shall not be disputed in any action commenced after the expirataion of ten days after such publication or posting involving the validity of such contract, or of any tax, assessment or other charge to meet any payment thereunder, and such contract shall be conclusively deemed to be valid unless entered into in violation of this section, section one hundred and twenty, or section one hundred and twenty-c of this chapter. [General Municipal Laws, § 120-p, as added by L. 1917, ch. 709.]. 438j TOWNS, TOWN MEETINGS AND 'TOWN OFFICEKS. General Municipal Law, §§ 120q, 120r, 120s; Town Law, § 140. Rules and regulations. — Such person, persons or corporation operating and maintaining such system or contracting for the removal of sewage as herein provided shall be subject to such rules, ordinances and regulations as said municipalities may establish, not inconsistent with any contract made therefor. [Greneral Municipal Law, § 120-q, as added by L. 1917, ch. 709.] Failure to keep system in good condition; penalty, etc. — In the event of such person, persons or corporation failing and neglecting to keep said system of sewage in good healthy and effective condition after due notice in writing of not less than sixty days, from any municipality using the same, their rights, of such person, persons or corporation, guaranteed under such contract may be canceled by such municipality, except that such munici- pality or municipalities shall pay the fair and reasonable value of such sewerage system as provided in such lease or contract. This section shall not apply if such system is under the management and control of one or more of such contracting municipalities. [General Municipal Law, § 130-r, as added by L. 1917, ch. 709.] Municipalities acting jointly; powers. — The joint meeting representing any two or more of such municipalities, as aforesaid, shall have power with their consent and on their behalf and by its own proper officers to enter into any contract and to acquire, by purchase or condemnation, and to hold, maintain and operate any property, necessary or desirable for any of the purposes authorized as aforesaid, as fully and to the same extent as any municipality acting severally. [General Municipal Law, § 130-8, as added by L. 1917, ch. 709.] § 8. APPROPRIATION BY TOWN BOARD FOR SHADE TREE FUND. A town board of a town in which a tree warden is appointed may, by resolution, appropriate annually not exceeding two hundred dollars, to be known as the shade tree fund, and which shall be used and expended by the tree warden for the setting out and preservation of shade trees along the highways in such town. [Town Law, § 140; B. C. & G. Cons. L., p. 6191.] § 9. ACQUISITION AND DEVELOPMENT OF FOREST LANDS. The governing board of a county, town or village may severally acquire for such county, town or village, by purchase, gift, lease or condemnation, and hold as the property of such municipality, tracts of land having forests or tree growth thereon, or suitable for the growth of trees, and may appro- priate therefor the necessary moneys of the county, town or village for OTHER POWERS AND DUTIES OF TOWN BOARDS; GARBAGE. 438k General Municipal Law, § 72a. which the lands are acquired. Such lands shall be under the manage- ment and control of such board and shall be developed and used for the planting and rearing of trees thereon and for the cultivation thereof according to the principles of scientific forestry, for the benefit and advantage of the county, town, or village. The determination of any such board to acquire lands under the provisions of this section shall be by resolution; but the question of the final adoption of such resolution shall be taken up by the board only after public notice thereof has been published for at least two weeks, as follows : If it be a resolution of a board of supervisors, the publication shall be made in the newspapers in which the session laws and concurrent resolutions are required to be published: if it be a resolution of a town board or of a board of trustees of a village, the publication shall be made in a newspaper published in the town or village, respectively. The board shall give a hearing to all persons appearing in support of or in opposition to such proposed resolution. If it be deter- mined to purchase such lands the moneys necessary therefor may be pro- vided as follows : If the acquisition be by a county, the board of supervisors may cause such moneys to be raised by taxation and levied and collected as other county taxes or may borrow money therefor on the credit of the county by the issuance and sale of county bonds in the manner provided by law for the issuance and sale of other county obligations; if the acquisition be by a town, the moneys necessary therefor shall constitute a town charge and be raised by taxation as other town charges, or, the tovm board may in its discretion, cause town bonds to be issued and sold in the manner provided by law for the issuance and sale of town bonds, under the town law, to pay judgments; if the acquisition be by a village, the moneys therefor may be raised by taxation, as other village taxes, or by the issuance and sale of village bonds in the manner provided by the laws governing such village relating to village obligations, after the adoption of a resolution therefor by the board of trustees, without other authorization. All revenues and emoluments from lands so acquired shall belong to the municipality and emoluments from lands so acquired shall belong to the municipality and in reduction of taxation therein. Such forest lands shall be subject to such rules and regulations as such governing board of the municipality shall prescribe; but the principal object to be conserved in the maintenance of such lands shall be the sale of forest products in aid of the public revenues and the protection of the water supply of the municipality. Such lands or portions thereof may be sold and conveyed or leased, if a resolution therefor be adopted by the affirmative vote of two-thirds of all the members of such governing board ; but no such resolution directing an absolute con- 4381 TOASTNS, TOWN MEETINGS AND TOWN OFFICERS. General Municipal Law, § 72a. Teyance shall be effectual unless adopted after a public hearing, held upon notice given in the manner required in the case of a resolution to acquire such lands. A deed of conveyance or lease of such lands, when authorized as aforesaid, shall be executed by the county treasurer of the county, super- visor of the town or president of the village by which the conveyance or lease is made. Moneys may be appropriated for the care and main- tenance of such lands and the development and use of forests thereon annu- ally, by the county, town or village, respectively, and the amount thereof raised by taxation in the same manner that other expenditures of such county, tovm or village are provided for by law. [Greneral Municipal Law, § 72a, as added by L. 1912, ch. 74.] TOWN BOARD AS LOCAL BOARD OF HEALTH. 439 Explanatory note. CHAPTEK XXXn. TOWN BOARD AS LOCAL BOARD OF HEALTH. EXPLANATORY NOTE. Local Boards of Health. The town board and a citizen of the town appointed by it constitute local board of health of the town. The board should meet as a board of health at stated intervals, to be prescribed by the rules of the board. The presiding officer may call special meetings of the board whenever the protection of the public health requires it. The presiding officer may be elected by the board at its meeting to be held after each biennial town meeting. If no such officer is elected the supervisor should act as the presiding officer. The board should at its first meet- ing held after the biennial town meeting appoint the additional member required by law. This member has the same powers as the other members of the board and should participate in all its meetings. Health Officer. The board of health must appoint a health officer, who shall be a competent physician, residing in the town or an adjoining town. His term of office is four years. He may be removed for just cause by the board or the state commissioner of health, after a hearing. The poM'ers and duties of the health officer are to be prescribed by the board. He is the chief executive officer of the board, and as such, must carry into effect the orders and rules and regulations of the board. The compensation of the health officer must be fixed by the board, but shall not be less than ten cents per annum for each inhabitant of the town. He may be paid his reasonable expenses in attending the annual conference of health officers. Such expenses are a legal charge against the town. Plis compensation, and all other necessary expenses incurred by him in the performance of his duties, should be audited by the town 440 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Explanatory note. board and paid in the same manner as other town charges. Additional coiiipensation may be allowed where an epidemic has broken out in the town, and the health officer has been compelled to perform extraordinary services. Orders and Regulations. The board must make and publish all orders and regulations deemed necessary by them for the preservation of life and health in the towa. Such orders and regulations have the force of law, and may be enforced the same as a law passed by the legislature, provided they are reasonable and within the power of the board to make. Where special cases are to be dealt with, as the suppression of nuisances, an order may be made and enforced, without publication. For the pur- pose of determining whether such a special order should issue in a particular case, the board may conduct hearings and compel the attendance of witnesses by the issue of subpoenas, and administer oaths to such witnesses and compel them to testify. The board may prescribe penalties for the violation of any of its orders or regulations, not exceed- ing one hundred dollars for a single violation. Registration of Births, Marriages and Deaths. The board must see to it that proper provisions are made for the registration of all births and deaths occurring within the town, and the cause of death. Birth certificates must be made out by physicians or midwives attending at such births. The cost of such registration, not exceeding twenty-five cents, is a charge against the town. Burial and Burial Permits. The board should prescribe sanitary regulations for the burial and removal of corpses. The board must designate the town clerk and health officer to grant permits for the burial of such corpses and for their transportation beyond the country where the death occurred. Infectious and Contagious Diseases. The board must guard against the introduction and spread of such infectious and contagious diseases as are designated by the state depart- ment of health. Infected persons may be quarantined by order of the board and suitable places for the treatment and care of such persons must be provided, where they cannot be otherwise provided for. TOWN BOARD AS LOCAL BOARD OF HEALTH. 44 1 Explanatory note. !N"otice of every case of any such disease must be given by every physician to the health officer. The health officer is required to report all such cases to the state department of health. The board must provide a suitable supply of vaccine virus and if an epidemic of small- pox exists in the town must secure a fresh supply at least once a week, and provide thorough and safe vaccination for all persons in need of the same. Suppression of Nuisances. One of the most important duties of a board of health pertains to the suppression of nuisances. The board is required to receive and ex- amine into all complaints made concerning nuisances. The members of the board, or persons designated by it, are authorized to enter upon premises where nuisances are alleged to exist, and to examine and inspect such premises. If facts are found to exist warranting supres- sion of a nuisance an order should be issued to that effect. Notice should be given to the owner of the premises, of the complaint made, and if after an examination of the premises there is any doubt as to the existence of the nuisance, the owner should be given a hearing before an order is issued directing its suppression. In every case the owner must be given a statement of the results and conclusions of an examina- tion made by the board or its officers or servants. The court of appeals has held that a board may act upon its own inspection and knowledge of the alleged nuisance, without a hearing. But jurisdiction depends upon the existence of facts establishing the nuisance, and in contested cases it will be advisable to give a formal hearing to the owner of the premises. If the owner or occupant of premises fails to comply with the order of the board directing the abatement of a nuisance, provision is made by the law for the abatement at the expense of the owner or occupant. The expense of such abatement is made a lien upon the premises affected. Section 1. Town board to act as local board of health; health oflBcer of town. la. Expenses of consolidated health district. 2. General powers and duties of local boards of health; rules and regu- lations; suppression of nuisances; subpoenas; warrants of arrest; penalties. 442 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 20. Section 3. Board to supervise registration of births, marriages and deaths; phy- sicians, midwives, clergymen, etc., to furnish certificates; cost of registration a town charge. 4. Burial and burial permits. 5. Contagious and infectious diseases; duties of boards of health; reports of health officers to state commissioner of health; disease in alms- house. 5a. Providing for the care and maintenance of carriers of disease. 6. Complaints as to nuisances; order of board. 7. E«moval of nuisances by board or its officers; expense to be paid by owner. 8. Expense of abatement of nuisances a lien upon the premises. 9. Removal of accumulation of water tending to breed mosquitoes; pay- ment of expense. 10. Jurisdiction of town board of health over city or village; uniting of towns and villages in a combined sanitation and registration district. 11. Expenses incurred by town board of health a town charge; property of village exempted from taxation therefor. 13. Belief of indigent Indians in case of epidemic. 13. Mandamus against local board of health at instance of state board of health. § 1. TOWN BOARD TO ACT AS LOCAL BOABD OF HEALTH; HEALTH OFFICER OF TOWN. Local boards of health. — There shall continue to be local boards of health' and health officers in the several cities, villages and towns of the state except as hereinafter provided.^ * * * j^ towns the board of health shall consist of the town board.* The local board of health shall appoint a competent physician, not a member of the local board of health, to be the health ofiBcer of the mimicipality. Notwithstanding the provisions of any general or local law or charter, a physician who has received the degree of doctor of public health in course from any institution of learning recognized by the regents of the university of the state of New York, or who has com- 1. Power to sue and be sued. A board of health is not a corporation and can- not sue or be sued unless expressly authorized by statute. People v. Supervisors of Monroe, 18 Barb. 567; Gardner v. Board of Health, 4 Sand. (6 Super. Ct.) 153; affd. 10 N. y. 409. The preferring of charges and holding a hearing before declaring the office of village health officer vacant, may be dispensed with where said officer has failed to take and file the oath of office required by statute. Rept. of Atty. Genl., Sept. 9, 1910. Jurisdiction of the local board of health and the state commissioner to entertain charges in the first instance, is concurrent. But where a complainant has failed to sustain his charges on the merits before one tribunal, he cannot institute another proceeding, on the same charges, before the other authority. Rept. of Atty. Genl Oct. 26, 1910. 2. Part omitted, relating to boards of health in cities, has no reference to town board of health. 3. Compelling action by town board. If the town board fail to comply with the provisions of this section any citizen of the town may apply to the court for a TOWN BOARD AS LOCAL BOARD OF HEALTH. 443 Public Health Law, § 20. pleted a course in public health approved by the public health council at the time of his appointment, shall be eligible for appointment as health oflBeer. The term of office of the health' officer shall be four years and he shall hold office until the appointment of his successor. He may be removed for just cause by the local board of health or the state commissioner of health after a hearing; such removal by the local board of health must be approved by the state commissioner of health. The health officer need not reside within the village or town for which he shall be chosen.*^ Notice of the membership and organization of every local board of health shall be forthwith given by such board to the state department of health. The term "municipality," when used in this article, means the city, village, town or consolidated health district for which any such local board may be or is appointed. The provisions herein contained as to boards of health, and for the appointment of health officers, shall apply to all towns and vil- lages, whether such villages are organized under general or special laws. The members of town boards and of village boards of trustees and of boards of health of consolidated health districts shall not receive additional com- pensation by reason of serving as members of boards of health. Any matter within the jurisdiction of a town or village board of health may be considered and acted upon at any meeting of such town board or village board of trustees. The state commissioner of health, on the request of the town board of any town and the board of trustees of any village and the common council or other like authority of any city, may combine into one health mandamus to compel such compliance, it being a, fixed and established rule that every citizen has a right to compel the performance by public- officers, of the duty imposed upon them of executing the laws of the state which are enacted for the benefit of the community. People ex rel. Boltzer v. Daley, 37 Hun 461. For full provisions relating to the powers and duties of local boards of health, see Boyce's Health Officers' Manual, 1910. 3a. Vacancy. Mandamus will lie to compel board of health to fill vacancy in office of health officer. People ex rel. Lynch v. Pierce (1913), 149 App. Div. 286, 133 N. Y. Supp. 802. Oath of office. Health officer required to take oath of office. In case of failure vacancy exists which may be filled by local board, without notice or judicial proce- dure. People ex rel. Walton v. Hicks, 173 App. Div. 338, 153 N. Y. Supp. 757. 443a TOWN'S, TOWN MEETINGS AND TOWN OFFICERS. Public Hea-lth Law, § 20. district, hereinafter referred to as a consolidated health district, any two or more of such towns, villages or cities and may on the request of the town board of any town, board of trustees of any village or common council or other like authority of any city at any time there- after set apart such town, village or city as a separate health district. In any consolidated health district there shall be a board of health which shall consist of the supervisor of each town, the president of the board of trustees of each village, and the mayor of each city included in each district, provided that if the number of members so provided for is an even number, such members shall within thirty days after such district shall have been established by the state commissioner of health choose an additional member of such board of health to be known as the elective member. An elective member shall serve for a term of two years from the first day of January preceding his election and until his successor shall have been appointed, provided that if at any time the number of members of the board of health, excluding the elective member, shall become an odd number, the term of oflBce of the elective member shall thereupon cease. The board of health of a consolidated health district shall from time to time elect a president from among its members. The health ofSeer of a consolidated health district shall serve as the secretary of the board of health thereof without additional remuneration therefor. In each such consolidated health district the board of health shall appoint a health officer. Each board of health and each health officer of a consolidated health district shall have all the rights, powers, duties and obligations conferred and imposed by law upon boards of health and health officers respectively. When any consolidated health district is established, as herein pro- vided, the boards of health of the towns, villages or cities included vrithin such district, shall thereupon cease to exist as boards of health,, and all their rights, powers, duties and obligations shall thereupon be TOWN BOARD AS LOCAL BOARD OF HEALTH. 443^ Public Health Law, § 20. transferred to the board of health of such district. When the beard of health of any such consolidated health district shall have appointed a health officer therefor, the terms of office of the health officers of the towns, villages or cities included in such district shall cease, and all their rights, powers, duties and obligations shall thereupon be trans- ferred to and imposed upon the health officer appointed for such con- solidated health district. The board of health of any such consolidated health district shall from time to time audit all accounts, and allow or reject all charges, claims and demands against such health district for the remuneration and expenses of the health officer, registrar or registrars, and for all other expenses lawfully incurred by said board of health or on its au- thority. Unless such board of health of such consolidated health dis- trict adopts the estimate system of payment as provided by this section they shall, prior to the annual meeting of the board of supervisors each year, make an abstract, to be known as the consolidated health district abstract, of the names of all persons who have presented to them ac- counts to be audited, the amounts claimed by each such person and the amounts finally audited and approved by them respectively, and, if such district be wholly rn one county, shall deliver -such abstract to the clerk of the board of supervisors. If such consolidated health district be located in more than one county the board of health of such district shall divide the total amount of the consolidated health district abstract as audited and approved in proportion to the assessed valuation of the real and personal property of the towns, villages or cities of such con- solidated health district located in each county, as determined by the last preceding assessment-irolls of the towns or cities wholly or partly included in such district, and shall deliver a certified copy of such abstract to the board of supervisors of each such county, with a state- ment of the amount due from the real and personal property of each town, village or city of the consolidated health district in each such 443c TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Healtli Law, § 20. county on account of the expenses of such board. The board of super- visors of each such county shall levy a tax upon the real and personal property within such health district sufficient to provide for the sums audited and approved by the board of health thereof and chargeable to the real and personal property of each town, village or city of the con- solidated health district in each such county. Such sums, when col- lected and paid to the county treasurer of each such county respectively, shall be paid by him to the president of such board of health and shall be disbursed by him in accordance with the abstract of claims audited and approved by such board of health, as hereinabove provided. The board of health of any consolidated health district may annually make an estimate of the expenses of such board.for the ensuing calendar year and, if such district be wholly in one county, shall deliver a certified copy of such estimate to the clerk of the board of supervisors of such county prior to the annual meeting of the board preceding such year. If such consolidated health district be located in more than one county, the board of health of such district shall proportion the total amount of such estimate in the same manner as provided by this section for proportioning the expenses of such a district when audited and approved by the board, and shall deliver to the clerk of the board of supervisors of each such county a certified statement of the total esti- mate and the amount due from the real and personal property of each; town, village or city of the consolidated health district in each such county on account thereof. The board of supervisors of each such county shall levy a tax upon the real and personal property within such health district sufficient to provide for the portion .of the amount of such estimate chargeable to the real and personal property of each town, village or city of the consolidated health district in each such county. TOWN BOARD AS LOCAL BOARD OF HEALTH. 443^ Public Health Law, §§ 20a, 21. Such sums, when collected and paid to the county treasurer of each county respectively shall be paid by him to the president of such board of health and shall be disbursed by the board of health in accordance with the esti- mates. After such estimate system has been adopted by a consolidated health district, the board of health thereof shall deduct from the estimate for the succeeding calendar year the amountj if any, remaining in the hands of such board after all of the liabilities incurred on account of the preceding estimate have been paid, before the certified statement of the total estimate and the amount due from real and personal property of each town, village or city of the consolidated health district in each such county is certified to the respective clerks of the boards of supervisors for collection. [Public Health Law, § 20, as amended by L. 1909, ch. 165, L. 1913, ch. 559, L. 1915, ch. 124, L. 1916, ch. 369, and L. 1918, ch. 275; B. C. & G. Cons. L., p. 4428.] § la. EXPENSES OF CONSOLIDATED HEALTH DISTRICT. A consolidated health district may adopt the estimate system as provided by section twenty of this chapter, and, as provided by such section, may make and file with the clerk of the board of supervisors of the county, or if Euch district be located in more than one county, with the clerk of the board of supervisors of each such county, an estimate for the remainder of the current year and for the ensuing calendar year, and may issue a certificate of indebtedness upon the credit of the district for such portion of such estimate as may be needed to pay the expenses of the board until the tax levied on account of such assessment shall have been collected and paid to the board as provided by section twenty of this chapter.' Such tax when collected shall be applicable in the first instance to the payment of such certificate. [Public Health Law, § 20-a, as added by L. 1917, ch. 182.] § 2. GENERAL POWERS AND DUTIES OF LOCAL BOARDS OF HEALTH; RULES AND REGULATIONS; SUPPRESSION OF NUISANCES; SUBPOENAS; 'WARRANTS OF ARREST; PEN- ALTIES. Every such local board of health shall meet at stated intervals to be fixed by it in the municipality. The presiding oflBcer of every such board may call special meetings thereof when in his judgment the pro- tection of the public health of the mimicipality requires it, and he shall caU 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, subject to the provisions of the public health law and of the sanitary code, shall prescribe the duties and powers of the local health oiScer, who shall be its chief executive officer, and direct him in the performance of his duties, and fix his compensation, which in case 44:4 TOWNS. TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 21. of health officers of cities, towns and villages, having a population of eight thousand or less, shall not be less than the equivalent of ten cents per annum per inhabitant of the city, town or village according to tho latest federal or state enumeration; and in cities, towns and villages having a population of more than eight thousand shall not be less than eight hundred dollars per annum.^ In addition to his compensation so fixed, the board of health must allow the actual and reasonable expenses of said health officer in the performance of his official duties and in going to, attending and returning from, the annual sanitai-v conference of health officers, or equivalent meeting, held yearly within the state, and conferences called by the sanitary supervisor of the district, and whenever the services rendered by its health officer shall include the caro of smallpox, the board of health shall allow, or whenever such services are extraordinary, by reason of infectious diseases, or otherwise, tJiey may in their discretion, allow to him such further siun in addition to said fixed compensation as shall be equal to the charges for consultation services in the locality, audited by the town board of a town, by the board of trustees of a village or by the proper auditing board of a city of the third class, which said expenses and said additional compensation shall be a charge upon and paid by the municipality as provided in section thirty-five of this chapter. Every such local board shall make and publish from time to time all such orders and regulations, not in- consistent with the provisions of the sanitary code, as it may deem necessary and proper for the preservation of life and health and the execution and enforcement of this chapter in the municipality.' It 4a. A Tillage is not liable for tlie expenses of a health ofBcer in snccessfnily defending a suit brought against him for alleged willful, careless and negligent acts committed by him as health officer, nor can the village pay the same. Rept. of Atty. Genl. (1911), vol. 2, p. 556. 5. Comi>ensation of local health officer. — The local board of health may fix compensation of a local health officer and allow his reasonable expenses in attend'ng the annual sanitary conference of health officers, and the town board must audit such allowances and may not refuse because the health officer serving for a fixed salary failed to keep a detailed statement of services rendered, or his duties were not prescribed by the board of health, or because the auditing board did not agree with the health board as to the rate of compensation. People ex rel. Sherwood v. Blood, 120 App. Div. 614, 105 N. Y. Supp. 20. Compensation of a legally appointed local health officer having been fixed by the board of health appointing him should not be diminished during his regular term. Rept. of Atty. Genl., Jlay 17, 1911. Delegation of authority as to inspection of milk and dairies unauthorized. A local board of health has no power to delegate its authority in respect to matters of judgment and discretion. iCity of Hudson v. Fleming, 139 App. Div. 327, 123 N. Y. Supp. 1065. 6. Orders and regiiIa1io;is.— An order made by a town board of health at a TOWN BOARD AS LOCAL BOARD OF HEALTH. 4.4.5 Public Healtli Law, § 21. shall make without puhlication thereof, such orders and regulations for the suppresion 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 €xist, or upon which may exist the cause of other nuisances to other premises, or cause the same to be conspicuously posted thereon.' The health officer may employ such persons as shall be necessary to enable meeting at which the citizen member was not present, not having been notified to attend, is invalid. Schoepflin v. Calkins, 5 Misc. 159; 25 N. Y. Supp. 696. There is no question but what the legislature may in the exercise of its constitutional au- thority confer on boards of health the power to enact sanitary ordinances having the force of law within the districts over which their jurisdiction extends. Polinsky v. People, 73 N. Y. 65; Health Department v. Knoll, 70 N. Y. 530; Metropolitan Board of Health v. Heister, 37 N. Y. 661; People ex rel. Cox v. Justices of Sessions, 7 Hun, 214. Regulations so adopted have the force of a statute, although they forbid and prescribe penalties for common law offenses. People ex rel. Meyer v. Special Ses- sions, 12 Week. Dig. 367. But the ordinances must be reasonable and declare with •certainty the object and purpose for which they are enacted. McNall v. Kales, 61 Hun, 231; 16 N. Y. Supp. 7. Where the legislature has fixed a standard of limitation of rights, it is not com- petent for the board of health to impose additional restrictions. Metropolitan Board of Health v. Schmades, 10 Abb. Pr. (N. S.) 205; 3 Daly 282. Ordinances adopted by the board of health of a town forbidding the having or keeping within the town of any refuse vegetable or animal matter in a, decayed or decaying condition and the boiling or cooking of garbage or refuse in an open vat or kettle permitting exhalations to escape into surrounding air, were held reason- able and valid. Town of Newtown v. Lyons, 11 App. Div. 105; 42 N. Y. Supp. 241. But an ordinance providing that: " No cow shall be kept within two hundred feet of any dwelling in the village of Flushing without a special permit obtained from the board of health," was held invalid upon the ground that while it would have been competent for the board to have forbidden the keeping of cows within two hun- dred feet of a dwelling house, it was not authorized to license cow stables in cer- tain cases, since such a power is not conferred by the statute. Village of Flushing v. Carraher, 87 Hun 63; 33 N. Y. Supp. 951. Rules and regulations of a local board of health should be posted as well as pub- lished. Kept, of Atty. Genl. (1900), 244. Foirer to make ordinances; penalty for disobedience of ordinances. — A village board of health has the power under this section to make both general and, special orders for the protection of the public health. Under this statute, where such an order was made which did not prescribe any penalty, such board is without power, after the order has been disobeyed, to prescribe for the first time a penalty for the wrong already done. Village of Carthage v. Colligan (1915), 216 N. Y. 217, affg. 158 App. Div. 793. Compensation for damages. — Laws and regulations of a police nature, though they may disturbe the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances. They do not appropriate private property for public use, but simply regulate its use and enjoy- ment by the owner. If he suffer injury it is either damnum absque injuria, or, in the theory of the law, he is compensated for it by sharing in the genral benefits which the regulations are intended to secure. Health Department v. Rector, 145 N. Y. 32, 43. 7. Suppression of nuisances. — The board of health, while authorized to order the suppression of nuisances, cannot make such an order unless there be a nuisance in fact, and it is the actual existence of that fact which givesi them jurisdiction to 446 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 21. him to carry into effect the orders and regulations of the board of health and the provisions of the public health law and of the sanitary code, and fix their compensation within the limits of the appropriation there- for. The board of health may issue subpcEnas, 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 testify upon matters not related to the public health. It may issue warrants to any constable or policeman of the municipality to apprehend and remove such persons as cannot otherwise be subjected to its orders or regulations, and a warrant to the sheriif 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 -di- rected, who shall have the same powers and be subject 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 prescribe and impose penalties for the violation of or failure to comply with any of its orders or regulations, not exceeding one hundred dollars for a single violation or failure, to be sued for and recovered by it in the name and act. The determination of the board as to the existence of the nuisance is not final and conclusive upon the owner of the premises, where it is alleged to exist. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; 35 N. E. 320. The question of whether or not the nuisance exists is always an open one, upon which the jurisdic- tion of the board is based. Coe v. Sehultz, 47 Barb. 64; 2 Abb. Pr. (N. S.) 193; see, also. Village of Flushing v. Carraher, 87 Hun, 63; 33 N. Y. Supp. 951, in which it was held that a declaration by a board of health that a particular establishment is a nuisance does not preclude the owner from contesting the question in the courts. A resolution declaring the damming of the water in a particular river to be a dangerous nuisance and detrimental to the health of the inhabitants, and ordering such nuisance to be removed within three days, is too vague, indefinite and uneertriin to authorize the removal of a mill dam which has been in existence for more than sixty years. Rogers v. Barlcer, 31 Barb. 447. Certiorari. — Determination of board as to existence of nuisance is not review- able by certiorari. People ex rel. Copcutt v. Board of Health, 140 N. Y. 1, revg. in eflfect. People ex rel. N. Y. C. & H. R. R. E. Co. v. Town of Seneca Falls 35 N Y St. Rep. 411, 12 N. Y. Supp. 561. Service of order to abate nuisance may be made outside of jurisdiction of board. Gould v. City of Rochester, 105 N. Y. 46. 8. Issne of subpoenas and taking of testimony,— A subpoena may be enforced by the board of health in the manner authorized by sections 854-862 of the Code of Civil Procedure, and a witness who, without reasonable cause refuses to be examined or to answer a legal and competent question may be committed to jail undor a warrant issued by a judge of a court of record. Code Civ. Proe., sec. 856. TOWN BOARD AS LOCAL BOARD OF HEALTH. 447 Public Health Law, § 21a. for the benefit of the municipality; and may maintain actions in any court of competent jurisdiction to restrain by injunction such violations, or otherwise to enforce such orders and regulations,' [Public- Heal tl. Law, § 21, as amended by L. 1909, ch. 480, and L. 1913, ch. 559; B.C. & G. Cons. L., vol. 8, p. 205.] § 2. POWERS AND DUTIES OF LOCAL BOARDS OF HEALTH AS TO SEWEBS. Whenever such local board of health in any incorporated village shall deem the sewers of such village insufficient to properly and safely sewer such village, and protect the public health, it shall certify such fact in writing, stating and recommending v?hat additions or alterations should in the judgment of such board of health be made, with its reasons there- for, to the state commissioner of health for his approval, and if such recommendations shall be approved by the state commissioner of health, it shall be the duty of the board of trustees or other board of such vil- lage having jurisdiction of the construction of sewers therein, if there be such a board, whether sufficient funds shall be on hand for such pur- pose or not, to forthwith make such additions to or alterations in the sewers of such village and execute such recommendations, and the ex- penses thereof shall be paid for wholly by said village in the same manner as other village expenses are paid or by an assessment of the whole amount against the property benefited, or partly by the village and partly by an assessment against the property benefited, as the board of trustees of such village shall by resolution determine. If the board of trustees shall determine that such expenses shall be paid partly by the village and partly by an assessment against the property benefited, as authoriaed by this section, it shall in the resolution making such determination fix the proportion of such expense to be borne by each, 9. Penalties for vioIatitHi.^ — Town boards of health should fix a definite penalty for the violation of their regulations, and the amount so fixed should be the amount recovered in an action for such a penalty, and not a sum to be established at the trial for the offense. McNall v. Kales, 61 Hun, 231, 16 N. Y. Supp. 7 ; 40 N. Y. St. Rep. 719. In the case of Board of Health of New Eocbelle v. Valentine, 32 N. Y. St. Rep. 919; 11 N. Y. Supp. 112, it was held that an action for a penalty may be brought in the name of the board. See, also, Board of Health v. Oopcutt, 140 N. Y. 12; 35 N. E. 320. Penal proTi'sions respecting tlie pnbllic bealth. — Section 1740 of the Penal Law provides that: "A person who wilfully violates any provision of the health laws, the ptinishment for violating which is not otherwise prescribed by those laws or by this code, ?- regulations shall be observed by all authorities upon whom duties are imposed by this article in connection with the regis- tration of births and deaths. [Public Health Law, § 370, as added by L. 1913, ch. 619.] § 2. DUTIES OF STATE COMMISSIONER OF HEALTH AS TO VITAL STATISTICS. The state commissioner of health shall have general supervision of the division of vital statistics which shall be established by the depart- ment of health, and wlich shall be under the immediate direction of a director to be appointed by the commissioner, who shall possess such qualifications as may be prescribed by the public health council. The state commissioner of health shall detail to the division of vital sta- tistics such clerical and other assistants as may be necessary to carry into effect the provisions of this act. The trustees of public buildings shall provide suitable offices in the capitol or elsewhere for the division of vital statistics, which shall be suitably equipped for the permanent and safe preservation of all records received or made under the pro- visions of this act. [Idem, § 371.] § 5. REGISTRATION DISTRICTS. The state shall be divided into registration districts as follows: Each city, each incorporated village, each town, and each state hospital, charitable or penal iDstitution shall constitute a primary registration district, pro- vided that the state commissioner of health may combine two or more primary registration districts or divide one registration district into two or more primary districts to facilitate registration. [Idem, § 372, as amended by L. 1917, ch. 321.] § 4. REGISTRAR OF VITAX STATISTICS. In each primary registration district there shall be a registrar of vital statistics. Qualifications of registrars of vital statistics hereafter appointed shall be prescribed by the public health council. A local health officer shall be eligible for appointment as registrar of vital statistics and if so appointed and if receiving a salary equivalent to not less than fifteen cents per year per inhabitant of such registration district, he shall serve as registrar of vital statistics without additional remuneration therefor. In towns and villages the registrar or registrars of vital statistics shall DUTIES AS TO VITAL STATISTICS. 462c Public Health Law, § 374. be appointed by the town board and by the village board of trustees re- spectively ; in the cities, unless otherwise provided by the charter, the regis- trar or registrars of vital statistics shall be appoioted by the mayor. In each primary registration district consisting of a state hospital, charitable or penal institution, the registrar shall be the superintendent or person in charge of such institution, provided, however, that he shaU receive no addi- tional remuneration for acting as such registrar. The term of ofBce of a registrar of vital statistics, unless the charter of the city or village shall provide otherwise, shall be four years. Each registrar of vital statistics shall hold office xmtil his successor shall have been appointed and shall have qualified. Any registrar of vital statistics who in the judgment of the state commissioner of health fails or neglects to discharge efficiently the duties of his office as set forth in this article, or to make prompt and complete re- turn of births and deaths as required thereby, shall be forthwith removed by the state commissioner of health, and such other penalties may be im- posed as are provided by this article. Each registrar of vital statistics shall immediately upon his acceptance of appointment as such, appoint a deputy whose duty it shall be to act in his stead in ease of his absence or inability, and such deputy shall in writing accept such appointment and be subject to all rules and regulations governing registrars. When it appears neces- sary for the convenience of the people in any rural district, the registrar is authorized, with the approval of the state commissioner of health, to ap- point one or more suitable persons to act as subregistrars, who shall be authorized to receive birth and death certificates and to issue burial or re- moval permits in and for such portions of the district as may be designated, and each such Bubregistrar shall note on each certificate over his signature the date of filing and shall forward all certificates to the local registrar of the district within three days, and in all cases before the third day of the following month ; provided, however, that each subregistrar shall be subject to the supervision and control of the state commissioner of health and may be by him removed for neglect or failure to perform his duty in accordance with the provisions of this act or the regulations of the public health coun- cil, and shall be subject to the same penalties for neglect of duty as the local registrar. [Indem, § 373, as amended by L. 1917, ch. 321.] f 5. CORRECTION OF DEFECTIVE REGISTRATION. If defects be found in the registration under the supervision of a regis- trar of vital statistics, the state commissioner of health shall notify such registrar that such defects must be corrected within ten days of the date of the notice. If such defects are not so corrected the state commissioner of health shall take control of such registration and of the records thereof, and enforce the rules and regulations in regard thereto and secure a com- plete registration in such district, and such control shall continue imtil the registrar of vital statistics shall satisfy the commis- sioner of health that he will make such record and registry complete as required by law and by the rules and' regulations of the public health 4:62d TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, §§ 375, 376. council. The expenses incurred by the state commissioner of health or his authorized representative while in control of such registration shall be a charge upon the city, town or village comprising the registratioa district. [Idem, § 374.] § 6. PERMITS FOR BURIAL OR REMOTAL OF DEAD BODIES. The body of any person whose death occurs in this state or which shall be found dead therein shall not be interred, deposited in a vault or tomb, cremated or otherwise disposed of or removed from or into any registration district, or be temporarily held pending further disposition more than seventy-two hours after death, unless a permit for burial, removal, or other disposition thereof shall have been properly issued by the registrar of vital statistics of the registration district in which the death occurred or the body was found. No such burial or removal permit shall be issued by any registrar until. Wherever practicable, a complete and satisfactory certificate of death has been filed with him as heretofore provided; provided that when a dead body is transported from outside of the state into a registration district in this state for burial, the transit or removal permit issued in accordance with the law and health regulations of the place where the death occurred shall be given the same force and effect as the burial permit herein provided for. No registrar of vital statistics shall receive any fee for the issuance of burial or removal permits under this act other than the compensation provided in this article. [Idem, § 375.] § 7. REGISTRATION OF STILLBORN CHILDREN. A stillborn child shall be registered as a birth and also as a death, and separate certificates of both the birth and the death shall be filed with the registrar of vital statistics in the usual form and manner, the certificate of birth to contain in place of the name of the child, the word " stillbirth ; " provided, that a certificate of birth and a certificate of death shall not be required for a child that has not advanced to the fifth month of uterogestation. The medical certificate of the cause of death shall be signed by the attending physician, if any, and shall state the cause of death as " stillborn," with the cause of the stillbirth, if known, whether a premature birth, and, if born prematurely, the period of uterogestation, in months, if known; and a burial or removal permit of the prescribed form shall be required. Midwives shall not siam cer- tificates of death for stillborn children; but such cases, and stillbirths occurring without attendance of either physician or midwife shall be treated as deaths without medical attendance, as hereinafter provided in this article. [Idem, § 37fi. 1 DUTIES AS TO VITAL STATISTICS. 462e Public Health Law, S 377. § 8. CERTIFICATE OF DEATH. The certificate of death shall contain the following items, which are hereby declared necessary for the legal, .social and sanitary purposes sub- served by registration records. 1. Place of death, including state, county, township, village or city. If in a city, the ward, street and house number ; if ia a hospital or other institution, the name of the same to be given instead of the street and house number. If in an industrial camp, the name of the camp to be given. 2. Full name of decedent. If an unnamed child, the surname pre- ceded by " unnamed." 3. Sex. 4. Color or race — 'as white, black, mulatto (or other negro de- scent), Indian, Chinese, Japanese, or other. 5. Conjugal condition — as single, married, widowed or divorced. 6. Date of birth, including the year, month, and day. 7. Age, in years, months and days. If less than one day, the hours or minutes. 8. Occupation The occupation to be reported of any person, male or female, who had any remunerative employment, with the statement of trade, profession or particular kind of work; general nature of in- dustry, business or establishment in which engaged or employed. 9. Birthplace ; at least state or foreign country, if known. 10. Ifame of father. 11. Birthplace of father ; at least state or foreign country, if known. 12. Maiden name of mother. 13. Birthplace of mother ; at least state or foreign country, if known. 14. Signature and address of informant. 15. Official signature of registrar, with the date when certificate was filed, and registered munber. 16. Date of death, year, month and day. 17. Cfertification as to medical attendance on decedent, fact and time of death, time last seen alive, and the cause of death, with contributory, that is to say, secondary cause of complication, if any, and duration of each, and whether attributed to dangerous or insanitary conditions of employment; signature and address of physician or official making the medical certificate. 18. Length of residence at place of death and in the state, together with the place where disease was contracted, if not at place of death, and former or usual residence. i 19. Place and date of burial, cremation or removal. 20. Signature and addiess of undertaker or person in charge of the corpse. 4:62f TO\TNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 378. The particulars called for by items one to thirteen inclusive shall be authenticated by the signature of the informant, who may be any com- petent person acquainted with the facts. The statement of facts relating to the disposition of the body shall be signed by the undertaker or person in charge of the corpse. The medical certificates shall be made and signed by the physician, if any, last in attendance on the deceased, who shall specify the time in attendance, the time he last saw the deceased alive and the hour of the day at which death occurred. He shall further state the cause of death, so as to show the cause of disease or sequence of causes resulting in the death, giving first the name of the disease causing death, that is to say, the primary cause, and the contributory, that is to say, the secondary cause, if any, and the duration of each. Indefinite terms, denoting only symptoms of disease or conditions resulting from disease, shall not be held sufficient for the issuance of a burial or removal permit. Any certificate stating the cause of death in terms which the state commis- sioner of health shall have declared indefinite, shall be returned to the physician or person making the medical certificate for correction and more definite statement. Causes of death which may be the result of either diseases or violence shall be explicitly defined; and if from vio- lence, the means of injury shall be stated, and whether apparently acci- dental, suicidal, or homicidal. Eor deaths in hospitals, institutions, or of non-residents, the physician shall supply the information required under Item 18, if he is able to do so, and may state where, in his opinion, the disease was contracted. [Idem, § 377.] § 9. EEGISTRATIOJT OF DEATHS OCCUBEING WITHOUT MEDICAL AT- TENDANCE. In case of any death occurring without medical attendance, it shall be the duty of the undertaker or other person to whose knowledge the death may come to notify the local health officer of such death, and when so notified the health officer shall immediately investigate and certify as to the cause of death ; provided that if the health officer has reason to believe that the death may have been due to unlavsrful act or neglect he shall then refer the case to the coroner or other proper officer for his investigation and certification. The coroner or other proper officer whose duty it is to hold an inquest on the body of a deceased person, and to make the certificate of death required for a burial permit, shall state in bis certificate the name of the disease causing death, or if from external causes, the means of death ; whether probably accidental, sui- cidal or homicidal; and shall, in any case, furnish such information as may be required by the state commissioner of health in order proper! v tn classify the death, fldem. § 378.1 DUTIES AS TO VITAL STATISTICS. 4.Q2o Public Health Law, § 379, 380, 381. § 10. DUTIES OF UNDEBTAKEB. In each case the undertaker, or person having charge of the corpse,, shall file the certificate of death with the registrar of the district in which the death occurred and obtain a burial or removal permit prior to any disposition of the body. He shall obtain the required personal and statistical particulars from a person qualified to supply them, over the signature and address of his infoamant. He shall then present the certificate to the attending physician, who shall forthwith fill out and sign the medical certificate of death, or to the health officer or coroner, for the medical certificate of the cause of death and other particular* necessary to complete the record for the registration of deaths, as speci- fied in this article, if no physician was in attendance upon the deceased. He shall them state the facts required relative to the date and place of burial, cremation or removal, over his signature and with his address, and present the completed certificate to the registrar in order to obtain a permit for burial, removal or other disposition of the body. The undertaker shall deliver the burial permit to the person in charge of the place of burial, before interring or otherwise disposing of the body ; or shall attach the removal permit to the box containing the corpse, when shipped by any transportation company; said permit to accompany the corpse to its destination, where if within the state of New York, it shall be delivered to the person in charge of the place of burial. [Idem, § 379.] § 11. DUTIES OF UNDERTAKERS; INTERMENT WITHIN THE STATE. If the interment, or other disposition of the body is to be made within the state, the wording of the burial or removal permit may be limited to a statement by the registrar, and over his signature, that a satisfactory certificate of death, having been filed with him, as required by law, permission is granted to inter, remove or dispose otherwise of the body, stating the name, age, sex, cause of death, and other necessary details upon the form prescribed by the commissioner of health. [Idem, § 380.1 § 12. INTERMENTS. No person in charge of any premises on which interments or crema- tions are made shall inter or permit the interment or other disposition of any body unless it is accompanied by a burial, cremation or transit permit, as herein provided. Such person shall endorse upon the permit, the date of interment, or cremation over his signature, and shall return all permits so endorsed to the registrar of his district within seven days from the date of interment or cremation. He shall keep a record of all bodies interred or otherwise disposed of on the premises under his charge, in each case stating the name of each deceased person, place of 462h TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, §§ 382, 383. death., date of burial or disposal, and name and address of tlie under- taker; whioh record shall at all times be open to official inspection; provided that the undertaker or person having charge of the corpse, when burying a body in a cemetery or burial ground having no person in charge, shall sign the burial or removal permit, giving the date of burial, and shall write across the face of the permit the words " 'No person in charge," and file the burial or removal permit within three days with the registrar of the district in which the cemetery is located. [Idem, § 381.J § 13. BEGISTSATION OF BIRTHS. The birth of each and every child born in this state shall be registered within five days after the date of each birth, there shall be filed with the registrar of the district in which the birth occurred a certificate of such birth, which certificate shall be upon the form prescribed therefor by the state commissioner of health. In each case where a physician, midwife or person acting as midwife, was in attendance upon the birtb, it shall be the duty of such physician, midwife or person acting as midwife, to file said certificate. In eacB case where there was no physician, midwife, or person acting as midwife, in attendance upon the birth, it shall be the duty of the father or mother of the child, the liousebolder or owner of the premises where the birth occurred, or the manager or superintendent of the public or private institution where the birth occured, each in the order named, within five days after the date of such birth, to report to the local registrar the fact of such birth. In such case and in case the physician, midwife or person acting as midwife in attendance upon the birth is imable, by diligent inquiry, to obtain any item or items of information required in this article, it shall then be the duty of the registrar to secure from the person so reporting, or from any other person having the required knowledge, such informa- tion as will enable him to prepare the certificate of birth herein required, and it shall be the duty of the person reporting the birth or who may be interrogated in relation thereto to answer correctly and to the best of his knowledge all questions put to him by the registrar which may be calculated to elicit any information needed to make a complete record of the birth as contemplated by this article, and it shall be the duty of the informant as to any statement made in accordance herewith to verify such statement by the signature when requested so to do by the local registrar. [Idem, § 382.1 § 14. CERTIFICATE OF BIRTH. The certificate of birth shall contain the following items, wHch are hereby declared necessary for tlie legal, social and sanitary purposes subserved by registration records. DUTIES AS TO VITAL STATISTICS. 462i Public Health Law, § 383. 1. Place of birth, including state, ooxmty, town, village or city. If in a city, th^ ward, street and house number; if in a hospital or other institution, the name of the same to be given, instead of the street and Louse number. 2. Full name of child. If the child dies without a name, before the certificate is filed, enter the words " Died unnamed." If the living child has not yet been named at the date of filing certificate of birth, the space for " full name of child " is to.be left blank, to be filled out subsequently by a supplemental report, as hereinafter provided. 3. iSex of child. 4. Whether a twin, triplet, or other plural birth. A separate cer- tificate shall be required for each child in case of plural births. 5. For plural births, number of each child in order of birth. 6. Whether legitimate or illegitimate. 7. Date of birth, including the year, month and day. 8. Full name of father; prorided, that if the child is illegitimate, "the name of the putative father shall not be entered without his con- sent, but the other particulars relating to the putative father may bo entered if known, otherwise as " unknown." 9. Residence of father. 10. Color or race of father. 11. Age of father at last birthday, in years. 12. Birthplace of father ; at least state or foreign country, if known. 13. Occupation of father. The occupation to be reported if engaged in any remunerative employment, with the statement of trade, profes- sion, or particular kind of work; general nature of industry, business or establishment in which engaged or employed. 14. Maiden name of mother. 15. Residence of mother. 16. Color or race of mother. lY. Age of mother at last birthday, in years. 18. Birthplace of mother; at least state or foreign country, if known. 19. Occupation of mother. The occupation to be reported if engaged in any remunerative employment, with the statement of trade, profes- sion, or particular kind of work ; general nature of industry, business or establishment in which engaged or employed. 20. Number of children bom to this mother, including present birth. 21. ITumber of children of this mother living. 22. The certification of attending physician or midwife as to attend- ance at birth, including statement of year, month, day and hour of birth, and whether the child was bom alive or stillborn. This certifica- tion shall be signed by the attending physician or midwife, with date 462j TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, §§ 384, 385, 386. of signature and address; if there was no physician or midwife in at- tendance, then by the father or mother of the child, householder, owner of the premises, manager or superintendent of public or private institu- tion where the birth occurred, or other competent person, whose dxitj it shall be to notify the local registrar of such birth. 23. Exact date of filing in office of local registrar, attested by his official signature, and registered number of birth, as hereinafter pro- vided. [Idem, § 383.J § 15. EEGISTEATIOJf OF NAME OF CHILD SUBSEQUENT TO FILING OF BIRTH CEKTIFICATE. When any certificate of birth of a living child is presented without the statement of the given name, the local registrar shall make out and deliver to the parents of the child a special blank for the supplemental report of the given name of the child, which shall be filed out as directed, and returned to the local registrar as soon as the child shall have been named. [Idem, § 384.] § 16. REGISTRATION OF PHTSICTANS, MIDWIVES> AND UNDERTAKERS. Every physician, midwife and undertaker shall, on or before the day on which this article takes effect, register his or her name, address and occupation with the registrar of the district in which he or she resides, and shall so register in any district in which he or she may hereafter establish a residence; and shall thereupon be supplied by the registrar with a copy of this article, together with such rules and regulations as may be prepared by the public health council relative to its enforcement. Within thirty days after the close of each calendar year each registrar shall make a return to the state commissioner of health of all physi- cians, midwives, or undertakers who have, been registered in his district during the whole or any part of the preceding calendar year; provided, that no fee or other compensation shall be charged by registrars to physi- cians, midwives or undertakers for registering their names under this section or making returns thereof to the state commissioner of health. [Idem, § 385.J § 17. REGISTRATION OF PERSONS IN INSTITUTIONS. All superintendents or managers or other persons in charge of hos- pitals, almshouses, lying-in or other institutions, public or private, to which persons resort for treatment of diseases or confinement, or to which persons are committed by process of law, shall make a record of all the personal and statistical particulars relative to the inmates in their institutions when this act takes effect; which are required in the forms DUTIES AS TO VITAL STATISTICS. 462lj Public Health Law, § 387. of the certificate provided for by this article as directed by the state commissioner of health; and thereafter such record shall be by them made for all future inmates at the time of their admittance. In the case of persons admitted or committed for treatment of disease, the physician in charge shall specify for entry in the record, the nature of the disease, and where, in his opinion, it was contracted. The personal particulars and information required by this section shall be obtained from the individual himself if it is practicable to do so ; and when they cannot be so obtained, they shall be obtained in as complete a manner as possible from relatives, friends, or other persons acquainted vrith the facts. [Idem, § 386.] § 18. BECOKDS TO BE KEPT BY STATE COMMISSIONEE OP HEALTH. The state commissioner of health shall prepare, print, and supply to all registrars all blanks and forms used in registering, recording and preserving the returns, or in otherwise carrying out the purposes of this article, and shall prepare and issue such detailed instructions, not in- consistent with the regulation established by the public health council, as may be required to prepare the uniform observance of its provision and the maintenance of a perfect system of registration; and no other blanks shall be used than those supplied by the state commissioner of health. He shall carefully examine the certificates received monthly from the registrars, and if any such are incomplete or unsatisfactory he shall require such further information to be supplied as may be neces- sary to make the record complete and satisfactory. All physicians, mid- wives, undertakers, or informants, and all other persons having knowl- edge of the facts, are hereby reqiiired to supply, upon a form provided by the state commissioner of health or upon the original certificate, such information as they may possess regarding any birth or death upon demand of the state commissioner of health, in person, by mail, or through the registrar; provided, that no certificate of birth or death, after its acceptance for registration by the registrar, and no other record made in pursuance of this article, shall be altered or changed in any respect otherwise than by amendments properly dated, signed and wit- nessed. The state commissioner of health shall arrange, and perma- nently preserve the certificates in a systematic manner, and shall prepare and maintain a comprehensive and continuous card index of all births and deaths registered; said index to be arranged alphabetically, in the case of deaths, by the names of decedents, and in the case of births, by the names of fathers or mothers if bom out of wedlock. He shall in- form all registrars what diseases are to be considered infectious, con- tagious, or communicable and dangerous to the public health, as decided 4621 TOWNS, TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, §§ 388, 389. by the public health council in order that when deaths occur from audi disease proper precautions may be taken to prevent their spread. [Idem, § 387.] § 19. CEKTIFIED COPIES OF BIBTH CEETIFICATES EVIDENCE OF AGE. Certified copies of birth certificates, or of statements based on duly registered certificates of birth shall be accepted by public school author- ities in this state as prima facie evidence of age of children, registering for school attendance, and by the legally constituted authorities as prima facie proof of age for the issuance of employment certificates, provided that when it is not possible to secure such certified copy of birth registration certificate for any child, the school authorities may, accept as secondary proof of age any of the kinds of evidence specified in the labor law. [Idem, § 388.] § 20. DISTRICT EECOBDS TO BE KEPT B¥ EEGISTEAE. Each registrar shall supply blank forms of certificates to such persona as require them. Each registrar shall carefully examine each certificate of birth or death when presented for record in order to ascertain whether or not it has been made out in accordance with the provisions of this act and the instructions of the state commissioner of health ; and if any certificate of death is incomplete or unsatisfactory, it shall be his duty to call attention to the defects in the return, and to vnthhold the burial or removal permit until such defects are corrected. All certificates, either of birth or death, shall be written legibly, in durable black ink, and no certificate shall be held to be complete and correct that does not supply all of the items of information called for therein, or satisfactorily account' for their omission. If the certificate of death is properly exe- cuted and complete, he shall then issue a burial or removal permit to the undertaker; provided, that in case the death occurred from some disease which is held by the public health council to be infectious, con- tagious, or communicable and dangerous to the public health, no permit for the removal or other disposition of the body shall be issued by the registrar, except to an undertaker licensed under section two hundred and ninety-five of the public health law, under such conditions as may be prescribed by the state public health council. If a certificate of birth is incomplete, the local registrar shall immediately notify the informant, and require him to supply the missing items of information if they can be obtained. He shall number consecutively the certificates of birth and death, in two separate series, beginning with the number one for the first birth and the first death in each calendar year, and sign his name as recri^trar in attest of the date of filing in his office. Tie shall also DUTIES AS TO VITAL STATISTICS. 462m Public Health Law, §§ 390. 391. make a complete and accurate copy of each birth and each death cer- tificate registered by him in a record book supplied by the state com- missioner of health, to be preserved permanently in his office as the local record, in such manner as directed by the commissioner of health. He shall, on the fifth day of each month, transmit to the state commissioner of health all original certificates registered by him for the preceding month. If no births or no deaths occurred in any month, he shall on the fifth day of the following month, report that fact to the state com- missioner of health on a card provided for such purpose. [Idem, § 389.J § 21. FEES OF KEGISTRAE. Except as hereinbefore otherwise provided each registrar and each physician shall be paid the sum of twenty-five cents for each birth certificate and each death certificate properly and completely made out and registered and each death certificate properly and completely made out in accordance with the international list of causes of death and returned and filed with the registrar and correctly recorded and promptly returned by him to the state commis- sioner of health, as required by this article. And in case no births or no deaths were registered during any month, the local registrar shall be entitled to be paid the sum of twenty-five cents for each report to that effect, but only if such report be made promptly as required by this article. All amounts payable to the local registrar under the provisions of this article shall be paid by the municipality comprising the registration district, upon certifi- cation by the state commissioner of health and all amounts payable to physicians shall be certified to by the local registrar annually and paid to said physicians by said municipality. The state commissioner of health shall annually certify to the municipality the number of births and deaths properly registered, with the name of the local registrar and the amount due him at the rate fixed herein. In addition thereto the local registrar shall be paid a fee of twenty-five cents for each burial, removal or transit permit issued by him. [Idem, § 390, as added by L. 1913, ch. 619, and amended by L. 1915, ch. 385, and L. 1917, ch. 111.] § 22. CERTIFIED COPIES OF RECORDS; STATE COMMISSIONER OF HEAI.TH TO FURNISH. The state commissioner of health may, upon request, supply to any appli- cant a certified copy of the record of any birth or death registered imder the provisions of this act, for the making and certification of which he shall be entitled to a fee of one dollar, to be paid by the appli- cant; provided that the United States census bureau may obtain without expense to the state, transcripts of certified copies of births and deaths without payment of the fee here prescribed, for use solely as statistical data. Any copy of the record of a birth or death, when properly certified by the state commissioner of health, shall be prima facie evidence iu all courts and places of the facts therein stated. For any search of the files and records when no certified copy is made, the state commissioner of health shall be entitled to a fee of fifty cents for ■±()2u TOWNS, TOWN MEETINGS A.ND TOWN OFtTCJflRS. Public Health Law, § 392. eacli hour or fractional part of an hour of time of search, said fee to he paid by the applicant. If any time within ten years of the birth, or one year of the death of any person within this state, a certified copy of the official record of said birth or death with the information required to be registered by this act, be necessary for legal, judicial, or other proper purposes, and, after search by the state commissioner of health, it should appear that uo such certificate of birth or death was made and filed as provided by this act, then the person asking for such certified copy may file a sworn statement, to be accompanied by the affidavits of two competent wit- nesses, as to the fact of birth or death, with as many particulars of the standard certificate supplied as possible, and the state commissioner of health shall file it and issue a certified copy thereof to said applicant without fee and without charge for time of search; and the state com- missioner of health shall immediately require the physician, or midwife, who, being in attendance upon a birth since the date of the taking effect of this act, failed or neglected to file a certificate thereof or the under- taker, or other person who having charge of the interment or removal of the body of a deceased person since the date of the taking effect of this act, failed or neglected to file the certificate of death, if he or she be living, to obtain and file at once with the local registrar such certifi- cate in as complete form as the lapse of time will permit, together with a fee of five dollars, which shall be transmitted to the state commissioner of health and accounted for as a fee for certified copies. With said certificate shall be filed the sworn statements and affidavits hereinabove mentioned. The delinquent physician, midwife, undertaker, or other person may also, in the discretion of the state commissioner of health be prosecuted as required by this article, and shall be prosecuted without bar from the statute of limitations, if he or she shall neglect or fail to file promptly the certificate required by this section as a substitute for the certificate not filed as required by this article, and to pay the filing fee provided for in this section. The state commissioner of health shall keep a true and correct account of all fees by him received under this section, and turn the same over to the state treasurer. [Idem, § 391.] § 23. PENALTIES. Any person, who for himself or as an officer, agent, or employee of any other person, or of any corporation or partnership, shall inter, cremate, or otherwise finally dispose of the dead body of a human being, or permit the same to be done, or shall remove said body from the primary registration district in which the death occurred or the bod^' \ DUTIES AS TO VITAIj STATISTICS. 462o Public Health Law, § 393. was found, without the authority of a burial or removal permit issued by the local registrar of the district in which the death occurred, or in which the body was found ; or shall refuse or fail to furnish correctly any information in his possession, or shall furnish false information affecting any certificate or record, required by this article; or shall Avillfully alter, otherwise than is provided by this article, or shall falsify any certificate of birth or death, or any record established by this article ; or being required by this article to fill out a certificate of birth or death and file the same with the local registrar, or deliver it, upon request, to any person charged with the duty of filing the same, shall fail, neglect or refuse to perform such duty in the manner required by this article ; or being a registrar, deputy registrar, or subregistrar, shall fail, neglect or refuse to perform his duty as required by this article and by the instructions and direction of the state commissioner of health thereunder, shall be deemed guilty of a misdemeanor and upon con- viction thereof shall for the first offense be fined not less than five dollirs nor more than fifty dollars and for each subsequent offense not less than ten dollars, or more than one hundred dollars or be imprisoned in the •county jail not more than sixty days, or be both fined and imprisoned in the discretion of the court. [Idem, § 393, as amended by L. 1916, ch. 58.] § 24. ESFOKCEMENT, Each registrar is hereby charged with the strict and thorough en- forcement of the provisions of this article, in his registration district, under the supervision and direction of the state commissioner of health. He shall make an immediate report to the state commissioner of health of any violation of any provision of this article coming to his knowledge, by observation or upon complaint of any person, or otherwise. The state commissioner of health is hereby charged with the thorough and efficient execution of the provisions of this article in every part of the state, and is hereby granted supervisory power over registrars, deputy registrars, and subregistrars, to the end that all of its require- ments shall be uniformly complied with. The state commissioner of health, either personally or by an accredited representative, shall have authority to investigate cases of irregularity or violation of law, and all registrars shall aid him, upon request, in such investigations. When he shall deem it necessary, he shall report cases of violation of any of the provisions of this article to the district attorney of the county, with a statement of the facts and circumstances ; and when any such case is reported to him by the state commissioner of health, the prosecuting attorney shall forthwith initiate and promptly follow up the necessary <3ourt proceedings against the person or corporation responsible for the 462p TOWNS. TOWN MEETINGS AND TOWN OFFICERS. Public Health Law, § 394. alleged violation of law. Upon request of the state commissioner of health, the attorney-general shaD assist in the enforcement of the pro- visions of this article. [Idem, § 393.] § 25. EXEMPTIONS. Nothing in this article shall be construed to affect, alter, or repeal laws now in force applying to the city of New York.^ [Idem, § 394.] 1. L. 191S, cll. 619, § 3. Section 5 of such chapter as amended by chapter 557, Laws of 1909 and section 22 of such chapter as amended by chapter 407, Laws of 1909, chapter 639 of the Laws of 1910 and cliapter 279 of Laws of 1911, and section 23 of such chapter as ajuended by chapter 407, Laws of 1909, are hereby repealed. PARKS AND PLAY GROUNDS. 4g2q Town Law. !S 342, 343. CHAPTEE XXXII-B. PARKS AND PLAY GROUNDS IN CERTAIN TOWNS. 397; 13 Sup. Ct. 645; Keokuk, etc., Co. v. Missouri, 152 U. S. 301; 14 Sup. Ct. 592. Hot transferable. Immunity from taxation is not transferable. It is a per- sonal privilege and not extended beyond the immediate grantee unless otherwise expressly declared. Pickard v. Railroad Co., 130 U. S. 637. Conditional exemption. Exemption may be granted upon conditions or con- tingencies which may happen in the future. Mobile, etc., R. R. Co. v. Tennessee, 153 U. S. 486. Effect of exemptions as to assessments for local improvements. Exemption from taxation does not necessarily embrace exemption from assessment for a local improvement. Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506; Matter of St. Joseph's Asylum, 69 Id. 353. In the case of Roosevelt Hospital v. Mayor, etc., of N. Y., 84 N. Y. 108, where a provision in an act incorporating the Roosevelt Hospital exempted its real estate from taxation, it was held that such real estate was not properly ex- exempted from an asessment for a local improvement; that the assessment was not taxation within the meaning of the act. The court said: " In a broad sense, taxes undoubtedly include assessments, and the right to impose assessments has its foundation in the taxation power of the government; and yet in practice, and generally understood, there is a broad distinction between the two terms. Taxes, as the term is generally used, are public burdens Imposed generally upon the inhabitants of the whole state or upon some civil division thereof, for governmental purposes without reference to peculiar benefits to particular indi- viduals or property. Assessmente have reference to impositions for improve- ments which are specially beneficial to particular individuals or property and which are imposed in proportion to the particular benefits supposed to be con- ferred. They are justified only because the improvements confer special benefits and are just only when they are divided in proportion to such benefits." It 474 TAXATION. Tax Law, § 4. Property of this state other than its wild or forest lands in the forest preserve.'" [Id., § 4, sub. 3.J follows therefore that an exemption from taxation Is not sufficient to exempt the property specified from an assessment for local improvements. See, also, Matter of Mayor, etc., of New York, 11 Johns. 80; Bleecker v. Ballou, 3 Wend. 263; Hassan v. City of Rochester, 67 N. Y. 528. In the case of Roosevelt Hospital v. Mayor, etc., supra, the court also said: " There is a still further suggestion to be made. Laws exempting property from taxation are to be strictly construed. Taxation is the rule; exemption the ex- ception, and before any one can claim exemption from what would otherwise be his just share of a tax or assessment, he must find a plain warrant for such exemption in the law. In view of what has been said, it would certainly be going to an extraordinary length to say that the exemption from assessments in the plaintiff's charter is plain or free from reasonable doubt. We must therefore hold that plaintiff's property; while exempt from taxation, is not exempt from im- provement assessments." Powers of assessors as to exempt property. The office of assessor in deter- mining what property is subject to, and what is exempt from taxation, is judicial; and the assessor in determining such questions acts judicially and is not liable for errors committed in arriving at his conclusion upon that subject. Barhyte v. Shepherd, 35 N. Y. 238. See, also. Vale v. Owen, 19 Barb. 22; Foster T. Van Wyck, 2 Abbt. Ct. of App. Dec. 167; 41 How. Pr. 493; Matter of Peek, 80 Hun, 122; 39 N. Y. Supp. 59. But see Prosser v. Secor, 5 Barb. 607; National Bank of Chemung v. City of Elmira, 53 N. Y. 49; Clark v. Norton, 49 Id. 243; Overing v. Foote, 65 Id. 263; Lapolt v. Maltby, 10 Misc. 330, 31 N. Y. Supp. 686. Assesors having jurisdiction of the subject matter and of the person assessed are protected against liability as private persons for the erroneous exercise of their judgment when acting judicially and their determination cannot be assailed collaterally or furnish ground for a private action against them. Rob- inson V. Rowland, 26 Hun, 501; Weaver v. Devendorf, 3 Denio, 117. 9. Property of United States is only taxable by consent. Port Leavenworth R. R. Co. v. Low, 114 tJ. S. 525; Van Brocklin v. Tennessee, 117 Id. 151; Railroad Co. V. Price Co., 133 Id. 496. Property of the United States is not taxable for municipal or other purposes unless expressly authorized by statute. People ex rel. Mayor, etc., v. Assessors of Brooklyn, 19 Abb. New Cases, 158. Property of a corporation of the United States may be taxed by the state, although its franchises may not be. Central Pac. R. R. Co. v. California, 162 U. S 125 (1896). 10. Property owned by the state under a valid tax sale is exempt from taxa- tion. Kept, of Atty. Genl., Feb. 24, 1911. State lands In forest preserve. Wild and forest lands belonging to the state within the forest preserve are assessed at a like valuation and rate as similar lands of individuals within the county where situated. Section 22 of the Tax Law, posl, p. 518. The forest preserve includes the lands owned by the state within the county of Clinton, excepting towns of Altoona and Dannemora, and the counties of Dela- ware, Essex, Franklin, Fulton, Hamilton, Herkimer, Lewis, Oneida, Saratoga, St. Lawrence, Warren, Washington, Greene, Ulster and Sullivan, except lands within the limits of any village or city, and lands not wild lands acquired by the state on foreclosure of mortgages made to loan commissioners. Conservation Law, § 50, as amtnded by L. 1916, ch. 451. TAXABLE PROPERTY AND PLACE OF TAXATION. 475. Tax Law, § 4. 3. Property of a municipal corporation'' of the state held for a public use, including real property held or used for cemetery purposes,' - and all lots and plats therein conveyed by the municipal corporation as places for the burial of the dead, except the portion of municipal property not within the corporation. [Id., § 4, sub. 3.] 11. Property of municipal corporation. A municipal corporation is defined in section 3 of the General Corporation Law, as including "county, town, school district, village and city and any other partial division of the state established by law with powers of local government." The above subdivision is a substitute for sub. 3 and 4 of sec. 4 of tit. 1, ch. 13, pt. 1, of the Revised Statutes, which provided that " every school house, court house and jail used for either of such purposes; and the several lots whereon such buildings are situated, and the furniture belonging to each of them," and, also, " every poorhouse, almshouse, and the real and personal property used for such purposes belonging to or con- nected with the same," are exempted from taxation. The above subdivision extended the former provisions of the revised statutes so that all property of a municipal corporation held for the public use except such property as is not included within the limits of a corporation, is exempt from taxation. This change was made by the revision of 1896 in conformity with the decisions of the court that property owned by the municipality and held it for municipal purposes was not taxable. See City of Rochester v. Town of Rush, 80 N. Y. 302; People ex rel. Murphy v. Kelley, 76 N. Y. 479, 486-89. It is not property about to be taken or become the property of a municipal coi- poration that is exempt, but real property actually owned and held by a municipal corporation for public use. Matter of Board of Bduoation, 59 App. Div. 258; 69 N. Y. Supp. 572. Property of a city constituting part of its water works system and located beyond the boundaries of such city is subject to general taxation in the town in whioh it is located. People ex rel. City of Amsterdam v. Hess, 157 N. Y. 42; 51 N. E. 410. (This case was decided before the addition of the last clause to- this section.) Property of a municipality is not subject to taxation, whether it be eipp'oyed for public uses or held in a proprietary capacity in trust for the public. People ex rel. HoUock v. Purdy, 72 Misc. 122. Presumption of exemption. Property of a municipality, acquired and held for governmental and public uses, and used for public purposes, is not taxable subject within the purview of the tax laws unless specially included. People v. Assessors, 111 N. Y. 505. 12. Exemption of cemeteries. The consent of the supervisors is not essential to' secure exemption from taxation where the lands owned by a cemetery corporation were acquired under a special statute. People ex rel. Trustees of Cathedral v. Davren, 16 N". Y. Supp. 794; 41 N. Y. St. Rep. 779; affd. 131 N. Y. 601. _ Water rates assessed against cemetery corporations by municipalities are not public rates within the meaning of this section. Batterman v. City of New York, 65 App. Div. 576, 73 N. Y. Supp. 44. Lands within the terms of this section are exempt from taxation from the mo- ment of their acquisition, although no dead are buried there and such burial is for- bidden by a municipal ordinance. People ex rel. Oak Hill Cemetery v. Pratt, 129- N. Y. 68'; 2fl N. E. 7. 13. Indian lands. Where the title of Indians to lands occupied by them is not such as implies ownership but is only temporary in its character, the above 470 TAXATION. Tax Law, § 4. The lands in any Indian reservaiion owned by the Indian nation, tribe or band occupying them." [Id., § i, sub. 4.J 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 wife or widow, is subject to taxation as herein provided.^' Such property shall be assessed in the same manner as other real property in the tax districts. At the meeting sub-division does not apply and such lands may be subject to taxation. It is only where the lands in an Indian reservation are owned by the Indian nation or tribe occupying them that the exemption applies. Fellows v. Denniston, 23 N. Y. 420, 435. See, also. People ex rel. Erie R. R. Co. v. Bearus, 52 Barb. 105, affd., 41 N. Y. 619. 14. Property exempt from, execution. (1.) Personal property exempt. 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. 2. The family bible, family pictures, and school books, used by or in the family; and other books, not exceeding in value fifty dollars, kept and used as part of the family library. 3. A seat or pew, occupied by the judgment debtor, or the family, in a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured there- from; one cow; two swine; the necessary food for those animals; all necessary meat, fish, flour, groceries and vegetables, actually provided for family use; and necessary fuel, oil, and candles, for the use of the family for sixty days. 5. All wearing apparel, beds, bedsteads, and bedding, necessary for the judgment debtor and the family; all necessary cooking utensils; one table; six chairs; six knives; six forks; six spoons; six plates; six tea cups; six saucers; one sugar dish; one milk pot; one tea pot; one crane and its appendages; one pair of andirons; one coal scuttle; one shovel; one pair of tongs; one lamp, and one candlestick. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value twenty-five dollars. (Code of Civ. Proc, sec. 1390, as amended by L. 1891, ch. 112.) In addition to the exceptions allowed by the last section, necessary house- hold furniture, working tools and team, professional instruments, furniture and library, not exceeding in value two hundred and fifty dollars, together with the necessary food for the team for ninety days, are exempt from levy and sale by virtue of an execution, when owned by a person, being a 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 exempt as prescribed in this or the last section. Where a judgment TAXABLE PROPERTY AND PLACE OP TAXATION. 477 Tax Law, § 4. of tlie assessors to hear the complaints concerning 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 appli- cation must show the facts on which the exemption is claimed, including lias been recovered, etc. (Code Civ. Proc., sec. 1391, as amended by L. 1879, ch. 542; L. 1901, ch. 116; L. 1903, ch. 461, and L 1908, ch. 148, L. 1911, chs. 489, 532, and L. 1914, ch. 3b2. 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 Pro- cedure, sec. 1392. ) (2.) Military pay, bounty and pension exempt from taxation. The pay and bounty of a non-commissioned officer, musician or private, in the military or naval service of the United States or the state of New York; a land warrant, pension, or other reward, heretofore or hereafter granted by the United States or by a state, for military or naval services; a sword, horse, medal, emblem, or device of any kind presented, as testimonial for services rendered in the military or naval service of the United States or a state; and the uniform, arms and equipments, which were used by a person in that service, are also exempt from levy and sale, by virtue of an execution, and from seizure for non-payment of taxes, or in any other legal proceeding; except that real property purchased with the proceeds of a pension granted by the United States for military or naval services, and owned by the pensioner, or by his wife or widow, is subject to seizure and sale for the collection of taxes or assessments lawfully levied thereon. (Code Civ. Proc, sec. 1393, as aihended by L. 1897, ch. 348.) (3.) Burial grounds exempt from execution. Land set apart as a family or pri- vate burying ground, and heretofore designated, as .prescribed by law, in order to exempt the same, or hereafter designated for that purpose, as prescribed in the next section, is exempt from sale, by virtue of an execution, upon the following condi- tions 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 Civ. Proc, sec 1395.) 15. Real property purchased with pension money exempt. Property purchased with the pay and bounty of a soldier is not entitled to any greater or different exeniption than that in the above subdivision for the exemption from taxation of real property purchased with pension moneys. It therefore follows that real prop- ertv purchased with a soldier's pay or bounty is subject to taxation for local school and highway purposes in the same manner as such property purchased with pen- sion moneys. People ex rel. Kenney v. Reilly, 41 Aipp. I>iv. 378 ; 58 N. Y. Supp. 558. Property purchased with money received by a retired soldier is exempt the same as property of a pensioner. Rept. of Atty. Genl., Dec. 23, 1910, following; People ex rel. Kenny v. Reilly, 41 App. Div. 378. Real proiperty purchased with bounty money or pay of a retired soldier of the United States Army is not exempt from taxation. Rept. of Atty. Genl., March 27, 1911. Exemption of property purchased with pension money extends to the amount invested, when assessed as one item. It is not the intent of the statute to make a pro rata basis depending upon the extent of occupancy. Rept. of Atty. Genl., Jan. 31, 1911. x v. ^ -i,. ■ A veteran is entitled to exemption on property purchased with pension money, although he rents a, portion of such property and occupies the remainder. Rept. of Atty. Genl., Oct. 17, 1910. The property of pensioners is exempt from a tax imposed to meet bonds issued for the purpose of installing a village water system. Rept. of Atty. Genl., May 15, 1911. The exemption from taxation of all real property to the extent of $5,000 pur- chased with the proceeds of a, United States pension applies to non-residents as well as to residents of this State. Rept. of Atty. Genl., July 1, 1914. Amendment of 1897, providing for the exemption from assessment and taxa- tion of real property, purchased with pension, money, to the extent of the pension money used in its purchase, is not retroactive. People ex rel. Jones v. Feitner, 157 N. Y. 363, afifg. 32 App. Div. 23. 478 TAXATION. Tax Law, § 4. the amount of pension money used in or toward the purchase of such property." No such exemption on account of pension money shall be allowed in excess of five thousand dollars. If the assessors are satisfied that the applicant is entitled to the exemption, and that the amoimt of pension money exempt to the extent authorized by this subdivision used in the purchase of such property equals or exceeds the assessed valuation thereof, they shall enter the word " exempt " upon the r.isessment-roU opposite the description of such property. If the amount of such pen- sion money exempt to the extent authorized by this subdivision 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 purposes, 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 purcha'ied with a pension apply and shall be enforced in each municipal corporation authorized to levy taxes. [Id., § 4, sub. 5, as amended by L. 1914, ch. 278.] Bonds of this state or any civil division thereof.^' [Id., § 4, sub. 6, as amended by L. 1917, ch. 97.] 16. Application for exemption. For form of application for exemption, see Form No. 37, post. The assessors are required under the above subdivision to place the real property of a veteran purchased with pension money upon the roll in the usual manner of assessment, and the claimant for an exemption must prefer it in writing stating the amount on which the exemption is claimed. People ex rel. McGrane v. Reilly, 21 Misc. 360; 47 N. Y. Supp. 742. To secure the exemption of real estate pur- chased in part with pension moneys the owner must make his claim known on grievance day and in default thereof the assessment will stand. Matter of Baum- garten, 3? App. Div. 174, 57 N. Y. Supp. 284; Tucker v. City of Utica, 35 App. Div. 206, 54 K Y. Supp. 855; McKibben v. Oneida County, 25 App. Div. 361, 49 N. Y. Supp. 553; Broderick v. City of Yonkers, 22 App. Div. 448, 48 N. Y. Supp. 265. 17. Under the amendment of 1917, bonds of school districts, lighting districts, etc., are exempt from taxation, which was not the case under the former law. TAXABLE PROPERTY AND PLACE OF TAXATION. 479 Tax Law, § 4. The real property of a corporation or association organized exclusively for the moral or mental improvement of men or vFomen, or for religious, bible, tract, charitable, benevolent, missionary, hospital, infirmary, educa- tional, scientific, literary, library, patriotic, historical or cemetery purposes, or for the enforcement of laws relating to children or animals, or for two or more such purposes, and used exclusively for carrying out thereupon one or more of such purposes; and the personal property of any such cor- poration shall be exempt from taxation.^' But no such corporation or 18. Corporations entitled to exemption. In the case of People ex rel. D. K. E. Society v. Lawlor, 74 App. Dlv. 553; 77 N. Y. Supp. 840, it appeared that a house owned by a chapter of a Greek letter college fraternity, organized as stated in its certificate of incorporation for literary purposes and the promotion of fine arts, was primarily used, with the exception of the society room, as a boarding place for the active members of the chapter, at which they enjoyed the privileges of home life and met for social recreation and fellowship without intrusion from uninvited guests; it was held that such property was not exempt from taxation under the above subdivision although it was incident- ally used for literary, educational and scientific purposes. The property entitled to exemption under this subdivision must be exclusively used for the purposes therein specified. See Church of St. Monica v. Mayor, 119 N. Y. 91; 23 N. B. 294; People ex rel. Church of St. Mary v. Feitner, 168 N. Y. 494, N. B. In the case of People ex rel. D. K. E. Society v. Lawlor, supra, the court said: "Now the adverb 'exclusively' is defined by lexicographers to mean ' with the exclusion of all others, without admission of others to participa- tion ' (Century Dictionary); and with this definition in mind it is apparent that the partial or occasional use of the relator's chapter house for literary, educational or scientific purposes is not sufiiclent to sustain its claim to ex- emption, unless it can be said that such purposes are primary and inherent, while all others are secondary and incidental; for although we ought not per- haps to give the word 'exclusively ' an interpretation so literal as to pre- vent an occasional use of the relator's property for some purpose other than one or more of those specified, yet the policy of the law is to construe statutes .exempting property from taxation somewhat rigidly, and not to permit such exemption to be established by doubtful Implication." In the case of People ex rel. Young Men's Association v. Sayles, 32 App. Div. 197; 53 N. Y. Supp. 67; afCd., 157 N. Y. 677, it appeared that the relator was a corporation organized exclusively for the mental and moral improve- ment of men and women and for benevolent purposes. Any respectable young man could become a member and enjoy its privileges upon the payment of a nominal membership fee. It owned a building in the city of Albany of which a portion was used for the purpose of a public library, gymnasium, reading, lecture and bath rooms, while the remainder consisted of a spacious and elaborately constructed theater or hall suitable for public meetings, exhibitions and entertainments. This hall was leased at fixed rates of rental and used for such purposes only, the income therefrom being devoted exclusively to the maintenance of the library. It was held by the appellate division and sub- 480 TAXATION. Tax Law, § 4. association shall be entitled to any such exemption if any officer, member or employe thereof shall receive or may be lawfully entitled to receive any pecuniary profit from the operation thereof except reasonable corapensa- sequently affirmed by the Court of Appeals that such property was subject to taxation. In the case of People ex rel. Catholic Union v. Sayles, 32 App. Div. 203; 53 N. Y. Supp. 65; affd. 157 N. Y. 679, a like conclusion was reached upon a very similar state of facts. The rent of athletic grounds by a college to persons not connected therewitli deprives it of the exemption. People ex rel. Adelphi College v. Wells, 97 App. Div. 312, 89 N. Y. Supp. 957. See, also. People ex rel. Medical Society v. Neff, 34 App. Div. 83; 53 N. Y. Supp. 1077. As to effect of lease of academy by educational corporation, see People ex rel. Trustees, etc., v. Mezgar, 98 App. Div. 237, 90 N. Y. Supp. 488. Land held by a voluntary unincorporated religious order for charitable purposes — held exempt. People ex rel. Miissdonary Sisters v. Reilly, 85 App. Div. 71, 83 N. Y. Supp. 39, affd. 178 N. Y. 609. The proceeds of crops raised on land owned by the religious society of Friends — held not exempt. People ex rel. Blackburn v. Barton, 63 App. Div. 581, 71 N. Y. Supp. 933. The property of the Brooklyn Masonic Guild, held exempt. People ex rel. Crobk v. Wells, 179 N. Y. 257, revg. 93 App. Div. 500, 87 N. Y. Supp. 826. In the case of Congregation K. I. A. P. v. Mayor, 52 Hun, 507, it was held that the building, of which the principal story was used as a synagogue, while the lower story contained the living rooms of the janitor of the synagogue and bath tubs and plunging pools for men and women, which were accessible for a pecuniary considera- tion, payable to the janitor in lieu of salary, to all Jews, whether worshippers at that synagogue or not, was not exempt from taxation, for the reason that the building was not " exclusively used," for one or more of the purposes specified in the statute. The religious society of Friends owned four hundred and fifty acres of land upon which was conducted an institution for the education of Indian children. A portion of this land was cultivated and used for raising crops and the pasturage of cattle. The crops raised were more than sufficient for the use of the school and the surplus was sold and the proceeds devoted to the school. It was held that only the land used for crops and pasturage was exempt from taxation. People ex rel. Blackburn V. Barton. 63 App. Div. 581. But where all the products of the farm upon which is situated an institution exempt from taxation under the above subdivision are used for the maintenance of the inmates of the institution, the farm is entitled to ex- emption. People ex rel. Seminary, etc. v. Barbour, 42 Hun, 27; affd. 106 N. Y. 669. A church corporation engaged in charitable and missionary work among the poor carried on such work by the aid of guilds of men and women, and a staff consisting of the rector, curates and three Kistcrs. Annexed to the church building in which religious services were held, and forming a part thereof, was the clergy house and a rectory devoted to the use of the work of the corporation. It was held In the appellate division that the entire building was exempt from taxation under the above subdivision. People ex rel Society of the Free Church v. Feitner, '63 App. Div. 181. But the Court of Appeals modified its decision by holding that the rec- tory, being located on another corner of the church lot and separate from the other property, was not exempt from taxation except as a dwelling house used by the officiating clergyman of the church. See sub. 9 of sec. 4, post, p. 4S2. Property bequeathed to a university organized under the laws of a foreign state exclusively for educational, scientific and literary ourposps is. before payment to the beneficiary, liable to taxation in the town or village of the testator's residence even though the property would be exempt from taxation if the beneficiary were organized under our laws. People ex rel. Anderson v. Cameron, 140 App. Div. 76. 134 N. Y. Supp. 949, affd. 200 K. Y. 505. The power under a charter to make al- lowances or pensions to teachers does not affect the right of the school to exemption under this subdivision. People ex rel. Master School v. Keys (1917), 178 App Div 677, 165 N. Y. Supp. 863. Bequests to the American Society for the Prevention of Cruelty to Animals, or- ganized under L. 1886, ch. 469, are exempt from taxation. People ex rel Anderson V. Cameron, 140 App. Div. 76, 124 N. Y. Supp. 949, affd. 200 N. Y. 585. TAXABLE PROPERTY AND PLACE OP TAXATION. 481 Tax Law, § 4. tion for services in effecting one or more of such, purposes, or as proper beneficiaries of its strictly charitable purposes; or if the organization thereof for any such avowed purposes, be a guise or pretense for directly or indirectly making any other pecuniary profit for such corporation or 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 ex- emption held by it exclusively for one or more of such purposes and from which no rents, profits or income are derived, shall be so exempt, though not in actual use therefor by reason of the absence of suitable buildings or improvements thereon, if the construction of such buildings or improve- ments is in progress, or is in good faith contemplated by such corporation or association; or if such real property is held by such corporation or association upon condition that the title thereto shall revert in case any building not intended and suitable for one or more of such purposes shall be erected upon said premises or some part thereof. The real property of any such corporation not so used exclusively for carrying out thereupon one or more of such purposes, but leased or otherwise used for other Where the charter of a literary corporation, organized to promote social inter- course and a general knowledge of literature, states that one of its corporate pur- poses is to own a building and sublet portions thereof, it is not entitled to exemp- tion. People ex rel. Forward Assn. v. Purdy (1917), 173 App. Div. 926, 158 N. Y. Supp. 551. Lincol-n Agricultural School at Iowa, owned by the New York Catholic Protec- tory, is exempt from taxation. Rept. of Atty. Genl., July 26, 1910. Real property of Greely Lodge No. 69, L O. O. F., used exclusively for purposes for which it was formed, is exempt from taxation. Rept. of Atty. Genl., Aug. 23, 1910. Building and lot of Masonic lodge held not exempt. Rept. of Atty. Genl., July 29, 1910. Real property of fraternal association, a portion of which is rented for commer- cial purposes, is taxable to the extent that it is so rented, although the surplus re- maining after payment of carrying charges of property is devoted to payment of benefits to worthy, but not indigent, members of the association. People ex rel. Delphian Lodge v. Cahoon (1917), 179 App. Div. 287, 166 N. Y. Supp. 348. Hospital owned by religious corporation — held not exempt. People ex rel. Sisters of Mercy v. Nowles, 34 Misc. 501, 70 N. Y. Supp. 277. Lands of hospital corpora- tion used for care of consumptive patients, held exempt. Sanitorium v. Keese, 112 App. Div. 738, 98 N. Y. Supp. 1088. The charge made by a hospital for treating some of its patients, the sum so received being applied to the use of other poor pa- tients, is not an income of the hospital of such a nature as to deprive the institution of its exemption from taxation under the above act. People ex rel. Society of the New York Hospital v. Purdy, 58 Hun 386', 12 N. Y. Supp. 307; affd. 126 N. Y. 679. EfEect of subdivision upon special provisions. The provisions of the above subdi- vision exempting the property of a charitable corporation and association from tax- ation supersede, and by implication repeal, the provisions of all special acts exempt- ing the property of such corporations and associations from taxation. Matter of Huntington, 168 N. Y. 399; Pratt Institute v. City of New York, 183 N. Y. 151. The provision of the charter of the Roosevelt Hospital exempting its property from taxation, held not to be repealed by the General Tax Law, on the ground that the courts will not assume that the legislation exercised by implication its reserved power to alter or repeal a charter, where the transfer of property, in endowment, was thus indirectly induced by a promise of an exemption from taxation. People ex rel. Roosevelt Hospital v. Raymond, 194 N. Y. 189, revg. 126 App. Div. 720, 111 N. Y. Supp. 177, and distinguishing Matter of Huntington, 168 N. Y. 399; Pratt In- stitute V. City of New York, 183 N. Y. 151; People ex rel. Oboper Union v. Gass, 190 N. Y. 323. 482 TAXATION. Tax Law, § 4. purposes, shall not be exempt, but if a portion only of any lot or building of any such corporation or association is used exclusively for carrying out thereupon one or more such purposes of any such corporation or association, then such lot or building shall be so exempt only to the extent of the value of the portion so used, and the remaining or other portion, to the extent of the value of such remaining or other portion, shall be subject to taxation; provided, however, that a lot or building owned, and actually used for hospital purposes, by a free public hospital, depending for maintenance and support upon voluntary charity, shall not be taxed as to a portion thereof leased or otherwise used for the purposes of income, when such income is necessary for, and is actually applied to the maintenance and support of such hospital, and further pro- vided that the real property of any fraternal corporation, association or body created to build and maintain a building or buildings for its meet- ing or meetings of the general assembly of its members, or subordinate bodies of such fraternity and for the accommodation of other fraternal bodies or associations, the entire net income of which real property is exclusively applied or to be used to build, furnish and maintain an asylum or asylums, a home or homes, a school or schools, for the free education or relief of the members of such fraternity, or for the relief, support and care of worthy and indigent members of the fraternity, their wives, widows or orphans, shall be exempt from taxation, and provided also that the real estate owned by a free public library or held in trust by an educational corporation for free public library purposes situate outside of a city, shall not be taxed as to that portion thereof leased or otherwise used for purposes of income, when such income is necessary for and actually applied to the maintenance and support of such library. Property held by any officer of a religious denomination shall be entitled to the same exemptions, subject to the same conditions and exceptions, as property held by a religious corporation. Property held by trustees named in a will or deed of trust or appointed by the supreme court of the state of N"ew York for hospital and library purposes, as set forth in this sub- division, shall be exempt to the -same extent and subject to the same condi- tions and exceptions as if held by a corporation. [Id., § 4, sub. 7, as amended by L. 1916, ch. 411, and L. 1918, ch. 288.] Real property of an incorporated association of present or former volun- teer firemen actually and exclusively used and occupied by such corpora- tion and not exceeding in value fifteen thousand dollars.^'* [Id., § 4, sub. 8.] Uaintenance of lamp district. The property of corporations or associations fall- ing -Bithin the classifications made by subdivision 7, is exempt from payment of a tax levied pursuant to the provisions of article Xn of the Town Law for the estab- lishment and maintenance of a lamp or lighting district. Kept, of Atty. Genl. (1915) 44. 18a. Firemen's association. Under the statute exempting from taxation "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," property of such an association of the value of $15,000 or less is exempt, and the assessing officers have no jurisdiction over it. Elmhurst Fire Co. v. City of New York (1914), 213 N. Y. 87. TAXABLE PROPERTY AND PLACE OF TAXATION. 433 Tax Law, § 4. All dwelling-houses and lots of religious corporations while actually used by the officiating clergymen thereof, but the total amount of such exemption to any one religious corporation shall not exceed two thousand dollars. Such exemption shall be in addition to that provided by subdivi- fiion seven of this section.** [Id., § 4, sub. 9.] The real property of an agricultural society permanently used by it for exhibition grounds.^" [Id., § 4, sub. 10.] The real and personal property of a minister of the gospel or priest of any denomination being an actual resident and inhabitant of this state. who is engaged in the work assigned to him by the church or denomination to which he belongs, or who is disabled by impaired health from the per- formance of such duties, or over seventy years of age, and the property of the widow of such minister while she remains such and is an actual resi- dent and inhabitant of this state, but the total amount of such exemption on account of both real and personal property shall not exceed fifteen hun- dred dollars.^* [Id., § 4, sub. 11, as amended by L. 1916, eh. 412, and L. 1917, ch. 42.] All vessels registered at any port in this state and owned hy an Amer- ican citizen, or association, or by any corporation, incorporated 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 including 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 nonresi- dent of this state and consigned to his agent in this state for sale on 19. Property used for religious purposes, owned hj an individual, to whom rent is paid for such use, is not exempt from taxation. Kept, of Atty. Genl. (1894) 2n. 20. Lands which an agricultural society holds hy a lease are not exempt. Kept, of Atty. G«nl. (1895) 222. 21. Esemption of ministers and priests. A minister who is withdrawn from active duty as such by reason of age or infirmity, but is engaged in no secular occupation is entitled to an exemption. People ex rel. Mann v. Peterson, 31 Hun, 421. Where the value of a minister's property exceeds the sum of $1,500, he is entitled to a deduction for that amount, although he has not occupied the real property. Idiem. Property of clergyman regularly engaged in hia duties or permanently disabled is exempt, no matter where he resides. Kept, of Atty. Genl. (1903) 226. The assessors' acts in determining the value of the property of a minister are judicial and they cannot be held liable for assessing the property in excess of the valuation exempted. Weaver v. Devendorf, 3 Denio, 117; Vale v. Oyen, 19 Barb. 22. To enable a minister of the gospel to maintain an action against assessors, for assessing his property, and thereby subjecting him to the payment of taxes, he must show that he is such minister, and that the value of both his real and personal property does not exceed $1,500. Prosser v. Secor, 5 Barb. 607. The property of a minister of the gospel engaged in secular occupation discharg- ing occasional duties as a minister is not regularly engaged in performing his duties as such, and is not entitled to the statutory exemption from taxation. Rept. of Atty. Genl. (1914) 386. 484 TAXATION. Tax Law, § i. commission for the benefit of the owner; moneys of a nonresident of this state^ under the control or in the possession of his agent in this state, when transmitted to such agent for the purpose of investment or other- wise.=2 [Id., § 4, sub. 13.] 22. Exemption of securities belonging to non-residents. The statute pro- vides that a person shall be taxed in the tax district where he resides, when the ;issessment for taxation is made, for all personal property owned by him or under his control as agent, trustee, guardian, executor or administrator. Tax Law, sec. 8, post, p. 492. This provision if standing alone would doubtless autaorize the assessment of all personal property belonging to a non-resident in the hands of his agent in this state. But by virtue of the above subdivision there are appended to this general provision two important qualifications; first, that the products of any state of the United States consigned to any agent in this state for sale on commission shall not be assessed to such agent; second,, that agents of moneyed corporations of capitalists shall not be liable to taxa- tion for any moneys in their possession or under their control, transmitted to them for the purpose of investment or otherwise. The Court of Appeals, in the case of Williams v. Board of Supervisors, 78 N. Y. 561, in speaking of these exemptions, says: "Nothing can be more plain than the policy and purpose of these exemptions. They are clearly intended to further the trade and commerce of the state and to encourage and even invite the sending of foreign capital here for investment. It is argued, however, that the exemption as to capital continues only so long as it remains uninvested, and that when invested, if the securities remain in the hands of the agent they are taxable. If such were the true construction of the provision it would be quite ineffectual and rather a lure than a protection to foreign capitalists who might send their capital here to be invested under the assurance that it should be free from taxation. But such a construction is precluded by the express provisions of the statute contained in the same chapter, which declares that when any bond, mortgage, note, contract, account, or other demand belonging to any person, not being a resident of this state, shall be sent to this state for collection, or shall be deposited in this state for the same pur- pose, such property shall be exempt from taxation. . . . These provisions are clearly designed to afford to the foreign capitalist who invests his funds here every conceivable protection. His capital cannot be taxed while awaiting investment. If the securities are taken by him out of the state he may with impunity send them back to the agent here for the collection of principal or interest. And if instead of being removed from the state, they are deposited here with an agent for collection, they are equally free. The capital is pro- tected from taxation whether Invested or uninvested, and whether the securities are taken away or remain here for collection." Funds sent here for investment are not taxable. People ex rel. Ferrer v. Comrs. of Taxes, 42 Hun 560. Con- tracts for the sale of land in the hands of a resident agent are not taxable. Lord V. Arnold, 18 Barb. 104. See also Boardman v. Supervisors of Tompkins, 85 N. Y. 359; People ex rel. Smith v. Comrs. of Taxes, 100 Id. 215. Debts due to non-residents upon contracts for the sale of real estate situated within the state, which contracts were in the hands of an agent residing within the state, are liable to assessment and taxation against such agent. People ex rel. Young v. Willis, 133 N. Y. 383; 31 N. E. 125. The above subdivision does not apply to assets in the hands of an administrator of a TAXABLE PROPERTY AND PLACE OF TAXATION. 485 Tax Law, § 4. The deposits m any hank for savings which are due depositors/^ the accumulations in any domestic life insurance corporation, held for the exclusive benefit of the insured, other than real estate and stocks, now- liable to taxation, the accumulations of any incorporated co-operative loan association upon the shares of such association held by any person; certifi- cates of investment or other evidences of indebtedness, together with any accumulations thereon, issued by any investment company organized pur- suant to the provisions of article seven of the banking law and actually exercising the powers conferred by both subdivisions two and four of section two hundred and ninety-three of the banking law ; and personal property of any corporation, person, company or association transacting the business of fire, casualty or surety insurance in this state equal in value to the unearned premiums required by the laws of this state, or the regulations of its insurance department, to be charged as a liability.^ [Id., § 4, sub. 14, as amended by L. 1917, ch. 707.] Moneys collected in the course of the business of any corporation, asso- ciation or society doing a life or casualty insurance business or both, upon the co-operative or assessment plan, and which are to be used for the pay- ment of assessments, or for death losses or for benefits to disabled members. [Id., § 4, Bub. 15.] The owner or holder of stocTc in an incorporated company liable to resident of Scotland where such assets consists of debts due on bond and mort- gage on real property located in this state, and where the residuary legatees reside therein. People ex rel. Cochrane v. Coleman, 128 N. Y. 524; 28 N. E. 465. Nor to drafts upon a foreign corporation doing business within the state. People ex rel. International Banking Corp. v. Raymond, 117 App. Div. 62, 102 N. Y. Supp. 85, affg. 52 Misc. 194, 102 N. Y. Supp. 84. 23. Deposits in savings banks. The exemption from taxation conferred by the above subdivision upon " deposits in any bank for savings which are due depositors," applies to the depositors as well as to the bank and relieves them from assessment for taxation as to their deposits. People ex rel. Hiermance v. Dederick, 158 N. Y. 414; 53 N. E. 163; People ex rel. Ithaca Sav. Bank v. Beers, 67 How. Pr. 219. Every savings bank is required to pay to the state annually for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity an annual tax, which shall be equal to one per centum on the par value of its surplus and undivided earnings. Tax Law, sec. 189, as added by L. 1901, ch. 117. Prior to this statute it was held that the surplus of a savings bank exempt under the above subdivision. People ex rel. Newburg Savings Bank v. Peck, 157 N. Y. 51; 51 N. E. 412. 24. The amendment of 1901 adding the exemption of property equal in value to unearned premiums supersedes Nat. Surety Co. v. Feitner, 166 N. Y. 129, which held that the unearned premiums of a surety company are not deductable as debts. Deposits are exempt to the bank. People ex rel. Ithaca Savings Bank v. Beers, 67 How. Pr. 219. And also to depositors. People ex rel. Hermance v. Dederick, 158 N. Y. 414, affg. 35 App. Div. 29, 54 N. Y. Supp. 519. Surplus of savings bank is exempt under this subdivision. People ex rel. Newburgh Bank v. Peck, 157 N. Y. 51, affg. 32 App. Div. 624, 52 N. Y. Supp. 259. 486 TAXATION. Tax Law, | 4, subs. 17-19; Trans. Corp. Law, i 14L taxation on its capital, shall not be taxed as an individual for such stock.** [Id., § 4, sub. 16.] The personal property in excess of one hundred thousand dollars of a mutual life insurance corporation incorporated in this state before April tenth, eighteen hundred and forty-nine. [Id., § 4, sub. 17.] Property real, from which no income is derived, and personal property, situated within any city of the first class and belonging to the medical society of any county, which county is either wholly or partly within such city and which society was heretofore incorporated under the provisions of chapter ninety-four, laws of eighteen hundred and thirteen, entitled " An act to incorporate medical societies for the purpose of regulating the practice of physic and surgery in this state," provided that such property is used for the purposes of such a society and not otherwise, and provided that such exemption of property for any society in the coun- ties of Kings or New York, shall not exceed one hundred and fifty thou- sand dollars, and in any other county affected hereby, shall not exceed fifty thousand dollars. [Id., § 4, sub. 18.] Property real from which no rent is derived and personal property situated within any city of the first class and belonging to any incorpo- rated pharmaceutical society of any county which is either wholly or partly within such city, which society has heretofore been or may hereafter be authorized and empowered by act of the legislature to establish and which has established or may hereafter establish, a college of pharmacy in such city; provided that such property is used for the purposes of such college and not otherwise, and provided also that the exemption of such property for any society in the counties of Kings and New York shall not exceed one hundred thousand dollars and in any other county affected hereby, shall not exceed fifty thousand dollars. [Id., § 4, sub. 19.] Household furniture and personal effects to the value of one thousand dollars. [Id., § 4, sub. 21, as added by L. 1912, ch. 267.] f 6. EXEHFTION OF PROPERTY BELONGING TO A FLANK ROAD OR TXTRNFIKE CORPORATION. So much of any bridge or toll-house of any bridge corporation as may 25. Exemption of corporate stock. The shares of stock of corporations created under the laws of this state are not taxable in the hands of the stock- holders, nor are shares of stock of corporations created by other states taxable, since the presumption is that they are taxed upon their capital in the same states. Bonds being evidence of a fixed indebtedness are taxable at their actual value. People ex rel. Trowbridge v. Commissioners of Texas, 4 Hun, 595., affd.. 62 N. Y. 630. A corporation is not subject to taxation upon stock of another corporation owned by it and the capital of which is taxable, any more than an individual TAXABLE PROPERTY AND PLACE OF TAXATION. 48? Membership Corporation Law, S 17L be within any town, city or village, shall be liable to taxation therein as real estate. Toll houses and other fixtures, and all property belonging to any plank road or turnpike corporation shall be exempt from assessment and taxation for any purpose until the surplus annual receipts of tolls on its road over necessary repairs and a suitable reserve fund for repairs or relaying of plank, shall exceed seven per centum per annum on the first cost of the road.^" If the assessors of any town, village or city and the corporation disagree concerning any exemption claim, the corporation may appeal to the county judge of the county in which such assessment is proposed to be made, who shall, after due notice to both parties, examine the books and vouchers of the corporation, and take such further proof as he shall deem proper, and decide whether such corporation is liable to taxation under this section, and his decision shall, be final. [Transpor- tation Corporations Law, § 141; B. C. & G. Cons. L., p. 6350.] § 7, EXEMPTION OF PROPERTY OF SOLDIERS' MONUMENT AS- SOCIATION. The property of any corporation formed pursuant to laws of eighteen hundred and sixty-six, chapter two hundred and seventy-three, as amended by laws of eighteen hundred and eighty-eight, chapter two hundred and ninety-nine, shall be exempt from levy and sale on execution, and from all public taxes, rates and assessments, and no street, road, avenue or stockholder would he. People ex rel. Brooklyn Traction v. Board of Assessors, 30 N. Y. Supp. 488; 61 N. Y. St. Rep. 480. See also People ex rel. Keppler v. Barker, 22 App. Div. 120, 47 N. Y. Supp. 958, affd. 155 N. Y. 661. 26. Exemption of plank and turnpike roads. Property of plank and turnpike road corporations are exempt from taxation until the surplus annual tolls over necessary repairs and a suitable reserve fund for repairs or relaying plank shall exceed 7 per cent, per annum on the first cost of the road. The first cost of the road means only such road as the company has and operates at the time of the assessment; so where a company constructed the plank road, and afterwards abandoned a portion of it, it was held that the first cost of the portion of the road retained, and not of the whole original road, was to be estimated in determining whether the property of the company was assessable. People V. Freeman, 3 Lans. 148. Assessment for improvements in cities. The provisions of the charter of the city of Gloversville (L. 1899, ch. 275, § 105) authorizing the city to make public improvements and assess the expense upon the lands bordering or touching upon the improved street, and against any plankroad company occupy- ing any portion thereof, abrogate the exemption from assessment for public inprovements conferred upon a plankroad company by the provisions of this section. People ex rel Cayadutta P. R. Co. v. Cummings, 166 N. Y. 110, revg. 63 App. Div. 36, 65 N. Y. Supp. 581. 488 TAXATION. Tax Law, i 16. thoroughfare shall be laid through the lands of such association held for the purposes aforesaid without the consent of the trustees of such cor- poration, except by special permission of the legislature of the state. [Membership Corporation Law, § 171, in part; B. C. & G. Cons. L., p. 3442.] 7a. EXEMPTION AND REDUCTION IN ASSESSMENT OF LANDS PLANTED WITH TREES FOR FORESTRY PURPOSES. Whenever the owner of lands, to the extent of one or more acres and not exceeding one hundred acres, shall plant the same for forestry pur- poses with trees to the number of not less than eight hundred to the acre, and whenever the owner of existing forest or brush lands to the extent of one or more acres and not exceeding one hundred acres, shall under plant the same with trees, to the number of not less than three hundred to the acre, and proof of that fact shall be filed with the assess- ors of the tax district or districts in which such lands are situated as hereinafter provided, such lauds so forested shall be exempt from as- sessment and taxation for any purpose for a period of thirty-five years from the date of the levying of taxes thereon immediately following such planting, and such existing forest or brush lands so underplanted shall be assessed at the rate of fifty per centum of the assessable valua- tion of such land exclusive of any forest growth thereon for a period of thirty-five years from the date of the levying of taxes thereon imme- diately following such underplanting. The owner or owners of lands forested as above provided, in order to secure the benefits of this section, shall file with the conservation commission an affidavit making the due proof of such planting or underplanting and setting forth an accurate description of such lands, the town and county in which the same are situated, the number of trees planted or underplanted to the acre and the number of acres so forested, which affidavit shall remain on file in the office of said commission. Upon the filing of such affidavit it shall be the duty of the conservation commission to cause an inspection of such forested lands to be made by a competent forester or other em- ployee of said commission who shall make and file with said commission a written report of such inspection. If the commission is satisfied from the said affidavit and the report of inspection that the lands have been forested as above provided, in good faith and by adequate methods to produce a forest plantation, and are entitled to the exemption of assess- ment or to a reduction of assessment as provided in this section, it shall make and execute a certificate under the seal of its office, and file the same with the county treasurer of the county in which the lands so for- ested are located, which certificate shall set forth a description of the lands affected by this section, the area and owner or owners thereof, the town or towns in which the same are situated, the description upon the last assessment-roll which included said lands, the period of exemption TAXABLE PROPERTY AND PLACE OP TAXATION. 4.88a Tax Law, § 16. or of reduction of assessment to which such lands are entitled and the date of the expiration of such exemption or reduction of assessment. Upon the filing of such certificate it shall be the duty of the county treas- urer to file with the assessors of the tax district in which the "lands de- scribed therein are located within ten days after receipt thereof a certi- fied copy of such certificate, and the assessors of such tax district shall place the lands according to the description contained in said certificate upon the next assessment-roll prepared for the assessment of lands with- in such tax district, and shall exempt, or reduce the assessment upon, the lands so described as hereinbefore provided, and shall insert upon the margin of said assessment-roll opposite the description of said lands, a statement that in accordance with the provisions of this section of the tax law said lands are exempt from taxation or that the assessment thereof is reduced fifty per centum as the case may be and insert also in the margin the date of the expiration of such exemption or reduction of assessment .and such lands shall continue to be exempted, assessed and carried in such manner upon the assessment-rolls of such town until the date of the expiration of such exemption or reduction of assessment. Lands which have been forested as above provided within three years prior to the taking effect of this section may come within its provisions if application therefor is made to the conservation commission within one year from the time when this section takes effect, but except as pro- vided by this section the period of exemption or reduction as certified to by the conservation commission shall not exceed the period of thirty- five years from the date of the original planting. Lands situated within twenty miles of the corporate limits of a city of the first class, or within ten miles of the corporate limits of a city of the second class, or with- in five miles of the corporate limits of a city of the third class, or within one mile of the corporate limits of an incorporated village shall not be entitled to the exemption or reduction of assessment provided for by this section. In the event that lands exempted or reduced in taxation as above provided shall, by act of the owner or otherwise, at any time during the period of exemption or reduction in taxation cease to be used exclusively as a forest plantation to the extent provided by this section to entitle such land to the privileges of this section, the said exemption and reduction in taxation provided for in this section shall no longer apply and the assessors having jurisdiction are hereby empowered and directed to assess the said land at the value and in the manner provided by the tax law for the general assessment of land. If any land ex- empted under this section continues to be used exclusively for the growth of a planted forest after the expiration of the period of exemp- tion provided hereby, the land shall be assessed at its true value and the timber growth thereon shall be exempt from tas;ation, except if such timber shall be cut before the land has been duly assessed and taxes regularly paid for five consecutive years after the exemption period has 488b TAXATION. Tax Law, I 17. expired, such timber growth shall be subject to a tax of five per centum of the estimated stumpage value at the time of cutting, unless such cut- tings are thinnings for stimulating growth and have been made imder the supei-vision of the conservation commission. Whenever the owner shall propose to make any cutting of such timber growth for a. purpose other than for thinning as above provided, he shall give thirty days' notice to the assessors of the tax district on which the land is located, who shall forthwith assess the stumpage value of such proposed cutting, and such owner shall pay to the collector of the tovm in which such land is situated before cutting such timber five per centum of such assessed valuation. If such owner shall fail to give such notice and pay such taxes he shall be liable to a penalty of three times the amount of such tax, and the supervisor of the town may bring an action to recover the same for the benefit of the town in any court of competent jurisdiction. [Tax Law, § 16, as added by L. 1912, cL 249.] § 7b. EXEMPTION AND REDUCTION IN ASSESSMENT OF LANDS MAIN- TAINED AS WOOD LOTS AND TO ENCOURAGE THE GROWTH OF TREES FOR SUCH PURPOSES. In order to encourage the maintenance of wood dots by private owners and the practice of forestry in the management thereof, the owner of any tract of land in the state, not exceeding fifty acres, which is occu- pied by a natural or planted growth of trees, or by both, which shall not be situated within twenty miles of the corporate limits of a city of the first class, nor within ten miles of the corporate limits of a city of the second class, nor within five miles of the corporate limits of a city of the third class, nor within one mile of the corporate limits of an incorpo- rated village, may apply to the conservation commission in manner and form to be prescribed by it, to have such land separately classified for taxation. Application for such classification shall be made in duplicate and accompanied by a plot and description of the land, and such other information as the commission may require. Upon the filing of such application it shall be the duty of the commission to cause an inspection of such land to be made by a competent forester for the purpose of de- termining whether or not it is of a suitable character to be so classified. If the commission shall determine that such land is suitable to be so classified, it shall submit to the owner a plan for the further manage- ment of said land, and trees and shall make and execute a certificate under the seal of the commission and file the same with the county treas- urer of the county in which the land is located, which certificate shall set forth a description and plot of the land so classified, the area and owner thereof, the town or towns in which the same is situated, and that the land has been separately classified for taxation in accordance with the provisions of this section. Upon the filing of such certificate it shall be the duty of the county treasurer to file with the assessors of the tax TAXABLE PROPERTY AND PLACE OF TAXATION. 4880 Tax Law, § 17. district in which the land described therein is located, within ten days after receipt thereof, a certified copy of such certificate. So long as the land so classified is maintained as a wood lot, and the owner thereof faithfully complies with all the provisions of this section and the in- structions of the commission, it shall be assessed at not to exceed ten dollars per acre and taxed annually on that basis. In fixing the value of said lands for assessment, the assessors shall in no case take into ac- count the value of the trees growing thereon, and said land shall not be assessed at a value greater than other similar lands within the same tax district, which contain no forest or tree growth, are assessed. The as- sessors of each tax district where said land so classified is located shall insert upon the margin of said assessment and opposite the description of such land a statement that said land is assessed in accordance with the provisions of this section. In the event that land so classified as above prescribed shall at any time by act of the owner or otherwise cease, in the judgment of the commission, to be used exclusively as a wood lot to the extent provided by this section to entitle the owner of such land to the privileges of this section, the exemption and valuation in taxation provided for in this section shall no longer apply and the assessors having jurisdiction shall, upon the direction of the commis- sion assess the said land at the value and in the manner provided by the tax law for the general assessment of land. Whenever the owner shall propose to cut any live trees from said land, except for firewood or build- ing material for the domestic use of said owner or his tenant, he shall give the commission at least thirty days' notice prior to the time he de- sires to begin cutting, who shall designate for the owner the kind and number of trees, if any, most suitable to be cut for the purpose for which they are desired, and the cutting and removal of the trees so des- ignated shall be in accordance with the instructions of said commission. After such trees are cut and before their removal from the land, the owner shall make an accurate measurement or count of all of the trees cut and file with the assessors of the tax district a verified, true and ac- curate return of such measurement or count and of the variety and value of the trees so cut. The assessors shall forthwith assess the stump- age value of the timber so cut, and such owner shall pay to the tax col- lector of the town in which such land is situated, before the removal of any such timber, five per centum of such valuation. If such owner shall fail to give such notices and pay such taxes he shall be liable to a penalty of three times the amount of such tax, and the supervisor of the town may bring an action to recover the same for the benefit of the town in any court of competent jurisdiction. [Tax Law, § 17, as added by L. 1912, ch. 363, in effect April 15, 1912.] 488d TAXATION. Tax Law, §§ 5, 6. 8. TAXATION OF LANDS SOLD OB 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. Improvements not acquired by the state but situate on land purchased by the state shall be assessed to the owner thereof. Where land is leased by the state such leasehold interest, except in cases where by the terms of the lease the state is to pay the taxes imposed upon the property leased, shall be assessed to the lessee or occupant in the tax district where the land is situated. [Tax Law, § 5, as amended by L. 1916, ch. 323; B. C. & G. Cons. L., p. 5816.] § 9. ASSESSMENT OF BEAL AND PEBSONAL FBOFEBTX-. All real and personal property subject to taxation shall be assessed at the full value thereof, provided, however, that the owner of personal property shall be allowed a deduction from the full value of all his taxable personal property to the extent of the just debts owing by him but no such deduction shall be allowed by rea- son of the indebtedness of the owner contracted or incurred in the pur- chase of nontaxable property or securities owned by him or held for his benefit,^' nor for or on account of any direct liability as surety, 87. Deduction because of purchase of non-taxable property. The first clause of the above section to the effect that no deduction shall he made for debts or liabilities contracted or incurred in the purchase of non-taxable property applies to debts incurred in the purchase of imported goods not taxable by the state. Imported tobacco in original pacltages, which has been subjected to the duty under the U. S. Revenue Laws, is non-taxable property. The above provision is not confined to cases where the debt was fraudulently contracted to evade taxation. Nor is it unconstitutional as working a discrimination in tax- ation. People ex rel. Bijur v. Barker, 155 N. Y. 330; 49 N. E. 940. A debt incurred by a corporation in the purchase of the good will of the business cannot be deducted from the value of its taxable personal property under the above section. People ex rel. Cornell Steamboat Company v. Dederick, 161 N. Y. 195; 55 N. E. 927. Nor in purchase of a stock exchange seat, which is non-taxable. People ex rel. Slade v. Comrs. of Taxes, 53 Misc. 336, 104 N. Y. Supp. 756. Nor contingent liabilities, such as unearned premiums held as reinsurance reserve by surety company. People ex rel. National Surety Co. V. Feitner, 166 N. Y. 127. A corporation is entitled to deduct a debt incurred in the purchase of stock of another domestic corporation taxable on its capital. People ex rel. Keppler, etc. v. Barker, 22 App. Div. 120; 47 N. Y. Supp. 958; affd., 155 N. Y. 661. The amount of an existing indebtedness on bonds and mortgages issued by railroads which, by statute, were merged into a new company liable for the debts of the merged railroads, which were dissolved except for special purposes, should be deducted from the property of the new company .liable to taxation. TAXABLE PROPERTY AND PLACE OF TAXATION. 489 Tax Law, i 7. 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, § 6, as amended by L. 1914, ch. 27V ; B. 0. & G. Cons. L., p. 5817.] § 10. WHERE FBOPERTT OF NON-RESIDENTS IS TAXABLE. 1. Nonresidents of the state doing business in the state, either as principals or partners, shall be taxed on the capital invested in such busi- ness, as personal property, at the place where such business is carried on, to the same extent as if they were residents of the state.'" People ex rel. Metropolitan Street Ry. Co. v. Barker, 121 App. Div. 661, 106 N. Y. Supp. 336. 28. Constitutionality of section upheld, Duer v. Small, 4 Blatcht 263; Brown V. Houston, 114 U. S. 633; New Orleans v. Stempel, 175 id. 309, 317. Intention and application of statute. This statute was 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 corpora- tion, engaged in manufacturing in another state, transmitted to its agent here its manufactured product for sale, the proceeds being remitted at once, with the securities received for sales made on credit, to the home office of the cor- poration, it was held not to he doing business in this state within the meaning of the statute. People ex rel. The Parker Mills v. Commissioners of Taxes, 23 N. Y. 242. Where the business of a foreign corporation carried on in this state is intended by it to be a permanent and continuous business, including both the manufacture and the sale of goods, the value of its merchandise at the place designated by it as its principal place of business in this state is properly assessed for taxation, under the above section of the Tax Law as being invested in its business in this state, although the business conducted at that place consists wholly of selling, and while a portion of the, goods held there for sale was manufactured by the corporation within this state, a large portion was manufactured at the corporation's domicile in another state, to which the proceeds of sales are remitted. People ex rel. Armstrong Cork Co. v. Barker, 157 N. Y. 159; 51 N. E. 1043. Applies to deposits with superintendent of insurance. British Com. Life Ins. Co. v. Comrs. of Taxes, 31 N. Y. 32; Smyth v. International Life Assurance Co., 35 How. Pr. 126. Credits and bills receivable for goods sold in the state. People ex rel. Burke v. "Wells, 184 N. Y. 275, affg. 107 App. Div. 15, 95 N. Y. Supp. 100. Property of non-resident placed in a trust company, income to be paid to the settler and another. People ex rel Van Norden Trust Co. v. Wells, 118 App. Div. 381, 103 N. Y. Supp. 874. Does not apply to property sent here only to market for sale. People ex rel. Parker Mills Co. v. Comrs. of Taxes, 23 N. Y. 242. Nor to money constantly subject to draft of foreign house. People ex rel. Bank of Montreal v. Comrs. of Taxes, 59 N. Y. 40. Nor to the agent of a foreign corporation. McLean v. Jephson, 132 N. Y. 142. Nor to securities constituting part of a trust fund where two of the three trustees are non- residents, although they represent investments in the state. People v. Comrs of Taxes, 42 N. Y. St. Rep. 449, 17 N. Y. Supp. 923 (1891). 490 , TAXATION. Tax Law, § 7. 2. The personal property of nonresidents of the state having an actual situs in the state, and not forming a part of capital invested in business Where the evidence shows a plain intent to establish a continuous busi- ness, the non-resident is taxable. People ex rel. Carey Mfg. Co. v. Comrs. of Taxes, 39 Misc. 282, 79 N. Y. Supp. 485. A foreign corporation carrying on a merely transitory business is not taxable under this section. People ex rel. Goetz Silk Mfg. Co. v. Wells, 42 Misc. 86, 85 N. Y. Supp. 533, affd. 93 App. Div. 613, 87 N. Y. Supp. 1144. Money temporarily on deposit for paying divi- dends and the maintenance of an office for directors' meetings does not subject foreign corporation to taxation under this section. People ex rel. Dives-Pelican Co. V. Feitner, 77 App. Div. 189, 78 N. Y. Supp. 1017. A foreign banking corpora- tion having a large office in the city of New York, where foreign bills of exchange are sold and drafts are paid, is in business in the state. People ex rel. International Banking Corporation v. Raymond, 117 App. Div. 62, 102 N. Y. Supp. 85. A ■ non-resident dealer in foreign pictures maintaining a place for the sale of pictures and keeping a bank account sufficient for current expenses in the city of New York are taxable within the state. People ex rel. Durand- Ruel V. Wells, 41 Misc. 144, 83 N. Y. Supp. 936, affd. 92 App. Div. 622, 87 N. Y. Supp. 1144. A foreign corporation is doing business within the state and liable to taxation under this section where it is continuously engaged, within the state, in the importation and sale of foreign goods, and maintains an office in the city of New York, at which the proceeds of the sales of its goods are received and out of which all of the expenses of the business in this country are paid, the surplus only being remitted to the home office at convenient periods. People ex rel. Farcy & Oppenheim v. Wells, 183 N. Y. 264. The value of notes and open accounts owing to the corporation for mer- chandise sold by it in the transaction of its business in this state, is properly included in the assessment. Idem.; see, also. People ex rel. Crane Co. v. Feitner, 49 App. Div. 108; 62 N. Y. Supp. 1107; People ex rel. Yellow Pine Co. v. Barker, 23 App. Div. 524; 48 N. Y. Supp. 553; affd., 155 N. Y. 665. The section has no application to goods stored here for sale, the proceeds of which are to be remitted to the foreign principal. People ex rel. Sherwin- Williams Co. V. Barker, 5 App. Div. 246; 39 N. Y. Supp. 151; affd. 149 N. Y. 623. It is not sufficient that a person is doing business In this state as an agent, although solely with the property of his principal. To justify an assessment under the above section it is indispensable that the person assessed shall in fact have money invested in the business carried on by him in this state, either as sole principal or as partner. McLean v. Jepson, 123 N. Y. 142; 25 N. E. 409. The money value of the privilege enjoyed by a non-resident of the state of New York, as a member of the New York Stock Exchange, is capital invested in business in this state, but it is not taxable as personal property as against a non- resident. People ex rel. Lemmon v. Feitner, 167 N. Y. 1. Capital invested in business. No hard and fast rule can be laid down for the determination as to what constitutes capital invested in business within the meaning of this section. The fundamental element is the intent of the party as gathered from the nature and character of the business carried on, the method of its conduct and the declarations of the parties in connection therewith. The circumstances of each case must be considered in arriving at a conclusion there- in. People ex rel. Tower Co. t. Wells, 98 App. Div. 82, 90 N. Y. Supp. 313 (1904), affd. 182 N. Y. 553. TAXABLE PROPERTY AND PLACE OF TAXATION. 4-91 Tax Law, § 7. in the state, shall be assessed in the name of the owner thereof for the parpose of identification and taxed in the tax district where such property Place and manner 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 exclusive, and embrace all its persqnal property liable to taxation within this state. An assessment of personal property of a foreign corporation in the possession of an agent in a town, other than that where such office is situated, by the assessors of that town is void. People ex rel. Bay State, etc., Co. v. McLean, 80 N. Y. 254. Moneys in the hands of a resident partner, belonging to a firm whose principal place of business was in a foreign country, but which transacted business here, are subject to taxation, though the business here consisted of purchasing prod- ucts for sale abroad, and the moneys were here only for that purpose. Matter of McMahop, 66 How. Pr. 190. "Where all the members are non-residents, it is not necessary to insert in the roll the individual names of the partners. The assessment may be made in the partnership name. People ex rel. Dufour v. Wells, 85 App. Div. 440, 83 N. Y. Supp. 387, affd. 177 N. Y. 586. Assessment of rolling stock of foreign railroad company should be made in the tax district where the principal office or place of business of said company IB located. Rept. of Atty. Genl., July 27, 1910. Deduction for debts. In the case of People ex rel. Thurber-Whyland Co. v. Barker, 141 N. Y. 118; 35 N. E. 1073, the court said: " We are of the opinion that this act (the above section) does not contemplate the deduction of debts from the sums invested in this state by non-residents. As the person is a non-resident, it is to be assumed that he will, at the place of his domicile, have all of what might be termed his equities adjusted, and that if entitled to it anywhere, it will be at such domicile that he will claim and be allowed the right to have such deduction. In using the expression ' the same as if they were residents of this state,' we do not think it was intended that exceptions were to be allowed here the same as if the party were a resident, or that deductions from the sum thus, invested should be made as if that were the case. It meant, as it seems to us, that the sum invested in any manner in business in this state should be assessed In the same manner and form as a resident would be assessed." But where a foreign corporation, doing business in this state, has purchased property in this state for its business and pays cash for a portion of it and promises to pay the balance at a future time, the amount due upon the property is to be deducted in ascertaining the sums invested in this state. People ex rel. Milling Co. v. Barker, 147 N. Y. 31; 41 N. B. 435; see, also. People ex rel. Bird v. Barker, 145 N. Y. 239; 39 N. E. 1065. In the case of People ex rel. Barney v. Barker, 35 App. Div. 486; 54 N. Y. Supp. 848, it was held that a non-resident having capital invested In a firm doing business in this state, is not entitled to have deducted the amount of his indebtedness to residents unless it appears that he has no personal property out of the state to pay such indebtedness. The relation of a savings bank to its depositors is that of debtor and creditors, and in assessing a foreign savings bank, upon stock of New York bank, held by it, the amount of liability to its depositors shall be deducted from its assets. People ex rel. Bridgeport Savings Bank v. Barker, 17 Misc. 180, 40 N. Y. Supp. 1001. Deduction of debts of foreign corporation not made where such debts bear no relation to the assets of the corporation in this state. People ex rel. Dunlap'» Express Co. v. Raymond, 54 Misc. 330, 105 N. Y. Supp. 1007. 492 TAXATION. Tax Law, § 8. is situated, unless exempt by law. This subdivision shall not apply to money, or negotiable collateral securities, deposited by, or debts owing to, such nonresidents nor shall it be construed as in any manner modifying or changing the law imposing a tax on real estate mortgage securities. [Tax Law, § 7; B. C. & G. Cons. L., p. 5817.] § 11. FUICE OF TAXATION OF PERSONAL FBOFFBTY OF RESI- DENTS; STATE BOARD OF TAX COMMISSIONERS MAV 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.-' 29. What constitutes residence. For the purpose of assessment for personal property the residence of the taxpayer will be presumed to continue to be where it has been previously shown to be until a change is affirmatively shown. Matter of Nicholls, 54 N. Y. 62. The presumption that when a man has acquired a residence in a tax district, such residence continues for the purpose of taxa- tion until another residence shall have been acquired, can be overcome only by affirmative and satisfactory evidence that such place of business has been abandoned by the party assessed. People ex rel. Blocker v. Crowley, 21 App. Div. 304; 47 N. Y. Supp. 457; see, also, Paddack v. Lewis, 59 App. Dlv. 130; 69 N. Y. Supp. 1. The declaration of an intention not to return to a domicile or to longer reside in such place is not sufficient to effect a change. People ex rel. Rosa V. Streeter, 24 Wk. Dig. 95; affd., 103 N. Y. 652. The temporary occupation each year of an apartment in New York does not establish residence. People ex rel. Lord v. Feitner, 78 App. Div. 287, 80 N Y. Supp. 534 (1903). Where a person resides in New York city during the winter months and has his place of business in such city, he should be taxed there, although he resides elsewhere during the summer months. Bartlett v. Mayor, etc., of New York, 5 Sandf. 44; see, also, Douglass v. Mayor, etc., of New York, 2 Duer, 110. But in the case of People ex rel. Lorillard v. Parker, 70 Hun, 379; 24 N. Y. Supp. 63, where it appeared that the relator lived in a hired house in the city of New York during the winter, but lived during the rest of the year in a house owned by him without the city, where he voted and was taxed, and that he was not en- gaged in business in New York city, it was held that he was not a resident of New York city and was not liable there for a tax upon his personal property. If a person has two residences, the place where his family lives, where he stays the greater part of his time, where he votes and is assessed for personal taxes is his place of residence for the purpose of taxation. People ex rel. Lawrence v. Barker, 44 St. Rep. 695, 17 N. Y. Supp. 788; see, also. People ex rel. Blocker V. Crowley, 21 App. Div. 304, 47 N. Y. Supp. 457. 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 his personal property in the city ward in which he resides. Bowe v. Jenkins, 69 Hun, 458, 23 N. Y. Supp. 548; see, also. People ex rel. Gilbert v. Moore, 52 Hun, 13, 4 N. Y. Supp. 778. Where the plaintiff had removed his residence from the town where he still TAXABLE PROPERTY AND PLACE OF TAXATION. 493 Tax Law, § 8. "Where taxable personal property is in the possession or under the control of two or more agents, trustees, guardians, executors or administrators residing in different tax districts, each shall be taxed for an equal portion ■of the value of such property so held by them.^" Eents reserved in any ■conducted his business, returning there at intervals and staying at a hotel, — held, that 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 Lans. 158. Residence is a matter of intention. Where a person has a house in each of two towns he may choose to reside in either for the purpose of taxation. People «x rel. Bolcher v. Crowley, 21 App. Div. 304, 47 N. Y. Supp. 457, affd. 155 N. Y. 700. A person, though domiciled in another state where he votes, may be taxable on his personalty as a resident here, where he moves to New York and hires a residence October 1st, and remains for the following year. Matter of Austin, 13 App. Div. 247, 42 N. Y. Supp. 1097. Residence at the time •when assessment is made. The above section provides Ihat the residence of a person on July first shall be deemed his residence for the purpose of assessment and taxation during that year. In the case of Bell v. Pierce, 51 N. Y. 12, it appeared that the plaintiff during the whole of the year preceding June 20, resided in his own house in Buffalo, where his only business was transacted. He also owned a house in West Seneca, where he passed the summers with his family, attending meantime to his business in Buffalo, and staying there occasionally over night. The assessors of West Seneca assessed him upon his personal property and the tax was collected. After the statutory notice no objection was made to the regularity of the assessment, and the assessors were not aware that the plaintiff claimed another residence until the ■delivery of the assessment roll to the super'visor. It was held that since the plaintiff resided in West Seneca on July first, the assessors had jurisdiction to assess him there, and were not liable in damages for their so doing. A person taxed as trustee in New York city and county in 1901, claiming a residence in the town of Southampton, Suffolk county, who was physically present in that town on July 1, 1900, and remained there until October 1, 1900, and then returned to New York city and resided there with his mother, voted there in November, 1900, and was still there on the second Monday of January, 1901, when the annual " tax record " was open for public inspection, was prop- erly taxed as a resident in New York city and county, in 1901. People ex rel. Beers v. Feitner, 40 Misc. 368, 82 N. Y. Supp. 258. The words " when assessment is made " relate to the binding and conclusive act of the assessors which designates the taxpayers and the amount of taxable property held by each. This time must be the first day of July, the assessors being required to complete their preparatory inquiries in May and June. Myatt V. Washburn, 15 N. Y. 316. Residence by an owner of property in a town during June, July and August, gives the assessors jurisdiction for the purpose of assessment. Boyd v. Gray, 34 How. Pr. 323. 30. Assessment of trustees, executor, etc. The above section does not au- thorize 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- 494 TAXATION. Tax Law, § 8. 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 residents. People ex rel. Darrow v. Coleman, 119 N. Y. 137; 23 N. E. 488. But in the case of People ex rel. Campbell v. Commissioners of Taxes, 38 Hun, 536, it was held that the personal estate of the testator whose will was admitted to probate In New York city is taxable there although one of the executors who has actual possession and control of the property resides in another state, the other executors being residents of, though temporarily absent from. New York. See, also, People ex rel. Neustadt v. Coleman, 42 Hun, 581. The term " trustee," in § 5, must be limited in Its application to a person ex- pressly authorized by statute to hold the legal title to property in trust for some specific purpose. The treasurer of a county Is not such a " trustee," though the legal depositary of trust funds, nor can the assessment be made to the court. People ex rel. Brodie v. Cox, 14 St. Rep. 632, Sp. T. Where the whole of an infant's estate is vested In executors and trustees, and neither of them resides In the county, and the property is assessed and pays taxes in another county, no assessment can be made against the guardian in the former county. Douglass v. Board of Supervisors, 1 N. Y. Supp. 126, Gen. T. Upon a proceeding against administrators to collect a tax assessed upon them as such, it appeared that the intestate, who had been a resident of another state died there, leaving personal property and debts here, and that, pending proceedings before the surrogate, the assessment had been made upon the valua- tion of the whole personalty without deducting the Indebtedness. It was held that the assessment was properly made and that it was no defense that the ad- ministrators did not know of the assessment. In this proceeding the valuation could not be questioned and there was no ground for legal or equitable inter- ference in behalf of the administrators. Matter of McMahon, 67 How. Pr. 113. When personal property is held in trust by taxable inhabitants of the state, it is to be taxed at their place of residence without regard to the residence of the person creating the trust, or that of the person benefited by it. This rule applies to the case of a sinking fund raised and owned by a foreign corpora- tion. The cestui que trust in this case was the city of Albany. People ex rel. Western R. R. Co. v. Assessors of Albany, 40 N. Y. 154. Where a testator had resided in Westchester, his will was proved there and letters testamentary issued to his sons, who resided there, as well as to other persons who resided in New York city, and the other persons had no actual pos- session or control of the property, — held, that an assessment of the personalty in New York was erroneous. People ex rel. Caswell v. Comrs. of Taxes, 17 Hun 293. 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. Under the statutes relating to the city of Albany, an assessment of personal property of an estate In the single name of one executor " and others " is suffi- cient and Its subsequent amendment in the official revision by inserting the names of the four executors and correcting the amount assessed is regular. People ex rel. McHarg v. Gaus, 169 N. Y. 19; 61 N. E. 987. An assessment for personal property, levied in the city of New York, against a trustee who was a TAXABLE PROPERTY AND PLACE OP TAXATION. 495, Tax Law, § 8. tax district where such real property is situated, at a principal sum, the interest of which at the legal rate per annum shall produce a sum equal to such annual rents, and if payable in anything except money, at the value of the rents in money to be ascertained by the assessors, the value of each rent to be assessed separately, and for the purpose of the taxation thereof such person is to be deemed a resident of such tax district.^' When a person shall have acquired a residence in a tax district, and shall have been taxed therein, such residence shall be presumed to con- tinue for the purpose of taxation until he shall have acquired another residence in this state or shall have removed from this state. The resi- dence 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 assessment-roll of such change of residence and that he resident of the state of New York, but not of the city of New York, is void for want of jurisdiction, and it is not necessary for the trustee to apply on review day to have the assessment cancelled. Dale v. City of New York, 71 App. Div. 227; 75 N. Y. Supp. 576. See, also. People ex rel. Moller v. O'Donnel, 183 N. Y. 9. Personal property held by trustees jointly. Where taxable personal prop- erty is held by two or more trustees jointly, each trustee must be assessed in the tax district in which he resides for his proportionate share of such trust estate, and where taxable personal property is held by three trustees, two of whom are residents and the other a non-resident of the state, each resident trustee should be assessed for one-third of all of the taxable property of the trust estate. People ex rel. Beaman v. Feitner, 168 N. Y. 360. One or two trustees a non-resident. An assessment against property valued at 150,000, held jointly by two trustees, one of whom is a non-resident, is illegal. A reduction in such an assessment to one-half thereof is necessary and proper under this section. People ex rel. Kellogg v. Wells, 182 N. Y. 314, revg. 101 App. Div. 600, 92 N. Y. Supp. 5. Assessment where one of the executors is a non-resident. The amount of an assessment for personal property under the control of executors and trustees is not, by reason of the non-residence of the third executor and trustee, limited to two-thirds of the amount of the personal property. In making an assessment upon such property such executors are not entitled to a deduction on account of mortgages which were liens upon parcels of real estate when acquired by the testator, but which the testator had not assumed. People ex rel. Farmers' Loan & Trust Co. V. Wells, 94 App. Div. 463, 87 N. Y. Supp. 745, afEd. 179 N. Y. 566. 31. Bents reserved. Rents not due on leases for years are not taxable as per- sonal property. People ex rel. Thompson v. McComber, 24 N. Y. St. Rep. 902, 7 N. Y. Supp. 71. The fact that relator changed mortgages and other securities mtc real estate, and then gave leases to avoid personal taxation, is not material on the question of his liability so long as he violated no law. Id. Taxes upon rents reserved in perpetual lease assessed against lessor are not payable by the lessee under a covenant to pay " all taxes, etc., assessed on the premises, or the lessors in respect thereof." Woodruft v. Oswego Starch Factory, 70 App. Div. 481, 74 N. Y. Supp. 961, afCd. 177 N. Y. 23. 496 TAXATION. Tax Law, § ff. 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 con- troversy as to the proper place of taxation within the state of any person, his residence for purposes of taxation may be determined by the tax commis- sion, subject to review by the court. [Tax Law, § 8, as amended by L. 1914, eh. 277, and L. 1916, ch. 323; B. C. & G. Cons. L., p. 5819.] § 12. PLACE OF TAXATION OF REAI. FBOFERTT. Eeal property shall be aasessed as of July first in the tax district in which it is situated.*^ In all cases the assessment shall be deemed as against 32. Jurisdiction of assessors. The only fact necessary to give assessors jurisdic- tion as to real estate is that it be situated within the assessor's town or ward. In making an assessment upon such land they have 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. 127. In the case of Tebo V. City of Brooklyn, 134 N. Y. 341, 31 N. E. 9'84, a, lot of land under water with a pier upon it extending from the city of Brooklyn beyond low water mark, the boundary line between New York and Kings counties, was held properly taxable in Brooklyn where the owner resided. Assessment of railroad lands. The lands of railroad companies are to be assessed the same as those of residents in the towns in which they lie and not as non-resi- dent lands. People ex rel. Dunkirk, etc., R. R. 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 R. R. Co. v. Supervisors of Erie, 48 N. Y. 93. A special franchise can only be assessed to a, tenant or an occupant when the owner does not reside within the tax district. People ex rel. Interborough R. T. Co. V. Tax Comrs., 126 App. Div. 610, 613, 110 N. Y. Supp. 577. Contracts for the sale of land should be assessed against the person holding them, and the land should be assessed against the purchaser in possession. Rept. of Atty. Uenl. (1900), 241. Waiver of irregularity. While the assessors of a town have no jurisdiction of the person of a non-resident so as to charge him personally with a tax on land TAXABLE PROPERTY AND PLACE OF TAXATION. 497 Tax Law, § 10. the real property itself, and the property itself shall be holden and liable to sale for any tax levied upon it.^* [Tax Law, § 9, as amended by L. 1911, ch. 315, and L. 1916, ch. 323.] § 13. TAXATION OF BEAI. FBOFEBTY DIVIDED BY I.INE OF TAX DISTBICT; WHEN OWNEBS MAT ELECT IN IVHICH DIS- TBICT SHALIi BE TAXED. Section 10 of the Tax Law, relating to the taxation of real property divided by line of tax district, was repealed by L. 1917, ch, 154, and now owned but not occupied by him, where the agent of such owner had appeared before the assessors and procured a reduction, without protest against the assessment against the owner, — held, that this was such a waiver as would bar an action by the owner for damages for an illegal assessment. Hilton v. Fonda, 86 N. Y. 348. Effect of amendments on decisions. The various amendments have rendered many of the earlier decisions obsolete. The individual assessed is now inconsequential as the assessment is againt the real property itself. It was accordingly held in Smith V. Russell (1916), 172 App. Div. 793, that this section and § 63 construed together evince a legislative intent to place the burden of a tax upon the real property itself and to make the name of the person to whom it is assessed secon- dary and merely for the purpose of identification. 33. Assessment to occupant. When lands of a non-resident of a county are occu- pied' by a resident of a town where they are situated they must be assessed to the occupant. An assessment of them as non-resident is void. Stewart v. Crisler, 100 N. Y. 378; Joslyn v. Rockwell, 138 N. Y. 334, 28 N. E. 604. An assessment to a person who is neither owner nor occupant of the land is void. Whitney v. Thomas, 23 N. Y. 281. When real property is assessed to the owner the name of the owner must be inserted in the roll; when assessed to the occupant, the name of the occu- pant should appear. Where real estate was assessed in th name of one not the owner adding the words " or occupant," it was held that the roll was fatally de- fective and would not support process against property in the possession of the oc- cupant. Dubois V. Webster, 7 Hun 371. The assessors are not authorized to name in their rolls the actual or supposed non-resident owners of lands. The lands are to be assessed, not the owners. New York & Harlem R. R. Co. v. Lyon, 16 Barb. 651. An assessment against the husband of the owner of a house and not living with her therein is void, he being neither owner nor occupant. Loomis v. Semper, 38 Misc. 567, 78 N. Y. Supp. 74. 498 TAXATION. Tax Law, § 10. the portions of such property located in each tax district is to be assessed there.^^ Assessment of unoccupied lands as non-resident. Article Z of the Tax Law re- ferred to in the above section prior to its amendment in Iffll, is made the subject of the following chapter of this work. The terms " unoccupied " and " non-resi- dent " as applied to lands within the meaning of the tax laws, are not synony- moiis. Lands, although occupied, may be assessed as non-resident lands, while un- occupied lands may be assessed as resident. People ex rel. Vander Veer v. Wilson, 125 N. Y. 367, 26 N. E. 454. Non-resident lands are unoccupied lands not owned by a person residing in the town or ward in which such lands are situated. Hamp- ton V. Hampsher, 46 Hun 147. 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 occupant as head of the family. Powell v. Jenkins, 14 Misc. 83, 69 N. Y. St. Eep. 582, 35 N. Y. Supp. 265. Assessment to occupant need not indicate that the lands are non-resident. People ex rel. Hoffman v. Bug, 13 Abb. N. C. 169. 35. Repeal; effect. By the repeal of section 10 of Tax Law, property divided by town line is to be taxed in the towns in which the property is located. Former decisions on the effect of the division on the jurisdiction of assessors are no longer applicable. Forest land. The section only applied to farms and lots a division of which would be inconvenient. It does not apply to a large tract of forest land lying in two districts. People ex rel. Low v. Wilson, 113 App. Div. 1, 98 N. Y. Siipp. 1080. Boundary line between village and town. Where a farm is divided by a boundary line between a town and village incorporated under the Village Law, the part thereof within the boimdaries of the village is assessable for village purposes. The section did not apply in such a case since such a village is not a tax district. People ex rel. Champlin v. Gray, 185 N. Y. 196, revg. 109 App. Div. 116, 95 N. Y. Supp. 825. School districts. The section did not apply to land lying in more than one school district, as a school district is not a tax district. Bept. of Atty. Genl. (IffOS), 431. Dwelling-houses or other principal buildings. Where a large tract of land s situated in two towns and several dwellings are erected thereon, some in one TAXABLE PROPERTY AND PLACE OF TAXATION. 499 Tax Law, § 11. § 14. COBPORATIONS; PLACE OF TAXATION; PERSONAL PROP- ERTY TO BE TAXED WHERE PRINCIPAL OFFICE IS LO- CATED; TAXATION OF TOLL BRIDGES AND TURNPIKES. The real estate of all incorporated companies liable to taxation, shall be assessed in the tax district in which the same shall lie, in the same manner as the real estate of individuals. All the 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 company have no principal office, or place for transacting its financial concerns, then in the tax district where the operations of such company shall be carried on.'" In the case of a toll bridge, the company owning such bridge shall be assessed in the tax district in which the tolls are collected; and where the tolls of any bridge, turnpike, or canal company are collected in several tax districts, the company shall be assessed in the tax district in which the treasurer or other officer authorized to pay the last preceding dividend resides. [Tax Law, § 11 ; B. C. & G. Cons. L., p. 5828.] town and some in the other, the fact that the larger dwelling is occupied by a son of the owner who is in charge of the tract does not make the land taxable in the town where such dwelling is erected. Chamberlain v. Sherman, 53 Misc. 477, 103 N. Y. Supp. 239.' Effect of general law upon special act. Special acts have been passed from time to time providing for the payment by taxation of town bonds issued for the construction of railroads. For instance, in chapter 152 of L. 1882, sec. 25, as amended by ch. 21, of L. 1883, it is provided that all real property within the corporate limits of a town assessed or liable to be assessed upon the assess- ment roll of such town at the time of issuing bonds by said town pursuant to this act, and all acts amendatory thereof, shall continue to be assessed and assessable for all purposes whatsoever in said town until said bonds or any renewals thereof are fully paid; and if the owner of such real property does not reside within said town, then such real property shall be assessed as non- resident land or to any occupant of said real property actually residing within said town. This statute was under consideration in the case of Casterton v. Town of Vienna, 163 N. Y. 268; 57 N. E. 622, and it was held that the general law did not supersede the provisions of the special act and that under such a statute a change made in the residence of the owner of a farm situated partly in two towns from the portion of the farm in one town to that in the other would not withdraw from taxation the portion of his farm, within the town from which he moved. See, also, Wilcox v. Baker, 22 App. Div. 299; 47 N. Y. Supp. 900. 36. Place of taxation of personal property of corporation. Under section 305 of the Tax Law the personal property of every corporation, company, association or partnership taxable under article 9 of the Tax Law, other than for the organi- zation tax, are exempt from assessment and taxation upon its personal property for state purposes. Trust companies which are taxable under section 188 of the Tax law upon their capital stock surplus and undivided profits are exempt from assessment and taxation for all other purposes. Manufacturing and mercantile corporations are exempt from taxation on account of personal property since they are subject to an income tax, a portion of which is apportioned to the town. See Tax Law, § 219j, as added by L. 1917, ch. 726. 500 TAXATION. Tax Law, § 12. § 15. TAXATION OF CORPORATE STOCK OF CORPORATION'S. 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 The certificate of incorporation naming the place where the principal office of the corporation Is located is conclusive as to its location for the purpose of taxation. Western Trans. Co. v. Scheu, 19 N. Y. 408. See, also. Union Steam- boat Co. V. City of Buffalo, 82 N. Y. 351; Chesebrough Mfg. Co. v. Coleman, 44 Hun, 545; People ex rel. Knickerbocker-Press v. Barker, 87 Hun, 341; 34 N. Y. Supp. 269; People ex rel. Gen. Electric Co. v. Parker, 91 Hun, 590; 36 N. Y. Supp. 844. In the case of Austin v. Hudson River Telephone Co., 73 Hun, 96; 25 N. Y. Supp. 916, it was held that, where the act under which a corporation was organized did not require that the article should state where the principal office of the corporation should be established, the statement that It was to be in a certain place was not conclusive, but its actual principal place of business would determine its residence. Where the principal office is stated by a corpora- tion to be at a certain place in a sworn statement of an officer filed in the office of the assessor, the corporation is estopped from claiming that the place of business for the purpose of taxation is at some other place. Matter of McLean, 138 N. Y. 158; 33 N. E. 821. Situs of property. The personal property within this state, of corporations, whether domestic or foreign, is taxed at the place where its principal office, within this state, is located, without regard to the particular situs of the property. Peo- ple ex rel. The Keystone Gas Co. v. The Assessors of Clean, 15 N. Y. St. Rap. 461. 37. Manufacturing and mercantile corpoTations are exempted from tax on capital stock by virtue of § 219j of Tax Law, as added by L. 19'17, ch. 726. Capital stock. The words " capital stock " in the statute refer to the capital of the company and not the shares of the stockholder. People ex rel. Union Trust Co. v. Coleman, 126 N. Y. 433; 27 N. E. 818. In taxing corporations, therefore, under the above section the subject of valuation and assessment is never the share stock, but always the company's capital and surplus which should be assessed at its actual value when that is known or can be ascer- tained. The court, in the case last cited, in considering this question discussed elaborately the relative significance of the capital stock of the company and the capital stock which is held in shares by the corporators. It was said: " The two things are neither identical nor equivalent. The capital stock of a company is one thing; that of the stockholders is another and a different thing. That of the company is simply its capital, existing in money or property, or both; while that of the shareholders is representative, not merely of that existing and tangible capital, but also of surplus, of dividend earning power, of franchise and the good will of an established and prosperous business." See, also. People ex rel. .Johnson Co. v. Roberts, 159 N. Y. 70; 53 N. B. 685; People ex rel. Wiebusch, etc., Co. v. Roberts, 154 N. Y. 101, 47 N. B. 980; People ex rel. Singer Mfg. Co. v. Wemple, 150 N. Y. 46; 44 N. B. 787; People ex rel. Jewelers Publishing Co. v. Roberts, 155 N. Y. 1, 4; 49 N. E. 248. See People ex reL Butterick Pub. Co. v. Purely, 153 App. Div. 665, 138 N. Y. Supp. 707, mod. in 207 N. Y. 771. AVhat is included in capitaL The capital of a corporation is the actual value of all its tangible property, including tlie value of its real estate, wherever situated. People ex rel. Manhattan Rv. Co. v. Barker, 146 N. Y. 30, 40 N. E. Rep. 996. 66 N. Y. St. Rep. 658. A corporation, having its entire capital invested in the capital stock of certain Pennsylvania corporations which are liable to assessment in Pennsylva.nia, is exempt from personal taxation in local tax districts. Rept. of Atty. Genl., July 26, 1910. TAXABLE PROPERTY AND PLACE OF TAXATION. 501 Tax Law, § 12. ten per centum of its capital/' after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company which are taxable upon their capital stock under the Theory of taxing corporate stock. The theory of the Tax Law is to prescribe a method of computation by which to ascertain a total valuation of the taxable corporate property from which a deduction of the assessed value of its real estate may be made in order to determine the balance which is properly assess- able as its personal property. People ex rel. Equitable Gas-Light Co. v. Barker, 144 N. Y. 94, 39 N. E. Rep. 13, 63 N. Y. St. Rep. 33, revg. 81 Hun 22, 62 N. Y. St. Rep. 563, 30 N. Y. Supp. 586. 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 or place for transacting the financial concerns of the company is situated. Mohawk & H. R. R. Co. V. Clute, 4 Paige, 384. In fixing the value of a lease of railroad property for the purpose of assessing the capital stock and surplus of the lessee corporation, the assessors have the right to consider the nature of the estate granted to the lessee corporation, its duration and the profits, if any, realized from operating the leased property, but should deduct therefrom the value of the leased franchise, as the lease of the franchise is taxable under another statute. People ex rel. D. & H. Co. v. Feitner, 61 App. Div. 129, 70 N. Y. Supp. 500, affd. 171 N. Y. 641. The capital and surplus of a railroad corporation cannot be assessed where it appears that its railroad is leased at an annual rental of 8 per cent, of its capital stock, and it possesses no other assets. The tax commissioners cannot take into consideration the earning power of such stock in determining the value of its property. People ex rel. N. Y. C. & H. R. R. Co. v. Feitner, 75 App. Div. 527, 78 N. Y. Supp. 308, affd. 174 N. Y. 532. Street railroad. In determining the amount of capital stock of a street rail- way liable to taxation, the value of leases of other roads held by it should be included; but that value should not be based on the value of the fee owned by the lessor, but only upon the actual value to the lessee of the leases as shown by evidence. When the fee value of the leased railroads has been assessed to the lessor and the lessee has paid the amount as part of the rent reserved, it should not again be compelled to pay taxes on the fee value, as that would be double taxation. People ex rel. Metropolitan Street R. Co. v. Barker, 121 App. Div. 661, 106 N. Y. Supp. 336. 38. Section construed as to exception and surplus profits. In speaking of the provisions of this section Judge Earl said in the case of People ex rel. 23d St. R. R. Co. v. Commissioners of Taxes, 95 N. Y. 554, 557: "There is a most extraordinary confusion of ideas in this section. What is meant by the clause, 'except such part of it (capital stock), as shall have been excepted in the assessment roll?' I know of no law which authorizes any such exception to be made in the roll. Then the section, literally read, requires that the actual valuation shall be placed both upon the capital and the surplus, and yet the surplus is always included in and goes to make up the actual value of the cap- ital. Notwithstanding the language, it could not have been intended that capital should be assessed at its actual value, and that in addiion thereto the surplus, less the ten per cent., should also be included in the assessment at its. actual value, thus making a double assessment of surplus." 503 TAXATION. Tax Law, § 12. laws of this state, shall be assessed at its actual value.'' [Tax Law, § 12; B. C. & G. Cons. L., p. 5839.] Deduction of 10 per cent, of capital will only be allowed where surplus equals that amount. People ex rel. Citizens' Elec. 111. Co. v. Neff, 26 App. Div. 542, 50 N. Y. Supp. 680. For what surplus profits or reserve funds are, and when assessable, see People ex rel. Manhattan Ry. Co. v. Barker, 165 N. Y. 305. 39. Valuation, how ascertained. The capital stock should be assessed at its real, as distinguished from its nominal value. The par value of the shares of stock is not material in determining the actual value of the capital stock. Oswego Starch Factory v. Dolloway, 21 N. Y. 449. The value may be ascer- tained from other sources as in valuing real estate. People ex rel. Pacific Mail S. S. Co. V. Commissioners of Taxes, 46 How. Pr. 315. If the capital of a corporation is of no value because of the fact that its indebtedness exceeds its assets, it should not be assessed. People ex rel. West Side and Yonkers R. R. Co. V. Commissioners of Taxes, 31 Hun, 32. An assessment of a corporation based upon the market value of its shares is erroneous since it is the corporate assets that is the subject of taxation. People ex rel. Bleecker St., etc., R. R. V. Barker, 85 Hun, 210; 32 N. Y. Supp. 990. The method of ascertaining the actual value is left to the judgment of the assessors and they have a right to resort to any and all of the tests and meas- ures of value which are ordinarily adopted for business purposes in estimating values. Where the assessors have so exercised their judgment it is subject to no review or correction except as prescribed by law. People ex rel. Knickerbocker Fire Insurance Co. v. Coleman, 107 N. Y. 541. In ascertaining the amount for which a corporation is liable upon its corporate stock and surplus, a greater value cannot be placed upon corporate real estate, which constitutes its entire capital and surplus, than that placed on the same real estate, when assessed generally for purposes of taxation. People ex rel. Merchants' Real Estate Co. v. Wells, 110 App. Div. 194, 97 N. Y. Supp. 47. Market value of stock. The market value of its stock may be taken into consideration in determining the value of the corporate property. People ex rel. Knickerbocker Fire Ins. Co. v. Coleman, 44 Hun 410 (1887), aftd. 107 N. Y. 541, 14 N. E. Rep. 431. But where the value of the assets of a corporation cannot, owing to conflicting and insufficient data, be definitely ascertained, the proper way to establish a valuation, for the purposes of taxation, is to deduct the assessed value of its real estate from the market value of its stock. People ex rel. Malcolm Brewing Co. v. Neff, 19 App. Div. 596; 46 N. Y. Supp. 299. In this case it was also held that while the good will of the business of a corporation is not taxable no deduction from the actual value of the capital of the corporation should be made therefor where the facts show that there is no good will of any value which enters into the market value of the shares of stock. But it is erroneous to base the value of the capital upon the market value of the corporate shares, as it is the actual value of the property and not the selling value of the corporate shares which is assessable. People ex rel. Bleecker St., etc., v. Barker, 85 Hun 210, 66 N. Y. St. Rep. 474, 32 N. Y. Supp. 990 (1895). It has been held, however, where the market value of the shares was taken as the basis of the value of the capital, the assessment Is not void and the TAXABLE PROPERTY AND PLACE OF TAXATION. go2a. Tax Law, § 219h. S 15a. INCOME TAX ON MANITFACTUBING AND MERCANTILE COR- PORATIONS; RATE OF TAX; DISPOSITION OF REVENUES COI.I. & H. Co. v. Ganley, 8 N. Y. Supp. 563; aflfd. 131 N. Y. 566. The exemption of an Indian reservation from taxation ceases to the extent of a right granted to a railroad company. People ex rel. Erie Ey. Co. v. Beardsley, 52 Barb. 105, affd. 41 N. Y. 619. The rule to be ordinarily applied in assessing the value of the real estate of a railroad company for local taxation is the cost of replacing the portion of the road and appurtenances situated within the jurisdiction of the assessors in the con- dition in which they are found by the assessors at the time of making the assess- ment. In assessing such real estate it is erroneous to base the valuation of the 520 TAXATION. Tax Law, § 21. 6. Provision shall also be made thereon for the entry of the amount of tax levied for state, county, city, town, highway or special district purposes, against each parcel or portion of real property, each special franchise and each person or corporation for personal property,^ together with the date of payment thereof and such other items and details as may he required. 7. The tax commission shall adopt regulations and rules for the preparation and use of the assessment-roll and shall advise with and instruct boards of assessors and other officers as to their duties in respect thereto. [Tax Law, § 21, as amended by L. 1911, ch. 315, L. 1912, ch. 266, L. 1914, ch. 277, L. 1915, ch. 218, and L. 1916, ch. 323.] portion of the railroad situated within a town upon the income or earning ca- pacity of any other extensive system of which such portion of railroad forms a part. People ex rel. D., L. & W. E. R. Co. v. Clapp, 152 N. Y. 490, 46 N. E. 842. In the case of Albany & Schenectady E. E. Co. v. Osborne, 12 Barb. 223, it was held that the real estate of a railroad is to be valued in the same manner as the adja- cent lands belonging to individuals, and without reference to the other parts of the railroad, without the town in which it is assessed, and irrespective of whether it is profitable to the stockholders or not. See, also, Albany & W. Stockbridge R. R. Co. V. Canaan, 18 Barb-. 244; People ex rel. Buffalo & State Line E. E. Co. v. Barker, 48 N. Y. 70. Telegraph and telephone companies. — The proper method of assessment of such real property is to take the cost of the articles, considering them^ land, which are in their nature personal property, and add to that cost the value of the interest in the land on which the poles stand and the value of the right to erect such poles based upon the cost which the company incurred in securing such right. The prop- erty is not to be regarded as a, part of a whole, nor as a complete telegraph line in operation. Its value for telegraph purposes, and' its position with its connections, and its productive capacity, are not considerations entering into the value of the property under the acts. People ex rel. W. U. Tel. Co. v. Dolan, 126 N. Y. 166, 37 N. Y. St. Eep. 28, affg. 11 N. Y. Supp. 35. Where it is shown on grievance day, before a town board of assessors, that a tele- phone company possessed no real property in the town other than that assessed by the State Board of Tax Commissioners and its poles, wires and equipment in the public highway, an assessment against it is illegal. People ex rel. Glen Telephone Co. V. Hall, 57 Misc. 308, 109 N. Y. Supp. 402. MODE OF ASSESSMENT. 521 Tax Law, § 22. I 3. ASSESSMENT OF STATE LANDS IN FOREST PRESERVE; COPY OF ASSESSMENT-ROLL TO BE FILED IN OFFICE OF COMF- XmOLLER AND BOARD OF FISHERIES, GAME AND FOR- ESTRY; APPROVAL OF COMPTROLLER. All wild forest land witMn the forest preserve and also all such lands owned by the state in the towns of Altona and Dannemora, county of Clinton, except the lands in the town of Dannemora upon which build- ings and enclosures are erected and maintained by the state for the use of state institutions, together with said buildings thereon, shall be as- sessed and taxed at a like valuation and rate as similar lands of individ- uals within the counties where situated. On or before August first in every year the assessor of the town within which the lands so belonging 5. Valnstion of personal property. The asaessora are liable for entering in an assessment-roll an assessment of personal property belonging to persons who are not residente of the tax district. Dadwin v. Strickland, 57 N. Y. 492; Mygatt v. Washburn, 15 N. Y. 316; People ex rel. Mygatt v. Supervisors of Chenango, 11 N. Y. 563. But they are not liable for an excessive valuation of such property. Youmans V. Simmonde, 7 Hun 466. Where evidence adduced before assessors as to personal property of a taxpayer stands uncontradicted, they cannot disregard it in fixing the assessment. People ex rel. Douglas v. Dykes, 19 N. Y. Supp. 78 ; 45 N. Y. St. Rep. 621. The omission of property liable to assessment for taxes from the roll does not Invalidate it nor support an action by a person whose property is taxed upon it, to have the tax set aside as illegal, since the assessors act judicially. Van Derventer V. Long Island City, 139 N. Y. 133; 34 N. B. 774. As to the deduction of debts, see People ex rel. Sohaeffler v. Barker, 87 Hun 194; 33 N. Y. Supp. 1042; People ex rel. Luckemeyer v. Coleman, 16 N. Y. Supp. 330; 41 N. Y. St. Rep. 160. Atsessors not liable for erroneous assessments of residents. — A town as- sessor having jurisdiction of the property and person of one assessed is not liable for malicious assessment for erroneously assessing personal property which the plaintiff claimed to have sold. The proper remedy for the party illegally assessed is by certiorari. Hopkins v. Leach, 125 App. Div. 294, 109 N. Y. Supp. 713. Assessment of non-resident for personalty.— The determination of the as- sessors is not conclusive as to the residence of an owner of personal property. Pad- dock V. Guydel, 29 N. Y. St. Rep. 773, 8 N. Y. Supp. 905. 622 TAXATION. Tax Law, § 23. to the state are situated shall file in the office of the comptroller and of the conservation commission, a copy of the assessment-roll of the town, which, in addition to the other matter now required by law, shall state and specify which and how much, if any, of the lands assessed are forest lands, and which and how much, if any, are lands belonging to the state; such statements and specifications to be verified by the oaths of a ma- jority of the assessors. The comptroller shall thereupon and before the first day of September following, and after hearing the assessors and the conservation commission, if they or any of them so desire, correct or reduce any assessment of state lands which may be in his judgment an unfair proportion to the remaining assessment of land within the town, and shall in other respects approve the assessment and communicate such approval to the assessors. No such assessment of state lands shall be valid for any purpose until the amount of assessment is approved by the comptroller, and such approval attached to and deposited with the assessment-roll of the town, and therewith delivered by the assessors of the town to the supervisor thereof or other officer authorized to receive the same from the assessors. No tax for the erection of a schoolhouse or opening of a road' shall be imposed upon the state lands unless such erec- tion or opening shall have first been approved in writing by the conservation commission.^ [Tax Law, § 22, as amended by L. 1912, oh. 245 ; B. 0. & G. Cons. L., p. 5846.] § 4. BANKS TO MAKE REPORTS; CONTENTS OF REPORT; PENALTT; I.ISTS OF STOCKHOLDERS; FORMS PRESCRIBED BY STATE TAX COMMISSIONERS. The chief fiscal officer of every bank or banking association organized under the authority of this state, or of the United States, shall, on or before the first day of June, in each year, furnish the assessors of the tax district in which its principal office is located a statement under oath 6. Pnrpose and applioation of section.— This section is designed only to pro- tect the state from an overvaluation of the lands assessed to it and does not em- power the comptroller to require lands assessed to individuals to be assessed to the state. People ex rel. Town of Brighton v. Williams, 145 App. Div. 8. Assessment of state lands for school and highway purposes. Eepts. of Atty. GenL (1898) 102, (1899) 158. I; B. C. & G. Cons. L., p. 5857.] calling for a construction of the statute that would avoid any such result. Such a construction, which is consonant with reason and does no violence to the terms of the statute, is realized hy holding, as I do, that the requirement that the representative character of the person assessed shall he stated, imports a specification of the concrete relation of such person to a particular trust." See, also, People ex rel. Pike v. Barker, 86 Hun, 283; 33 N. Y. Supp. 1132. Bequest to benevolent corporation in hands of executor. An absolute bequest of a residuary estate to a benevolent or charitable corporation, which is in- cluded within the exemption of a charitable corporation, under § 4 of the Tax Law, vests at the death of the testator and is thereafter exempt from taxation; the fact that the estate has not been settled and the legatee has not received the property does not render its assessment proper under this section; such sec- tion only applies to property that is taxable under other provisions of the Tax Law. People ex rel. Crook v. Wells, 179 N. Y. 257, revg. 93 App. Dlv. 500, 87 N. Y. Supp. 826. Deductions. In order that an executor may be entitled to have just debts deducted from the aggregate of 'personal property held by him, they must be legal, valid and incontestable obligations. To reduce or nullify an assessment, affirmative proof that it is erroneous in whole or In part must be given. People ex rel. Osgood v. Comm'rs of Taxes and Assessments, 99 N. Y. 154. 29. Omitted property. Under L. 1865, ch. 453, sec. 1, from which the above section was derived, it was held that the duties of the assessors were merely ministerial, and that they could not include property omitted from the assess- ment-roll of the preceding year unless it had been valued either in that year or in the year preceding. People ex rel. Oswald v. Goff, 52 N. Y. 434. But this decision is apparently nullified by the change made in the above section of the Tax Law which seems to authorize the assessors to determine the valua- tion of the omitted property for the preceding year In case none was then made. Where land of non-resident is assessed to " Warford, Cyrus, est. G. H. Grafft, Agt." the assessors may treat it as having been wholly omitted, and reassess it the next year for the previous year. Matter of Chadwick, 59 App. Div. 334, 69 N. Y. Supp. 853. A tax against a resident returned as unpaid, held to be chargeable, in the subsequent year, against the land assessed only. Jewett v. Lamphear, 20 N. Y. Wk. Dig. 232. Administrators are personally liable for a tax duly imposed on property of an estate in their hands, and they are not relieved because they subsequently dis- tribute the estate. City of N. Y. v. Goss, 124 App. Div. 680, 109 N. Y. Supp. 151. A corporation liable to taxation having been inadvertently omitted from assessment for city and county purposes for one year may be taxed therefor under the provisions of the above section upon the roll of the succeeding year. People ex rel. Brooklyn City R. R. Co. v. Assessors, 92 N. Y. 430. Notice. The reassessment of omitted taxes cannot be made without notice, MODE OF ASSESSMENT. 535 Tax law, § 35. § 14. DEBTS OWING TO NON-BESIDENTS OF UNITED STATES, HOW ASSESSED. E'very agent in any county of the state of a nonresident creditor having debts owing to him, taxable in any county of the state, shall annually, on or before June first, furnish to the county treasurer of the county where the debtor resides, a true and accurate statement verified by his oath, of such debts owing on the first day of May next preceding in each town or ward in such county.^" The county treasurer shall, immediately upon the receipt of such state- ment, make out and transmit to the assessors of every tax district in the county in which any such debtor resides, a copy of as much of such state- ment as relartes to the tax district of such assessors, with the name of the creditor. The assessors on receipt of such statement from the county treasurer shall, within the time in which they are required to complete the assessment-roll, enter therein the name of such nonresideait creditor, and the aggregate amount due him in such tax district on the first day of May next preceding, in the same manner as other personal property is entered on the roll, adding the name of the debtor owing such debt. Any agent neglecting or refusing without good cause to furnish such statement to the county treasurer shall forfeit to the county in which the debtor resides the sum of five hundred dollars, recoverable by the district attorney, of the existence of such debts was knovni to the agent.^^ [Tax Law, § 35, as amended by L. 1916, ch. 323; B. C. & G. Cons. L., p. 5858.] § 15. COMPLETION OF ASSESSMENT-ROIL; NOTICE OF COMPLETION; CONTENTS. The assessor shall complete the assessment-roll on or before the first nor after the completion of the roll for the current year. Overing v. Foote, 65 N. Y. 263. The provisions of this section, being a part of the general system of taxation, are not subject to the constitutional objection that they do not require a notice or hearing, since the general' notice of the completion of the assessment roll is sufficient. People ex rel. Brooklyn City R. R. Co. v. Assessors of Brooklyn, 92 N. Y. 430. This section does not provide for a new assessment or for a reassessment of an assessment canceled by the judgment of a court of competent jurisdiction, and does not authorize an assessment for taxes without any notice to the party sought to be taxed. People ex rel. Glen Head Realty Co. v. Garland. 72 'SlUc. 413. 30. For form of statement of agent of non-resident creditor having debts owing to him, see Form No. 45, post. 31. Debts dne non-residents are personal property. See Tax Law, sec. 2, sub. 5, ante, p. 470. The term debt as here used includes sums of money due from in- habitants of the state, to the non-resident mentioned, by certain and express agree- ments or judicial sentence, and for the purchase of real estate. People ex rel. Stephens v. Halsey, 53 Barb. 547; 36 How. Pr. 487; aflfd. 37 N. Y. 344; see, also, Redfield v. Supen'isors of Genesee, Clarke's Ch. 42. The statement furnished by the agent is not conclusive upon the assessors; but the county treasurer cannot question the amount fixed by the assessors. People ex rel. Stephens v. Halsey, 37 N. Y. 344. 536 TAXATION. Tax Law, § 36. day of August, and make out a 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.sa In any city the notice shall Application may be made by agent of owner, if in good faith. If agent fails to appear before board of assessors, or to answer material questions in a blank form presented to him, it is evidence that application was not made in good faith. The agent must have information as to the facts so as to be able to answer questions submitted to him. People ex rel. Trojan Realty Corp. v. Purdy (1917), 174 App. Div. 702, 162 N. Y. Supp. 56. 32. For form of notice of completion of assessment roll, see Form No. 46, post. Effect of failure to give notice. Omission to give notice for the time prescribed is a judictional defect, and the assessment is void. Wheeler v. Mills, 40 Barb. 644; see, also, Jewell v. Van Steenburgh, 58 N. Y. 85; M'etcalf v. Messenger, 46 Id. 325; Overing v. Foote, 65 N. Y. 263; People ex rel. McGuinness v. Lewis, 127 App. Div. 107, 119, 111 N. Y. Supp. 398. Failure to publish notice of final completion of assessment roll will relieve a per- son seeking to correct it from the limitation prescribed by section 291 of the Tux Law, for bringing an action to review the assessment. People v. Adams, 125 N. Y. 471. Poll tax assessed in December without notice to persons taxed is invalid. Burger v. Farrell, 50 Misc. 497, 100 N. Y. Supp. 638. Snfticiency. If the assessment made was valid under the statute in force at the time, the fact that the notice to the taxpayer incorrectly describes the statute under which it was made does not invalidate the assessment. People ex rel. Barney v. Barker, 35 App. Div. 486; 54 N. Y. Supp. 848; affd. 159 N. Y. 569. Posting notices. A posting of the notices of assessors of taxes of the completion of the assessment roll, by a person other than an assessor, under the assessor's direc- tion, is a sufficient compliance with the statute. Supervisors v. Betts, 25 N. Y. St. Rep. 660. Evidence of posting notices by assessors, of the completion of the assessment roll and of notice of meeting to hear grievances, coupled with the presumption that obtains in respect to the action of officials 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. Rep. 660. After completion and notice roll cannot be changed as to persons or property assessed, except upon complaint. People ex rel. Chamberlain v. Forrest, 96 N. Y. 544. Or, with consent of person assessed. Overing v. Foote, 43 Id. 290. The provision that the town board of assessors shall complete the assessment roll on or before the first day of August is mandatory and after said date no prop- erty can be legally added to the roll. People ex rel. Suburban Investment Co. v. Miller, 73 Misc. 214. The Tcriflcation of an assessment-roll before the third Tuesday of August and the omission of the assessors to meet on the third Tuesday of August, as re- quired by law, are mere irregularities and not jurisdictional defects, and a title resting upon a sale for the taxes so assessed is validated by L. 1885, oh. 448. Peo- ple V. Turner, 145 N. Y. 451, 65 N. Y. St. Rep. 389; Matter of Young, 26 Misc. 186, 56 N. Y. Supp. 861. An assessor need not retain actual custody of an assessment roll after it has been left with him. The assessors are empowered in their discretion to designate a place which, in their judgment, will be most convenient and accessible, where the roll may be seen and examined, for instance, the town clerk's office. Rept. of Atty. Genl., July 27, 1910. Compensation of town clerk. The town clerk is not entitled to conapensationfor allowing the assessment rolls of the town to be placed in his office for examination. People ex rel. Gedney v. Sippell, 116 App. Div. 753, 102 N. Y. Supp. 69. MODE OF ASSESSMENT. 537 Tax Law, § 37. 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 as- sessor with whom the roll is left shall submit it to the inspection of every person applying for that purpose. [Tax Law, § 36, as amended by L. 1909, eh. 403, and L. 1916, ch. 323; B. C. & G. Cons. L., p. 5859.] Completion of asessment-roll; notice to nonresidents. — The assessors shall be- tween the first and fifth day of August mail a notice to each person and corporation nonresident of their tax district, who has filed with the city or town clerk, op. or before the fifteenth day of June preceding, a written demand therefor. Such notice shall specify each parcel or portion of real property separately assessed to said nonresident person or corporation and the assessed valuation thereof. Upon appli- cation made on or before the third Tuesday of August by any nonresident owner of real estate, or by a corporation having real property in more than one tax dis- trict in the county, the assessors shall fix a time subsequent to the third Tuesday in August, but not later than the thirty-first day of August, for a hearing and to review their assessment.32a [Tax Law, § 36a, as added by L. 1916, ch. 323, and amended by L. 19-17, ch. 489.] § 16. GRIEVANCE DAY; STATEMENT OF COMPLAINTS; EFFECT OF FALLUBE TO TESTIFY; MINUTES OF EXAMINATION TO BE FILED. The assessors shall meet at the time and place specified in such notice, and hear and determine all complaints in relation to such assessments brought before them, and for that purpose they may adjourn from time to time.ss Such complainants shall file with the assessors a statement, under oath, specifying the respect in which the assessment complained of is incorrect, which statement must be made by the person assessed or whose property is assessed, or by some person author- ized to make such statement, and who has knowledge of the facts stated there- in.3* The assessors may administer oaths, take testimony and hear proofs in 32a. Protest need not be made on grievance day. A corporation having real prop- erty in more than one tax district in a county, which makes application to review its assessment, need not appear to file protest on the regular grievance day, but may subsequently make an application provided it will permit the fixing of a date not later than the thirty-first day of August. Opinion of Atty. Genl. (1916), 9 State Dept. Rep. 422. 33. Meeting of assessors to hear complaints. The assessors are required by the above section to meet at the time and place specified in the notice to hear com- plaints in respect to assessments made by them. The failure of the assessors to meet on grievance day is an irregularity and not a jurisdictional defect. Matter of Young, 26 Misc. 186; 56 N. Y. Supp. 861; see, also, People v. Turner, 145 N. Y. 451; 40 N. E. 400. Time of making application for review. Where it appeared that the notice pub- lished by assessors fixed August 18th, the third Tuesday in August, as " the first day upon which objections " to the assessment would be heard ; that the petitioner did not appear on such day, but did appear on August 19th; that all the members of the board of assessors were then present but declined to hear the petitioner's protest on the ground that it was made too late, and that on August 18th they had adjourned without fixing any other time for the presentation of protests; it was held that in view of the provisions of the above section relative to adjourn- ments, and of the absence of any provision in the statute designating a particular day for the presentation of protests, the assessors had jurisdiction to entertain the protest made by the petitioner on August 19th. Matter of Ca-thedral of Incarna- tion, 91 App. Div. 543, 86 N. Y. Supp. 900. 34. For form of application for the correction of an assessment, see Form No. 47, post. Necessity of complaint. The assessors are without jurisdiction to modify an as- sessment upon grievance day except upon complaint of the party aggrieved. People ex rel. Chamberlain v. Forrest, 96 N. Y. 544. And assessors cannot at such time enter upon the roll an assessment for personal property against a person whose name was not then on such roll, even though the person so assessed voluntarily ap- peared before the board and submitted to an examination. People ex rel. Swart- wout V. Village of Port Jervis, 23 Misc. 317; 52 N. Y. Supp. 59. 538 TAXATION. Tax Law, § 37. 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 In the case of an assessment made without jurisdiction, the omission to file a written objection on the day fixed by village assessors for hearing complaints pur- suant to this section does not impair the right of the person or corporation assessed to review the assessment by writ of certiorari. People ex rel. N. Y. Cent. & H. R. E. Co. V. Keno, 61 Misc. 345, 114 N. Y. Supp. 1094. Who may make statement. An attorney or agent may make the statement under this section. Matter of Corwin (1892), 135 N. Y. 245, 32 N. E. 16; People ex rel. West Shore R. R. Co. v. Johnson (ISg^S), 29 App. Div. 75, 51 N. Y. Supp. 388; People ex rel. Erie R. R. Co. v. Webster (1900), 49 App. Div. •556, 63 N. Y. Supp. 574. But must have knowledge of facts stated therein. A corporation which has no prior relation to, or knowledge of, the property assessed is not thus qualified. People ex rel. Floersheimer v. Purdy (1916), 174 App. Div. 694, 162 N. Y. Supp. 70; People ex rel. Trojan Realty Corp. v. Purdy (1916), 174 App. Div. 702, 162 N. Y. Supp. 56. The application for reduction may be made by a lay agent. Id. Sufficiency of statement. The statement sliould comply in all respects with the requirements of the statute. People v. Supervisors of Westchester County, 15 Barb. 607; People v. Ross, 15 How. Pr: 63. It is too late on appeal for assessors to object to the sufficiency of the complaint filed with them on grievance day. People ex rel. CoiigresS Hall v. Ouderkirk, 120 App. Div. 650, 105 N. Y. Supp. 134. In specifying a grievance, if the error complained of is that the property is as- sessed proportionately higher than any other property in the town, particular in- stances need not be given. People ex rel. Erie R. R. Co. v. Webster, 49 App. Div. 556; 63 N. Y. Supp. 74. In this case it was also held that the verification by the tax agent of a railroad corporation is sufficient without giving the source of his information. See, also. Matter of Corwin, 135 N. Y. 245; 32 N. E. 16; People ex rel. West Shore R. R. Co. v. Johnson, 29 App. Div. 75; 51 N. Y. Supp. 388. Instances of inequality need not be specified. A complaint filed with tax assessors on grievance day based upon the inequality of assessment, need not specify instances of inequality in order to become the basis of a petition for certiorari to review the assessment. People ex rel. N. Y. C. & W. R. Co. v. Wakeman, 143 App. Div. 816. Where the statement filed on grievance day does not specify the instances of in- equality, the courts have refused to inquire into the question of the inequality, al- though there is no such requirement in this section. People ex rel. Hermann v. Kaufman, 121 App. Div. 599, 106 N. Y. Supp. 305. Proof of inequality.— On complaint to the assessors on grievance day to show inequality of assessment as compared with other pieces of property in the neighbor- hood of the same general class and character, it is suiEcient, in thie absence of contra- diction, to prove substantial similarity to make them suitable for comparison. A landowner complaining of the inequality of the assessment as compared with other lands similarly situated in the neighborhood may show the inequality by comparing either the gross assessment of his property with the gross assessment of similar properties on the assessment-roll, or by comparing the valuation of the land made by the assessors and the values of other similar lands, and the valuation of buildings made by the assessors and the values of other similar buildings, and this is not changed by Tax Law, § 21a, added by Laws 1911, ch. 117, which provides for the separate listing of the value of lands exclusive of buildings, and " the total assess- ment only can be reviewed." People ex rel. Strong v. Hart, 216 N. Y. 513, 111 N. E. 56, affirming 166 App. Div. 907, 150 N. Y. Supp. 1106. Serrice of a notice or statement as requir^ by this section is not effected by the delivery of said statement to the clerk, if the board of assessors was not in session or in or about the office at the time. People ex rel. Suburban Investment Co. V. Miller, 73 Misc. 214. Effect of statement and testimony as to financial condition of corpora- tion. Where a corporation has been assessed upon its capital and surplus pursuant to § 12 of the Tax Law, and makes application for a correction of the assessment, and files a verified statement as to its financial condition, and the president is ex- amined under oath as to the truth of such statement, the tax commissioners are bound to accept the statement and testimony as true in the absence of evidence impeaching their verity. People ex rel. Cons. Gas Co. v. Feitner, 78 App. Div. 313, 79 N. Y. Supp. 975. MODE OF ASSESSMENT. 539 Tax Law, § 37. assessed, or his agent or representative, or any other person, to appear before them and be examined concerning such coinplaint, and to produce any papers relating to such assessment with respect to his property or his Effect of req.nests for relief from entire assessment. Where the relators had. asked the assessors to relieve them from an assessment entirely, whereas it appeared that they were entitled to a reduction only — held, that the reduction should have been granted, though costs should not be imposed on the assessors on reviewing their proceedings denying the application, since it had not asked for the reduction merely. People ex rel. Western R. R. Co. v. Assessors of Albany, 40 N. Y. 154. The statement is not conclusive, but is to be considered by the assessors with such other evidence as they possess. People ex rel. Buffalo & State Line R. R. Co. V. Barker, 48 N. Y. 70. But if such statement is the only evidence before the assessors they cannot disregard it. People ex rel. Oswego Canal Co. v. Oswego, 5 Hun, 117; People ex rel. Raplee v. Reddy, 43 Barb. 539; Matter of Plumb, 19 N. Y. Supp. 78. A sworn statement showing the assets and liabilities , of a corporation, which is unimpeached, should control, and the valuation should be reduced accordingly. People ex rel. Brokaw Bros. v. Feitner, 44 App. Div. 278; 60 N. Y. Supp. 687. The determination of the correctness of the assessment is remitted to the assessors' judgment and decision upon all the facts and proceedings including the evidence of the complainant, and any other facts known to them, and brought to their attention, bearing upon the complaint. People ex rel. Equitable Gas Light Co. V. Barker, 144 N. Y. 94, 101; 39 N. E. 13. But the judgment of the assessors cannot be capriciously or arbitrarily exercised, and when the proofs presented on the application are full, uncontradicted and credible, and show the assessment to have been erroneous, they cannot arbitrarily refuse to grant relief. People ex rel. Edison v. Commissioners, 139 N. Y. 55; 34 N. E. 722. Waiver by assessors. If the assessors act upon an application made to them for a reduction of an assessment, they thereby waive its defects. People ex rel. Bckerson v. Christie, 115 N. Y. 158; 21 N. Y. 1117. In the case of People ex rel. Scobell v. Kelborn, 35 Misc. 600, it was held that the failure of a complainant to file a statement under oath, as required by the above section, is waived by the assessors, where he appeared before the assessors and insisted that his valuation should be reduced, and they, without requiring the statutory statement, reduced the assessment to some extent. Waiver of defect in affidavit. Where an affidavit in support of an application for relief from an assessment is considered by the assessors on the merits, an objection that it is informal, or insufficient proof of the facts alleged, not made at the time it was presented, will not be available to tljem on certiorari to review their proceedings. People ex rel. Western R. R. Co. v. Assessors of Albany, 40 N. Y. 154. Examination of claimant; evidence. Assessors should require a personal examination, on oath, of all persons making application for a reduction of assessment whenever practicable. Rept. of Atty. Genl. (1895) 210. 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. Vose v. Willard, 47 Barb. 320. Applicant must answer any pertinent relevant question, else the assessors will be justified in refusing the application. Rept, of Atty. Genl. (1895) 150. A relator seeking to obtain a reduction of her personal assessment refused 540 TAXATION. Tax Law, § 37. residence for the purpose of taxation.^^ The assessors shall, after said examination, fix the value of the property of the complainant and for that purpose' may increase or diminish the assessment thereof. If any such person, or his agent or representative, shall v^ilfully neglect or refuse to attend and be so examined, or to answer any material question put to him, such person shall not be entitled to any reduction of his assessments.'" Minutes of the examination of every person examined 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 personality, a refusal by them to reduce the assessment would not afford ground for review. People ex rel. Green V. Hall, 83 Hun, 375. In passing upon an application for a reduction of an assessment for personality, the assessors act judicially and should be governed by the evidence, though they may exercise their knowledge and judgment where the value is to be ascertained upon an assumed basis of estimate. Idem. The evidence produced by the owner seeking to correct an assessment, if uncontradicted, must control. People ex rel. Amer. Linen Thread Co. v. Rowland, 61 Barb. 273. Where a corporation presents evidence to the taxing officers as to the value of its assets, full and complete, so as to establish the facts upon which its claim for reduction rests, and it is not contradicted by facts within their knowledge, and no good reason exists for questioning its truth, refusal to decide in accordance with such evidence 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 rel. Fargo V. Murphy, 32 N. Y. St. Rep. 780; 10 N. Y. Supp. 377. 35. Attendance personally required. A taxpayer who claims a reduction must attend upon the assessors in person, submit to an examination under oath, and subscribe to the answers, and an affidavit taken before a notary public with- out such attendance is not sufficient. People ex rel. Mercer v. Maynard, 7 Misc. 295, 58 N. Y. St. Rep. 546, 28 N. Y. Supp. 141; People ex rel. Brown v. O'Rourke, 31 App. Div. 583, 52 N. Y. Supp. 427. Failure to appear. In ease a taxpayer does not appear before the assessors and object to an assessment, the taxpayer loses his right to a review of the assessment by a certiorari. People ex rel. Horton v. Ferguson, 120 App. Div. 563, 105 N. Y. Supp. 388; People ex rel. West Shore R. R. Co. v. Adams, 125 N. Y. 471; 26 N. E. 746; People ex rel. Western Union Tel. Co. v. Dolan, 126 N. Y. 166, 27 N. E. 269; People ex rel. Trojan Realty Corp. v. Purdy (1917), 174 App. Div. 702, 162 N. Y. Supp. 56; see, also, cases cited in Gumming & Webster's Annotated Tax Laws under see. 250. The omission of a person claiming to be a non-resident of the town to appear be- fore the assessors and object to an assessment of his personal property will not deprive him of the right to review the action of the assessors by certiorari. People ex rel. Paddock v. Lewis, 55 Hun 521, 29^ N. Y. St. Rep. 606, 9 N. Y. Supp. 333. See Mygatt v. Washburn, 15 N. Y. 319; Clark v. Norton, 49 Id. 247; Westfall v. Preston, Id. 354. This last case was followed in Kane v. City of Brooklyn, 15 N. Y. St. Rep. 872, 1 N. Y. Supp. 306 (Gen. T.) ; People ex rel. Buffalo R. R. v. Fredericks, 48 Barb. 176; Clark v. Norton, 49 N. Y. 247. See Livingston v. Hollen- beck, 4 Barb. 9. 36. Refusal to testify. Where a New Jersey corporation, engaged in business within this state, makes application for a correction of an assessment, the com- missioners may take into consideration, in disposing of the application, the wilful refusal of the president of the corporation to testify in regard to transactions of the company in the state of New Jersey. People ex rel. Claflin Co. v. Feitner, 58 App. Div. 468; 69 N. Y. Supp. 410. MODE OF ASSESSMENT. 54I Tax Law, §§ 297, 38. by the assessors -upon the hearing of any such complaint shall be taken and filed in the office of the town or city clerk. [Tax Law, § 37, as amended by L. 1916, ch. 328 ; B. C. & G. Cons. L., p. 5860.] % 17. APPLICATION TO COUNTY COURT FOB APPORTIONMENT OF TAXES AND ASSESSMENT; NOTICE TO ASSESSORS; COIiI,ECTOR TO CHANGE ASSESSMENT-ROLIi UPON ORDER OF COURT. When the premises of one person shall have been wrongfully assessed and taxed in with the premises of another, the person aggrieved thereby 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 evidence as may be necessary to determine the facts, and shall fix and specify the amount of the assessment and tax properly charge- able 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 forthwith change the assessment roll and tax to conform to such order, and shall receive the amount apportioned upon the premises of the petitioner in full for the tax upon such property. [Tax Law, § 397 ; B. C. & G. Cons. L., p. 6050.] § 18. OATH VERIFYING ASSESSMENT-ROIiI<. When the assessors, or a majority 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 foregoing assess- ment-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 37. References. Aa assessor may make and subscribe the oath required by the above section before a judge, elerk, deputy clerk, or a special deputy clerk, of a court, a notary public, mayor, justice of the peace, a city magistrate of any of the cities of this state, or police justice thereof, surrogate, special county judge, special surrogate, county clerk, deputy county clerk, special deputy county elerk, -or commissioner of deeds, within the district in which the officer is authorized to act. Code Civ. Proc, sec. 842, as amended by L. 1915, ch. 146. A false oath ia punishable as perjury under section 1620 of the Penal Law. 542 TAXATION. Tax Law, § 38. by reason of proof produced before us, and witli the exception of those cases in which the value of any special franchise has been fixed by the state tax commission, 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 contains a true statement of the aggregate amount of the taxable personal estate of each and every person ^° nanied in such roll over and above the amount of debts due from such persons, respectively, and excluding such stocks as are otherwise 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, § 38, as amended by L. 1916, ch. 323 ; B. C. & G. Cons. L., p. 5864.] 38. " Person " includes corporation. The word " person " as used In this section in the form of oath includes corporation, and the omission from the oath of the words " or corporation " does not render the assessment void. Matter of Adler Bros. & Co., 76 App. Div. 571, 78 N. Y. Supp. 690, affd. 174 N. Y. 287. 39. Sufficiency of affidavit. An oath which is substantially in the form prescribed by statute will be sufficient. Sherrill v. Hewitt, 13 N. Y. Supp. 498; 36 N. Y. St. Rep. 321; People ex rel. Parsons Mfg. Co. v. Moore, 11 N. Y. St. Rep. 859; Buffalo & State Line R. R. Co. v. Supervisors, 48 N. Y. 93. But any material deviation from the form prescribed by the statute will invalidate the assessment. Shattuck v. Bascom, 105 N. Y. 39; Inmann v. Cole- man, 37 Hun, 170. A verification by an assessor to the effect "that the fore- going assessment is just and correct to the best of his knowledge and belief" is fatally lefective. Lord v. Cooper, 19 App. Div. 535; 46 N. Y. Supp. 519. Where the assessment-roll was not signed by the assessors at the end of the valuation of the property, but the certificate required by statute (1 R. S., 3d ed., 447, § 26) was written upon the roll and signed by the assessors,— beld that such signing satisfied the statute. Chamberlain v. Taylor, 36 Hun 24. The certificate of the assessors stated that they had estimated the value of the real estate at a sum at which they would appraise the same In payment of a just debt due from a solvent " creditor." Held, that the substitution of " creditor " for " debtor," as it appeared in the copy, did not vitiate the assess- ment. Id. An oath, "we have estimated the value of the said rqal estate at the sums which a majority of the assessors have decided to be the fair proportionate value thereof, and at which, in the same ratio, they would appraise the same in payment of a just debt due from a solvent debtor," — held to be fatally defective. Beach v. Hayes, 58 How. Pr. 17. An affidavit of assessors to their roll stated that they had estimated the real estate " at the assessed value thereof " instead of " the full and true value thereof," and that the roll contained a true statement of the personal property, " according to our best knowledge and belief " instead of " judgment and belief." Held, that the affidavit was fatally defective, and any tax levied upon the roll was void. Hinckley v. Cooper, 22 Hun 253. MODE OF ASSESSMENT. 543 Tax Law, § 39. § 19. ASS£S5MENT-BOIiL WHEN COMPrETEB AND VERIFIED TO BE OPEN TO INSPECTION; NOTICE THEREOF^ ROIil. TO BE DELIVERED TO SUPERVISOR. In cities the assessment-roll when th\is finally completed and verified shall be filed on or before September first, in the ofiice of the city clerk, there to remain for fifteen days for public inspection. The assessors shall forthwith cause a notice to be posted conspicuously in at least three public places in the tax district and to be published in one or more news- papers, if any, published in the city, that such assessment roll has been finally completed and stating that it has been so filed and will be open to Omission of venue to assessors' verification, — held immaterial, since it is not an aifidavit, but an oath in a prescribed form. Though it did not appear that the justice before whom it was sworn was a justice of the town, held, that, in the absence of proof to the contrary, it would be presumed that he was. Coleman t. Shattuck, 62 N. Y. 348, affd. 2 Hun 497, 5 Th. & C. 34. The oath of assessors on one side of the roll, under the entry of assessments on residents, — held to cover the assessment of non-resident lands on the other side of the leaf, in the absence of proof that when sworn to the roll did not contain the latter entries. Id. How verified. Where two assessors verify the assessment-roll it is not fatal to the validity of the roll, although they omit to certify the name of the delinquent assessor, and the reason for his not performing his duties. Coleman V. Shattuck, 62 N. Y. 348. But see Bellinger v. Gray, 51 N. Y. 610. A verification made at any time before the assessment-roll has been acted upon by the board of supervisors satisfies the statute. Rome, Watertown & 0. R. R. Co. v. Smith, 39 Hun, 332; affd. 101 N. Y. 684. But the verification cannot be made before the expiration of the time fixed for the final review and correction of the roll. If the jurat shows otherwise, the supervisors cannot levy the tax. Westfall v. Preston, 49 N. Y. 459; but see People v. Turner, 145 N. Y. 451; 40 N. E. 400, where it was held that a verification before the day of grievance was a mere irregularity and not a jurisdictional defect. If the verification is signed, but the assessment-roll itself is not signed, the defect constitutes a mere irregularity and is not jurisdictional. Ensign v. Barse, 107 N. Y. 329. The neglect of a justice of the peace to affix his signature to a jurat of assessors is at most an irregularity and does not vitiate subsequent proceedings under the assessment. Saranac Land and Timber Co. v. Roberts, 208 N. Y. 288. The custom is much too prevalent among assessors of assessing real estate at. less than its full value in direct violation of the statute. Not only do ass.;ssors in following such custom violate their official duties, but consciously or unconsciously swear to an untruth when in the verification of the ass,ssmeiit-roil they make Oii^ii tliat they " have estimated the value of the said real estate at sums whicli a majority of the assessors have decided to be the full value thereof." People ex rel. Congress- Hall V. Ouderkirk, 120 App. Div. 650, 103 N. Y. Supp. 134. The attestation of tlie assessment-rolls by the assessors in the form prescribed by law is a judicial act of unquestionable verity, which they will not be heard to im- peach. Brooklyn El. E, R. Co. v. Brooklyn, 16 Misc. 416, 38 N. Y. Supp. 154, afifd., 11 App. Div. 127, 42 N. Y. Supp. 683. EoU in tbree parts. Assessment-roll was made up in three parts and was in that form on review day, when the relator was heard, and afterward the parts were engrossed in a single roll duly verified. Held, that the detachment of the sheets was not an irregularity or a departure from the statute. People ex rel. D., L. & W. R. R. Co. V. Clapp, 64 Hun, 547, 46 N. Y. St. Rep. 509, 19 N. Y. Supp. 531. Belevy by legislature. Where a tax was void by reason of the omission of the assessors to annex to the assessment-roll the sworn statement required by law,, the legislature has nower tn i-oloTr.7 fho fny with interest. People ex rel. -Flower 544 TAXATION. Tax Law, §§ 39, 40, public inspection. At the expiration of such fifteen days, the city clerk ahall deliver such roll to a supervisor of the tax district embraced therein. In towns, assessors shall prepare and verify the assessment-roll, and make and certify one copy thereof. When the assessment roll shaU have been thus finally completed and verified and the copy thereof certified the aassessors shall, on or before the fifteenth day of September, file the said certified copy in the office of the town clerk, to remain for public inspection until delivered by the town clerk to the supervisor of the town as hereinafter provided.*" The assessors shall forthwith cause a notice to be posted con- spicuously in at least three public places in the tax district and to be pub- lished in one or more newspapers, if any, published in the town, that such assessment roll has been fiially completed and stating that such certified copy has been so filed.*^ The original assessment roll shall on or before the first day of October be delivered by the assessors to a supervisor of the tax district embraced therein. The certified copy of the assessment-roll on file in the town clerks's office, as heretofore provided, shall on the first day of November be delivered by the town clerk to a supervisor of the tax district embraced therein who shall make such corrections as may be made in the original roll by the board of supervisors and shall extend the tax thereon so that such roll shall be in all respects a copy of the original roll delivered to the collector and said certified copy shall thereafter be returned by the supervisor to the office of the town clerk there to remain as a public record. Notwithstanding the provisions of this section, the board of super- visors of any county may require additional copies of the assessment-rolls of the towns of such county to be made, and specify by whom such addi- tional copies shall be made, the date when the certified copy of the town assessment-roll shall be filed in the office of the town clerk, and the date when the original assessment roll shall be delivered to the supervisor of the town. [Tax Law, § 39, as amended by L. 1916, ch. 323, and L. 1917, ch. 496, and L. 1918, ch. 279 ; B. C. & G. Cons. L., p. 5867.] § 20. ASSESSORS TO APPORTION VALUATION OF RAILROAD, TELEGRAPH, TELEPHONE, PIPE LINE, WATER OR GAS COMPANIES AND OF SPECIAL FRANCHISES AMONG SCHOOL AND SPECIAL DISTRICTS. The assessors of each town or city in which a railroad, telegraph, tele- V. Bleekwenn, 55 Hun 169, 27 N. Y. St. Rep. 593, 7 N. Y. Supp. 914, affd. 129 N. Y. 637. Followed In Collins v. Long Island City, 31 N. Y. St. Rep. 460, 9 N. Y. Supp. 866; Vanderventer v. Long Island City, 33 N. Y. St. Rep. 1054, 10 N. Y. Supp. 801. 40. Time of filing. The requirement that an assessment-roll should be filed with the town clerk on or before the fifteenth day of September, is directory merely, and when the roll is completed and verified, a delay in filing it does not vitiate the assessment. People ex rel. Rome, Watertown & O. R. R. Co. v. Haupt, 104 N". Y. 377; 10 N. E. 871. 41. The provision as to the puDlication of notice of the completion and filing of the assessment-roll is directory merely, its purpose being to set running the fifteen days within which to sue out a w^rit of certiorari. People ex rel. Sweet v. Blake, Hz Misc. 6-16. For form of notice of filing completed assessment-roll with clerk, see Form No. 48, post. MODE OF ASSESSMENT. 545 Tax Law, § 41. phone, water pipe line, or gas company, including a company engaged in the business of supplying natural gas, is assessed by them or by the tax commission upon property lying in more than one school district or in one or more special districts in which a tax is levied for district pur- poses shall after the time fixed for hearing complaints and action thereon and prior to the final completion of the roll, pursuant to section thirty- nine of this chapter, apportion the assessed valuation of the property of each of such corporations so made by them or by the tax commission among such school and special districts. Such apportionments shall be entered by the assessors in the appropriate column of the assessment-roll and a cer- tificate thereof signed by the assessors or a majority of them shall be filed with the town or city clerk within five days thereafter, and thereupon the valuations so apportioned shall become the valuations of such property in such districts for the purpose of taxation for the ensuing year. The town clerk shall furnish the trustees of school districts a certified statement of the valuations apportioned to their respective districts. In case of the failure of the assessors to act, a supervisor of the town or city shall make such apportionment on request of either the trustee of any school district or the oflBcers of any special district or the corpora- tion assessed. In ease of any alteration in any school district affecting the valuation of such property, the officer making the same shall fix and deter- mine the valuations in the districts affected for the current year.. [Tax Law, § 40, as amended by L. 1913, ch. 371, L. 1913, ch. 556, and L. 1916, chs. 134, 333 ; B. C. & G. Cons. L., p. 5868.] § 21. FORMS PRESCRIBED BY TAX COMMISSIONERS; NEGLECT OR OMISSION OF DUTY BY ASSESSORS; PENALTY. The assessors, in the execution of their duties, shall use the forms and follov? the instructions and orders transmitted to them, from time to time, by the tax commission. If any assessor shall neglect or omit to perform any duty, the other assessors shall perform such duty and shall certify upon the assessment roll the name of the delinquent assessor. If the notice is not given as prescribed in the above section the time for the application for the writ of certiorari is unlimited. People ex rel. Swartwout V. Village of Port Jervis, 23 Misc. 317 ; 52 N. Y. Supp. 59. 41a. Time of filing certificate of apportionment. — The provision' of this section regulating the time within which a certificate of apportionment must be filed, is directory merely. People ex rel. Troy Gas Co. v. Hall, 143 App. Div. 756. 42. Apportionment should not be indicated on town roll. It seems, that Lawa 1867, ch. 694, from which the above section was originally revis.ed, was intended to regulate valuation in towns of railroad property for purposes of school district taxation only, and that the statute does not contemplate that the appor- tionment therein provided to be made should be indicated on the town assess- ment-roll, but by certificate of the assessors to be prepared and filed in the office of the town clerk after the roll ia completed. People v. Adams, 125 N. Y. St. 471, 36 N. Y. St. Rep. 166. For form of apportionment, see Form No. 49, post. 546 TAXATION Tax Law, § 42; Penal Law, § 232L stating therein the cause of such omission, and the assessment roll, when otherwise made and completed in accordance with the requirements of or under this chapter shall be deemed to be the assessment roll of the tax district.*^ If the assessors shall neglect to meet for the purpose of hearing grievances any person aggrieved by the assessment may appeal to the board of supervisors at its next meeting, which shall have the same power to review and correct such assessment as the assessors have under this article. If any assessor shall refuse or neglect to perform any duty or do any act required of him by this chapter, he shall forfeit to the tax district the sum of fifty dollars, to be recovered by the tax commission. [Tax Law, § 41, as amended by L. 1916, ch. 323 ; B. C. & G. Cons. L., p. 5868.] § 22. SXTBDIVISION OF I.OTS MAT BE ABANDONED; THEREAFTER LOTS TO BE TREATED AS A SINGLE TRACT. Whenever more than ten years shall have 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 abandon such sub- division 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 said subdivision, as to the lands de- scribed in such instrument, shall be deemed abandoned and of no effect ; and thereafter the lands described therein shall, for the purpose of taxa- tion, 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 in- strument 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, § 42 ; B. C. & G. Cons. L., p. 5869.] § 23. 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 a^jplication 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 Law, § 2321 ; B. C. & G. Cons. L., p. 4106.] 43. For form of certificate of neglect or omission of duty of one of the as- sessors, see Form No. 50, post. An assessment roll is not invalid which is signed by two assessors, because of the failure to make the certificate required by the above section. Coleman T. Shattuck, 62 N. Y. 348. ASSESSMENT OF SPECIAL FRANCHISES. 547 Explanatory iiote. CHAPTER XXXV. ASSESSMENT OP SPECIAL FRANCHISES. EXPLANATORY NOTE. Special Franchises. A special franchise has been defined as the right granted to a cor- poration to construct, maintain or operate in a public highway some structure intended for a public use, which except for the grant would be a trespass. (People ex rel. Metropolitan St. Ey. Co. v. Tax Com- missioners, 174 K Y. 417, affd. 199 U. S. 1.) Chapter 712 of the Laws of 1899, known as the Special Tranchise Act, amended the Tax Law by declaring that the right, authority or permission to construct, maintain or operate any structure intended for public use, " in, under, above, on or through streets, highways or public places," such as railroads, gas pipes, water mains poles and wires for electric, telephone and telegraph lines, and the like, is a special fran- chise. This act was consolidated as a part of the present Tax Law, and is included in this chapter. Prior to the enactment of the Act of 1899 special franchises were never lawfully assessed as either real or personal property by state or local authority. Por the first time in the history of the state this act authorized the assessment or valuation for the purpose of general taxa- tion of all special franchises by a state board of tax commissioners ap- pointed by the governor. Por the purpose of such taxation a special franchise is made real estate and is " deemed to include the value of the tangible property of a person, copartnership, association or corporation situated in, upon, under or above any street, highway, public place or public waters in connection with the special franchise," and taxed as a part thereof. 548 TAXATION. Explanatory note. A special franchise includes nothing but what is in the street, directly or indirectly, and excludes power houses, depots and all structures with- out the lines of the street. The taxes thus imposed are for general pur- poses, are collected in the same way, and used for the same objects as other taxes upon the general assessment-roll. This act has been attacked upon the ground that it is unconstitutional since it deprives the local assessing officers of their rightful jurisdiction over local assessments, but its validity has been fully sustained by the Court of Appeals. (People ex rel. Metropolitan St. Ey. Co. v. Tax Commissioners, Supra.) Assessment by State Taz Commissioners. The town assessors have no duties to perform in respect to determining the values of special franchises. The state board of tax commissioners are required to determine the values of such franchises in each town, and file a statement thereof with the tovm. clerk within thirty days pre- ceding the first day of July in each year. Duties of Assessors. The town clerk must, within five days after the receipt of such state- ment, deliver a certified copy thereof to the assessors. The assessors must then enter the valuation of each special franchise as determined by the state board in the proper column of the assessment-roll, opposite the name of the owner of such franchise. The assessors must apportion the valuation of such special franchise among the several school dis- tricts of the town in the same manner as railroad, telegraph and tele- phone property is apportioned. Section 1. Report to state board of tax commissioners. 2. Special franchise; full valuation and equalization by tax commissionersv 3. Hearing on special franchise valuations; notice. 4. Certiorari to review assessment. 5. Tax commissioners to appear by counsel; employment of experts. 6. Deduction from special franchise tax for local purposes. 7. Special franchise tax not to affect other tax. ASSESSMENT OF SPECIAL FRANCHISES. 549-553 Tax Law, § 44. § 1. SPECIAI. FRANCHISE REPORT TO TAX COMMISSION.i Every person, eopartnersliip, association or corporation subject to taxation on a special franchise, shall, within thirty days after such special franchise is acquired, make a written report to the tax commis- sion containing 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, obligation or burden imposed upon such special franchise, or under which the same is enjoyed, together with any other information relating to the value of such special fran- chise, required by the tax commission. The tax commission may re- quire an annual report and from time to time 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 president, 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 1. Constitutionality of special franchise tax. Th« fact that the special franchise tax act confers upon state officers the right to assess such franchises, and ■especially the right to assess the tangible property annexed thereto and included therein by the act, which was formerly assessed by local boards of assessors does not violate the principle of home rule embodied in the constitution for the following reasons : ( 1 ) Because it creates a. new system of taxation and brings within its range a new character of property, which requires new methods of valuation and the exercise of functions which never belonged to local assessors and must neces- sarily have been committed to state officers with new functions whose sole duty re- lated to the subject of taxation in all its phases throughout the entire state, and "who, with wider experience and greater opportunities for observation than local' assessors, would be able to grasp the new scheme of taxation as a whole and whose miction would be free from all local prejudice or color and uniform in its result. (2) Because the tangible property formerly assessed by local assessors is an inseparable part of the special franchises mentioned in the statute, constituting with them a new entity, which in a going concern can neither be assessed nor sold to advantage except as one thing, single and entire, and the function of assessing such entity is not essentially local in character, never belonged to localities, never was and never could be exercised with the requisite justice and uniformity by their officers, and, therefore, was of necessity conferred upon state officers, expert tax officials, having a jurisdiction co-extensive with the limits of the state. Property, therefore, created by the legislature and never intrusted by it to local assessors cannot with propriety be said to have been taken away from them. People ex rel. Met. St. Ry. Co. v. Tax Commiesioners, 174 N. Y. 417. 552 TAXATION. Tax Law, § 45. contained therein are true. Such commission may prepare 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 section, or failing to make any special report required by the tax commission 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 additional sum of ten dollars for each day that such failure continues, and shall not be entitled to review the assess- ment by certiorari, as provided by section forty-six of this chapter." Acknowledgment of receipt of blajik reports which contain the penalty provisions of this section shall be deemed sufficient notice of such penal- ties. [Tax Law, § 44, as amended by L. 1916, ch. 334; B. C. & G. Cons. L., p. 5872.] § 2. SFECIAI. FRANCHISE; FTILI. VAIiUATION AND EQUALIZATION BY TAX COMMISSION. The tax commission shall annually fix and determine the full and actual valuation of each special franchise subject to assessment in each city, town or village; shall inquire into and ascertain as near as may be the percentage of the full and actual value at which other real prop- erty in the city, town or village for which such full valuation has been made, is being assessed, and by the rate of equalization so established fix and determine the equalized valuation of each special franchise sub- ject to assessment. [Tax Law, § 45, as added by L. 1916, ch. 334.J 2. References. A person who makes a false statement in reference to taxes is guilty of a misdemeanor. Penal Law, § 2321. The refusal to make a, report required by law is also a misdemeanor. Penal Law, § 665. A failure to make a report as provided in this section within thirty days after the franchise is acquired does not forfeit the right to review the assessment by certiorari as provided by section 46. But the report may be made subject to the pecuniary penalty imposed, at any time before a final assessment. People ex rel. N. Y. &, Queens County R. R. Co. v. Tax Commissioners, 55 App. Div. 218; 67 N. Y. Supp. 69. An injunction will not lie to restrain the board of tax commissioners from allow- ing any inspection or disclosure of reports made under this section, because this question should be determined by them in the proper discharge of their public duty. Am. Dist. Telegraph Co. v. Woodbury, 127 App. Div. 455, 457, 112 N. Y. Supp. 165. ASSESSMENT OF SPECIAL FRANCHISES. 553 Tax Law, §§ 45-a, 45-b, 45-c. § 3. HEARING ON SPECIAl. FRANCHISE VALUATIONS; NOTICE. On determining the full and actual valuation of a special franchise and the rate of equalization thereof the tax commission shall immedi- ately give notice in vn-iting to the person, copartnership, association or corporation affected, and to each city, town or village in which such special franchise is subject to assessment, stating in substance that such determinations have been made and the total full and actual valuation and the rate of equalization thereof in each city, town and village, and that the commission will meet at its office in the city of Albany on a day specified in such notice, to hear and determine any complaint concerning such full valuation and the rate of equalization. Such notice must be served at least ten days before the day fixed for the hearing; and it may be served on a copartnership, association or corporation 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. In a town said statement shall specify the total amount of the assessment of such special franchise, and the amount thereof in any village or villages therein. Section thirty-seven of this chapter applies so far as practicable to a hearing by the tax 'commission under this section. [Tax Law, § 45a, as added by L. 1916, ch. 334.] Determination of final full and equalized valuation. After hearing complaints as to such valuation and rate of equalization of the special franchise the commission shall fix and determine the final full value of each special franchise and ascertain the final rate of equalization and equalize the final full value of each special franchise to such an amount as in its judgment will place the special franchise on the same basis as the assessment of other real property in the city, town or village in which the special franchise is located. In ascertaining the basis of assessment of other real property or determining the final full and actual valuation of a special franchise, the tax commission may, in its discre- tion, take testimony and hear proof, under oath or otherwise, and may avail itself of all information on the subject appearing of record in its office and all information which it may acquire in the discharge of its duties, and may employ its experts, agents or other persons in procuring any information it may require for such purpose. [Tax Law, § 45b, as added by L. 1916, ch. 334.] Certificate of special franchise valuations filed with localities. After determining the final full and equalized valuation of a special franchise 554 TAXATION. Tax Law, § 45d. the tax commission shall file with the clerk of the city, to-vm or village in which such special franchise is subject to assessment, a written statement duly certified hy the secretary of the commission of the valuation of each special franchise assessed therein as finally fixed and equalized. In a town said statement shall specify the total amount of the assessment of each special franchise, and the amount thereof in any village or villages therein. In the city of New York said statement shall he filed with the department of taxes and assessments. Such statement shall be filed with the clerk of the village not later than the first day of October and with the clerk of the city, or the department of taxes and assessments in the city of New York, not later than thirty days before the final completion, verifica- tion and filing of the assessment-roll. The statement of special franchise valuations in towns shall be made in duplicate, one copy to be filed with the town clerk not later than August first, and the other copy with the clerk of the board of supervisors of the county not later than September first. It shall be the duty of city, town and village clerks within five days after the final completion and filing of the assessment-roll, and the first posting or publication of the notice thereof as required by law in their respective municipal corporations and of the clreks of the boards of supervisors in each county within five days after the final revision of the assessment-roll and the annexation of the warrant thereto to furnish the tax commission with said date or dates. Each city clerk shall, within five days after the receipt by him of the statement of the equalized valuations of a special franchise as fixed by the tax commission, deliver a copy of such statement certified by him to the assessors or other officers charged with the duty of making local assess- ments in said city. Each town clerk shall, within five days after the receipt by him of the statement of equalized valuations, deliver copies of such statement certified by him to the supervisor of the town, and to the assessors of the town for which the assessments have been made. Each village clerk, shall, within five days after the receipt by him of the statement of equalized valuations, deliver copies of such statement certified by him to the assessors, if any, and if not, to the trustees of the village for which the assessments have been made. The final equalized valuation of every special franchise in a city, town or village as so fixed and determined by the tax commission shall be entered by the assessors or other officers thereof in the proper part of the assess- ment-roll before the final revision and certification of such roll by them and become a part thereof with the same force and effect as if such assessment had been originally made by such assessors. [Tax Law, § 45c, as added by L. 1916, ch. 334, and amended by L. 1917, ch. 488.] Certification of final valuations to owners. — ^The tax commission, on filing said statement of the final equalized valuation of a special franchise, shall give to the person, copartnership, association or corporation affected written notice thereof, which notice shall contain a statement of the full and actual value of such special franchise as finally fixed and determined and the amount to which it has been equalized. In a town said statement shall ASSESSMENT OF SPECIAL FRANCHISES. S54a Tax Law, §§ 45e, 45f, 46. specify the total amount of the assessment of each special franchise, and the amount thereof in any village or villages therein. Such notice may be served on a copartnership, association or corporation afEected by mailing a copy thereof to it at its principal office or place of business, and on a per- son either personally or by mailing it to him at his place of business or last known place of residence. [Tax Law, § 45d, as added by L. 1916, ch. 334.] Special franchise assessments subject to all taxes. — The final equalized valuation of every special franchise as fixed and determined by the tax commission shall be the assessed valuation on which aU taxes, based on such special franchise for state, county, city, town, village, school, high- way or other district purposes shall be levied for the ensuing year. [Tax Law, § 45e, as added by L. 1916, ch. 334.] Information by local officers. — ^The assessors or other taxing officers or other local officers in any city, town or village or district, or any state or county officer, shall on demand furnish to the tax commission any informa- tion required by them for the purpose of determining the full and equal- ized value of a special franchise. It shall be the duty of city, town, and village clerks within twenty days after the taking effect of any law changing the boundaries of their respect- ive municipal corporations to furnish the tax commission with a statement giving the details of and clearly showing said changes. Upon the granting of any franchise to use the streets, highways, public places or public waters by the proper officers of any city, town or village, it shall be the duty of the respective clerks of said municipalities to furnish a copy of same to the tax commission. [Tax Law, § 45f, as added by L. 1916, eh. 334, and amended by L. 1917, ch. 37.] § 4. CERTIORARI TO REVIEW ASSESSMENT. An assessment of a special franchise by the tax commission may be re- viewed in the manner prescribed by article thirteen 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 thirty days after the final completion and filing of the assessment-roll, and the first posting or publication of the notice thereof as required by law. Such writ must run to and be answered by said tax commission and no writ of certiorari to review any assessment of a special franchise shall run to any other board or officer unless other- wise directed by the court or judge granting the writ. In cities a copy of said writ and the petition for same shall be furnished to the corporation counsel or other law officer. An adjudication made in the proceeding in- stituted by such writ of certiorari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of the taxes levied upon said assessment in the same manner as though said local assessors or officers had been parties to the proceeding. [Tax Law, § 46, as amended by L. 1911, ch. 804, L. 1916, ch. 334, and L. 1918, ch. 378 ; B. C. & G. Cons. L., p. 5874.] 554b TAXATION. Tax Law, §§ 47, 48. § 5. TAX COMMISSION TO APPEAR BY COUNSEL; EMPLOYMENT OF EXPERTS. In any proceeding for the review of an assessment of a special fran- chise made by the state board of tax commissioners or the tax commis- sion, said tax commission is authorized to appear by counsel to be desig- nated by the attorney-general. The attorney-general or such counsel may employ experts and the compensation of such counsel and experts and their necessary and proper expenses and disbursements, incurred or made in such proceeding, and upon any appeal therein, shall when audited and allowed as are other charges against such tax district, be a charge upon the tax district upon whose rolls appears the assessment sought to be reviewed. Where, in one proceeding, there is reviewed the assessment of a special franchise in more than one tax district, separate accounts shall be rendered for said costs, expenses and disbursements to the proper officer of each of said tax districts and audited and allowed by him as aforesaid. For the purposes of this section, the city of New York shall be deemed one tax district. If provision shall not have been made for the payment of such expense in any year, then the officers who are empowered by law to malce such provisions in any county, city, town or other political subdivision of the state, are hereby authorized and directed to raise money to such an amount as may be necessary, in any manner provided by law for meeting expenses in anticipation of the collection of taxes and to pay such expense therefrom. The amount so raised shall be included in the amount to be raised by tax in the ensuing year. [Tax Law, § 47, as amended by L. 1911, ch. 471, L. 1913, eh. 134, and L. 1916, ch. 334; B. C. & G. Cons. L., p. 5875.] § 6. DEDUCTION FROM SPECIAL FRANCHISE TAX FOR LOCAL PURPOSES. If, when the tax assessed on any special franchise is due and payable under the provisions of law applicable to the city, town or village in which the tangible property is located, it shall appear that the person, copartnership, association or corporation affected has paid to such city, town or village for its exclusive use within the next preceding year, under any agreement therefor, or under any statute requiring the same, any sum based upon a percentage of gross earnings, or any other income, or any license fee, or any sum of money on account of such special fran- chise, granted to or possessed by such person, copartnership, association or corp PHONE, ELECTRIC LIGHT AND GAS COMPANIES TO COUNTY TREASURER. Notice to railroad companies and certain other corporations of assess- ment and tax. — 1. It shall be the duty of the school collector in each school district in this state, within five days after the receipt by snch collector of any and every tax or assessment-roll of his district, to pre- pare and deliver to the county treasurer of the county in which such district, or the greater part thereof, is situated, a statement showing- the name of each railroad, telegraph, telephone, electric light or gas company, including a company engaged in the business of supplying natural gas, appearing in said roll, the assessment against each of said companies for real and personal property respectively, and the tax against each of said companies. 2. It shall thereupon be the duty of such county treasurer, imme- diately after the receipt by him of such statement from such school collector, to notify the ticket agent or manager of any such railroad, telegraph, telephone, electric light or gas company, including a company engaged in the business of supplying natural gas assessed for taxes at the station or office nearest to the office of such county treasurer or to notify the company at its principal office within this state personally or by mail, of the fact that such statement has been filed with him by such collector, at the same time specifying the amount of tax to be paid by such company. [Education Law, § 427, as amended by L. 1913, ch. 216 ; B. 0. & G. Cons. L., p. 1216.] Payment within thirty days. — Any railroad company heretofore organized, or which may hereafter be organized, under the laws of this state, and any telegraph, telephone, electric light or gas company in-^ eluding a company engaged in the business of supplying natural gas may within thirty days after the receipt of such statement by such county treasurer, pay the amount of tax so levied or assessed against it in such a district and in such statement mentioned and contained with one per centum fees thereon, to such county treasurer, who is hereby authorized and directed to receive such amount and to give proper receipt therefor. [Education Law, § 428, as amended by L. 1913, ch. 216 ; E. C. & G. Cons. L., p. 1216.] Collection if not so -paid. — In case any railroad company and any telegraph, telephone, electric light or gas company including a company engaged in the business of supplying natural gas shall fail to pay such tax within said thirty days, it shall be the duty of such county treasurer to notify the collector of the school district in which such delinquent railroad company is assessed, of its failure to pay said tax, and upon receipt of such notice it shall be the duty o± such collector to collect such unpaid tax in the manner now provided by law together with five per centum fees thereon ; but no school collector shall collect by distress and sale any tax levied or assessed in his district upon the property of any such company until the receipt by him of such notice from the county treasurer. [Education Law, § 429, as amended by L. 1913, ch. 216 y B. C. & G. Cons. L., p. 1217.] 592 TAXATION. Education Law, S 431; General Municipal Law, S IS. Amount to he paid over to collector of district. — The several amounts of tax received by any county treasurer in this state, under the pro- visions of the last three sections, of and from such companies, shall be by such county treasurer placed to the credit of the school district for or on account of which the same was levied or assessed, and on demand paid over to the school collector thereof, and one per centum fees received therewith shall be placed to the credit of, and on demand paid to, the school collector of such school district. [Education Law, § 430, as amended by L. 1913, ch. 216 j B. C. & G. Cons. L., p. 1217.] Companies may pay collector. — Nothing in the last four sections con- tained shall be construed to hinder, prevent or prohibit any railroad ■company or telegraph, telephone, electric light or gas company includ- ing a company engaged in the business of supplying natural gas from paying its school tax to the school collector direct, as provided by law. [Education Law, § 431, as amended by L. 1913, ch. 216; B. C. & G. Cons. L., p. 1217.] 5 8. BAILBOADS IN TOWNS BONDED FOR THE CONSTEUCTION THERE- OF, TO PAT TO COUNTY TREASURER; INVESTMENT OF MONEY BY COUNTY TREASURER. Hi a town, village or city has outstanding unpaid bonds, issued or sub- stituted for bonds issued, to aid in the construction of a railroad therein, so much of all taxes as shall be necessary to take up such bonds, except school districts and highway taxes, collected on the assessed valuation of such railroad in such municipal corporation, shall be paid over to the treas- urer 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 immediately •cancel them in the presence of the county judge.' If such bonds cannot 9. By L. 1899, cli. 336, jurisdiction was conferred upon the court of claims to hear, audit and determine the claim of any county where state taxes collected of a railroad corporation in towns aiding in the oonstruction of the railroad hski been paid by the county treasurer to the state treasurer. In the case of County of Ulster v. State of New York, 79 App. Div. 277, the determination of the court of claims, in a case brought under this act, that the state wa.s not liable to repay to the counties the amount of tax so paid by county tr, asur.rs to the state treasurer was reversed. The court in this case held that eh. fl07, L. 18G9, as amended by ch. 28.3, L. 1871, from which the above section of the Gineral Municipal Law was derived, was enacted for the purpose of relieving the county from the payment of the state tax upon the property of a railroad in a town bonded for its construction. Application of taxes on railroad bonds. County treasurers are authorized to retain any portion of the taxes due from their counties to the state to apply on railroad bonds, but the proper method for securing such taxes is by application to the comptroller for repayment of the same. Such application should contain a statement suflBcient to satisfy the comptroller that the amount of money claimed is really due to the county treasurer. Kept, of Atty. Genl., Feb. 15, 1909. Application of section; duties of officers. The provisions of the above section are applicable to any municipality having outstanding bonds issued in aid of the construction of any railroad. The assessors and boards of supervisors should ascer- tain the amount required to be paid under the provisions of such section to the ■county treasurer and should specify such amount in the tax roll and warrant. If «uch amount has been so specified, the collector may make the proper deduction of COLLECTION OF TAXES. 593 General Municipal Law, § 13. be purchased at or below par, such treasurer shall invest such moneys 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 payment of euch outstand- ing 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 this section. Upon application school and road taxes and pay the balance to the county treasurer. If the duty of making the separation has not been discharged before payment to the county treas- urer, it devolves upon him to make th* separation and invest the proper amount as directed by the statute. Matter of Clark v. Sheldon, 106 N. Y. 104. If the county treasurer neglects to comply with the provisions of tiiia section and pays the amount that should be apportioned to the discharge of railroad aid bonds in payment of county and ' state taxes an action may be maintained by the town against the county to recover the money so misappropriated. Strough v. Board of Supervisors, 119 N. Y. 212; 23 N. E. 552; see, also, Pierson v. Supervisors of Wayne County, 155 N. Y. 105; 49 N. E. 766. The supervisors have no jurisdiction over the fund and cannot legislate concerning it, nor direct nor control the act of the county treasurer with reference to it. Nor can a town meeting by its vote authorize the application of such fund for any other purpose than the payment of such bonds. In the hands of the county treasurer it is a trust fund upon which the law has impressed a distinct purpose and any action that diverts it from that purpose is illegal. Clark v. Sheldon 134 N. Y. 333; 32 N. E. 23. As to the right of a town to compel a proper application of this fund, see Kllbourne v. Board of Supervisors, 137 N. Y. 170; 33 N. E. 159; Woods V. Supervisors, 136 N. Y. 403; 39 N. E. 1011; People ex rel. McMillan v. Super- visors, 136 N. Y. 281; 32 N. B. 854; Ackerman v. Board of Supervisors, 72 Hun, 616; 25 N. Y. Supp. 196. Effect where taxes have been paid into general fund of county. Where the taxes have been paid by the county treasurer into the general fund of the county, and are not identifiable, but the general fund had always exceeded the amount of such taxes, an order requiring their investment as prescribed by the statute was proper. Spalding v. Arnold, 125 N. Y. 194. Illegal payment to treasurer. A town may recover moneys paid by railroad company on account of taxes assessed in such town to the county treasurer, when it appears that he paid such moneys to the supervisor instead of applying them to the redemption of outstanding bonds issued to aid in the construction of such railroad. Town of Walton v. Adair, 111 App. Div. 817, 97 N. Y. Supp. 868, aftd. 191 N. Y. 509. Enforcement of judgment requiring supervisors to invest railroad taxes. A judgment directing a board of supervisors to deposit with the county treasurer for the benefit of a town, to be invested by him in pursuance of the above section, the taxes levied and collected on the assessed valuation of certain railroad property in such town, is not complied with by merely levying and collecting the sum specified without giving any direction for the use of the money as a sinking fund for the benefit of such town. The town may enforce the judgment by a writ of peremptory mandamus to compel the board of supervisors to again levy and collect the sum and pay it over to the county treasurer for the benefit of the town. People ex rel. Town of Walton v. Board of Supervisors, 173 N. Y. 297, reversing 75 App. Div. 184, 77 N. Y, Supp. 676. 594 TAXATION. Tax La-W, § 74. of the town board of any town, the board of supervisors of the county in which said town is situated may authorize payment by the county treasurer of all moneys thus paid to him in any year by the railroads mentioned in this section, to the supervisor of such town, for its use and benefit; to be applied either to the purchase of outstanding railroad aid bonds or the payment of interest thereon, and any payment heretofore made in good faith by the treasurer of any county to any town or to the supervisor thereof, of the taxes received, in any year by such treasurer, from railroad corporations in that town is hereby validated.*^ The county treasurer of any county in which one or more towns therein shall have issued bonds for railroad purposes, shall when directed by the board of supervisors or county judge of the county, execute and file in the office of the clerk of the county an undertaking with not less than two sureties, approved by such board or judge, to the effect that he will faithfully 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 predecessors, and the condition of such fund. [General Municipal Law, § 13; B. C. & G. Cons. L., p. 2115.] § 9. TAX AGAINST TELEGRAPH, TELEFHONX: AND ELECTRIC LIGHT LINES; COLLECTORS MAT LEVY ON INSTRUMENTS; RETURN OF UNPAID TAXES TO COUNTY TREASURER; COUTY TREASURER MAY SELL LINES. Collection of tax against a telegraph, telephone or electric light line may be enforced by sale of the instruments and batteries connected with such line, and in case there is not sufficient 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 treas- urer as other unpaid taxes are returned, and the county treasurer shall proceed to sell such part of the line in the tax district where the tax was levied as may be necessary to satisfy the unpaid taxes and per centage, 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. 9a. Constitutionality. The act from which the above section was derived has been declared constitutional. Matter of Clark v. Sheldon, 106 N. Y. 104. The part of this section which provides: "Any payment heretofore made in good faith by the treasurer of any county to any town, or to the super- visor thereof, of the taxes received in any year by such treasurer from rail- road corporations in that town is hereby validated," is unconstitutional so far as it attempts to take from a town an existing cause of action. Town of Walton v. Adair, 96 App. Div. 75, 89 N. Y. Supp. 23. COLLECTION OF TAXES. 595 Tax Law, §§ 306, 75. i^othing herein contained shall be construed to prevent collection of such taxes by any procedure now provided by law. [Tax Law, § 74 ; B. C. & G. Cons. L., p. 5892.J 10. SEQUESTRATION OF PROPERTY OF CORPORATIONS FOR FAILURE TO PAY TAXES. It shall be the duty of the attorney-general, on being informed by the comptroller, tax commission or by the county treasurer of any county that any incorporated company refuses or neglects to pay the taxes imposed upon it, pursuant to articles one and two of this chapter, to bring an action in the supreme court for the sequestration of the prop- erty of such corporation, and the court may so sequestrate the property of such corporation for the purpose of satisfying taxes in arrears, with the costs of prosecution, and may, also, in its discretion, enjoin such corporation and further proceedings under its charter until such tax and the costs incurred in the action shall be paid. The attorney-general may recover such tax with costs from such delinquent corporation by action in any court of record. [Tax Law, § 306, as amended by L. 1916, ch. 323; B. C. &G. Cons. L., p. 6054. J § 11. TAXES ON RENTS RESERVED; COLLECTOR MAY LEVY ON PERSONAL PROPERTY OF OWNER FOUND IN COUNTY; "WHEN TENANT MAY BE COMPELLED TO PAY. If any tax upon any such tax-roll upon rents reserved is not paid, the collector shall collect the same by levy and sale of the personal property of the persons against whom the tax is levied, which may be found within the county. If no sufficient 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 prem- ises, which may be due or may ftiereafter become due thereon, or may maintain an action to recover the same.^" [Tax Law, § 75; B. C. & G. Cons. L., p. 5893.] 10. The value of taxable rents reserved Is Included in the fifth column of the assessment-roll, and if the name of the person entitled to receive the rent cannot be ascertained by the assessors the tax is to be assessed against the tenant in possession of the real property. See Tax Law, sec. 21, sub. 5, ante. 596 TAXATIOX. Tax Law, § 76. § 12. COLLECTOR TO KETURN UNPAID TAXES ON DEBTS OWING- TO NON-RESIDENTS OF THE UNITED STATES TO COUNTY TREASURER; COUNTY TREASURER; TO ISSUE A WAR- RANT TO SHERIFF TO COLLECT AMOUNT OF TAX. If it shall appear by the return of any collector that a 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 his warrant to the sheriif of any county in this state where any debtor of any such non-resident creditor may reside, com- manding him to make^^ of the real and personal property of such non- resident the amount of such tax, to be specified in a schedule annexed to the warrant, with his fees and the sum of one dollar for the expense of issuing such warrant, and to return the warrant to the treasurer issuing the same, and to pay over to him the money which shall be 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 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 fifty cents for the expenses of the warrant. Such warrant shall be a lien upon and shall bind the real and personal property of the non-residents against whom issued from the time an actual levy shall be made upon any property by virtue thereof, and the sheriff to whom the warrant shall be directed shall proceed upon the same, in all respects, with like 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 ser- vices in executing the same, to be collected in the same manner.^^ [Tax Law, § 76, as amended by L. 1916, ch. 323; B. C. & G. Cons, L., p. 5893.J § 13. SHERIFF TO RETURN WARRANT FOR COLLECTION OF TAXES ON DEBTS OW^ING TO NON-RESIDENTS; NEGLECT TO MAKE RETURN; PROCEEDINGS IF WARRANT IS RETURNED UN- SATISFIED. If any sheriff shall neglect to return any such warrant as directed 11. Tie use of the \roTd " make " in this sentence is apparently an error. It probably was intended for the word " take." The same language was used in sec. 6 of L. 1851, ch. 371, and was retained in the revision of 1896. 12. As to assessment of debts owing to non-residents of the United States, see Tax Law, sec. 31, ante. COLLECTION OF TAXES. 597 Tax Law, §§ 77, 298. 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 a similar neglect in refer- ence to an execution issued out of the supreme court in a similar action, and the proceedings therein shall be the same in all respects. If any such warrant shall be returned unsatisfied, wholly or partly, the county treasurer may obtain an order from a judge of the supreme court of the district, or a county judge of the county, of such treasurer issuing the warrant, requiring such non-resident or any person having property of such non-resident or indebted to him, to appear and answer concerning the property of such nonresident. The same remedies and proceedings may be had in the name of such county treasurer or comptroller before the officer granting such order, and with a like effect, as are provided by law in proceedings 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, § 71, as amended by L. 1916, ch. 323; E. C. & G. Cons. L., p. 5894.] § 14. APPLICATION TO COUNTY COURT FOR ORDER DIRECTING SHERIFF TO COLLECT TAX WHEN PERSON HAS REMOVED FROM COUNTY; CERTIFIED COPY OF ORDER TO BE DE- LIVERED 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 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 598 TAXATION. Tax Law, § 299. the same to the coimty treasurer of the county where it was levied, to the credit of the town in which it was assessed. [Tax Law, § 298, as amended byL. 1916, ch. 323; B. C. & G. Cons. L., p. 6051.] § 15. Sin>ERVISOR OR COUNTY TREASURER BIAY 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, 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 corporation, 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 supplemen- tary to execution thereon against a natural person, and the same costs and disbursements may be allowed against the person or corporation examined as in such supplementary proceedings, but none shall be allowed in his or its favor." The tax, if collected in such proceeding, shall be paid to 13. Supplementaiy proceedings. The proceedings authorized by this section for the collection of unpaid taxes are the same as those provided for the collection of a judgment by proceedings supplementary to execution as contained in sections 2432-2463 of the Code of Civil Procedure. Under section 2463 of the code corpo- rations are not subject to supplementary proceedings " except in those actions or special proceedings brought by or against the people of the state." But by the above provision corporations may be proceeded against in the same manner as a natural person. Section applies to a foreign corporation licensed to do business in this state. Matter of Bruerg (1916), 174 App. Div. 298, 160 N. Y. Supp. 96. The jurisdiction to issue the order does not rest upon a corporation's failure to appear before the assessors, but upon the fact that a tax has been returned by the collector uncollected for want of personal property out of which to enforce it. Matter of Maltbie (1917) , 179 App. Div. 395, 165 N. Y. Supp. 550. In general. A dissolution of an order for examination in supplementary pro- ceedings may be moved for on the ground that the order was improvidently granted. Bassett v. ^Vlleeler, 84 N. Y. 466. Upon an appeal from a motion to set aside supplementary proceedings, the question whether the person proceeded against was a resident will not be viewed in the court of appeals if the evidence is conflicting. Id. A payment made as directed in supplementary proceedings, — held a voluntary one, in an action against the assessors for lack of jurisdiction, the order itself not authorizing seizure. Drake v. Shurtliif, 24 Hun 422. The fact of ownership of sufficient personal property out of which the collector could have taken the tax is not a defense to supplementary proceedings for its collection. Matter of Hartshorn, 44 N. Y. St. Eep. 16, 17 N. Y. Supp. 567. The provisions of this section exempting a county treasurer from the COLLECTION OF TAXES. 599 Tax Law, § 301. "the county treasurer 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 proceedings, and shall be applied to the payment of the expense of such proceedings. The president of a village and a county treasurer shall have no compensation for any such proceeding. A supervisor shall have no other compensation except his per diem pay for time necessarily spent in the proceeding." [Tax Law, § 299 ; B. C. & G. Cons. L., p. 6051.] § 16. DISMISSAL OF SUITS OR PROCEEDINGS. Wliere the person or corporation against whom a proceeding or suit is brought to collect a personal tax in arrears is unable for want of property to pay the tax in whole or in part, or where for other reasons upon the facts as they existed either before or after the assessment was made it appears to the court just that said tax should not be paid, the court may dismiss such suit or proceeding absolutely, without costs, or on payment of such part of the tax as may be just or on payment of costs, and may direct the cancellation or reduction of the tax." [Tax Law, § 301, as amended by L., 1909, ch. 374; B. C. & G. Cons. L., p. 6053.] § 17. CANCELLATION OF PERSONAL TAX VOID FOR WANT OF JTTRISDICTION. If a personal tax, levied against a person or corporation, or the property of a person or corporation, is void for want of jurisdiction of such person payment of costs do not apply to an unsuccessful appeal by him from an order dismissing the proceeding. Matter of Pryor, 67 App. Div. 316, 73 N. Y. Supp. 961. Sufflciency of application. The application need only allege the facta stated in the above section and need not allege facts sufficient to show that the assessors and board of supervisors had jurisdiction to impose the tax In question. Matter of Conklin, 36 Hun, 588. When order cannot be vacated. An order under this section directed to the treasurer of a corporation cannot be vacated on the ground that tax was excessive, where no objection was presented to assessors; nor for immaterial error in the warrant. Matter of Adler & Co., 174 N. Y. 287, affg. 76 App. Div. 571, 78 N. Y. Supp. 690. 14. 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 non-payment nor shall any person be imprisoned or otherwise punishable on account of non-payment of any tax or of any fine imposed for refusal or neglect to pay such tax. This section shall not apply to proceedings supplementary to execution upon judgments recovered for taxes. Tax Law, § 300. 15. In City of New York v. Assurance Co. of America, 129 App. Div. 904, eOO TAXATION. Tax Law, §§ 78, 79. or corporation and has been returned by the proper collector uncollectible for want of personal property out of which to collect the same, the person or corporation against whom or against whose property the said tax was levied may then apply to the supreme or county court in the county in which is located the tax district where said tax was levied, for an order cancelling the said tax, and upon notice to the president of the village, county treasurer, supervisor of the town or, in the case of a city, upon notice to its attorney or to the corporation counsel, and upon satisfactory proof by affidavit, the court shall make an order directing the cancellation of said tax from the assessment-roll by the county treasurer, comptroller, or other officer in whose custody and control the said roll may be.^' [Tax Law, § 303, as amended by L. 1916, ch. 323, and L. 1918, ch. 530 ; B. C. & G. Cons. L., p. 6053.] § 18. WHEN TAX IS PAID BY TENANT HE MAY BETAIN 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 otherv^ise, ought to pay such tax, or any part thereof, such occupant or tenant shall be en- titled 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, § 78 ; B. C. & G. Cons. L., p. 5894.] § 19. PAYMENT OF TAXES ON PART OF PROPERTY. The collector shall receive the tax on personal property, or on part of any lot, piece or parcel of land charged with taxes, provided the person paying such tax shall furnish such particular specification of such part, and in case the tax on the remainder thereof shall remain unpaid the collector shall enter such specification on his return to the county treas- urer, clearly showing 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 115 N. Y. Supp. 1115, aflfirming opinion of Bisohoff, J., it was held that the statute was not intended to cover a case in which proceedings to review by certiorari had not been instituted in time. 16. A tax on personal estate levied against a non-resident is not a tax against the person but upon the property within the state, and it cannot be canceled upon proof that the tax has been found uncollectible for want of personal property. Mat- ter of Adams, 60 Misc. 333, 113 N. Y. Supp. 293. COLLECTION OF TAXES. 601 Tax Law, §§ 80, 81, 82. of a sale for the tax on tlie remainder. [Tax Law, § 79, as amended by L. 1916, ch. 323 ; B. C. & G. Cons. L., p. 5894.J § 20. PAYMENT OF TAXES ON STATE LANDS IN FOREST PRE- SERVE. The treasurer of the state, upon the certificate of the comptroller as to the correct amount of such tax, shall pay the tax levied upon state lands in the forest preserve, by crediting to the treasurer of the county in which such lands may be situated, such taxes, upon the amount pay- able by such county treasurer to the state for state tax. No fees shall be allowed by the comptroller to the county treasurer for such portion of the state tax as is so paid. [Tax Law, § 80 ; B. C. & G. Cons. L., p. ,5895.] § 21. 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 col- lected 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 treasurer two per centum as fees for all taxes returned to the county treasury as unpaid. In Suffolk county no fees shall be paid by the county treasurer on return taxes. [Tax Law, § 81, as amended by L. 1909, ch. 240, and L. 1916, ch. 332 ; B. C. & G. Cons. L., p. 5895.] § 22. RETURN BY COLLECTOR OF UNPAID TAXES; CONTENTS OP RETURN; FORM PRESCRIBED BY TAX COMMISSIONERS. Each collector shall immediately upon the expiration of his warrant make and deliver 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 col- lected by levy and sale, and upon the verification of the said account by the county treasurer he shall be credited by the county treasurer with the amount of such account." In making such return of unpaid 17. For form of affidavit to be attached to a collector's return of unpaid taxes,, see Form No. 57, post. The form of the return of the collector is prescribed by the state board of tax commissioneTS. 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 assessment-roll,, nor that the figures were taken from the assessment-roll, nor that the sums claimed to be due were for the taxes assessed against the property, is insufficient. Where 602 TAXATION. Tax Law, §§ 82, 83. taxes, the collector shall add thereto five per centum of the amount thereof.is In case such tax is uncollected upon lands assessed to a resident he shall also state the reason vrhj the same was not collected. In the county of Suffolk such return shall consist of the tax-roll and warrant together with the affidavit of the collector known also as the receiver of taxes that the taxes therein appearing, not marked paid, remain unpaid and that he has not upon diligent inquiry been able to dis- cover any personal property out of which the same could be collected by levy and sale, together with a statement of the total amount of such unpaid taxes, and that he has in an appropriate column in said tax-roll opposite the tax levied upon each separate parcel, or person therein named or described, inserted five per centum of the amount of the unpaid tax, and no separate copy or account of such unpaid taxes shall be made or required of collectors, or receivers in such county. Any collector who has heretofore failed in making such return of unpaid taxes, may make such return, whether his term of office has expired or not, verified by his af- fidavit, to the county treasurer any time within eight years after such failure and before the lands against which said taxes are assessed are advertised for sale pur- suant to this chapter, and in ease any collector shall heretofore or hereafter fail to add said five per centum the county treasurer shall add the same. Such return ohall be indorsed upon or attached to said roll, and shall, subject to the provisions of this section, be in the form to be prescribed by the state tax commission. Such tax and percentage may be paid to the county treasurer at any time before a re- turn is made to the comptroller, or in the county of Suffolk such tax, percentage and interest at the rate of ten per centum per annum computed from the first day of February after the same was levied may be paid to the county treasurer at any time before the first day of August succeeding the date of the warrant and thereafter at any time before the sale of the land for such unpaid tax, npon the payment of such tax, percentage and Interest at the rate of ten per centum per annum, computed from the first day of February after the same was levied and the cost of advertising the land for sale for such unpaid taxes as apportioned by the county treasurer among the several parcels liable to be sold. The county treasurer in counties in which lands are sold by him for the nonpayment of taxes, is hereby authorized to incur and pay for such expenses as he may deem necessary for the examination of collector's returns and descriptions of property to be sold pursuant to this chapter, and the procurement of proper collector's returns and the examinations and procurement of matters and facts as he may deem necessary to make a. valid tax sale hereunder, but such expense shall not exceed the amount of the five per centum added as aforesaid. [Tax Law, § 82, as amended by L. 1916, chs. 323, 332, and L. 1917, ch. 39; B. C. & G. Cons. L., p. 5859.] § 33. STAY BY INJUNCTION OB OTHERWISE OF COLLECTION OF TAXES, TO OPERATE AS AN EXTENSION OF TIME FOR MAKING RETURN OF TAXES AFFECTED. Any stay, lawfully granted by any court of record by injunction or other order or proceeding, of the collection of any tax existing at the expiration of the period for the collection of the tax under any warrant or process in the hands of the collector or other officer for the collection thereof, or existing at the time of the expiration of the term of office of the collector or officer holding such warrant, shall operate as an extension of the time witliin which such collector or other officer may collect there was nothing in the retui-n of the collector or in the return of the county treasurer showing that the taxes unpaid were assessed upon non-resident lands, they did not lay a foundation for a sale by the comptroller. Thompson v. Burhans 61 N. y. 52. SufScient statement. A collector of taxes sufficiently states the reason why the tax was not collected where he states that he has not been able with diligent in- quiry to discover any personal property out of which the tax could be collected by levy and sale. Smith v. Russell (1916), 172 App. Div. 793, 159 N. Y. Supp. 169. 18. The addition of five per cent, to the amount of unpaid taxes by the collector in making his return of unpaid taxes on nonresident lands is no error; the section applies to nonresident as well as other lands. Coleman v. Shattuck, 62 N. Y. 348. It was also held in this case that it was immaterial whether the percentage was made a separate item or added to the tax and the sum total returned. COLLECTION OF TAXES. 603 Tax Law, § 84. such tax until such stay is terminated and for the period of thirty days thereafter. As to all other taxes to be collected under any such warrant or process the col- lector or officer holding the warrant or process shall make a return thereof within the time prescribed by law. [Tax Law, § 83; B. C. & G. Cons. L., p. 5896.] 9 24. PAYMENT BY COLLECTOR OF TAXES COLLECTED; OFFICERS TO GIVE COLLECTOR DUPLICATE RECEIPTS; RECEIPTS TO BE FILED. Every collector shall, within one week after the time prescribed in his warrant for the payment of the moneys directed therein to be paid, pay to the officers and persons specified therein, the sums required in such warrant to be paid to them respectively.^" The officers 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 collector with the county treasurer and shall entitle him to a credit in the books of the county treasurer for the amount therein stated to have been received, and no other evidence of such payment shall be received by the county treasurer. If any greater amount of taxes shall be levied in any town than the town charges thereof, and its pro- portionate 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, § 84; B. C. & G. Cons. L., p. 5897.] 19. Payments by collector. The collector cannot pay claims against the county and credit himself with the amount thereof. Matter of Boyce, 2 Cow. 444. The statute requires that the warrant should direct the payments to be made to the commissioner of highways of such moneys as are raised for highway purposes, and to the overseer of the poor such as are raised for the support of the poor. Notwithstanding the warrant directs a payment to be made contrary to the provisions of the statute, the collector must pay the money raised for such purposes to the highway commissioner and to the overseer of the poor respectively. People v Pennock, 60 N. Y. 421. Section 104 of the Highway Law makes the supervisor the custodian of highway moneys, and directs all such moneys to be paid to him. The presumption is that taxes received by the collector are paid over to persons to whom they are directed to be paid by law. Bank of Commonwealth V. Mayor, 43 N. Y. 184. Moneys collected under L. 1874, ch. 296, appropriating the amount of county taxes on a railroad to the payment of bonds, — held, that the taxes should be paid to the railroad commissioners direct and not to -the county treasurer. Bridges v. Supervisors of Sullivan, 92 N. Y. 570. Duties of supervisor. Under section 98 of the Town Law, ante, the super- visor of each town is to receive and pay over all moneys raised therein for defraying town charges, except those raised for the support of highways and bridges, and of the poor. 004 TAXATION. Tax Law, §§ 303, 304. § 25. COI.LECTOR FAILING TO MAKE PAYMENTS; COUNTY COURT TO ORDER SHERIFF TO LEVY ON PROPERTY OF COLLEC- TOR; 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 h;s warrant, or to account for the same as unpaid, the County Court, on proof of such fact by affidavit, on application of the county treasurer, shall make an order directed to the sheriff of the county, commanding him to levy such sum as shall remain unpaid by such collector out of his property, personal and real, and pay the same to the county treasurer, within sixty days from the date of such order. The sheriff shall cause the same to be executed, and pay to the county treasurer the money levied by virtue thereof, deducting, for his fees the same compensation that the collector would have been entitled to retain. If the whole sum due from the collec- tor, 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 case of an execution, and the county treasurer shall give notice to the supervisor of the town, city or division thereof, of any amount which may remain due from such collector. If the sheriff shall neglect to execute the order, or to pay over the money collected thereon, within the time limited thereby, he shall be liable therefor as in case of an execution, and the county treasurer shall immediately prosecute such sheriff and his sureties for the sum due from him, which sum when collected shall be paid into the county treasury."" [Tax Law, § 303 ; B. C. & G. Cons. L., p. 6053.] § 26. 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 col- lected 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, § 304; B. C. & G. Cons. L., p. fiO.54.] § 27. SUPERVISORS TO PROSECUTE COLLECTOR'S UNDERTAK- ING FOR DEFICIENCY. If it appears that the whole or any part of the moneys due from the 20. A warrant issued by the county treasurer against a delinquent town collector after the time specified in the statute is valid, since the provision Is merely directory. I.ooney v. Hughes, 26 N. Y. 514. COLLECTION OF TAXES. 605 Tax Law, §§ 305, 85. 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 under- taking of the collector to be prosecuted, and shall be entitled to recover thereon the sum due from the collector with- costs of the 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, § 305 ; B. C. & G. Cons. L., p. 6054.J § 28. COUNTT TREASURER MAY EXTEND TIME FOR COI.I.ECTION OF TAXES; NETO^ BOND OF COI.LECTOR. 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 April first, following, in case the collector shall pay over all moneys collected by iim, and renew his bond in a penalty twice the amount of the taxes re- maining uncollected, approved by the proper officer upon filing the same, as the original bond is required to be filed, and delivering a certified copy thereof to such treasurer. Collectors and 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, § 85, as amended by L. 1910, ch. 332, and L. 1916, ch. 323; B. C. & G. Cons. L., p. 5897.] Provision does not apply to city or village collectors unless specially so provided. Village of Warren v. Phillips, 30 Barb. 646. 21. Provision of County Law, applicable to extensions. The following section of the County Law (sec. 150) covers the same ground as the above section of the Tax Law. The Tax Law is a later enactment and will control if inconsistent with the provisions of such section of the County Law: " The county treasurer may extend the time for the collection of taxes in any town or ward, but no extension shall be permitted until the collector of taxes of the town, city or ward in which such extension shall be asked shall pay over to the county treasurer all the taxes collected by him, and renew his undertaking as the supervisor of his town shall approve, and furnish pvidence 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 him." {County Law, sec. 150.) For form of application of supervisor for extension of time for collection 606 TAXATION. Tax Law, §§ 86, 87. § 29. FIXLING VACANCY IN OFFICE OF COI.LECTOB; NOTICE Or 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 lio serve or be disabled from entering upon or completing 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 original warrant, if obtainable, shall be delivered to the collector so appointed and shall give him the same powers as if originally issued to him. If such war- rant is not obtainable, a new one shall be issued by the chairman and clerk of the board of supervisors of the county, directed to the collector appointed, with the same force and effect as if originally issued to him. Upon any such appointment, the supervisor of the town, if he shall deem it necessary, may extend the time limited for the collection of taxes, for a period not exceeding thirty days, and forthwith give notice of such extension to the county treasurer. [Tax Law, § 86, as amended by L. 1916, ch. 323 ; B. C. & G. Cons. L., p. 5898.] § 30. SHERIFF TO COLLECT TAXES IN CASE OF COLLECTOR'S FAILURE TO EXECUTE BOND, UNLESS VACANCY BE FILLED; DUTIES OF SHERIFF THEREUNDER. If the collector of any tax district in the state sha)! neglect or refuse to execute an ofBcial bond or undertaking as required by law, or the supervisor of the town shall refuse or neglect to approve and file the same, within the time prescribed by law, and a new collector shall not have been appointed within ten days after the time when such bond or undertakiug should have been filed, the board of supervisors shall deliver the tax-roll of taxes, see Form No. 58, post. For form of order of treasurer granting extension, see Form No. 59, post. Vacancies are created in the manner prescribed by section 30 of the Public OflScers Law, ante. As to filling vacancies generally in town oflaces, see section 130 of the Town Law, ante. For provisions respecting collector's undertaking, see sections 114 and 115 of the Town Law and notes thereunder, ante. COLLECTION OF TAXES. 607 Tax Law, § 88. 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 specified to be made by the sheriff within sixty days after the receipt of the warrant by him. The expense of the collection of such taxes by him, if any, over and above the fees lawfully chargeable by the collector, shall be audited by the board of supervisors and shall be a charge upon the town. [Tax Law, § 87; B. C. & G. Cons. L., p. 5898.] i 31. COLI,ECTOB'S BOND, SATISFACTION OF, BT COUNTY TBEAS- UBEB; FOBM OF SATISFACTION; FILING THEBEOF. 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 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 of such undertaking which shall thereby be discharged,^* ex- cept 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, § 88 ; B. C. & G. Cons. L., p. 5899.] 22. Satisfaction of collector's undertaking. By section 115 of the Town Law, ante, p. 308 , the undertaking of a collector must be filed by the super- visor in the office of the county clerk, and it is to be entered in a book provided for that purpose in the same manner as judgments are entered of record; and every such undertaking is a lien on the real estate of the col- lector and his sureties until it is satisfied. The certificate of the county clerk that the taxes collected by the collector have been fully paid over or duly accounted for constitutes, when filed in the office of the county clerk, a satisfaction of the undertaking of the collector. How collector can be released. There are but two ways in which a col- lector 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 Clean v. King, 5 N. Y. St. Rep. 169, affd. 116 N. Y. 355. 608 TAXATION. Tax Law, §§ 89, 90. § 31-a. REASSESSMENT OF TAXES LEVIED ON IMPEaFECTTY DE- SCRIBED REAX PROPERTY. The coiinty treasurer of any county from which accounts of unpaid taxes are not returned to the comptroller shall examine the accounts of arrears of taxes received from the collector of each tax district and shall reject all taxes charged on real property deemed to be so imperfectly described or erroneously assessed, in form or substance, that the collection of the same by the sale of such real property cannot be enforced, and shall, on or before May first, deliver a transcript thereof to the supervisor of the tax district in which the real property on which taxes have been so rejected shall be located. Such supervisor shall, if in his power, within thirty days thereafter, cause an accurate description of such real property to be made and returned to such treasurer, with the correct amount of taxes thereon, each kind of tax being stated separately, and if necessary, he may cause a survey and map of any of such real property to be made, and the expense of such survey and map on or for each lot or parcel shall be returned to such treasurer and be a legal charge upon such real property and be collected with the taxes thereon. A statement of the taxes on real property in each tax district remaining so rejected on the first day of July, including the amount of taxes, fees and interest thereon, shall be forwarded by the treasurer to the supervisor of the tax district In which such real property was assessed, and such supervisor shall, prior to the first day of the annual meet- ing of the board of supervisors in such county, add to the assessment-roll of the tax district in which the real property is situated, for the then current year, an accurate description of such real property, the correct amount of taxes thereon, the tax of each year and kind of tax separately, stating that it is a reassessment, and charge the same therewith. The board of supervisors shall direct the collec- tion of such taxes so added to the assessment-roll, and they shall be considered the taxes of the year in which the description shall be perfected. If such tax be not levied upon such real property as herein required, the board of supervisors shall cause the same with interest thereon at the rate of ten per centum per annum, to be levied upon the tax district in which originally assessed and collected with the other taxes of the same year. [Tax Law, § 88-a, as added by L. 1913, oh. 666, and amended by L. 1916, ch. 323.] § 32. 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 nonresident, is returned as unpaid and so remains, the county treasurer shall, unless such tax shall have been rejected as provided by section eighty-eight-a, immediately deliver a transcript thereof to the supervisor of the tax district in which such tax was assessed. Such supervisor shall, if in his power, within thirty days thereafter, cause aTi accurate description of such real property to be made and returned to said treasurer, with the correct amount of taxes thereon, each kind of tax being stated separately, and if necessary, he may cause a survey and map of any of said real property to be made, and the expense of such survey and map on or for each lot or parcel shall be re- turned to said treasurer, and be a legal charge upon such real property and be col- lected with the taxes thereon. The amount of such tax shall bear interest at the rate of ten per centum per annum' from the first day of February 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 return of such unpaid tax to the comptroller. And such real property and the tax thereon shall be regarded for all purposes of assessment, collection and sale as nonresident, and subject to all the provisions of the tax law in relation to non- resident real property and nonresident taxes.23 [Tax Law, § 89, as amended by L. 1913, ch. 666, and L. 1916, chs. 323, 332; B. C. & G. Cons. L., p. 5899.] 23. Sale for unpaid taxes. Where taxes on resident real property were re- turned as unpaid, an assessment must first be made against the land as such in the part of the assessment-roll relating to non-resident lands before a sale for such unpaid taxes can be made. People ex rel. McGuinness v. Lewis, 127 App. Div. 107, 111 N. Y. Supp. 398. Tax on resident real property returned by the collector as unpaid should be trans- mitted to the comptroller without reassessment ( since the amendment of this sec- tion in 1902). Eept. of Atty. Genl., June 1, 1011. COLLECTION OF TAXES. C09 Tax Law. I 91. § 83. COUNTY TBEASUtBEB TO PAT MONET TO CEEDITORS OF COUNTT. 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 maimer as the board of Buperrisors of the covmly direct. [Tax Law, § 90; B. C. & G. Cons. L., p. 6900.] § Si. COUNTT TEEASUBEE TO BE CHAEGED WITH AMOUNT OF STATE TAX; WHEN STATE TAX IS TO BE PAID OTEB; COUNTT TEEASUBEE MAT BOEEOW MONET FOE PAYMENT OF STATE TAX; INTEBEST ON AMOUNT WITHHELD.2* The comptroller shall charge each county treasurer with the amount of the state tax levied on his county, except the tax for schools, crediting him with his fees, if any, but no fees shall be allowed by the comptroller for such portion of the state tax as is credited by him for unpaid non-resident taxes. The county treasurer of each county shall, after retaining his fees thereon, at the rate of one per centum thereof, which shall not, however, in any case exceed tifteen hundred dollars, for all taxes for state purposes including schools pay the state tax to the treasurer of the state as follows: One-third of the state taxr exclusive of the state tax for schools on or before the fifteenth day of February, one-third thereof on or before the fifteenth day of April, and unless 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.25 Whenever the state tax for schools, payable by any county, shall exceed the apportionment to such county of state school moneys as made by the state commissioner of education, in accordance with the provisions of the education law, such excess shall be paid by the treasurer of such county to the treasurer of the state on or before the fifteenth day of March in each year, and such treasurer shall notify the state commissioner of education of such payment. If there are not suffi- cient funds in the county treasury standing to the credit of any town to pay the state tax chargeable thereto, the treasurer shall borrow sufficient money upon the credit of the county and charge the same against such town, with interest thereon un- til the same is paid.26 If any county treasurer shall not pay over the state tax, in- 24. Beferences. This section probably supersedes sub. 5 of sec. 142 of the County Law (see ante), which authorizes the county treasurer to pay over one-half of the state tax on or before April 15th, and the other half on or before May 15th. 25. banner of payment. Any mode which brings the money into the state treasurer's hands is lawful. The county treasurer is not confined to the methods indicated by the statute. Phelps v. People, 72 N. Y. 334. Liability of county for uncollected state taxes. Under the system of taxation in force in this state, the state deals not with individuals, but with counties as representing divisions or areas of taxation. The share or quota of each county is charged against it; and it is for each county to make up any deficiency in the collections, save that the counties outside of New York are credited for uncollected taxes on non-resident lands. Mayor, etc., of New York V. Davenport, 92 N. Y. 604. See, also. Wood v. Supervisors, 50 Hun 1, 2 N. Y. Supp. 369. But a county's proportion of the state tax is payable by the county treasurer. In case of his failure or neglect to pay to the state the tax due, or to render an account thereof to the comptroller, it is not until the remedies against him and against his bondsmen have been exhausted and the loss by reason of that default has been thus ascertained, that the county is required to act or any duty is attached to it. National Bank of Ballston Spa V. Board of Supervisors, 106 N. Y. 488; 13 N. E. 439. 36. Liability of county for money borrowed. A county treasurer can only 610 TAXATION. Tax Law, § 92. eluding the state tax for schools, as herein directed, the comptroller shall charge on all sums withheld such rate of interest as shall be sufficient to repay all expenditures incurred by the state in borrowing money equiva- lent to the amount so withheld, and such additional rate as he shall deem proper, not exceeding ten per centum, from the dates hereinbefore provided for such payments in each year, which shall be regarded as funds in the hands of the county treasurer belonging to the state and for which his sureties and county shall be liable. The fees of the county treasurer for collecting and paying over the school tax shall be allowed and paid by the commissioner of education." [Tax Law, § 91; B. C. & G. Cons. L., p. 5901.] § 35. STATE COMFTBOLLEB TO STATE ACCOUNTS WITH COUNTY TREASUBEB; TO INSTITUTE FBOCEEDINGS AGAINST COUNTY TBEASUBEB FOR FAILURE TO FAY OVER. The comptroller shall state annually on June first, the account of each county treasurer, and if any part of the state tax is unpaid at that date, the comptroller shall transmit by mail to the county treasurer a copy of such accounts and requisition that he must pay tne balance due the state within thirty days, and if the tax is not paid within such time, the comptroller shall, unless he is satisfied by due proof that the treasurer has not received such balance, and has used due diligence in collecting the same, forthwith deliver a copy of the account to the attorney-general, who shall take the necessary proceedings to collect the same of the county treasurer or his sureties or otherwise, with interest as provided by the last preceding section. The comptroller may also, in his discretion, direct the board of supervisors of the county to institute the necessary proceedings on the undertaking of such county treasurer and sureties. The comp- troller shall also transmit to the board of supervisors on or before October tenth, a statement of account between his office and the county treasurer. [Tax Law, § 9-3 ; B. C. & G. Cons. L., p. 5909.] borrow money upon the credit of the county to the extent of the deficiency appearing in the county treasury against the several towns of the county. An amount bor- rowed in excess of this deficiency is upon the responsibility of the county treasurer alone, the county cannot be held liable therefor. Hathaway v. County of Delaware, 103 App. Div. 179, 93 N. Y. Supp. 436, modf. 185 N. Y. 368. Interest chargeable to county for failure to pay. People v. Fitch, 89 Hun, 310, 35 N. Y. Supp. 191, modf. 148 N. Y. 71; People v. Myers, 66 Hun, 167, 21 N. Y. Supp. 79, affd. 138 N. Y. 590. 27. Fees provided by this section may be retained by the county treasurers in addition to their salaries. Rept. of Atty. Genl. (1900) 204. In allowing fees to a county treasurer the comptroller should deduct from the total state tax received, the portion of the state tax credited for all non-resident taxes and also the portion of the state tax which is credited for the amount of taxes levied against tb« state upon forest preserve lands. Bept. of Atty. Genl., 1912, vol. 2, p. 439. COLLECTION OF TAXES. 61 1 Tax Law, §§ 93, 94. % 36. XOSSES BY DEFAULT OF COLtiECTOR OR TREASUREB, HOW BORNE. All losses sustained, and all deficiences in any taxes, or in the payments to be made therefrom, by reason of the default of any collector, shall be chargeable to the town, or city, of which he is collector. If occasioned by the default of the treasurer of any county in the discharge of his official duties, such losses shr.ll be chargeable to such county. Any judgment against such treasurer for any such loss or deficiency on account of the state tax upon which an execution shall have been issued and returned unsatisfied shall be conclusive 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, § 93 ; B. C. & G. Cons. L., p. 5903.] § 37. COLLECTOR TO GIVE RECEIPTS TO EACH PERSON PAYING- A TAX; FORM OF RECEIPTS; TO BE PROVIi:>ED BT BOARD OF SUPERVISORS. Every collector of taxes shall deliver, or upon request forward by mail, a receipt wholly written with ink or partly printed and filled out with ink to each person paying a tax, specifying the date of such pay- ment, 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 assessmen-t-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 copy or stub will remain. The tax commission shall prescribe the form of such receipts, stubs and books and they shall be furnished to the town collector by the board of supervisors, at the expense of the county ; to the city collector by the common council, at the expense of the city ; to the village collector by the village trustees at the expense of the village; to the school collector by the trustee or trustees at the expense of the school district. The expense of mailing receipts shall be a proper charge against the city, town, village or school district. At 28. Liability of county. County is surety, but is not called upon to act until state has exhausted its remedy against the treasurer and his sureties. Wood v. Supervisors of Monroe, 50 Hun, 1, 2 N. Y. Supp. 369. The treasurer's duties have the nature of an agency. Denton v. Merrill, 43 Hun, 224, affd. 118 N. Y. 187; Super- visors V. Otis, 62 Id. 88. It is the losses which are to be charged to the county, not the amount of tax authorized to be levied on the taxable property of the county. Bank v. Supervisors, 106 Id. 488; Bridges v. Supervisors, 92 Id. 571. The share or quota of each county is charged against it, and it must make up any deficiency in the collections. Mayor, etc., of New York v. Davenport, 92 Id. 604. 612 TAXATION. Penal Law, § 1870. the time of giving such a receipt the collector shall make the same entries on the corresponding copy or stub as are required to be made on the receipt. Such book shall be subject to public inspection and shall be filed by th« collector with his return, together with the assessment-roll in the office of the county treasurer, or such officer or board to which such collector makes his return. [Tax Law, § 94, as amended by L. 1911, ch. 579, and L. 1914, ch. 483, and renumbered § 70b, and amended bv L. 1916, cL 323 ; B. C. & G. Cons. L., p. 5903.] § 38. OBSTBTTCTING OFFICER IN COLLECTING TAXES. A person who wilfully obstructs or hinders a public officer from collecting any revenue, taxes or other sum of money in which, or in any part of which the people of this state are directly or indirectly inter- eeted, and which such officer is by law empowered to collect, is guilty of a misdemeanor. [Penal Law, § 1870 ; B. C. & G. Cons. L., p. 4052.] SALES BY COUNTY TREASURER FOR UNPAID TAXES. 613 Explanatory note. CHAPTER XXXIX. SALES BY COUNTY TREASURER FOR UNJ'AID TAXES AND REDEMP. TION OF LANDS SOLD. EXPLANATORY NOTE. Sales by County Treasurer. In counties embracing any portion of the forest preserve, the county treasurer certifies as to the correctness of collectors' returns of unpaid taxes and transmits the same to the state comptroller. The lands upon which such taxes were assessed are then sold by the state comptroller. In all other counties, and also in St. Lawrence, Lewis, Clinton, Warren, Washington and Oneida Counties, lands, upon which unpaid taxes are assessed and returned, are sold by the county treasurer as provided in ihis chapter. Section 1. Assessment-roll to be returned by collector to county treasurer; county treasurer to transmit accounts, etc., if his county em- braces a part of the forest preserve. 2. Sale of lands by county treasurer for unpaid taxes in counties embracing no portion of the forest preserve. 3. List of property to be sold and notice of a sale to be publislied; sale. 3a. New certificate upon setting aside sale. 4. Owner may redeem within one year. 5. Redemption of real property stricken from tax rolls. 6. Conveyance by county treasurer, if real property sold be not redeemed. 7. Effect of conveyance. 8. Purchase money, when to be refunded by boards of supervisors. 9. 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. 10. Provisions relative to comptroller to apply to treasurer. 11. Expense of publishing notice to redeem. f 1. ASSESSMENT-BOLI. TO BE RETURNED BY COI.I.EGTOR TO COUNTY TREASURER; COUNTY TREASURER TO TRANSIOIT ACCOUNTS, ETC., IF HIS COUNTY EMBRACES A FART OF THE FOREST PRESERVE. The collector shall return the original assessment roll to the county 614 TAXATION. Tax Law, §§ 100, 150, 151. treasurer, and when the treasurer finds an account of unpaid taxes on real property or unpaid taxes on corporations, received from a collector to be a true transcript of such original assessment-roll to which the col- lector's warrant is attached with the descriptions furnished by the super- visor as provided in section eighty-nine, he shall add to it a certificate that he has examined and compared the account with such roll and found it to be correct, and after crediting the collector with the amount thereof, he shall, except in Saint Lawrence, Franklin, Lewis, Clinton, War- ren, "Washington and Oneida counties, in case his county embraces a por- tion of the forest preserve, before the first day of May next ensuing, trans- mit such account, affidavit and certificate to the comptroller who may, be- fore acting thereon, return any such account to the county treasurer for correction, who shall make such correction and return to the comptroller in one month thereafter or as the comptroller may otherwise direct.^ [Tax Law, § 100, as amended by L. 1913, chs. 377, 643, L. 1915, ch. 338, and L. 1918, ch. 159; B. C. & G. Cons. L., p. 5903.] § 2. SALE OF I.ANDS BY COUNTY TREASURER FOR UNPAID TAXES IN COUNTIES EMBRACING NO PORTION OF THE FOREST PRESERVE. Whenever any tax charged on real estate, in the counties of Saint Law- rence, Franklin, Lewis, Clinton, Warren, Washington and Oneida, or in a county not including a portion of the forest preserve, is returned 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 real estate as herein provided for the payment of such tax and interest and the expenses of such sale. The expense of pub- lication of the notice of sale and the list of lands to be sold and the ex- pense of conducting the sale, and the expense of publication of the notice of unredeemed lands, if thereafter redeemed, shall be a charge on the land liable to be sold and shall be added to the tax and interest. The county treasurers of the counties of Eockland and Suffolk may defer the sale of any parcel of nonresident real estate in their respective counties for un- paid taxes, until the unpaid taxes thereon with accrued interest shall amount in the aggregate to the sum of two dollars.^* The county treasurer of Suffolk coimty on the order of the board of supervisors of said county may defer for not exceeding two years from the date of the levy of the tax, the sale for unpaid taxes of such properties subject thereto as such board may specify, and the unpaid taxes on such parcels shall meantime be charged with interest at the rate of ten per centum per annum. [Tax 1. Application of the provision requiring a certificate of the county treasurer to the effect that he has compared the account of unpaid taxes with the assessment roll and found it to be correct, relates only to proceedings to sell by the State Comptroller and has no application to a sale by the county treasurer. Smith v Kussell (1916), 172 App. Div. 793, 159 N. Y. Supp. 169. la. Delay in selling land for unpaid taxes. An unexplained delay of thirteen months by county treasurer in selling real estate for unpaid taxes is unreasonable; a delay of one month, cannot, however, be said to be imreasonable. The question as to what constitutes a reasonable time wiU be determined by the circumstances of each case. People ex rel. Carman v. Lewis, 103 App. Div. 408, 92 N. Y. Supp. 642. SALES BY COUNTY TREASURER FOR UNPAID TAXES. 615 Tax Law, § 151. Law, § 150, as amended by L. 1913, ehs. 377, 642, L. 1914, ch. 417, L. 1915, ch. 328, and L. 1918, ch. 159; B. C. & G. Cons. L., p. 5933.] § 3. I.IST OF FKOPEBTY TO BE SOLD AND NOTICE OF A SAIjE TO BE PTJBI.ISHED; SALE. The county treasurer shall immediately after the expiration 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 such notice, and the succeeding days, be sold at public auction at the courthouse in the county where the same is situated, to discharge the taxes, interest and expenses that may be due thereon, at the time of such sale.^ Such list shall contain the name of the owner or occupant of each piece of real estate to be sold, as the same appears upon the assessment- roll of the year in which unpaid taxes were assessed, a brief description of such real estate, and the total amount of such unpaid taxes for the year advertised, which said total amount shall include all taxes, interest, ex- penses and other charges against the property for the year advertised. The comptroller may prescribe the form and manner of preparing such list, which when so prescribed shall be followed so far as possible by the several counties of the state. No such list shall be published until the same shall have been submitted to and approved by the state comptroller. On the days mentioned in such notice the county treasurer shall begin the sale of said real estate and continue the same from day to day. The charges for publishing such notice shall be seventy-five cents per folio for the first insertion, and fifty cents per folio for each subsequent insertion. The counties of Saint Lawrence, Frankling, Lewis, CUnton, Warren, Washing- ton 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, Franklin, Lewis, Clinton, Warren, Washiagton and Oneida shall file with the comptroller a certified statement Purchase of land at tax sale liy connty. Wliere land offered for sale at a tax sale is brought in by the county because of the failure of other parties to bid for it, the same payments are to be made by the county that would have been required of an individual; for instance, the county must pay a proportionate share of the ex- penses of sale, including the expense of publishing the notice of sale, and charge the same pro rata on the real property sold. Armstrong v. County of Nassau. 101 App. Div. 116, 91 N. Y. Supp. 867. Collection of taxes in Suffolk county. Chapter 620 of the Laws of 1873, as amended by ch. 80 of Laws of 1875, which is a special statute governing the col- lection of taxes in Suflolk county, has not been specifically or impliedly repealed or superseded, and is still in force. Welstead v. Jennings, 104 App. Div. 179, 93 N. Y. Supp. 339, affd. 185 N. Y. 588. 2. Publication of notice. It is not required that the notice be in the body of the newspaper and iiot in the supplement, as in the ease of sales by the comptroller (§ 120), and therefore it is not essential that the publication shall be in any par- ticular part of the newspaper. Morton v. Horton, 189 N. Y. 398, revg. 101 App. Div. 322, 91 N. Y. Supp. 950. In proceedings to sell lands of a non-resident for taxes, failure to return the tax to the county treasurer as unpaid constitutes a defect, as does also the inclusion of three lots in a single assessment. Howell v. Rowe (1914), 85 Miso. 560, 147 N. Y. Supp. 482. 616 TAXATION. Tax Law, §§ 151-a, 152. of all tracts or parcels of land situated in the forest preserve whict 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 state- ment is filed, upon the payment of the taxes, interest 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, Franklin, Lewis, Clinton, Warren, Washington 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, § 151, as amended by L. 1913, chs. 377, 642, L. 1915, 328, and L. 1918, ch. 159; B. C. & G. Cons. L., p. 5933.] § 3-a. NEW CERTIFICATE UPON SETTING ASIDE SALE. If a purchaser shall not have paid his bid, or the same shall not have been collected from him at the expiration of one month from the conclu- sion of the sale at which the bid was made, the county treasurer may set aside the sale of land for which the bid is made and all rights of the purchaser under such bid shall thereby be extinguished. A certificate of such sale may thereupon be issued by the county treasurer to any person who will pay the same amount as would have been payable by the original purchaser if the sale had not been set aside. If such certifi- cate shall not have been sold within three months from the date of such sale the county treasurer shall transfer the same to the county, in which case the whole quantity of land liable to sale for the purchase money mentioned in the certificate shall be covered by such purchase, the same as if no person had offered to bid therefor at the sale. The change of purchaser made pursuant to this section and the time when made shall be noted in the sales book, and the certificate issued shall confer upon the county the same rights as it would have acquired had the land been bid in for it at the sale. [Tax Law, § 151-a, as added by L. 1913, ch. 369.] § 4. OWNER MAY REDEEM WITHIN ONE TEAR. The owner, occupant or any other peron having an interest in any real estate sold for taxes as aforesaid may redeem the same at any time within one year after the last day of such sale, by paying to the county treasurer of the county, for the use of the purchaser, the sum mentioned in his certificate, 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 provided such purchaser shall have notified the county treasurer thereof immediately upon the payment of such tax together with the share of the expense of the publication of notices to redeem the real estate sold in such county for unpaid taxes, as apportioned by the county treasurer to the real estate so redeemed, which expense shall be in the first instance a county charge and shall be at the same rate as that provided for the publication of notices ot tax SALES BY COUNTY TREASURER FOR UNPAID TAXES. 617 Tax Law, §§ 153, 154. sales. In. ease any parcel of real estate mentioned in suoh notice to redeem shall not be redeem'jd within the one year allowed by law for such redemption then and in that event the share of the expense of the publication of notions to redeem such unredeemed real estate sold in any suoh county for unpaid taxes, as apportioned by the county treasurer, together with interest thereon for one year at the rate of ten per centum, per annum, shall be laid before the board of superviaors of suoh county for re-assessment as are other taxes and shall be by such board of supervisors re- assessed upon the assessment-roll of the current year against such real estate and shall be a lien thereon. [Tax Law, § 152, as amoadod by L. 1916, ch. 332; B. 0. &. G. Cons. L., p.i 5935.] § 5. REDEMPTION OF BEAIi FBOFEBTY STRICKEN FROM TAX ROLLS. The real property struck down to a county at said tax sale and omitted from tlie tax rolls as provided in section fifty of this chapter shall not be subject to further sale after having been once so sold for taxes. The real property so omitted from the tax rolls may be redeemed by the owner, occupant or any person having an interest in the same, provided the county has not acquired a title in fee to such property, upon the payment to the county treasurer for the use and benefit of the county of a sum equal to the gross amount of the taxes, expenses of such sale, penalty and interest thereon, together with the tax and in redeem shall be a county charge. The money received by a county treas urer for the expense of publishing the redemption notices shall be applied by him to pay the publishers thereof. [Tax Law, § 159 ; B. C. & G. Cons. L., p. 5938.] MORTGAGES OF REAL PROPERTY. Q21 Tax Law, § 250. CHAPTER XL. MORTGAGES OP REAL PROPERTY WITHIN THIS STATE. Section 1. Definitions. 2. Exemptions from local taxation. 3. Exemptions. 4. RecoTding tax 5. Optional tax on prior mortgages. 6. Supplemental mortgages. 7. Mortgages for indefinite or for contract obligations. 8. Payment of taxes. 9. Effect of non-payment of tax. 10. Trust mortgages. 11. Apportionment by state board of tax commissioners. 12. Payment over and distribution of tax. 13. Expenses of officers. 14. Supervisory power of state board of tax commissioners and statfr comptroller. 15. Tax on prior advance mortgages. § 1. DEFINITIONS. The term " real property " as used in this article, in addition to the definition thereof contained in section two of this chapter, includes everyliing a conveyance or mortgage of which can be recorded as a conveyance or mortgage of real property under the laws of the state. The term " mortgage " as used in this article includes every mortgage or deed of trust which imposes a lien on or affects the title to real prop- erty, notwithstanding that such property may forni a part of the security for the debt or debts secured thereby. Executory contracts for the sale of real property under which the vendee has or is entitled to possession shall be deemed to be mortgages for the purposes of this article and shall be taxable at the amount unpaid on such contracts. A contract or agreement by which the indebtedness secured by any mortgage is in- creased or added to, shall be deemed a mortgage of real property for the purpose of this article, and shall be taxable as such upon the amount 622 TAXATION. Tax Law, § 251. of such increase or addition.^ [Tax Law, § 250, as amended by L. 1916, ch. 323 ; B. C. & G, Cons. L., p. 6017.] § 2. EXEMPTION FROM rOCAL TAXATION. All mortgages of real property situated within the state which are taxed by this article and the debts and the obligations which they secure, together with the paper writings evidencing the same, shall be exempt from other taxation by the state, counties, cities, towns, vil- lages, school districts and other local subdivisions of the state, except that such mortgage shall not be exempt from the taxes imposed by sec- tions twenty-four to twenty-four-g, both inclusive, one hundred and eighty- seven, one hundred and eighty-eight, one hundred and eighty-nine and 1. Mortgages executed before act of 1906. The repeal of the provisions of the act of 1905, ch. 729, which provided for an annual tax on mortgages by the provision of the act of 1906, oh. 532, providing for a recording tax on mortgages, leaves mortgages executed before the passage of the latter act open to taxation under §§ 2 and 3; the law of 1905 created no contract between the state and individuals, and taxation of such prior mortgages is not imoonstitutional as im- pairing contracts. People ex rel. Cassavoy v. Dimond, 121 App. Div. 559, 106 N. Y. Supp. 277. A lease for five years is real property within the meaning of this .section, and does not lose its character after the expiration of two years of the term, People ex rel. Elias Brewing Co. v. Gass, 53 Misc. 363, 104 N. Y. Supp. 884, a.Sd. 120 App. Div. 147, 104 N. Y. Supp. 185, affd. 190 N. Y. 565. A lease for three years is real property within the definition herein included. Atty. Genl. Opin. (1915) 4 State Dept. Rep. 524. Effect of la'w on contracts of sale. A vendee under a contract. to purchase lands cannot reject the title because a mortgage, though having one year to run, contained a provision that should the law for the taxation of mortgages be changed so as to increase the tax thereon, and the owner fail to pay, the mortgagee might declare the mortgage due on thirty days' notice. Frank v. Frank, 123 App. Div. 802, 108 N. Y. Supp. 549. A contract of sale under which, before the execution of the deed, the vendee may come into possession, should be taxed as a mortgage on presentation for record, unless affidavit is made that the vendor is in possession. Rept. of Atty. Genl., March 22, 1912. A trust deed may be a mortgage subject to a recording tax. Rept. of Atty. Genl., April 15, 1909. And an instrument granting and releasing real property in trust, which secures to the trustees a lien upon said real property for advances made by them, is taxable. Opinion of Atty. Genl., Jan. 8, 1913. A conveyance of lands to trustees for the benefit of creditors of the grantor's deceased husband, made pursuant to an agreement whereby the trustees, endowed with a power of sale, were to pay the creditors of the deceased husband from the proceeds of the sale after deducting expenses, interest on mortgages, etc., the balance to be returned to the grantor, does not create a mortgage, there being no agreement MORTGAGES OF EEAIi PROPERTY. 623: Tax Law, §§ 352, 253. article ten of this chapter.^ [Tax Law, § 251, as amended by L. 1916, ch. 323, and L. 1917, eh. 485; B. C. & G. Cons. L., p: 6018.] § 3. EXEMPTIONS. No mortgage of real property situated within this state shall be ex- empt, and no person or corporation owning any debt or obligation secured by mortgage of real property situated within this state shall be exempt from the taxes imposed by this article by reason of anything contained in any statute, or by reason of any provision in any private act or charter which is subject to amendment or repeal by the legisla- ture, or by reason of non-residence within this state or for any other cause." [Tax Law, § 252 ; B. C. & G. Cons. L., p. 6018.] § 4. RECORDING TAX. A tax of fifty cents for each one hundred dollars and each remaining major fraction thereof of principal debt or obligation which is, or under for a reconveyan<5e to the grantor, or for a defeasance. Henoe, such agreement is- entitled to record without payment of the mortgage recording tax. Dryer v. Hopper (1914), 162 App. Div. 590, 147 N. Y. Supp. 1028. Payment of tax. It was the intent of the legislature to permit the parties to agree as to who should pay the tax. Seaman's Bank v. Fell, 162 App. Div. 223, 147 N. Y. ,Supp. 465. 2. EzeBiption may be claimed at any time before the assessors complete their assessment. Matter of Pullman, 52 Misc. 1, 102 N. Y. Supp. 356. The re-ezamination of an assessment, made by a town board of assessor? may be had on certiorari only where the prior examination before the board involved a dispute and a doubt, and not where suoh examination was entirely conclusive permitting the assessors but one course of action. People ex rel. Glen Telephone Co. V. Hall, 57 Misc. 308, 109 N. Y. Supp. 402. 3. Effect on special exemptions. Where a charitable education institution is exempted by its charter from paying the recording tax provided for by this section, suoh exemption, so far as mortgages belonging to it are concerned, must be deemed to have been repealed by this section. People ex rel. Cooper Union v. Gass, 190 N. Y. 323, revg. 119 App. Div. 280, 104 N. Y. Supp. 643. The exemption clause goes only to the extent to which the mortgage in question is taxable and has been taxed. Hence, the owner of a bond of a foreign corporation, secured by real estate, the greater part of which is situated in this state, is entitled to an exemption only to the extent to which suoh property has been taxed by record- ing the mortgage in other counties of the state, where a portion of the real property is situated. People ex rel. Braeburn Assn. v. Hanking, 154 App. Div. 679. Mortgages refunding prior mortgages and wiping tliem out of exist- ence, are not entitled to any exemption from the recording tax imposed by this section, as they are not additional or supplemental mortgages within the meaning of section 255. Atty. Genl. Opin., 6 State Dep. Rep. 445 (1915). (J 2 4 TAXATION. Tax Law, § 254. any contingency may be secured at the date of the execution thereof or at any time thereafter by a mortgage on real property situated within the state recorded on or after the first day of July, nineteen hundred and six, is hereby imposed on each such mortgage, and shall be collected and paid as provided in this article. If the principal debt or obligation which is or by any contingency may be secured by such mortgage re- corded on or after the first day of July, nineteen hundred and seven, is less than one hundred dollars, a tax of fifty cents is hereby imposed on such mortgage, and shall be collected and paid as provided in this article. [Tax Law, § 253, as amended by L. 1916, ch. 323; B. C. & G. Cons. L., p. 6018.] § 5. OFTIONAI. TAX ON PKIOR MORTGAGES. Whenever any mortgage other than a mortgage specified in section two hundred and sixty-four has been recorded prior to July first, nine- teen hundred and six, the record owner thereof may file with the record- ing oflScer of the county in which the real property, or any part thereof, on which said mortgage is a lien, is situated, a written statement under oath verified by the record owner or the agent or ofiicer of such record owner describing such mortgage by giving the date of the same and the liber and page of the record thereof together with the names of the parties thereto, specifying the amount then remaining unpaid on the debt or obligation secured thereby, and electing that it shall become subject to the tax prescribed by section two hundred and fifty- three of this chapter. Whenever any unrecorded mortgage has been executed and delivered prior to July first, nineteen hundred and six, the owner thereof may record the same upon filing with the recording officer a similar statement and paying the tax as herein prescribed. A tax shall thereupon be computed, levied and collected upon the amount of the principal debt or obligation unpaid at the time of the filing of such statement, or of the recording of such mortgage and filing of such state- ment. On the payment of such tax as herein provided, the recording officer shall note on the margin of the record of such mortgage the fact of such statement and of the amount of the tax paid, attested by his signature, whereupon such mortgage and the debt or obligation secured thereby shall be entitled to the exemptions and immunities conferred by this article, and all of the provisions of this article shall thereafter be applicable to said mortgage. Whenever the original mortgage is pre- MORTGAGES OF REAL PROPERTY. Q25 Tax Law, § 255. sented to the clerk together with the statement he shall also note on said original mortgage the fact of the filing of the said statement and also the amount of the tax paid duly attested by his signature, which endorsement shall be conclusive evidence of the payment of such tax. [Tax Law, § 254; B. C. & G. Cons. L,, p. 6019.] § 6. STTFPLEMENTAL MORTGAGES. If subsequent to the recording of a mortgage on which all taxes, if any, accrued under this article have been paid, a supplemental instru- ment or mortgage is recorded for the purpose of correcting or perfecting any recorded mortgage, or pursuant to some provision or covenant therein, or an additional mortgage is recorded imposing the lien thereof upon property not originally covered by or not described in such re- corded primary mortgage for the purpose of securing the principal indebtedness which is or under any contingency may be secured by such recorded primary mortgage, such additional instrument or mortgage shall not be subject to taxation under this article, unless it creates or secures a new or further indebtedness or obligation other than the princi- pal indebtedness or obligation secured by or which under any con- tingency may be secured by the recorded primary mortgage, in which ease, a tax is imposed as provided by section two hundred and fifty-three of this chapter on such new or further indebtedness or obligation, and shall be paid to the proper recording officer at the time such instrument or additional mortgage is recorded. If at the time of recording such instrument, or additional mortgage any exemption is claimed under this section, there shall be filed with the recording officer and preserved in his office a statement under oath of the facts on which such claim for exemption is based. The determination of the recording officer upon the question of exemption shall be reviewable by the tax commission.^'' [Tax Law, § 255, as amended by L. 1916, ch. 323; B. C. & G. Cons. L., p. 6019.J 3a. Recording of lease after contract tlieref or. — Where a contract for a lease is assigned to secure an indebtedness and on its recording is taxed as a mort- gage, no further tax accrues or is due upon the lease itself when it is delivered and recorded. Report of Atty. Genl., March 22, 1912. Claim of exemption. — In order that a supplemental mortgage be exempt from the payment of a mortgage tax upon recording a statement under oath of the facts on which a claim for exemption is based must be filed with the recording officer at the time of recording such mortgage in accordance with the provisions of this section. Opinion of Atty. Genl., June 17, 1914. 626 TAXATION. Tax Law, § 256. § 7. MORTGAGES FOR INDEFINITE AMOUNTS OR FOR CONTRACT OBLIGATIONS. If the principal indebtedness secured or which by any contingency may be secured by a mortgage is not determinable from the terms of the mortgage, or if a mortgage is given to secure the performance by the mortgagor or any other person of a contract obligation other than the payment of a specific sum of money and the maximum amount secured or which by any contingency may be secured by the mortgage is not ex- pressed therein, such mortgage shall be taxable under section two hun- dred and fifty-three of this chapter upon the value of the property covered by the mortgage, which shall be determined by the recording ofiicer to whom such mortgage is presented for record, unless at the time of presenting such mortgage for record the owner thereof shall file with the recording officer a sworn statement of the maximum amount secured or which under any contingency may be secured by the mortgage. If such maximum amount is expressed in the mortgage or in a sworn statement filed as required by this section, such amount shall be the basis for assessing the tax imposed by this article. A statement filed by the owner of a mortgage pursuant to this section shall thereafter at all times be binding upon and conclusive against such owner, the holders of any bonds or obligations secured by such mortgage and all persons claiming through the mortgagee any interest in the mortgage or the mort- gaged premises. If the maximum amount secured or which by any con- tingency may be secured by the mortgage is not expressed in the mort- gage or in a sworn statement as authorized by this section, the recording officer at the time such mortgage is offered for record may require the mortgagor or mortgagee to furnish him with proofs as to such facts as he deems necessary for the purpose of computing the value of the prop- erty covered by the mortgage and such proofs shall include an affidavit of appraisal of the value of the property made by at least two com- petent, disinterested persons and shall be preserved in his office. His determination and copies of the proofs as to the basis for computing the tax on such mortgage shall be forwarded to and subject to review by the state tax commission. Such mortgage shall not be recorded until the statement is filed or the proofs are furnished as required by this article. [Tax Law, § 256, as amended by L. 1913, ch. 665, and L. 1916, ch. 323 ; B. C. & G. Cons. L., p. 6020.] MORTGAGES OF REAL PROPERTY. 627 Tax Law, §§ 257, 258. § 8. PAYMENT OF TAXES. The taxes imposed by this article shall be payable on the recording of each mortgage of real property subject to taxes thereunder. Such taxes shall be paid to the recording officer of any county in which the real property or any part thereof is situated. It shall be the duty of such recording officer to indorse upon each mortgage a receipt for the amount of the tax so paid. Any mortgage so indorsed may thereupon or thereafter be recorded by any recording officer and the receipt for such tax indorsed upon each mortgage shall be recorded therewith. The record of such receipt shall be conclusive proof that the amount of tax stated therein has been paid upon such mortgage.* [Tax Law, § 267 ; B. C. & G. Cons. L., p. 6021. J § 9. EFFECT OF NON-PAYMENT OF TAXES. ISTo mortgage of real property shall be recorded by any county clerk or register, unless there shall be paid the tax imposed by and as in this article provided. No mortgage of real property which is subject to the taxes imposed by this article shall be released, discharged of record or received in evidence in any action or proceeding, nor shall any assign- ment of or agreement extending any such mortgage be recorded unless the taxes imposed thereon by this article shall have been paid as pro- vided in this article. No judgment or final order in any action or pro- ceeding shall be made for the foreclosure or the enforcement of any mortgage which is subject to the tax imposed by this article or of any (debt or obligation secured by any such mortgage, unless the taxes im- posed by this article shall have been paid as provided in this article ; and whenever it shall appear that any mortgage has been recorded or that i.nj advance has been made on a prior advance mortgage or on a corporate trust mortgage without payment of the tax imposed by this article there shall be paid in addition to the amount of the tax a sum equal to one per centum thereof for each month the tax remains un- paid, which sum shall be added to the tax and paid or collected there- with. [Tax Law, § 258, as amended by L. 1913, ch. 665, and L. 1916, ch. 323 ; B. C. & G. Cons. L., p. 6021.] 4. A lease of real property is a chattel real and creates an interest in real property, and a mortgage thereon com.es within the recording act and may not be recorded without payment of the recording tax. People ex rel. Elias Brewing Co. v. Gass, 120 App. Div. 147, 104 N. Y. Supp. 885, affd. 190 N. Y. 565. 628 TAXATIOX. Tax Law, § 259. § 10. TRUST MORTGAGES. In the case of mortgages made by corporations in trust to secure payment of bonds or obligations issued or to be issued thereafter, if the total amount of principal indebtedness which under any contingency may be advanced or accrue or which may become secured by any such mortgage which is subject to this article has not been advanced or accrued thereon or become secured thereby before such mortgage is re- corded, it may contain at the end thereof a statement of the amount which at the time of the execution and delivery thereof has been ad- vanced or accrued thereon, or which is then secured by such mortgage; thereupon the tax payable on the recording of the mortgage shall be computed on the basis of the amount so stated to have been so advanced or accrued thereon or which is stated to be secured thereby. Such state- ment shall thereafter at all times be binding upon and conclusive against the mortgagee, the holders of any bonds or obligations secured by such mortgage and all persons claiming through the mortgagee any interest in the mortgage or in the mortgaged premises. Whenever a further amount is to be advanced under the original mortgage, or shall accrue thereon or become secured thereby, the corporation making such mort- gage shall pay the tax on such amount at or before the time when such amount is to be advanced, accrues or becomes secured and shall, at the time of paying such tax, file in the office of the recording officer where such mortgage has been or is first recorded and with the tax commission a statement, verified by the secretary, treasurer or other proper officer, of said corporation of the amount of principal indebtedness to be so advanced, accruing or becoming secured, and the certification of any bond or bonds by the trust mortgagee shall be deemed an advance under this article. Such additional tax shall be paid to the recording officer where such mortgage has been or is first recorded and a receipt therefor shall be indorsed upon the mortgage and payment therefor shall be noted in the margin of the record of such mortgage and if requested a duplicate receipt for such payment shall also be given to the party pay- ing such tax and the note of such payment or additional payment or such receipt shall have the same force and effect as the record of receipt of the tax which under this article is payable at or before the recording of the mortgage. If such additional tax is not paid as required by this section, the trust mortgagee shall not certify any bond or other obliga- tion issued on account thereof. The corporation making such mortgage MORTGAGES OP REAL PROPERTY. 62 & Tax Law, § 260. or the owner of the property which secures the mortgage debt shall annually within thirty days after July first, and until it shall appear by such statement that the maximum amount of principal indebtedness secured by such mortgage has been advanced, has accrued or become secured and the tax thereon paid, file in the office of the tax commission and the recording officer where such mortgage has been. or is first re- corded a statement, verified by the secretary, treasurer or other proper officer of said corporation showing : 1. The name of the mortgagor and the mortgagee ; 2. The date of the mortgage and the county where first recorded ; 3'. The maximum amount of principal debt or obligation which under any contingency may be secured by such mortgage ; 4. The amount advanced on such mortgage during the year ending June thirtieth preceding, with the date and amount of each advance- ment; 5. In the case of a mortgage recorded prior to July first, nineteen hun- dred and six, the first annual statement filed under this section as hereby amended, shall state the total amount advanced prior to July first, nine- teen hundred and six, and the date and the amount of each subsequent ad- vancement to the end of the period covered by the statement. A failure to file any statement required by this section within the speci- fied time shall subject the corporation or other person required to file such statement to a penalty of not less than one dollar nor more than one hun- dred dollars for each one thousand dollars of the maximum amount of principal indebtedness which is or under any contingency may become secured by the mortgage, which penalty in the aggregate shall not exceed the sum of five thousand dollars, recoverable by the attorney-general in an action brought in the name of the people of the state of New York. [Tax Law, § 259, as amended by L. 1909, ch. 412, L. 1913, ch. 665, L. 1916, ch. 323, and L. 1917, ch. 573; B. C. & G. Cons. L., p. 6021.] § 11. DETEBMINATION AND APPORTIONMENT BT STATE TAX COMMISSION. When the real property covered by a mortgage is situated in more than one tax district, the state tax commission shall deduct from the relative assessments of such real property in the respective tax districts covered by such mortgage any prior existing mortgage liens and shall then appor- tion the tax paid on such mortgage between the respective tax districts upon the basis of the relative assessments of such real property as the same appear on the last assessment-rolls less the deduc- tion, if any. If, however, the whole or any part of the property 630 TAXATION. Tax La\,-, § 260. •covered by such a mortgage is not assessed upon the last assessment-roll or rolls of the tax district or districts in which it is situated, or is so assessed, as a part of a larger tract, that the assessed value cannot be determined, or if improvements have been made to such an extent as materially to change the value of the property so assessed, the tax com- mission may require the local assessors in the respective tax districts, or the mortgagor, or mortgagee, to furnish sworn appraisals of the prop- erty in each tax district, and upon such appraisals shall determine the apportionment. If such mortgage covers real property in two or more counties, the tax commission shall determine the proportion of the tax which shall be paid by the recording officer who has received the same to the recording officers of the other counties in which are situated the tax districts entitled to share therein. When any recording officer shall pay any portion of a tax to the recording officer of another county, he shall forward with such tax a description sufficient to identify the mort- gage on which the tax has been paid, and the recording officer receiving such tax shall note on the margin of the record of such mortgage the fact of such payment, attested by his signature. The tax commission shall make an order of determination and apportionment in respect to each such mortgage and file a certified copy thereof with the recording officer of each county in which a part of the mortgaged real property is ■situated. When the real property covered by a mortgage is partly within the state and partly without the state it shall be the duty of the tax com- mission to determine what portion of the mortgage or of advancements thereon shall be taxable under this article." Such determination shall 5. Mortgage covering real property In this state and real and personal property in foreign state; method of assessing tax. — Where a trust mortgage, covering lands in this state together with lands in a foreign state and also personal property of large value in the foreign state, is offered for record in this state a» required by the statute, the amount of the mortgage tax to be paid in this state should not be determined upon the ratio between the value of the real property in this state and the real property in the foreign state, excluding the value of the for- eign personal property covered by the mortgage. On the contrary, it should be de- termined by the ratio between the value of the real property in this state and the value of the real and personal property, taken together, situated in the foreign state. The fact that the statute states that in assessing such tax the commissioner shall consider only the value of "tangible" property covered by the mortgage does not mean that the value of personal property covered is to be excluded. People ex rel. C. & B. Transit Co. v. Byrnes (1914), 162 App. Div. 223, 147 N. Y. Supp. 465. MORTGAGES OF REAL PROPERTY. 631 Tax Law, § 260. Toe made in the following manner : First : Determine the respective values of the property within and without the state, and deduct therefrom the amount of any prior existing mortgage liens, excepting such liens as are to be re- placed by prior advancements and the advancement under consideration. Second : Find the ratio that the net value of the mortgaged property within the state bears to the net value of the entire mortgaged property. Third : Make the determination of the portion of the mortgage or of the advance- ment thereon which shall be taxable under this article by applying the ratio so found. If a mortgage covering property partly within and partly without the state is presented for record before such determination has been made, or at the time when an advance is made on a corporate trust mortgage or on a prior advance mortgage, there may be presented to the recording ofBcer a statement in. duplicate verified by the mortgagor or an officer or duly author- ized agent of the mortgagor, in which shall be specified the net value of the property within the state and the net value of the property without the state covered by such mortgage. One of such statements shall be filed by the recording officer and the other shall be forthwith transmitted by him to the state tax commission. The tax payable under this article before the determination by the tax commission shall be computed upon such portion of the principal indebtedness secured by the mortgage, or of the sum ad- vanced thereon, as the net value of the mortgaged property within the state bears to the net value of the entire mortgaged property as set forth in such statement. The tax commission shall on receipt of the statement from the recording officer and on not less than ten days' notice served per- sonally or by mail upon the mortgagor, the mortgagee and the state comp- troller, proceed to make the required determination. In determining the separate values of the property within and without the state the tax com- mission shall consider only the tangible property, real and personal, except that leases of real property shall be deemed tangible property. For the purpose of determining such value the tax commission may require the mortgagor or mortgagee to furnish by affidavit or verified report such 632 TAXATION. Tax Law, § 260. information or data as it may deem necessary, and may require and take the testimony of the mortgagor, mortgagee or any other person. A certi- fied copy of the order of determination and apportionment shall be delivered personally or hy mail to the mortgagor, the mortgagee and the state comp- troller, and any tax under such determination which has not been paid shall be paid within ten days after service of such certified copy; if, however, the tax paid at the time of filing the statement hereinbefore specified with the recording officer is in excess of the tax determined to be payable, the certifi- cate of determination and apportionment shall direct the recording officer to refund to the person paying such tax the amount of such excess ; provided that no refund shall be made of any taxes paid pursuant to a previous determination. The tax commission shall adopt rules to govern the procedure and the manner of taking evidence in all the matters provided for by this section and may require verified statements to be furnished either by boards of assessors, recording officers or other persons having knowledge in relation to such matters. Failure on the part of any person or officer to furnish a statement or other data when required so to do pursuant to the provisions of this section shall render such person or officer liable to a penalty of one hundred dollars, to be recovered by the attorney-general in an action brought in the name of the people of the state of New York. In making determination and apportionment under this section the tax commission shall consider each advancement made upon a mortgage after July first, nineteen hundred and six, as a new mortgage. In all cases under this section in which it shall appear that the prior incumbrances exceed the assessed or appraised value of the property in one or more tax dis- tricts the commission may, by a process of equalization or otherwise, estab- lish a basis of apportionment that will be equitable and fair. [Tax Law, MORTGAGES OF REAL PROPERTY. 633 Tax Law, § 263. §260, as added by L. 1916, ch. 335, amended by L. 1917, ch. 72, and L. 1918, ch. 204; B. C. & G. Cons. L., p. 6023.] § 12. PAYMENT OVER AND DISTRIBUTION OF TAXES. Upon the first day of each month the recording officer of each county shall pay over to the county treasurer all moneys received during the pre- ceding month upon account of taxes paid to him as herein prescribed, after deducting the necessary expenses of his office as provided in section two hundred and sixty-two, except taxes paid upon mortgages which under the provisions of section two hundred and sixty are to be apportioned by the tax commission between several counties, which taxes and money shall be paid over by him as provided by the determination of said tax commission within five days after the filing of said determination in his ofBce. The county treasurer of each county shall on the first day of January, April, July and October in each year, after having deducted the necessary expenses of his office provided in two hundred and sixty-two, transmit one-half of this net amount collected under the provisions of this article to the state treasurer and shall receive from the state treasurer a receipt therefor countersigned by the comptroller. The remaining portions thereof in the counties of ISTew York, Kings, Queens, Eichmond and Bronx shall be paid into the general fund of the city of New York and be applied to the reduction of taxation, and in the other counties of the state the remaining portion shall be held by the respective county treasurers subject to the order of the board of supervisors as hereinafter provided. Prior to the first day of November in each year the recording officer shall cause to be prepared a statement containing a description of all mortgages upon which taxes have been paid by a reference to the date of each mortgage, the name of the mortgagor ajid mortgagee, the amount of the principal g34 TAXATION. Tax Law, § 262. debt upon which the tax was paid together with the book and page where said mortgage is recorded, together with the tax district in which the mortgaged property is situated, and if situated in two or more tax dis- tricts the amount apportioned to each tax district by the tax commission, and the amount deducted for his necessary expenses as approved by the tax commission and shall file the statement with the clerk of the board of supervisors, and a copy thereof with the tax commission. The boards of supervisors of the several counties shall, on or before the fifteenth day of December in each year, ascertain from the statement filed with their clerk by the recording officer the location of the mortgaged prop- erty with respect to the several tax districts and the amount of tax properly to be credited to each tax district, which shall be applicable to the payment of state, county and city, or town expenses; except that where a town contains within its limits an incorporated village, or por- tion thereof, the supervisor shall apportion to the village or villages so much of the share credited to the said town as the assessed value of said village or portion thereof bears to twice the total assessed valuation of the town, and the remaining balance shall be applicable to the payment of state, county and town taxes. The board of supervisors of each county, on or before the fifteenth day of December each year, shall de- termine the respective sums applicable hereunder to each of the fore- going purposes and shall issue their warrant for the payment to the city treasurer or town supervisor, of the amount payable to the said city or town, and their warrant for the payment to the village treasurer of the sum of money to which the village shall be entitled, which sum shall be credited to the' general fund of the village. [Tax Law, § 261, as amended by L. 1914, oh. 399, and L. 1916, ch. 323 ; B. C. & G. Cons. L., p. 6025.J § 13. EXPENSES OF OFFICERS. Recording officers and county treasurers shall severally be entitled to receive all their necessary expenses for the purposes of this article, including printing, hire of clerks and assistants, being first approved and allowed by the tax commission, which shall be retained by them out of the moneys coming into their hands.' [Tax Law, § 262, as amended by L. 1916, ch. 323 ; B. C. & G. Cons. L., p. 6027.] 6. The expenses incident to the duty imposed upon, recording officers which are allowed In connection with the collection of the tax upon a mortgage presented for MORTGAGES OF REAL PROPERTY. 634a Tax Law, § 263. § 14. SUPERVISORY POWER OF TAX COMMISSION AND COMP- TROLLER. The tax commission shall have general supervisory power over all recording officers in respect of the duties imposed by this article and they may make such rules and regulations for the government of record- ing officers in respect to the matters provided for in this article as they may deem proper, provided that such rules and regulations shall not be inconsistent with this or any other statute. Whenever a duly verified application for a refund of mortgage taxes, erroneously collected by a recording officer, is made to the tax commission it shall be the duty of such commission to determine the amount that has been erroneously collected and make an order directing such recording officer to refund the amount so determined from mortgage tax moneys in his hands, or which shall come to his hands, to the party entitled to receive it and charge such amount back to the tax district that may have been credited with the same. If any recording officer shall have collected and paid over to the treasurer of any county, a tax paid upon a mortgage which under the provisions of section two hundred and sixty of this chapter is to be apportioned by the tax commission between several counties before such apportionment has been made, or if any recording officer shall have paid over to such treasurer more money than required on account of mort- gage taxes such recording officer shall make a report to the tax commis- sion in the form of a verified statement of facts and said commission shall determine the method of adjustment and issue its order accord- ingly. The comptroller shall have general supervisory power over all county treasurers in respect to the duties imposed upon them by this article, and may make such rules and regulations, not inconsistent with this or any other statute, for the government of said county treasurer record, are limited in their scope by this section to the " necessary expenses for the purposes " of the article of whioh it forms a part. The word " necessary " may express something indispensable, or it may be construed as reasonable, useful and proper, dependable upon the character of its application. When used with reference to the public, it should be construed strictly for the benefit of the public. People ex rel. Frost v. Woodbury (1914), 213 N. Y. 51. Employment of counsel. — In the absence of specific authority, the funds re- ceived by the recording officer cannot be ordered by the court to be paid for any purpose, except by express authority of the legislature. Construction should not be given to this statute which would admit of the employment of counsel by a recording officer, and thus empower him to create a liability for payment therefor against the state and county, and the funds owned by them respectively. People ex rel. Frost V. Woodbury (1914), 213 N. Y. 51. 634b TAXATION. Tax Law, § 264. as he deems proper to secure a due accounting for all taxes and moneys collected or received pursuant to any provision of this article. All recording ofBcers and county treasurers shall furnish such bond, con- ditioned for the faithful and diligent discharge of the duties required of them respectively by this article, to the people of the state, within such time, with such sureties and in such penal amount, not exceeding twenty-five thousand dollars, as the comptroller may prescribe. The provisions of this section shall cover all transactions subsequent to July first, nineteen hundred and five. [Tax Law, § 263, as amended by L. 1914, eh. 398, L. 1915, ch. 447, and L. 1916, ch. 336; B. C. & G. Cons. L., p. 6027.] § 15. TAX ON FBIOB ADVANCE MORTGAGES. Whenever any part of the amount of the principal indebtedness which is or under any contingency may be secured by a mortgage recorded prior to July first, nineteen hundred and six, is advanced after July first, nineteen hundred and six, the tax prescribed by section two hun- dred and fifty-three of this article is hereby imposed on the amount of principal indebtedness so advanced, which tax shall be payable at the same time and in the same manner as taxes imposed by section two hun- dred and fifty-nine of this article, and all the provisions of section two hundred and fifty-nine in relation to the time and manner of paying such tax, the filing of statements in relation to the time and amount of such advances, and penalties for failure to file the same shall apply to advances made under this section and the payment of a tax thereon, except that if the mortgagor is not a corporation, such statement shall be filed by the owner of the mortgage, who, for failure to do so, shall be subject to the penalties prescribed by such section. In case said mortgage was given to secure the payment of a series of bonds, the mort- gagor may, at the time of paying such tax, present to the recording officer, the bonds representing the portion of the principal indebtedness secured by said mortgage upon which the tax is to be paid, and also filed with said recording officer a statement verified by the mortgagor or an officer or duly authorized agent or attorney of the mortgagor specify- ing that said bonds, so presented, are the bonds representing that portion of the principal indebtedness secured by said mortgage upon which the tax is to be paid and that said bonds are secured by a mortgage recorded in said office stating the date of said mortgage and the liber and page of the record of the same. It shall be the duty of such recording officer to indorse upon each of said bonds, so presented to him, a statement signed MOETGAGES OF REAL PROPERTY. 634(j Tax Law, § 264. by him to the effect that the tax imposed by this article on that portion of the principal indebtedness secured by said mortgage represented by said bonds has been paid, and said statement shall be conclusive proof of such payment. Notwithstanding the exception contained in section two hundred and fifty-four, the record owner of any mortgage recorded prior to July first, nineteen hundred and six, other than a corporate irust mortgage, may file in the office of the recording officer where such mortgage is first recorded a statement in form and substance as required by section two hundred and fifty-four of this article, except that it shall specify and state the amount of all advancements made thereon prior to said date, giving the date and amount of each advancement and the amount of such prior advancements remaining unpaid, and thereby elect that the same be taxed under this article ; and any mortgagor or mort- gagee under a corporate trust mortgage given to secure a series of bonds or the owner of any such bond or bonds secured thereby may file in the office of the recording officer where such mortgage is first recorded a statement in form and substance as required by section two hundred and fifty-four of this article, except that it shall specify the serial number, the date and amount of each bond and otherwise sufficiently describe the same to identify it as being secured by such mortgage, and thereby elect that such bond or bonds be taxed under this article, and such bond or bonds shall be taxed upon the whole amount thereof notwithstanding the provisions of section two hundred and sixty of this article. A tax shall thereupon, in the case of mortgages other than corporate trust mortgages, be computed, levied and collected upon the amount of the principal debt or obligation represented by said unpaid prior advance- ments at the time of filing such statement, or, in the case of a corporate trust mortgage, upon the amount of the bond or bonds specified in the statement filed, at the rate prescribed by section two hundred and fifty- three of this article. Said bonds representing prior advancements under corporate trust mortgages and taxed as herein provided may be presented to the recording officer, whose duty it is to collect said tax, for indorsement and he shall thereupon indorse upon each of said bonds a statement, attested by his signature, of the payment of the tax as pro- vided in this section in respect to bonds representing subsequent ad- vancements, and the record owner of any other mortgage taxed upon prior advancements as herein provided may present said mortgage to the recording officer and thereupon such officer shall note upon the same the filing of the statement and the amount of the tax paid, attested by 634d TAXATION. Tax Law, § 264. his signature. In all such cases the recording officer shall note on the margin of the record of such mortgage the filing of such statement and the amount of the tax paid, and, in case of bonds secured by corporate trust mortgages, the serial number of each such bond. The words " bond " and " bonds " as used in this section shall be deemed to em- brace all notes or other evidences of indebtedness secured by mortgages taxable under this section. In case of any mortgage taxable under this section, the portion of the indebtedness secured thereby upon which the tax imposed by this section is paid, and such portion only, shall be exempt from taxation under the provisions of section two hundred and fifty-one of this article. Whenever the tax imposed by section twO' hundred and sixty-four of this article as said section existed prior to May thirteenth, nineteen hundred and seven, has been paid with respect to any mortgage, no additional tax shall accrue on such mortgage under this section as hereby enacted and such mortgage and the debt or obliga- tion secured thereby, shall continue to be entitled to the exemptions and immunities conferred by this article and all of the provisions of this article shall remain applicable to such mortgage. All taxes imposed by or which became due, payable or collectible on or before the thirtieth day of June, nineteen hundred and six, pursuant to chapter seven hundred and twenty-nine of the laws of nineteen hun- dred and five, and all taxes which under section two hundred and fifty- eight of this chapter became due and payable on the thirtieth day of July, nineteen hunded and six, and all other taxes, if any, which were imposed by chapter seven hundred and twenty-nine of the laws of nine- teen hundred and five on any mortgage recorded prior to the first day of July, nineteen hundred and six, in respect to any period ending on or before the first day of July, nineteen hundred and six, shall be imposed, become due, be payable and collectible and shall be paid over and dis- tributed in the same manner, and with the same force and effect as if this article had not been enacted ; and for the purpose of collecting, pay- ing over, distributing and enforcing any such taxes, chapter seven hun- dred and twenty-nine of the laws of nineteen hundred and five shall be deemed to be in force, and the lien for such taxes shall attach and such taxes shall be levied and collected as provided in chapter seven hundred and twenty-nine of the laws of nineteen hundred and five, anything herein contained to the contrary notwithstanding. [Tax Law, § 264, as amended by L. 1910, ch. 601, and L. 1916, ch. 337 ; B. C. & G. Cons. L., p. 6027.] PART VI. UlV^iSION FENCES; STRAYED ANIMALS; DOGS. CHAPTER XLI. DIVISION FENCES; DUTIES OF FENCE VIEWERS. EXPLANATORY NOTE. Controversies as to Division Fences. All controversies arising in a town relative to the erection and mainte- nance of division fences are to be settled by the assessors and superin- tendent of highways acting as fence viewers. The powers and duties of such fence viewers in respect to such controversies are prescribed by the several sections of the Town Law included in this chapter. Maintenance of Division Fences. Division fences between adjoining tracts of land owned by different owners are to be erected and maintained by such owners, on an equitable and just basis. This does not necessarily mean that each owner must erect and maintain an equal portion of the fence. The conditions may be such as to make it " equitable and just " for one owner to maintain more than one-half of the fence. Either one of the owners may choose to let his lands lie open. In such case he can have no remedy for dam- ages incurred from the animals of his neighbor coming upon his lands. Proceedings to Settle Disputes. If any dispute arises as to the portion of the fence to be erected by each owner, it shall be settled by any two of the fence-viewers, one to be selected by each owner. All parties interested are to be notified of the proceedings. If the two fence-viewers cannot agree, they shall select a third. The decision must be in writing, describe the fence to be 635 636 DIVISION FENCES; STRAYED ANIMALS; DOGS. Explanatory note. erected, and state the proportion to be maintained by each ; such decision must be filed in the office of the town clerk. Witnesses may be subpoenaed, and examined. Each fence-viewer is entitled to compensation at the rate of one dollar and a half per day. Damages for Failure to Maintain Division Fence. If any person liable to contribute to the erection and maintenance of a fence shall permit the same to be out of repair, he shall be liable to pay the party injured all damages which shall thereby accrue. The amount of the damages is to be ascertained by the fence-viewers in much the same manner, as the portion of the fence to be erected by each owner, is to be ascertained. Regulations as to Division Fences. Electors of a town at a biennial town meeting may make rules for as- certaining the sufiiciency of all fences in the town. Where such rules are adopted any person who shall neglect to keep a fence as therein directed cannot recover for damages incurred by animals coming upon, his lands from adjoining lands. Section 1. Who are fence viewers. 2. Division fences to be maintained by owners; lands bordering on navigable lakes and rivers. 3. 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. 5. Settlement of disputes between owners; proceedings of fence viewers; decision. 6. Subpoena and examination of witnesses by fence viewers; tees and compensation of fence viewers. 7. Damages for failure to erect or repair division fence, to be ascer- tained by fence viewers; appraisal of damages; one owner may erect or repair 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 fence; appraisal by fence viewers. 11. Use of barbed or other wire in the construction of division fences; fence viewers to prescribe kind of wire and how to be built. DIVISION FENCES; DUTIES OF FENCE VIEWERS. C37 Town Law, §§ 121, 360. § 1. WHO ABE FENCE VIEWERS. The assessors and town superintendent of highways elected in every town shall, by virtue of their offices, be fence viewers of their town.' [Town Law, § 121, as amended by L. 1909, ch. 491 ; B. C. & G. Cons. L., p. 6179.] § 2. DIVISION FENCES TO BE MAINTAINED BY OWNERS; I.ANDS BORDERING ON NAVIGABLE I,AKES AND RIVERS. Each owner of two adjoining tracts of land, except when they other- wise agree, shall make and maintain a just and equitable portion of the division fence between such lands, unless both of said adjoining owners shall agree to let their said lands lie open, along the division line, to the use of all animals which may be lawfully upon the lands of either.^ When the adjoining lands shall border 1. Assessors and superintendents of Mgliways of the several towns in the state are authorized to act as fence viewers only by force of the statute. Such officers of a city have no such powers. Armbuster v. Wilson 43 Hun 261. 2. Maintenance of division fences. At common law, adjoining owners were not bound as between each other, to maintain division fences unless the right to compel their maintenance had been acquired by prescription or agreement. But under this statute each owner of two adjoining tracts of land are re- quired to build and maintain a just and equal proportion of the division ■ fence. Roney v. Aldrich, 44 Hun, 320. The statute applies as well where lands have been partially fenced as where the owner has elected to let his land lie altogether open. Chryslar v. Westfall, 41 Barb. 159. Kind of fence. The law touching division fences does not prescribe the kind of fence that shall be made. Ferris v. Van Buskirk, 18 Barb, 397, 400. For whose benefit fence to be maintained. The statute was only enacted for the benefit of the owners or occupants of adjacent lands. Crandall v. Eldridge, 46 Hun, 411. But one occupying land as a tenant at will or at sufferance, is entitled to the benefit of the statute, and may maintain an action for the expense of repairing the portion of the adjoining owner. The statute is for the benefit of occupants without respect to the particular estate enjoyed. Bronk v. Brecker, 17 Wend. 320. A " just and equitable portion " of the division fence, as used in the statute does not necessarily mean an equal portion of the fence, but a portion just and equal with reference to the cost of its construction and maintenance. People ex rel. Foote v. Dewey, 1 Hun, 259; 3 T. & C. 638. 2. Lands lying open. Owner must notify fence viewers that he elects to let his lands lie open before he can escape liability for maintenance of his portion of the fence. Perkins v. Perkins, 44 Barb. 134. Liability for damages. Where the cattle of one of two adjoining proprietors are found trespassing upon the land of the other, the owner of the cattle, to (j38 DIVISION FENCES; STRAYED ANIMALS; DOGS. Town Law, § 361. 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 annually so as to be so submerged with water that no permanent fence can be kept thereon, and known as low flatlands; 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 cannot 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 located, and the portion to be kept and maintained by each adjoining owner. [Town Law, § 360, as amended by L. 1911, eh. 86 ; B. C. & G. Cons. L., p. 6231.] § 3. WHEN LANDS MAY LIE OPEN; OWNER MA¥, UPON NOTICE, EN- CLOSE LANDS LYING OPEN. When the owners of adjoining lands shall choose to let them lie open, as provided in section three hundred and sixty, neither of such owners shall be liable to the other in any action or proceeding for any damages done by animals lawfully upon the former's premises going upon the lands so lying open or upon any other lands of the owner thereof through such lands so lying open. Either owner of any lands so lying open and adjoining, may, unless the agreement is for a specified period, and after such agreement has expired may then have the same inclosed, by giving written notice to that effect to the owners or occupants of the adjoining lands, whereupon it shall be the duty of both parties to build and main- tain their several proportions of a division fence.' [Town Law, § 361, as amended by L. 1911, ch. 86; B. C. & G. Cons. L., p. 6232.] excuse himself, must show not only that the fences which the proprietor was bound to maintain were out of repair, but also that the cattle passed over such defective fences. Angell v. Hill, 45 N. Y. St. Rep. 83, 18 N. Y. Supp. 824; Deyo V. Stewart, 4 Den. 101. 3. Removal of fence. The effect of removing a division fence and permit- ting the lands to lie open is to remit the parties to their common law rights and duties. Holladay v. Marsh, 3 Wend. 142. In such case the owner of the adjoining lands is not liable for any damages done by animals going upon the lands so lying open. See Van Slyck v. Snell, 6 Lans. 299. Thus, where a party removes a division fence without notice, he is liable for all damages sustained. Richardson v. M'Dougall, 11 Wend. 46. Notice may be by parol. HoUiday v. Marsh, 3 Wend. 142; Perkins v. Perkins, 44 Barb. 134. DIVISION FENCES; DUTIES OP FENCE VIEWERS, ggg Town Law, §§ 362, 363. § 4. DIVISION FENCES ON CHANGE OF TITI.E; DUTIES OF FENCE VIEWERS IN CASE OF DISAGREEMENT. Whenever a subdivision, or new apportionment of any division fence filiall 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 conveyances, devise or 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 there- tofore have been made and maintained by such other adjoining owner, or the person from whom he derived his title, or he shall build his proportion 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 disagreement. [Town Law, § 363; B. C. & G. Cons. L., p. 6332.] § 5. SETTLEMENT OF DISPUTES BET^VEEN O'WNERS; PROCEED- INGS 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 particular part of the fence to be made or maintained by 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 Effect of statute. Under the common law the owner of domestic animals is liable for their trespass upon the lands of others even though such lands are not inclosed. This section modifies the common law in this respect. Wood v. Snider, 187 N. Y. 28, revg. 108 App. Div. 168, 95 N. Y. Supp. 508. See also Stafford v.. Ingersoll, 3 Hill, 38. 4. Effect of subdivision or new apportionment. New obligations arise when, by sub-division or otherwise, there is a change in the extent to which the adjoining lands of one owner borders upon the lands of the other. The statute which empowers fence viewers to fix the just proportion of fence to be maintained refers to the state of things existing when they are called upon to act, and has no relation to any former ownership of the adjoining possessions. Adams v. Van Alstyne, 25 N. Y. 232. For form of decision of fence viewers when a transfer of title has been made, see Form No. 60, post. 5. Jurisdiction of fence viewers. If there be a valid prescription binding the owner of land to maintain perpetually the fence between him and the adjoining proprietor, fence viewers have no jurisdiction under our statutes. The maintenance of a fence by one of the adjoining proprietors exclusively for G40 DIVISION FENCES; STRAYED ANIMALS; DOGS. Town Law, §§ 364, 365. 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 be reduced to writing, and contain a description of the fence, and the proportion 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, § 363 ; B. C. & G. Cons. L., p. 6233.] § 6. SUBPOENA AND EXAMINATION OF WITNESSES BT FENCE VIEWERS; FEES AND COMPENSATION OF FENCE VIEWERS. Witnesses may be examined by the fence viewers on all questions sub- mitted 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 fi.fty 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, § 364; B. C. & G. Cons. L., p. 6233.] § 7. DAMAGES FOR FAILURE TO ERECT OR REPAIR DIVISION FENCE, TO BE ASCERTAINED BY FENCE VIE'WERS; AP- PRAISAL OF DAMAGES; ONE OWNER MAT ERECT OR RE- PAIR 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 and maintain his propor- tion of such fence, or shall permit the same to be out of repair, he shall be liable to pay the party injured all such damages as shall accrue there- by, to be ascertained and appraised by any two fence viewers of the town, and to be recovered with costs. The appraisement shall be reduced to more than twenty years, when he might have compelled the other to maintain a part, warrants the presumption of a grant or covenant compelling him to do so. Adams v. Van Alstyne, 25 N. Y. 232. 6. For form of notice to choose fence viewer, see Form No. 61, post. For form of certificate of apportionment of division fence, see Form No. 62, post. The decision of fence viewers having jurisdiction of the subject matter and the parties is final. People ex rel. Foote v. Dewey, 1 Hun, 529; 3 T. & C. 638. 7. References. Fence viewers being authorized to take testimony in regard to matters before them are authorized to administer an oath for that purpose. See Code Civ. Proc, sec. 843. Fence viewers, being also authorized to subpoena ■witnesses, may compel such witnesses to attend and give testimony. See Code Civ. Proc, sees. 852-862. For form of subpoena by fence viewer, see Form No. 63, post. DIVISION FENCES; DUTIES OF FENCE VIEWERS. 541 Town Law, §§ 366, 367. writing, and signed by the fence viewers making it.^ If such neglect or Tefusal 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 party so neglecting or refusing, to be recovered from him with costs.' [Town Law, § 365 ; B. C. & 6. Cons. L., J.. 6233.] ^ 8. DIVISION FENCE DESTROYED BT ACCIDENT; NOTICE TO RE- BUILD; EFFECT OF FAIIiURE TO BEBinLD. Whenever a division fence shall be 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 inter- ested 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, § 366; B. C. & G. Cons. L., p. 6334.] § 9. DAMAGES DONE BV ANIMALS WHERE FENCE IS NOT MAIN- TAINED AS PROVIDED BT TOWN RULES AND REGULA- TIONS. Whenever the electors of any town shall have made any rule or regula- tion prescribing what shall be deemed a sufficient 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 such person, not fenced in con- formity to the said rule or regulation, through any such defective fence.^^ 8. For form of appraisement of damages by fence viewer for neglect to build or repair a division fence, see Form No. 64, post. Appraisement of damages is not necessary before beginning an action. Bronk v. Becker, 17 Wend. 320. Amount of damages, how ascertained. Clark -V. Brown, 18 Wend. 213; Richardson v. McDougall, 11 Wend. 46; Stafford v. Ingersol, 3 Hill 38; Crandall v. Eldridge, 46 Hun, 411, 413. 9. For form of notice to build or repair a division fence, see Form No. 65, post. 10. For form of notice to build a fence destroyed by accident, see Form No. ^6, post. 11. Reference. Electors of a town at a biennial town meeting may make 642 DIVISION FENCES; STRAYED ANIMALS; DOGS. Town Law, § 368. When the suflScieney of a fence shall come in question in any action, it shall be presumed to have been sufficient until the contrary be established^ [Town Law, § 367; B. C. & G. Cons. L., p. 6234.] § 10. DAIOAGES ^VHEN FEKSON FAILS TO BUHiD OR REPAIR FENCE; AFPRAISAIj BY FENCE VIEWERS. If any person liable to contribute to the erection or repair of a division fence shall neglect or refuse to make and maintain 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 in- jured all damages that shall accrue to his lands, and the crops, fruit 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, § 368 ; B. C. & G. Cons. L., p. 6235.] rules and regulations for ascertaining the sufficiency of all fences in such town. See Town Law, sec. 43, ante. Application. Statute only applies where electors have prescribed as to what constitutes a sufficient fence. Tonawanda R. R. Co. v. Munger, 5 Den. 255. Kind of fence. A fence, erected and maintained upon or near the division line of such a dangerous character as to cause serious injury and damage to the animals of an adjoining owner, is a nuisance. Rowland v. Blaird, 18 Abb. N. C. 256. A crooked or Virginia fence is a proper division fence. Ferris v. Van Buskirk, 18 Barb. 397. Proof of insuflB.ciency of the fence should be made, for in no case is it to be presumed. White v. Scott, 4 Barb. 56. Recovery of damages. The rule of damages contained in this section is declaratory of the common law. Griffln v. Martin, 7 Barb. 297. In an action against a railroad company for an injury to a cow escaping through an insufficient fence on to the track of such company, it was held that in the absence of action by a town meeting establishing the height or strength of division feaces, that it was competent to show what in that town the height and strength of such fences generally were. Leyden v. N. Y. C. & H. R. R. R. Co., 55 Hun, 114, 117. 12. Action for damages. The word " incurred " means brought on, and by this statute the party in default is to have no action for damages brought on himself in some manner. Deyo v. Stewart, 4 Denio 101, 103; Stafford v. Inger- sol, 3 Hill 40; Clark v. Brown, 18 Wend. 213. DIVISION FENCES; DUTIES OF FENCE VIEWERS. 643 Town Law, § 369'. i 11. VSH OF BARBED OB OTHER 'WIRE IN THE CONSTRUCTION OF DIVISION FENCES; FENCE VIEWERS TO PRESCRIBE KIND OF WIRE AND HOW TO BE BUII.T. Barbad or other wire may be used in the construction of any division fence, pro- vided, however, that the person or corporation 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 at least 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 tne town may prescribe and with the posts no further apart than fourteen feet; and such fence shall be otherwise suDstantially built and a reasonably sufficient inclosure for holding the particular kind or class of cattle or animals usually pastured on either side of the fence. Noth- ing contained in section three hundred and sixty-seven shall be construed to author- ize Ihe electors of any town to prohibit the use of wire fences, for division fences, if such fences comply with the requirements of this section. Whenever such fence shall become so out of repair as to be unsafe, 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 occasioned 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 53 of the railroad law.13 [Town Law, § 369, as amended by L. 1911, ch. 86 ; B. C. & G. Cons. L., p. 6235.] 13. Use of barbed wire. The provision of the statute prohibiting or regulating the use of barbed wire in the construction of fences does not apply to fences con- structed before the enactment of the statute. Stissner v. N. Y. C. & H. K. R. R. Co., 33 App. Div. 98; 52 N. Y. Supp. 861. In this case it was held that a flat iron ribbon one-half inch wide, with saw teeth cut in one-fourth of an inch on one side of the ribbon, one and one-half inches apart, was not a barbed wire within the prohibition of the use of such material in railroad fences under section 53 of the Railroad Law. Where a barbed wire fence has been constructed without the consent of the adjoin- ing owner by a tenant occupying the land, he will be liable for the resulting damages, although the statute imposes a duty upon the owner of the land to construct and maintain proper division fences. Buckley v. Clark, 21 Misc. 138; 47 N. Y. Supp. 4S. Liability. It is immaterial to defendant's liability that the fence was not built upon the division line, but was built near the line and on defendant's property. Rowland v. Baird, 18 Abb. N. C. 356. Whether it is or is not negligence to erect barbed-wire fence is a question of fact; effect of statute relating to such fences. Although this section forbids the use of barbed wire in the construction of a division fence, except in the manner therein pre- scribed, without the written consent of the owner of tne adjoining property, and provides that the person building a fence as therein authorized without such con- sent shall be liable for all damages that may be occasioned thereby, yet a barbed- wire fence is not a nuisance as a matter of law. Whether it is or not negligence to erect and maintain one is a question of fact, and the statute is to be considered in determining that question. The owner of a farm adjoining and surrounding a schoolhouse lot erected a fence on the division line between his land and the lot by setting posts on such line, on which he fastened, about four feet from the ground, a barbed wire, with barbs about six inches apart. The next day, and while the fence was incompleted, a child eleven years of age, who was not aware that the wire had been fastened to the posts, ran from the door of the schoolhouse toward the fence, looking over her shoulder and calling to a schoolmate, and while so running her neck came in contact therewith and was lacerated thereby. Upon the trial of the action to recover for the injuries the court dismissed the complaint. Held, error; that the questions of the negligence of the defendant and that of the contributory negligence of the plaintiff were for the jurv. Barr v. Green (1914), 310 N. Y. 252, 104 N. £.619. 644 DIVISION FENCES; STRAYED ANIMALS; DOGS. Town Law, § 380. CHAPTER XLII. STRAYED ANIMALS DOING DAMAGE; DUTIES OF FENCE VIEWERS. Section 1. Liea upon strayed animals doing damage. 2. Notice of lien to be filed with town clerk; fees for recording. 3. Impounding strayed animals; if not impounded to be properly cared for. 4. Owner or occupant of the lands to notify the owner of the ani- mals of the impounding of such animals. 5. 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. S. 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 moneys 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. lilEN UPON STKAYED ANIMALS DOING DAMAGE. AVhenever any person shall have any strayed horses, cattle, sheep, swine or other beasts upon his inclosed land, or shall have any snch beast on land owned or occupied by him doing damage, and such beast shall not have come upon such 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 damages 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 damages, charges, fees and costs are paid, or such lien is forclosed, upon complying STRAYED ANIMALS DOING DAMAGE. 645 Town Law, § 381. with the provisions of this article relating thereto.^ [Town Law, § 380; B. C. & G. Cons. L., p. 6236.] § 2. 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 subscribed by him, containing his residence, and a description of the beasts so strayed or coming upon his lands, as near as 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 purpose, for which he shall receive ten cents for each beast, to be paid by the person delivering the notice. Such book shall always be 1. Strays upon highways. Code Civ. Proc. (Gilbert'^s Annotated Code), sees. 3082-3115, provides a penalty for allowing animals to run at large In public streets and highways, authorizes the seizure of such animals by over- seers of the highways In towns, and street commissioners In villages, or by the owner of the land upon which such animals have strayed from a street or highway, and provides procedure before a justice of the peace for the sale of such animals and the disposition of the proceeds of such sale. Strayed animals coming upon lands owned or occupied by any person, from lands adjoining, because of insufficient or improperly maintained divi- sion fences are to be disposed of as provided in this chapter. The sections of the Code of Civil Procedure above referred to, do not apply to animals escaping through a division fence upon an adjoining owner, nor do they au- thorize the trial of the sufficiency of such a fence. Cowles v. Balzer, 47 Barb. 562; Cropsey v. Perry, 1 How. Pr. N. S. 40; Jones v. Sheldon, 50 N. Y. 477. Lien upon horses found upon premises. Where horses have strayed from the highway upon premises, the owner of the premises may take possession of the horse and have a lien thereon under the provisions of the above section. The fact that after the owner of the land took possession of the horses, the owner of the horses demanded the return thereof, but made no legal offer to redeem does not affect the right of lien. Lynch v. Ford, 72 App. Div. 536, 76 N. Y. Supp. 546. Liability for damages. Where cattle cross unfenced land abutting upon a highway and trespass upon other unfenced lands adjacent thereto but not abut- ting upon the highway, the owner of such animals is liable for the damages caused thereby, notwithstanding the absence of a fence. Wood v. Snider, 187 N. Y. 28 revg. 108 App. Div. 168, 95 N. Y. Supp. 508. Damages awarded measured by injuries caused by animals and the cost of keeping them. Cook v. Gregg, 46 N. Y. 439. And see Armbruster v. Wilson, 43 Hun 261. 2. For form of notice that person has animals in his possession found upon his lands, and that he claims a lien on such animals, see Form No. 67, p^Bt. 646 DIVISION FENCES; STRAYED ANIMALS; DOGS. Town Law, §§ 382, 383, 384. kept open for inspection, and no fees shall be taken by the clerk therefor. [Town Law, § 381 ; B. C. & G. Cons. L., p. 6238.] § 3. IMPOUNDING STRAYED ANIMALS; IF NOT IMPOUNDED TO BE PROPERLY CARED FOR. Within six days after such beasts shall have come upon such lands, such owner or occupant may cause them to be 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 according to law. [Town Law, § 382; B. C. & G. Cons. L., p. 6237.] § 4, OWNER OR OCCUPANT OF THE LANDS TO NOTIFY THE OWNER OF THE ANIMALS OF THE IMPOUNDING OF SUCH ANIMALS. Within thirty days after any such beasts may have 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 may be; 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, § 383 ; B. C. & G. Cons. L., p. 6237.] § 5. 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 3. Pounds. The electors of a town at a biennial town meeting may vote to establish and maintain pounds at convenient places within the town. See Town Law, sec. 43, sub. 6, ante. Failure to provide food and drink. The Penal Law, § 187, provides that: "A person who, having impounded any animal, refuses or neglects to supply to such animal during its confinement a sufficient supply of good and wholesome air, food, shelter and water, is guilty of a misdemeanor." 4. For form of notice to owner of animals held as a stray, see Form No. 68 vast. STRAYED ANIMALS DOING DAMAGE. 647 Town Law, §§ 385, 386, 387. not agreed upon between the person delivering the notice and the owner of the beasts, they shall be determined by two fence 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, § 384; B. C. & G. Cons. L., p. 6238.] § 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, § 385; B. C. & G. Cons. L., p. 6338.] § 7. FORECLOSURE OF I.IEN; EFFECT 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 keepiing such beasts and the proceedings thereon. [Town Law, § 386 ; B. C. & G. Cons. L., p. 6238.] § 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, § 387; B. C. & G. Cons. L., p. 6238.] 9. DISPOSITION OF PROCEEDS OF SALE. Out of the proceeds from such sale, the fence viewer shall retain and 5. For form of a notice of sale by a fence viewer, see Form No. 69, post. 648 DIVISION FENCES; STRAYED ANIMALS; DOGS. Town Law, §§ 388, 389, 390. pay the sums charged for such notices, fees and costs, together with the sums specified in the certiiicate 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, § 388; B. C. & G. Cons. L., p. 6239.] § 10. NOTICE OF FENCE VIEWERS' MEETING FOR ASSESSMENT OF DAMAGES TO BE GIVEN TO OWNER OF ANIMALS. AVhen 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 elsewhere, and his post-office address is known, such notice shall be served by mail or personally." [Town Law, § 389; B. C. & G. Cons. L., p. 6239.] § 11. FENCE VIEWERS TO VIEW PREMISES DAMAGED; SUB- POENAS; EXAMINATION OF WITNESSES. The fence viewers shall view the premises where damages are claimed to have been done, and they may issue subpoenas, 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 deter- mine any dispute that may arise touching the sufficiency 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 dam- ages and charges ; if they determine that for any cause the claimantp'' 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, § 390; B. C. & G. Cons. L., p. 6239.] 6. For form of notice to owner, of fence viewers' meeting, see Form No. 70, post. 7. Administering oath by a fence viewer, authorized by section 843 of the Code of CiT. Proc. Witnesses. Fence viewers may compel witnesses to attend and testify, Code Civ. Proc, sees. 854-862. 8. For form of certificate of fence viewers showing their determination of the dispute, see Form No. 71, post. STRAYED ANIMALS DOING DAMAGE. {349. Town Law, §§ 391, 392, 393. I 12. FORECI.DSURE OF LIEN BY ACTION. Wihen such lien is foreclosed by action,' all questions relating to damages,, charges, sufficiency of fence, and from where and how such beasts came upon the lands of the person 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, § 391; B. C. &. G. Cons. L.,p. 6239.] § 13. DUTIES AND FEES OF FOUND 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 deter- mined 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 person claiming a lien thereon. [Town Law, 393; B. C. & G. Cons. L,. p. 6340.] § 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 pre- cluded 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 there- of, and their receipt shall be a legal discharge to the 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 9. Foreclosure by action. A lien on strayed animals created pursuant to- this chapter may be foreclosed by action in the manner provided by sees. 1737-1741 of Code of Civ. Proc. (Gilbert's Annotated Code.) 10. Lien a defense in action for replevin. A defense, in an action for replevin of animals, that the defendant distrained them while trespassing on his lands, and detains them under the lien thereby created for the damage done, is good and sufficient. Boyce v. Perry, 26 Misc. 355, 57 N. Y. Supp- 214. G50 DIVISION FENCES; STRAYED ANIMALS; DOGS. Town Law, §§ 396, 394. the sum so remaining in his hands, together with the amount of such moneys. [Town Law, § 393 ; B. C. & G. Cons. L., p. 6240.J § IS. VII.I.AGES AND CITIES DEEMED TO'WNS, FOR FTTRFOSES OF ASSESSING DAIOAGES FOR STRAY ANIMAXS. 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 aldermen of the city shall be fence viewers therein for the purposes of this article. [Town Law, § 396; B. C. & G. Cons. L., p. 6241.] § 16. ASSESSMENT OF DAMAGES OCCASIONED BY INANIMATE GOODS OR CHATTELS. When any person shall be authorized to distrain inanimate goods or chattels doing damage, or whenever any logs, timbers, boards or plank, in rafts or otherwise, or other personal 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 herein provided with respect to beasts found doing damage, so far as such provisions are applicable. He must deliver his notice of lien to the town clerk, describing the property, within thirty days after it lodges upon his lands, and he shall keep the same in some convenient place, without removal to a pound, until the property is sold or reclaimed. The same oflScer shall conduct proceedings therein as in proceedings where beasts are found doing damage, and all proceeds of sale shall be, in like man- ner, paid over and applied, subject to the same penalties and liabilities, and with the same force and effect. The fee of the town clerk for filing and recording such notices of lien pursuant to section three hun- dred and eighty-one of this chapter, shall be one dollar and the charges of the land owner claiming such lien and delivering such notice to the town clerk, pursuant to this section, shall be at the rate of five cents for each such stray, but shall in no event exceed the sum of fifty dollars upon any one lien. Any lien for logs, timber, boards or plank, in rafts or otherwise, filed herein may be discharged in the manner provided in sections nineteen and twenty of the lien law, with reference to the dis- charge of mechanics' liens, so far as such provisions are applicable. [Tovm Law, § 394, as amended by L. 1915, ch. 439; B. C. & G. Cons. L., p. 6240.] DOGS, DUTIES OF TOWN AND COUNTY OFFICERS. 651 County Law, § 110. CHAPTER XLIII. DOGS; DUTIES OF TOWN AND COUNTY OFFICERS RELATIVE TO DOGS. Section 1. Licensing of dogs; former laws repealed. 3. Definitions. 3. Licensing of dogs and dog kennels; fees. 4. Assessors to prepare lists of dogs. 5. Issuance of licenses; penalty for failure to obtain; registry of licenses. 6. Tags; how furnished and attached; blanks and forms. 7. Killing unlicensed dog; killing dog for attacking animals; dogs running at large; dog killed on court order. 8. Town and city clerks to report failure to pay; penalties; fees of officers and magistrates. 9. Damages for injvuries caused by dogs; assessors to ascertain damages; payment of claim by state. 10. Report as to dog killed. 11. Disposition of fees, penalties and damages recovered. 13. Recovery of penalties; actions for damages. 13. Apportionment to towns and cities of surplus moneys. 14. Enforcement of provisions of chapter. 15. Poimds and dog catchers in certain counties. 16. Dogs running at large in forest preserve. § 1. I.ICEMSING OF DOGS; FOBMER I.AWS REPEALED. The laws relative to licensing dogs, the assessment and payment of dam- ages, caused by dogs, and the imposing of penalties for failure to obtain licenses, were repealed by L. 1917, ch. 800. By this act, as amended by L. 1918, ch. 439, the licensing of dogs and the payment of claims for damages caused by dogs are placed under the control of the State Depart- ment of Farms and Markets. Town officers, including town clerks, assessors, justices of the peace and constables, are required to perform many import- ant duties as to licensing of dogs, killing dogs that are not licensed or are running at large and the assessment of damages. All fees are paid to the state, and claims when adjusted are paid out of state funds. All local laws and laws regulating the keeping of dogs in towns, villagea and cities are repealed. It is provided in section 2 of L. 1917, ch. 800, that " Article seven, constituting sections one hundred and ten to one hun- dred and thirty-six of chapter sixteen of the laws of nineteen hundred and nine, (the County Laws) entitled, 'An act in relation to counties, constitut- ing chapter eleven of the Consolidated Laws,' and the acts amendatory thereof or supplemental thereto, are hereby repealed." 652 DIVISION FENCES; STRAYED ANIMALS; DOGS. Agricultural Law, §§ 131, 132. § 2. DEFINITIONS. When used in this act, the word " owner," referring to the owner of the 'dog, includes a person harboring or keeping such dog.^ The word " kennel," when so used, means the place where five or more dogs over six months old are harbored or kept, which dogs are registered in or by a recognized registry association. The word " dog," when so used, shall include a bitch, iexcept where provision is made for the licensing of dogs and the payment of license fees. [Agricultural Law, § 131, as added by L. 1917, ch. 800.] f 3. I.ICENSING OF DOGS AND DOG KENNELS; FEES. Dogs to be licensed; fees. — A person who owns, harbors or keeps a dog shall obtain a license therefor, as provided herein, and shall pay the follow- ing fees: (1) two dollars for each male dog and spayed female dog; (2) three dollars for each bitch; (3) twenty dollars for a kennel of pure-bred dogs, or such s.um not in excess of such sum of twenty dollars as will equal two dollars for each dog over six months old harbored or kept in such kennel, for which a special kennel hcense shaU be given as hereinafter provided. Be- fore any person shall be entitled to obtain a license for a spayed female dog at the reduced fee herein provided, he shall produce and deliver to such town or city clerk a certificate in writing signed by a duly licensed veterinary surgeon showing that such female dog has been spayed. There shall be paid to the town or city clerk, in addition to each license fee, a sum of twenty-five cents as a registration fee, for the services of such clerk. Application for a license shall be made to the clerk of the town or city in which the dog is harbored or kept. Such application shall be in writing and shall state the name, sex, breed, age, color and marking of the dog for which a license is sought. Licenses first obtained hereunder shall be applied for on or before July first, nineteen hundred and seventeen. Licenses thereafter issued shall be applied for on before March first in each year, and shall continue 1. 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. The situs of a dog for the purpose of taxation, under the above section, is the place or town where he is kept or harbored, and not the residence of his owner. Arnold v. Ford, 53 App. Div. 25; 65 N. Y. Supp. 528. The court (per Kellogg, J.), says in this case: " The entire law seems to form a scheme of taxation wholly dif- ferent from the general scheme of taxation of personal or real property, and the tax when collected forms a special fund to defray the depredations of dogs upon sheep. A fair construction of the law, it seems to me, discloses a clear intention to compel the owner or possessor of a dog to pay the tax into this sheep fund in the town where the dog is kept, and to pay the tax once each year. If the payment cannot be enforced, then it is made the duty of the collector to kill the dog. This clearly shows the intention of the legislature to make the situs of the dog, for the purposes of this tax, to be the place or town where he is kept or harbored. DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 653 Agricultural Law, § 134. for a term of one year. Licenses shall not be required for dogs under the age of four months, or under the age of six months if the owner be the breeder thereof. If such dog shall become of the age of four months, or of six months if the owner be the breeder thereof, after the first day of March, or if a person shall become the owner of an unlicensed dog after such date, or if a license issued under existing laws prior to the taking effect of this act shall expire after such date, the license fee for the balance of the twelve months shall be a proportionate part of the fee charged for one year, and the fee of twenty-five cents for the registration of such dog. Each license of a dog first issued shall take effect when issued, and shall expire on the last day of February following its issuance. Each license in renewal of a license already issued shall be for a term of one year beginning on March first. [Agricultural Law, § 133, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] Special kennel licenses. — ^The owner of a kennel may apply for and obtain a special kennel license, which shall be in lieu of the license issued under this chapter for each dog harbored or kept in such kennel. Upon the procuring of such special license for a kennel, the owner or owners thereof shall be exempt from any further license fee in respect to such dogs for the year for which such license is issued. The applicant shall present with his application for a kennel license a registry certificate of the registry associa- tion registering the dogs in such kennel. A copy of such certificate shall be filed with the city or town clerk. If the owner of a kennel shall harbor or keep a dog which is not covered by such a certificate, such dog shall be licensed separately and the same fee paid as in the case of other dogs. A kennel license shall continue for the same period as licenses issued under the preceding section. [Agricultural Law, § 133, as added by L. 1917, ch. 800.] § 4. ASSESSORS TO PBIiPABE LISTS OF DOGS. The assessors of each town or police department of a city shall annually in the month of June ascertain by due inquiry the dogs owned, harbored or kept in such town or city. Each owner of a dog shall answer all ques- tions relative to ownership of such dog, and if he answers falsely or refuses to answer such questions, he shall be subject to a penalty of ten dollars, to be recovered in an action brought therefor as hereinafter provided. The assessors in each town and the police department of each city shall prepare a list containing the names and addresses, by street and number, if any, of the owners of dogs in such town or city, and the number and sex of dogs owned, harbored and kept by each owner, and whether such dogs are kept or harbored in kennels. Such list shall be prepared in duplicate, one of which shall be filed with the town or city clerk and the other with the department of farms and markets, on or before the tenth day of July follow- 654 DIVISION FENCES; STRAYED ANIilALS; DOGS. Agricultural Law, §§ 135, 137, 136. ing. The assessors shall receive as compensation for their services the sum of twenty cents for each dog listed by them, wliich shall be paid out of the state treasury out of moneys appropriated for the enforcement of the provisions of this chapter. [Agricultural Law, § 134, as added by L. 1917, ch. 800, and amended by L. 1918, eh. 439.] § 5. ISSUANCE OF LICENCES; PENALTY FOR FAILURE TO OBTAIN REGISTRY OF LICENCES. Issuance of licenses; penalty for failure to ohtam. — A license shall be issued upon application being made therefor and upon payment of the fee hereinbefore prescribed. Such license shall be in the form prescribed by the department of farms and markets,^ and shall be executed by the town or city clerk. Each license shall state the year for which it was issued and shall bear a serial number. An owner of a dog, who fails or refuses to obtain a license for such dog within thirty days after he is required to do so under the provisions of this chapter, shall be subject to a penalty of ten dollars. [Agricultural Law, § 135, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] Registry of licenses: — The town or city clerk shall register the dogs and kennels licensed under the provisions of this chapter, in a book to be provided for such purpose. The books for the registry of such licenses shall be furnished by the department of farms and markets and shall be kept in the manner prescribed by it. Such registry shall contain the name of the owner of the dog or kennel licensed, the date of the license, and the number of the tag or tags issued for each licensed dog or kennel. Such clerk shall furnish, upon the demand of the department of farms and markets tran- scripts of the whole or any part of such registry, and of any other records required to be kept by this chapter, and shall receive therefor compensation to be fixed by the department. [Agricultural Law, § 137, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] i 6. TAGS; HOW FURNISHED AND ATTACHED; BLANKS AND FORMS. Tags to be furnished; how attached. — The city or town clerk issuing such license shall at the time of the issuance thereof deliver to the owner a metal tag. Such tag shall bear the same date and serial number as the license. The owner of the dog so licensed shall place and keep around the neck of such dog a collar of leather or other suitable material, and shall attach such tag to such collar by means of rivets, metal bands or other suit- able devices. An owner of a dog shall not permit a licensed dog to be without such collar and tag during the period of the license. And where the license thus issued is the special kennel license herein- before provided for, it shall be the duty of the city or town clerk to deliver to the person to whom the special kennel license is delivered as many metal DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 655 Agricultural Law, §§ 138, 139. tags as there are dogs over six months of age covered by such special license. The town or city clerk shall also be paid by the person to whom the same is issued a tag fee of twenty-five cents for each tag issued. A new tag with a new number shall be furnished to the owner of a licensed dog by the city or town clerk, in place of the original tag, upon presentation of the license and proof of the loss of such original tag. The clerk shall endorse the new number of such tag on such license, and shall enter it upon the registry. The clerk shall receive for his services in issuing such new tag the sum of twenty-five cents. [Agricultural Law, § 136, as added by L. 1917, ch. 800.] Tags and blanks to be furnished by department of farms and markets; forms. — The forms of applications for licenses and of other statements, reports, certificates and papers required to be filed or presented under the provisions of this chapter shall be prescribed by the department of farms and markets. The department shall furnish to each town or city clerk (1) a sufficient number of blank applications for licenses and licenses for the use of such clerk in licensing dogs as provided herein; (3) blank state- ments, reports, certificates and other documents required for the purposes of this chapter ; ( 3 ) a sufficient number of suitable metal tags required to be worn by dogs licensed as provided in this chapter. The cost of such blanks and tags shall be paid by the department out of moneys appropriated therefor. [Agricultural Law, § 138, as added by L. 1917, ch. 800, and amended by L. 1918, eh. 439.] § 7. KII.I.ING UNI.ICENSED DOG; KILLING DOG ATTACKING ANI- MALS; DOGS RUNNING AT LARGE; DOG KILLED ON COURT ORDER. Killing unlicensed dog. — The fact that a dog is without a tag attached to a collar, as hereinbefore required, shall be presumptive evidence that such dog is unlicensed and that a tag was not issued and attached as so required. An action shall not be maintained for an injury to or destruc- tion of a dog without a tag, unless it shall appear affirmatively that such dog was duly licensed under this chapter and that a tag was duly fastened to the collar of the dog and was lost or removed without the owner's knowl- edge or consent. A representative designated by the department of farms and markets, or any peace officer, shall seize an unlicensed dog, either on or ofE the owner's premises, or if the dog be not delivered to him by the owner on request and he cannot with reasonable effort secure him, he may after pursuit, kill the dog. If the owner of the dog so seized does not, within five days after such seizure, obtain a proper license, and pay the sum of two dollars as the cost of seizure, such dog may be killed or sold by such representative or peace officer. The proceeds of the sale and the charge made for such seizure shall be paid into the state treasury. Peace officers either seizing or killing 656 DIVISION FENCES; STRAYED ANIMALS; DOGS. Agricultural Law, §§ 139, 139a. or both seizing and killing dogs under the provisions of this section shall be paid two dollars for each dog seized and one dollar for each dog killed. Incorporated societies for the prevention of cruelty to animals, humane, or other like associations or corporations, now performing duties or exer- cising functions with reference to dogs in cities, under existing provisions of law or contracts entered into by them with the several cities of the state in which such duties or functions are performed or exercised, shall continue to perform such duties or exercise such functions in accordance with such provisions of law or the terms of such contract. A city may designate a humane or other like association or corporation, or any of the officers or agents thereof, or any city officer or officers to enforce the provisions of this article in such city, and may fix the compensation or salary of the person or persons, association or corporation performing the services, and may provide for the disposition of fees earned in the performance of such duties, either by payment into the city treasury or otherwise. But the department of farms and markets may by an order revoke the right of any such society, association or corporation, or officer or agent thereof to perform such duties or exercise such functions, if, after notice to such society, association, cor- poration, or officer or agent thereof, and a hearing thereon, it shall appear that such society, association, corporation, officer or agent, has failed to discharge properly its duties or functions under such provisions of law or contracts, and may designate any such association, corporation, officer or agent or a representative of the department to enforce the provisions of this article in the place of the association or corporation, officers or agents whose authority is so revoked. Such order shall not be effective until approved by the governor. Whenever requested by any municipality, it shall be the duty of the department of farms and markets to permit impounded dogs re- quired to be killed under this chapter, to be killed by or under the direction of such a society, association or corporation. Contracts hereafter entered into between an incorporated society for the prevention of cruelty to animals and the mayor of a city of the second class, under the provisions of section two hundred and thirty of the second class cities law, shall be subject to the approval of the department of farms and markets and shall when so ap- proved be in full force and effect, subject to the provisions of this article ; provided, however, that the compensation to be paid under such contracts shall not exceed the amount of the surplus apportioned to such cities as provided in this article. Any city or town may impose restrictions and limitations upon the keeping and running at large of dogs within such city or town, although such limitations or restrictions are not otherwise im- posed by this article. [Agricultural Law, § 139 as added by L. 1917, ch. 800, and amended by L. 1918, ch 439.] Dog to he killed for attaching animals. — Any person may kill a dog while it is attacking, chasing or worrying any domestic animal having a DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 657 Agricultural Law, § 139b. commercial value, or attacking fowls, or while such dog is being pursued thereafter. [Agricultural Law, § 139a, as added b.y L. 1917, ch. 500.] Dogs running at largej order of department of farms and markets. — The department of farms and markets on its own motion or on the applica- tion of at least two residents, may issue an order restraining the owner of a dog, to be described in such order as dangerous to persons, domestic animals or fowls, from permitting such dog to run at large outside of and away from the premises of the owner, during a time to be specified in such order. Such order shall be served personally or by registered mail on the owner, or in case of his absence on an adult member of the family or person in charge of the premises where such dog is harbored. An owner of a dog who, after the service of such order, causes or permits such dog to run at large in violation of such order, shall be subject to a penalty of twenty-five dollars for each offense. Whenever in the judgment of the department of farms and markets other regulations in this article for the supervision of dogs and the pro- tection of domestic animals and fowls have proved inadequate for such pur- poses in a town or county or part thereof, the said department may make and publish an order that the dogs in such town or county, or part thereof, shall be securely confined between sunset and one hour after sunrise during such portion of the year as may be deemed necessary by this department. Such order shall be posted in at least three public places in such town and published in a newspaper if any published in such town, and if there be no such newspaper, in a newspaper, if any, published in the county in which such town is located; provided that, if such order shall apply to a county or part thereof, it shall be posted in three public places in each town of such county or part thereof and published in three newspapers published in such county, if so many newspapers are published in such county, and if not in such newspapers as are published in the county. If any owner of a dog or person harboring the same, refuse or neglect to confine his dog within one week after such posting and publication as required by such order he shall forfeit the sum of ten dollars to be recovered by the department of farms and markets, and any representative of the department or policeman, constable or other peace officer shall seize and impound a dog permitted to run at large in violation of said order and hold the same until said penalty is paid, and if not paid within five days, kill the said dog in the same manner as if the dog had not been licensed and tagged under the provisions of this article. The duly designated representative of the department or any peace officer shall, and any other person may, kill on sight any dog running at large in violation of this section, provided he shall first have made reasonable effort to secure said dog and failed. When seizure of a dog is made under any of the provisions of this article 658 DIVISION FENCES; STRAYED ANIMALS; DOGS. Agricultural Law, §§ 139c, 139d. notice of such seizure shall be immediately given to the owner thereof if he may be found upon reasonable inquiry within the time during which such dog is required to be held prior to his disposal as provided herein. Such notice may be served upon the owner either personally, by registered mail, or in case of the absence of the owner from home by leaving a copy thereof with the person in charge of the premises where such dog was harbored. Every dog seized under the provisions of this article shall be properly fed and cared for by and at the expense of such town or city until disposition thereof be made as herein provided. [Agricultural Law, § 139-b, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] Dog hilled on order of court or justice. — If a dog shall attack a person who is peaceably traveling upon a street or highway or is otherwise peace- ably conducting himself on premises where he may lawfully be, or shall attack his horse or team or any domestic animal having a commercial value, which is peaceably traveling on a street or highway in charge of such person, or on premises where it may lawfully be, and complaint thereof be made by the person attacked, or if a child by his parent or guardian, or in case of an animal, by the owner or person in charge of the same, or by a duly designated representative of the department of farms and markets, or any peace officer, to a justice of the peace of the town or, within a city, to a police justice or judge of a municipal court having the general jurisdiction of a justice of the peace, such justice or court shall inquire into the com- plaint, upon notice of not less than three days to the owner of the dog. If upon investigation of the facts he is satisfied of the truth of the com- plaint, such justice or court shall order the owner to kill the dog immedi- ately. An owner who fails to kill such dog within forty-eight hours after the service, either personally or by registered mail, upon him of such order, shall be subject to a penalty of twenty-five dollars, and the further penalty of two dollars for each twenty-four hours thereafter until the dog is killed. If such order be issued and the owner fails to kill such dog as required therein, a duly designated representative of the department of farms and markets or any peace officer shall kill such dog on or off the premises of the owner, and any person may kill such dog if running at large off the premises of the owner. [Agricultural Law, § 139-c, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] § 8. TO'WN AND CITY CLERKS TO REPORT FAILURE TO PAY; PENALTIES; FEES OF OFFICERS AND MAGISTRATES. If any owner of a dog in a town or city neglects or refuses to obtain a license and pay the license fee to the town or city clerk as herein required, the town or city clerk shall, with ten days from the date upon which such payment is required to be made, report such fact to a justice of the peace or other magistrate in the town or city where such owner resides and to the DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 659 Agricultural Law, § 139e. department of farms and markets. Such justice of the peace or magistrate -shall forthwith issue an order signed by him directed to any constable, police- man or peace officer of such town or city requiring him to seize and impound such dog. He shall keep the dog impounded for a period of five days^ and if within that time the owner of the dog obtains a license and pays to the town or city clerk the license fee and in addition thereto the sum of two dollars, such dog shall be returned to the owner. If such license is not so obtained and such sum so paid within such time the dog shall be killed by the officer seizing and impounding him. The peace officer shall within twenty-four hours after the seizure of the dog report the same to the justice of the peace or magistrate issuing the order. A constable, policeman or peace officer to whom shall be delivered such order shall be paid for each dog seized by him in pursuance of such order the sum of two dollars and for each impounded dog killed by him, an addi- tional sum of one dollar. He shall also be paid for each mile necessarily traveled in complying with such order, the sum of five cents per mile to be audited and allowed by the justice of the peace or magistrate issuing such order, not exceeding in any case the sum of two dollars. The justice of the peace or magistrate shall be entitled to receive as a fee for each order issued by him the sum of twenty cents for each dog directed to be seized thereunder; but a single order shall be issued to cover all dogs included in a single report as not being duly licensed, and the total sum charged for such single order shall not exceed the sum of three dollars. The justice of the peace or the magistrate and the constable, policeman or peace officer «ntitled to such fees shall make out and file with the town or city clerk •vouchers, in the form and manner 'prescribed by the department of farms and markets showing the fees to which they are entitled under this section, and upon the allowance thereof the same shall be paid by such town or city. If a town or city clerk fail to make within the specified time a report containing the names of the owners of dogs who have neglected or refused to obtain licenses for such dogs and pay the license fee as herein provided within ten days after such neglect or refusal, or if any officer receiving an order to seize, impound or kill any dog, fail or refuse to execute said order within ten days, he shall forfeit the sum of ten dollars to be collected by the department of farms and markets. [Agricultural Law, § 139d, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] § 9. DAXTAGES FOB INJURIES CAUSED BT DOGS; ASSESSORS TO ASCEBXAIN' DAMAGES; PAYMENT OF CLAIM BV STATE. Damages for injuries caused hy dogs. — ^The owner of a dog which shall attack, chase, worry, injure or kill domestic animals or fowls shall be liable for the damages caused thereby, to be recovered as herein provided, for the 660 DIVISION FENCES; STRAYED ANIMALS; DOGS. Agricultural Law, § 139f. benefit of the owner of such domestic animals or fowls. Such damages shall equal the value of the animals or fowls killed, or if not killed, the amount of the damages caused by the injury of such animals or fowls, and if the damage suffered amounts to twenty-five dollars or more there shall be added thereto the sum of ten dollars as liquidated damages for the injury caused by such dog. If sheep are attacked, chased or worried, the amount of damages to be recovered shall be as above provided, and such additional or increased damages as may appear subsequently to have been suffered in the flock attacked, chased or worried by such dog. [Agriculural Law, § 139e, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] Amount of damages to he paid by the county; assignment of claim ta state. — The owner of domestic animals or fowls attacked, chased, worried;, injured or killed by a dog or dogs shall within ten days after discovery there- of give notice of claim to any assessor of the city or town where such animals or fowls were so attacked, chased, worried, injured or kiUed, that he makes a claim therefor and requests that the damages be ascertained. Such notice of claim shall set forth the facts, as claimed, including a description of such animals, the time and place where the claimant believed they were attacked, chased, worried, injured or killed, and such other circumstances in connection therewith as may be within his knowledge. The assessors, or a majority of them, shall thereupon at a time and place to be designated by them inquire into the matter, and, if necessary, examine witnesses in rela- tion thereto. If after such inquiry they shall determine that such animals or fowls were so attacked, chased, worried, injured or killed by a dog or dogs, they shall make a certificate of such fact, the number and kind of animals or fbwls, and the amount of damages if any, caused thereby. Such certificate shall also specify the amounts of their fees, which shall not exceed three dollars each for all services in connection with one claim. The differ- ence between the value of the animals or fowls before and such value after the occurrence of the acts on which the claim is based, shall be the meas- ure of damages, to which shall be added liquidated damages when allowed as herein provided. Such certificate shall be filed in the ofiBee of the de- partment of farms and markets. The department may approve, reject or modify the determination of the assessors. If additional or increased dam- ages are claimed on account of a fiock of sheep being attacked, chased or worried, accruing subsequent thereto and not apparent at the time of the first appraisal of damages to the flock, a supplemental notice of claim for such damages may be given to the department of farms and markets, at any time within one year from the discovery of the original damages. Such sup- plemental notice of claims shall set forth the facts required to be specified in the original notice and also the facts upon which such additional or increased damages are based. The department of farms and markets shall cause such claim to be referred to the assessors of the town or city where such damages DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 661 Agricultural Law, § 139f. accrued, and the same proceedings shall be had thereon as in the case of an original claim. After passing on the claim, the department shall cause to be executed a certificate in duplicate, containing the name of the owner of such animals or fowls and the amount of the damages ascertained as herein provided. One of such certificates shall be filed in the ofiice of the comptroller, and the other delivered to the owner. The department shall cause such certificate, with notice of the filing thereof, to be sent by mail to the person in whose favor the certificate was issued. Within twenty days from the date of mail- ing such certificate, the person in whose favor it was issued may file a pe- tition with the department of farms and markets for a review of the deter- miuation of the assessors, and the department shall cause an investigation to be made of the facts upon which such determination was based. The department may designate an inspector to hear the evidence to be sub- mitted as to the claim of the petitioner. The department shall cause notice of the time and place of the investigation or hearing to be given to the petitioner, and the assessors whose determination is to be reviewed. The department shall render its decision on such review to be made within sixty days from the date of the filing of the petition, which decision shall be based upon the facts disclosed upon such investigation or hearing, and a copy of such decision shall be delivered to the petitioner, and a copy thereof shall also be filed with the comptroller. The person to whom a certificate or decision on review allowing any damages shall be issued, or his assignee or legal representative, may present the same for payment and the amount thereof and of assessor's fees shall be paid to such person and assessors, or their assignees or legal representatives, by the state treasurer on the war- rant of the comptroller, out of any moneys available therefor, upon a proper receipt being signed by the person or assessor entitled to such payment and upon the presentation of an assignment to the state of the claim for dam- ages against the owlier or owners of the dog or dogs causing such damages. The form of such assignment shall be prescribed by the department of farms and markets. The comptroller shall deliver such assignment to the depart- ment. If the owner of the animals or fowls attacked, chased, worried, in- jured or killed shall not present to the comptroller the certificate or decision above mentioned within six months after the execution thereof, he shall be deemed to have rejected the determination of the amount of compensa- tion to be paid for the damages incurred, and shall be liable to the assessors for their fees, and the amount thereof shall not be paid by the state, except that such fees shall be paid by the state if such person fails to pay the same within one year from the time such claim is filed. [Agricultural Law, § 139f, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] 662 DIVISION FENCES; STRAYED ANBIALS; DOGS. Agricultural Law, §§ 139g, 139h. § 10. REPORT AS TO DOG KILLED. Any person who shall kill a dog under the provisions of this article shall forthwith report in writing such fact to the town or city clerk or to a justice of the peace, police justice or other magistrate having jurisdiction of the town or city in which such killing took place. Such report shall state the name and address of the person who killed the dog, a description of the dog killed, together with the time, place and circumstances of the killing and the disposition made of the carcass of the dog. Such reports shall be open to public inspection at any reasonable time during the regular office hours of the office in which they are filed. A person killing a dog under the provisions of this article shall dispose of the carcass. Any person fail- ing to make a report shall be subject to a penalty of five dollars to be re- covered in an action brought therefor as provided in this article. [Agri- cultural Law, §139g, as added by L. 1917, ch. 800j and amended by L. 1918, ch. 439.] § 11. DISPOSITION or FEES, PENALTIES AND DAMAGES RECOV- ERED. On or before the fifth day of each month the town or city clerk shall re- mit to the department of farms and markets the amount of all license fees received by such clerk during the preceding calendar month, except that in a city or village where under the laws existing at the time of the taking effect of this act, any portion of the license fees for licensing dogs is paid into the police pension fund in such city or village, in which case an amount equal to the amount payable from license fees to such pension fund under the laws existing prior to the taking effect of this act shall be deducted therefrom and be paid into such police pension fund. He shall at the same time transmit to the department of farms and markets a statement show- ing the number of dogs of each sex licensed and the total amount of license fees received for each sex. Such statement shall be in the form prescribed by the department and shall contain such other information as it may re- quire. The amount remitted shall not include the tag fees collected by such clerk as compensation for his services. Such tag fees shall be retained by the clerk unless his office be salaried, in which case such fees shall be dis- posed of as provided by law. All moneys received for license fees and all penalties recovered under this article and all moneys recovered by the department of farms and mar- kets in actions brought against owners of dogs on account of assigned claims for damages to domestic animals or fowls, and all moneys realized on the sale of unlicensed dogs, as provided in this chapter, shall be paid into the state treasury. The moneys paid into the state treasury under this sec- tion shall so far as necessary be apportioned by the legislature to be ex- pended for the enforcement of the provisions of this chapter and for the DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 663 Agricultural Law, §§ 139i, 139j. payment of compensation for damages caused by dogs to domestic animals or fowls, as hereinbefore provided. [Agricultural Law, § 139h, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] § 12. RECOVERY OF PENALTIES; ACTIONS FOR DAIHAGES. Penalties imposed by this chapter shall be recovered in actions brought by the department of farms and markets in a court of competent jurisdic- tion. The department shall when it deems it for the best interests of the state, cause an action to be brought in the name of the department against the proper parties upon a claim for damages assigned to the state as pro- vided in this chapter, by the owner of domestic animals or fowls. The department may by proper written authority authorize an inspector to bring an action in the name of the department upon such assigned claim or for the recovery of such penalties. The department may, in its discre- tionj compromise or settle any such assigned claim for damages. [Agricul- tural Law, § 139i, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] § 13. APPORTIONMENT TO TOWNS AND CITIES OF SURPI.'US MONEYS. In the month of January in each year, the department of farms and markets shall report to the legislature the total amount paid into the state treasury pursuant to this chapter during the preceding fiscal year, the total amount appropriated by the legislature for the enforcement of the provisions of this act, the total amount expended therefor, the total amount expended for fees of assessors as provided in section one hundred and thirty-nine-f and the amount paid out as compensation for damages to owners of domestic animals and fowls killed, injured or damaged by dogs. The surplus shall be distributed during the month of July in each year among the several towns and cities of the state, on the basis of and in proportion to the contributions made by such towns and cities on account of the provisions of this chapter. In determiniag the share of such surplus to be distributed to a town or city, amounts expended in a town under sections one hundred and thirty-nine-b and one hundred and thirty-nine-d and any amount paid on account of damages caused by dogs owned in such town or city shall be deducted from its distributive share. If the distributive share of a town or city for any year shall be less than the total of the amounts so ex- pended under such sections and paid on account of such damages in such tovm or city for such year, the excess of such total amount over such dis- tributive share shall be deducted from the distributive shares of such town or city for subsequent years until such excess is fully paid. If damage be done by unknown dogs it shall be deducted from the share of the town or city ia which the damage was done. The department of farms and mar- kets shall' determine the amounts to be apportioned to such towns and cities and the same shall be paid to the proper financial officers of such towns and cities. The moneys when paid to any such city or town, after 664 DIVISION FENCES; STRAYED ANIMALS; DOGS. Agricultural Law, §§ 139k, 1391. deducting the amount required to be paid into the police pension fund in a city or village as provided in section one hundred and thirty-nine-h, shall be first applied to the payment of any valid claims arising before the enact- ment of this article against such city or town for damages to sheep by dogs and otherwise; the balance, if any, to be disposed of according to existing provisions of law relating to the dog fund in force before the enactment of this article. [Agricultural Law, § 139j, as added by L. 1917, ch. 800, and amended by L. 1918, ch. 439.] § 14. ENFORCEMENT OF PROVISIONS OF CHAPTER. The department of farms and markets shall enforce the provisions of this chapter. It may appoint three or more inspectors who shall, under the supervision and direction of the department, cause such provisions to be carried into effect and, for such purpose, shall have the powers and per- form the duties prescribed by him. Each inspector shall receive an annual salary of fifteen hundred dollars and his necessary expenses. The depart- ment may designate representatives for the enforcement of the provisions of this chapter, and shall fix their compensation, within the appropriations available therefor. [Agricultural Law, § 139k, as added by L. 1917, ch, 800, and amended by L. 1918, ch. 439.] § 15. POUNDS AND DOG CATCHERS IN CERTAIN COUNTIES. The board of supervisors of any county having a population of over one hundred thousand, according to the last preceding federal or state census or enumeration, exclusive of the population of any city or cities in such county, may establish and maintain a pound or pounds therein, for the im- pounding of dogs under the provisions of this article. The board of super- visors of any such county may also create the position of dog catcher and appoint one or more persons thereto, to be removable at the pleasure of the board. Any such dog catcher shall have all the powers of a constable, police- man or police officer with respect to seizing, killing or impounding dogs un- der the provisions of this article, and the order provided for in section one hundred and thirty-nine-d may be directed and issued to any dog catcher with the same force and effect as though issued to a constable, policeman or police officer. The board may provide either that the compensation of such dog catchers shall consist of the fees provided for a constable, policeman or police officer under this article or that they receive monthly or annual sal- aries. The expense of establishing and maintaining a pound or pounds shall be a general county charge, and provided for by tax, in the same manner as other county charges. [Agricultural Law, § 1391, as added by L. 1918, ch. 439.] DOGS; DUTIES OF TOWN AND COUNTY OFFICERS. 665 Conservation Law, § 193. § 16. DOGS RUNNING AT I.ABGE IN FOREST FRESERVi;. No dog of either sex shall be taken into the Adirondack or the Catskill Park, or into forests inhabited by deer, or harbored or possessed therein, unless the owner shall first obtain a license for such dog from the commis- sion, and pay a fee of one dollar therefor. The license shall be issued by the commission in its discretion and under such rules and regulations as it may deem advisable, and shall terminate with the calendar year in which issued. A metal tag marked with a number corresponding to the number of the license shall be issued with said license, and shall be attached to a collar and shall be at all times worn by the dog so licensed.^ [Conservation Law, § 193, as added by L. 1912, ch. 318, and amended by L. 1915, eh. 176, and L. 1916, ch. 531.] 2. Constitutionality; action to recover penalty. The enactment of the provision of this section, as it existed prior to the amendment, which prohibited the keeping or possession of dogs in the Adirondack park and requiring every game protector to kill any dog found therein, was within the power of the legislature. The com- plaint, in an action to recover a penalty for a violation of said section, which alleges that defendant on or about a certain date wrongfully and unlawfully kept and pos- sessed a, dog which he owned or harbored and permitted to run at large in the public highway in the town of Lake Pleasant, Hamilton county, in this state, within the Adirondack park, as defined by section 51 of chapter 444 of the Laws of 1913, states ^ cause of action. People v. Call (1914), 86 Misc. 246, 149 N. Y. Supp. 168. PART VII. RELIEF OF POOR. CHAPTER XLIV. SUPERINTENDENT OF THE POOR; ALMS-HOUSBS. EXPLANATORY NOTE. Superintendents of the Poor. Superintendents of the poor are county officers. They are elected by the electors of the county in the same manner as other county officers. The number of superintendents varies in the several counties. Nearly all counties have but one. If there are three or more superintendents, the board of supervisors may determine that thereafter there shall be but one ; so also where there is one superintendent the number may be changed to three. All vacancies are filled by the board of supervisors until the thirty-first day of December following the appointment, or until successors are elected and have qualified. Powers and Duties of Superintendents of the Poor. If there are three or more superintendents of the poor a majority may act. Such superintendents have the general supervision and care of poor persons in the county, either in or out of alms-houses. They do not supersede town overseers of the poor, but may, unless otherwise provided by law, direct and advise them in the performance of their duties. The superintendent is directly responsible for the maintenance of the county alms-house and the care and government of the inmates thereof. His chief duties pertain to such alms-house, and unless the board of supervisors has provided for a keeper thereof, he occupies that position. 666 SUPERINTENDENT OP THE POOR; ALMS-HOUSES. ggy Explanatory note. The county superintendent is to settle all disputes as to the settle- ment of poor persons, and may conduct hearings for such purpose. The procedure on such hearings is regulated by statute, and is considered in the chapter entitled " Settlement and Place of Relief of Poor Persons," post. Where poor persons are maintained at the entire expense of the county, the superintendent must audit and settle all accounts for serv- ices relating to their support, relief or transportation. County poor are as a general rule to be supported at the alms-house. But temporary assistance may be afforded by the superintendent, and such poor persons may, when they may be properly provided for elsewhere, be supported outside -of the alms-house but not at a greater expense than they may be supported at the alms-house. The superintendent may direct the overseers of the poor of the sev- eral towns to support county poor persons within their towns, where no alms-house is provided. Alms-houses. The county superintendent of the poor is responsible for the main- tenance of the county alms-house, and for the care and control of the inmates thereof. County poor persons are maintained therein at the «xpense of the county. Where poor persons residing in towns are sup- ported at the expense of towns, the superintendent must keep accounts of the expense of maintaining such persons in the alms-house, and the cost thereof is chargeable against the several towns. Only the amount actually expended can be charged to the towns. No charge may be made for the products of the county farm. The farm and buildings are for the benefit of the towns as well as the county. The superintend- ent must annually account to the board of supervisors for the amounts expended in behalf of the town poor, and the toAvns are chargeable with their just proportion thereof, which amount must be added to the taxes to be levied and collected in each tovsm. Temporary or Out-Door Relief of Poor Persons. The board of supervisors may make rules and regulations In regard to the manner of furnishing temporary or out door relief to the poor in the several towns. If the board of supervisors has failed to make such 668 RELIEF OF POOR. County Law, § 220. rules and regulations, the town board may make them. Such rules and regulations may specify the amount which overseers of the poor may expend for the relief of each person or family. Where such provision is made it is unnecessary for the overseer of the poor to procure an order for the supervisor of the town for relief of such person or family. Section 1. Election, appointment, qualifications and terms of office of super- intendent of the poor. 2. Undertaking, how executed and approved; contents. 3. Powers and duties of county superintendents of the poor. 4. One of superintendents of the poor may be appointed as keeper of One of superintendents of the poor may be appointed as keeper of almshouse ; compensation. 5. County superintendent may direct overseers of the poor to take charge of county poor. 6. Superintendents to provide for support of idiots and lunatics. 7. Pestilence in almshouse; inmates to be removed. 8. County treasurer to keep accounts with towns for moneys paid on account of poor; superintendent to furnish statement. 9. Superintendents to make annual apportionment to towns of amount expended for support of poor. 10. Amount chargeable to towns to be added to tax levy. 11. Superintendent's estimate for expense of maintaining county poor; supervisors to cause sufficient amount to be raised. 12. Superintendent to make report to state board of charities; contents- of report. 13. Almshouse register; what to contain; officers to furnish information. 14. Board of supervisors or town board may make rules and regulations as to furnishing temporary relief. 15. Failure of officer required to make statement or report as to the poor, how punished. 16. Poor children not to be committed to almshouse as vagrants; truants or disorderly persons; support of poor children in families or charitable institutions. § 1. ELECTION, APPOINTMENT, QUALIFICATIONS AND TERMS OF OFFICE OF SUPERINTENDENT OF THE POOR. There shall continue to be elected or appointed in each of the counties except Kings, Queens, and Eichmond, one or more superintendents of the poor as heretofore; but no supervisor of a town, or county treasurer, shall be elected or appointed to such office.^ The board of supervisors of any 1. Bemoval of superintendents. A county superintendent of the poor is. SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 669 County Law, § 220. 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 ho superintendent of the poor shall be elected or appointed in such county until the general election next preceding the expiration of the terms of the superintendents in office, or the office shall be vacant.^ The term of any superintendent in office, or of any person duly elected thereto on the passage of such resolution, shall not be affected thereby. Such board may also, in counties having and entitled to have but one superin- tendent of the poor, in like manner determine that thereafter three superintendents of the poor be elected for such county. After the passage of a resolution, as herein provided, the powers herein conferred shall not be again exercised within a period of five years. Such resolution shall not take effect until the next calendar year succeeding its adoption. removable by the governor after an opportunity has been given him to be heard in his defense. Public OflSeers Law, sec. 33, ante. The expense of such removal is a county charge. See County Law, sec. 240, sub. 16, ante. As to proceedings before the governor for removal, see Public Officers Law, sees. 34, 35, ante. Supervisor not to be superintendent of the poor. The disqualiiScation of a supervisor to the office of a superintendent of the poor applies to supervisors of wards of cities. People ex rel. Furman v. Clute, 50 N. Y. 451. In this case it was also held that the prohibition makes a supervisor not only ineligible to hold office of superintendent, but also ineligible to an election or appointment thereto. It was also contended in this case that the restriction imposed upon a supervisor and a county treasurer was unconstitutional, since it impairs the right of suffrage by limiting the right of the elector to select and vote for a candidate from the whole body of electors, and thus interfered with his constitutional right to vote; but the court held that the act permitting the election of superintendents of the poor having been passed after the adoption of the constitutional provision, the right to vote for such officers was a privilege granted by the legislature, and could be limited by it. Provision of the Constitution (§ 5, art. 10) declaring that " in case of elective officers no person appointed to fill a vacancy shall hold his office longer than the commencement of the political year, next succeeding the first annual election after the happening of the vacancy" has no application to office of superin- tendent of the poor. People ex rel. Hatfield v. Comstock, 78 N. Y. 356; People ex rel. Purman v. Clutf, 50 N. Y. 451. 2. Determining number of superintendents. In the case of People ex rel. Hatfield v. Comstock, 78 N. Y. 356, it was held that superintendents of the poor are county officers whose appointment or election may be provided for, by the board of supervisors as the legislature shall direct, under art. 10, sec. 2 of the Constitution. The delegation to the board of supervisors of the power of determining the Dumber of superintendents and of filing vacancies is con- stitutional. (370 RELIEF OF POOR. County Law, § 220. 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 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; 2. To be appointed by the board of supervisors, if in session, otherwise by the county judge, a county superintendent of the poor, when a vacancy shall occur in such office, and the person so appointed shall hold the office until and including the last day of December succeeding his appointment, and until his successor shall be elected and qualifies ; 3. To be elected a county superintendent of the poor in a county when a vacancy shall occur in such office, and the term of which shall not expire on the last day of the next succeeding December, and the person so elected shall hold the office for such unexpired term, which shall be designated upon the ballots of the electors, or until his successor shall be elected and qualifies; 4. To be elected in each of the counties so having, and entitled to have but one superintendent, a superintendent of the poor, who shall hold his office for three years from and including the first day of January succeeding his election, and until his successor is duly elected and qualifies ; 5. To be appointed by the board of supervisors, if in session, otherwise by the county judge, a superintendent of the poor, in a county having and being entitled to but one superintendent, when a vacancy shall occur in such office; and the person so appointed shall hold the office until and including the last day of December succeeding his appointment, 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 superinten- dent 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 superintendents 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 superintendents expire with each succeeding year, and one superintendent of the poor shall thereafter be. annually elected. Such persons so elected shall hold the office from and including 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 SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 67l County Law, § 221. ballots are voted without designating the term, the first name 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, § 220; B. C. & G. Cons. L., p. 814'.] § 2. UNDEBTAKIIfG, HOW EXECUTED AND APPEOTED; CONTENTS. Every person elected or appointed to the office of superintendent 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 the county, 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 coimty judge of his county, or a justice of the Supreme Court of his judicial district, and in such sum as such board, judge or justice approv- ing the same shall direct, to the effect that he will faithfully discharge the duties of his office as such superintendent of the poor, and pay according to law all moneys that shall come into his hands as such superntendent, and render a just and true account thereof to the board of supervisors of his county.^ [County Law, § 221, as amended by L. 1914, ch. 62; B. C. & G. Cons. L., p. 816.] § 3. FO'WEBS AND DUTISS OF COUNTY SITFEBINTENDENTS OF THE POOB. The county superintendents of the poor shall : ' 1. Have the general superintendence and care of poor persons who may be in their respective counties.' 3. As to other statutory requirements of ofScial undertakings, see Public Officers Law, sees. 11, 12, ante. The requirements of the above section are con- 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. 4. Powers of a majority of board of superintendents. Where there are three superintendents a majority can perform and exercise any power, authority or duty imposed by statute or otherwise upon them. See General Construction Law, sec. 41. The powers of a majority of the superintendents to transact business was considered in the case of Johnson v. Dodd, 56 N. Y. 76. It was there decided that the majority could exercise the power of the board irrespective of and without consultation with the minority. 5. General superintendence of poor persons. By sub. 1 of the above section superintendents are now given the general superintendence of all matters relat- ing to the poor. Under the old law they only had control of county poor persons, and a general supervisory jurisdiction over all questions relating to the settle- ment of the poor and of the respective liabilities of the towns and counties ; and all the powers conferred upon county superintendents to support and maintain the county poor, were required to be exercised at the county poorhouse, or at 672 RELIEF OF POOR. Poor Law, § 3. 3. Provide and keep in repair suitable alms-houses when directed hj 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 govern- ment 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 supervisors, as provided by section four of this article, employ suitable persons to be keepers of such houses, and physicians, matrons and all other necessary officers and servants, and vest such power in them for the government of such houses, and the poor therein, as shall be necessary, reserving to such poor persons who may be placed under the care of such keepers, matrons, officers or serv- ants, 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. such other places as might have been provided for that purpose by the direction of the board of supervisors. People ex rel. Commissioners of Emigration, 27 Barb. 562. Employment of agent by superintendent of poor to place out children. An agent employed by a superintendent of the poor, under a resolution adopted by the board of supei^risors, to place out or provide homes for indigent children, need not be licensed by the state board of charities under L. 1898, ch. 2G4; and his expenses are a proper charge against the county. People ex rel. Spaulding V. Supervisors, 66 App. Div. 117. 72 N. Y. Supp. 782, raodf. 170 N. Y. 93. Action may be brought by superintendents of the poor, in their individual names with the addition of their name of ofBce. Alger v. Miller, 56 Barb. 227. 6. Appointment of keeper by board of supervisors. Section 4 of the Poor Law, post, authorizes the board of supervisors to appoint one of the superin- tendents of the poor as keeper of the county almshouse. Unless one of such superintendents has been appointed by the board of supervisors as provided in that section, the above sub-division authorizes the county superintendents to employ such a keeper. Whenever the board of supervisors exercises this power and appoints one of the superintendents as such keeper, the term of ofBce of the keeper previously appointed by the superintendents terminates, although the year for which he was employed has not expired. People ex rel. McCormick v. Weldon, 14 N. Y. Supp. 447; 39 N. Y. St. Rep. 49. Term of office of keeper. The superintendents of the poor have no power to fix by contract the duration of the keeper's term. He holds his position only during the pleasure of the appointing power. Abrams v. Horton, 18 App. Div. 208, 45 N. Y. Supp. 887. A keeper of the almshouse appointed by the super- intendents of the poor, is removable at their pleasure; and such superintendents have no power to fix by contract the duration of his term. Abrams v. Horton, 18 App. Div. 208, 45 N. Y. Supp. 887. SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 673 Poor Law, § 3. 6. Prescribe the rate of allowance to be made for bringing poor persons "to the county, alms-house, subject to such alterations as the board of supervisors may by general resolution 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 concerning the settle- ment of any poor person, upon 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 who shall be entitled to prosecute for any penalties, or upon any recognizance, bonds or securities taken for the indemnity of any town and in the case of the neglect of any such overseer, to commence and conduct such suits, with- out the authority of such overseer, in the name of such superintendents. 10. Draw on the county treasurer for all necessary expenses incurred in the discharge of their duties, including their necessary personal ex- penses while in the discharge of such duties and their necessary expenses in attending the midwinter and annual state conventions of county superintendents of the poor, which draft shall be paid by such treasurer out of the moneys placed in his hands for the support of the poor.'' [Subd. as amended by L. 1916, ch. 275.] 11. Audit and settle all accounts of overseers of the poor, justices of the peace, and all other persons, for services relating to the support, relief 7. Draft on county treasurer. The board of supervisors of a county have no right to direct a county treasurer not to recognize the draft of a superin- tendent of the poor payable to his order, nor to pay any such draft unless the object for which the money was to be paid was specified in the order. People ex rel. Serven v. Demarest, 16 Hun, 123. The court in this case said : " The superintendents give security that they will render a true account of all moneys received and expended to the supervisors, and the supervisors audit the account. It will be seen that the superintendents are an independent board, They can purchase independently, and draw moneys from the eounty treasurer independently. The expenditure is to be submitted to the board of supervisors. If, after the settlement of the accounts, there is any sum due to the people from the superintendents, the bond will be enforced." The above sub-division should be considered in connection with the provision con- tained at the end of this section to the effect that the board of supervisors may fi.^ the maximum sum which may be expended by the superintendent during the year, and that when such limitation is fixed, the county treasurer cannot pay orders in excess of such sum without the approval of the chairman of the board of super- 674 RELIEF OF POOR. Poor Law, § 3. 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 properly provided for elsewhere than at the county alms-house at an expense not exceeding that of their support at such alms-house.* 8. Audit of accounts. It was intimated in tlie case of Hayes v. Simonds, 9 Barb. 266, that the purchase of material and employment of labor by super- intendents, for which they are authorized to contract, were not the class of accounts to which the statute from which the above sub-division was taken had reference. It is not reasonable to suppose that the statute can be so interpreted as to allow the superintendents to audit accounts arising from their own con- tracts and so make them sit as judges upon questions relating to their own conduct, and their own corporate liability. Neary v. Robinson, 98 N. Y. 84. In the latter case it was held that the superintendents could not audit the account of an attorney retained by them for services rendered in bastardy pro- ceedings instituted by them. The superintendent may properly employ profes- sional assistance in such cases, but the costs incurred are a charge against the county and must be audited by the board of supervisors. Superintendents of the poor are not bound to audit the accounts of physicians and others for services rendered in aid of 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 Gieen and Brown, 4 Hill, 558. If superintendents refuse to audit and settle the accounts specified in this sub-division the proper remedy is by writ of certiorari. It follows then that the proceedings to determine such accounts are judicial in their nature. Vedder v. Superintendents of Schenectady County, 5 Denio, 564. Accounts of superintendents. Superintendents must account to board of supei^isors for all moneys received and paid out. City of Rochester v. Super- visors of Monroe, 22 Barb. 248. County poor are defined in section 2 of the Poor Law as such persons as are required by law to be supported at the expense of the county. The distinction between town and county poor may be abolished by a resolution of the board of supervisors; in such case the poor of the county are to be maintained at the expense of the county and thus become county poor; see Poor Law, sec. 138, post. If a poor person has not gained a settlement in a town or city, he is a county poor person, and maintainable at the expense of the county. Poor Law, sec. 42, sub. 2, post. 9. Temporary relief. Under the law as it existed prior to the Poor Law of 1896, the county poor requiring temporary relief could not be supported by the superintendents at a place other than the county almshouse. Galup v. Bell, 20 Hun, 172; People v. Commissioners of Emigration, 27 Barb. 562. This rule is changed by the provisions of the above sub-division, and now the superin- tendent may furnish support, in certain cases, to poor persons at their homes. SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 675 Poor Law, § 4. 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 direc- tion, and. of all of their proceedings in suoh manner and form as may be required by the board,, 14. Pay over to the county treasurer on the first day of each month all moneys received by him from any source in his official capacity, or otherwise received by him and belonging to the county since the date of the preceding payment, except suoh moneys as are paid out by him for incidental expenses in connection with the duties of his office, for whicih expenditure he shall present with such monthly report vouchers and itemized statements showing dates and purposes of such expenditures. All pay- ment which he is authorized to make under this chapter, except as herein specified, shall be made only by orders drawn on the coupty treasurer, payable to the person entitled thereto and showing upon the face thereof the purpose for which the order is given.9a [Subd. amended by L. 1912, ch. 75, and L. 1916, ch. 275.] 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 re- lief. Expenditures by the superintendent of the poor in the administration of his department are subject to the following limitations: The board of supervisors, at its annual meeting, may fix the maximum sum which may be expended by the su- perintendent, at his discretion, during the next ensuing year, and may provide that expenditures in excess of that sum shall be made only with the written approval of the chairman of the board of supervisors, or of a committee of the board, com- posed of not exceeding three members. If such limitation is fixed and such pro- vision made the county treasurer shall not pay any draft or order of the super- intendent in excess of the sum so fixed by the board, unless it is accompanied with the written approval of such chairman or committee. [Poor Law, § 3; B. C. & G. Cons. L., p. 4231.] § 4. ONE OF SUPERINTENDENTS OF THE POOB MAY BE AP- POINTED AS KEEPER OF ALMS-HOUSE; COMPENSATION. The board of supervisors of any county may, by resolution, appoint as keeper of its county alms-house one of the superintendents of the poor of such county, who shall hold such office until the expiration of his term as superintendent or until the board of supervisors, by resolution, shall determine that he shall no longer act in such capacity.io 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 resolution of the board of supervisors directing such Matter of Connellan, 25 Misc. 592, 56 N. Y. Supp. 157 ; County of Herkimer v. Town of Sangerfieldi 29 Misc. 213, 61 N. Y. Supp. 114; People ex rel. French v. Lyke, 159 N. Y. 149, 153. 9-a. The right of a superintendent of the poor to Avavr drafts on the connty treasurer for his personal expenses, if it ever existed, has been talcen away by chapter 75 of the Laws of 1912 (amending this section), providing that the superintendent of the poor shall pay over to the county treasurer all moneys received by him, etc., and make payments only by orders drawn on the county treasurer payable to the person entitled thereto and showing upon the face thereof the purpose for which the order ia given. Said statute makes it unlawful for the superintendent to disburse moneys himself directly and he cannot draw a, draft to his own order for personal expenses. A superintendent of the poor asking a vinrit of mandamus to compel the payment of the draft drawn by him on the county treasurer for per- sonal expenses is under the burden of showing that such expenses were a county charge. Strong v. Williams ( 1915) , 167 App. Div. 714, 153 N. Y. Supp. 175. 10, - A keeper of a connty alms-honse may be appointed by the superin- tendents of the poor in case the supervisors do not appoint one of such super- intendents asi keeper as provided in the above section. See Poor Law, sec. 3, sub. 4, ante. 11. Compensation of all superintendents of the poor is to be fixed by the ^76 RELIEF OF POOR. Poor Law, §§ 5, 6. superintendent to act as keeper of the county alms-house is in force, the superintendents shall not employ a keeper thereof. [Poor Law, § 4; B. C. & G. Cons. L., p. 4234.] § 5. COUNTY SUPERINTENDENT MAY DIRECT OVERSEERS OF 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 such 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, § 5; B. C. & G. Cons. L., p. 4234.] S 6. SUPERINTENDENTS TO PROVIDE FOR SUPPORT OF IDIOTS AND I.UNATICS. The superintendents of the poor shall provide for the support of poor persons that may be idiots or lunatics, at other places than in the alms- house, in such manner as shall be provided by law for the care, support and maintenance of such poor persons.^^ [Poor Law, § 6; B. C. & G. Cons. L., p. 4235.] hoard of supervisors as provided in sec. 12, sub. 5, of the County Law. If the superintendent is also keeper of the almshouse, his compensation may be made to include his compensation as such keeper. 12. Support of insane. Lunatics cannot now be maintained at an almshouse. All pauper insane must be transferred to a state hospital. The superintendents of the poor are bound to see that all such Insane are so transferred. People ex rel State Commission v. Superintendents, 20 N. Y. Supp. 10; 47 N. Y. St. Rep. 367. By the Insanity Law, the poor and indigent insane of the county are to be committed to the state hospitals for the insane and there maintained at a state expense. Incanity Law, sec. 85, post. If an applicant for relief as a poor person, is, in the opinion of the super- intendent insane, it would be his duty to investigate the facts and take pro- ceedings under sees. 80-82 of the Insanity Law, post, for his commitment to a state hospital for the insane. If an inmate of an almshouse becomes insane, the superintendent should take the necessary steps to secure his transfer to a state hospital. Maintenance of idiots. There are three state institutions for the care and SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 677 Poor Law, §§ 7, 8. § 7. PESTILENCE IN AI.MS-HOUSE; INMATES TO BE REMOVED. Whenever any pestilence of infectious or contagious disease shall exist in any county alms-house or in its vicinity, and the physician thereof shall certify that such pestilence or disease is likely to endanger the health of the persons supported thereat, the superintendents of the poor of such county shall cause the persons supported at such alms-house 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, tovra or village within which such alms-house shall be, there to be maintained and pro- vided 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, § 7; B. C. & G. Cons. L., p. 4335.] § 8. COUNTY TREASURER TO KEEP ACCOUNTS WITH TOWNS FOR MONEYS PAID ON ACCOUNT OF POOR; SUPERINTENDENT TO FURNISH STATEMENT. In counties where there are town poor, the county treasurer thereof shall open and keep an account with each town, in which the town shall be credited with all the moneys received from the same, or from its officers, and shall be charged with the moneys paid for the support of its poor. If there be a county alms-house in such county, the superintendents of the poor shall, each year, before the annual meeting of the board of 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 custody of idiots; the Syracuse State Institution for Feeble Minded Children (State Charities Law, sec. 60); State Custodial Asylum for Feeble Minded Women at Newark (State Charities Law, sec. 80) ; and the Rome State Custodial Asylum (State Charities Law, sec. 90). Idiots who are residents in a county may be transferred to such institutions and either supported as a state charge, or at a county expense as provided by law, or the rules and regulations of the institution. See Cumming & Gilbert's Poor, Insanity and State Charities I>aws, pp. 278-289. See, also, post. Chapter XLVI. Epileptics. The Craig Colony for Epileptics, established at Sonyea, Livines- ton county, and Letchworth Village, established at by L. 1909, til. 446, are for the purpose of caring for and treating poor and indigent per.50iis suffering from epilepsy to the extent of the accommodations there provided. See State Charities Law, sees. 100-115. It is the duty of the county superintendent to provide for the commitment of such persons to such colony. Application may be made to the county superintendent of the poor for placing a child in such colony and, upon compliance with the terms of the statute it ie the duty of the superin- tendent to place such child therein. 678 RELIEF OF POOR. Poor Law, § 9. treasurer in his account.^* [Poor Law, § 8; B. C. & G. Cons. L., p. 4235.] § 9. SUPERINTENDENTS TO MAKE ANNUAI. APPORTIONMENT TO TOWNS OF AMOUNT EXPENDED FOR SUPPORT OF POOR. In counties having an alms-house, and where there are town poor, the superintendents shall annually, and during the week preceding the annual meeting of the board of supervisors, make out a statement of all the expenses incurred by them the preceding year for the support of the town poor, and of the moneys received therefor, exhibiting the deficiency, 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 treasurer.^* [Poor Law, § 9; B. C. & 6. Cons. L., p. 4236.] § 10. AMOUNT CHARGEABLE TO TOWNS TO BE ADDED TO TAX LEVY. At the annual meeting of the board of supervisors, the county treasurer 13. Town accounts. The money to be credited to the towns is the money which is received from the county or its oflBcers. People v. Harris, 16 How. 256. The amount to be charged to the towns on account of their poor main- tained at the county almshouse is to be determined by the amount actually expended by the county for such maintenance. The statute contemplates that the benefits resulting from the almshouse and the property connected therewith, shall be given to the county and towns, in respect to the poor supported at such almshouse without regard to the general obligation of the towns to support their own poor. The towns cannot be charged with the products of the almshouse farm, the labor of the poor in carrying on the business of the almshouse and the occupancy by the town poor. They are only chargeable with their pro rata of the deficiency. City of Rochester v. Supervisors of Monroe County, 22 How. Pr. 248. All orders made for the payment of expenses incurred in the main- tenance of the county poor should be drawn upon the fund created by this section. No action will lie against the superintendents for failure to pay such expenses until a demand is made of them for such an order. 14. Statement of expenses to be made out annually. City of Rochester v. Supervisors, 22 Barb. 248, 252. Beview. The acts of supervisors in assessing a town for the support of its poor are legislative and not judicial, and cannot be reviewed by certiorari. SUPERINTENDENT OF THE POOR; ALMS-HOUSES. 679 Poor Law, §§ 10, 11, 12. shall lay before them the account kept by him; and if it shall appear that there is a balance against any town, the board shall add the* same to the amount of taxes to be levied and 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 collected, shall be paid to the county treasurer.^' [Poor Law, § 10; B. C. & G. Cons. L., p. 4236.] § 11. SUPEBINTENDENT'S ESTIMATE FOB EXPENSE OF MAIN- TAINING COUNTY POOR; SUPERVISORS TO CAUSE SUF- FICIENT AMOUNT TO BE RAISED. The superintendents of the poor shall annually present to the board of supervisors, at their annual meeting, an estimate of the sum which, in their opinion, will be necessary during the ensuing year for the support of the county poor; and such board of 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, § 11; B. C. & G. Cons. L., p. 4236.] § 12. SUPERINTENDENT TO MAKE REPORT TO STATE BOARD OF CHARITIES; CONTENTS OF BEPOBT. The superintendents of the poor of every county shall, on or before the iirst day of August in each year, make reports covering the year ending June thirtieth, to the state board of charities in such form as the board shall direct, showing the number of the town poor and the county poor that have been relieved or supported in their county the year preceding July 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 main- taining the poor, and the allowance made to superintendents, overseers, People ex rel. Allen v. Supervisors of Westchester Co., 113 App. DIv. 773, 99 N. Y. Supp. 348. 15. Balance against any town shall be added to the taxes. City of Rochester r. Supervisors, 22 Barb. 248, 253. 16. Estimates to be furnished by superintendents. City of Rochester v. Supervisors, 22. Barb. 248. Fund for support of county poor. Orders for support of county poor must be drawn upon fund created as provided in this section for such support. Hayes v. Symonds, 9 Barb. 260, 269. 680 RELIEF OF POOR. Poor Law, § 142. justices, keepers, matrons, officers and other employes of the superintedents ; the actual value of the labor of the poor persons maintained, and the esti- mated amount saved in the expense of their support in consequence of their labor; the sex and native country of every such poor person, with the causes, either direct or indirect, which have operated to render such persons poor, so far as the same can be ascertained; and shall include in such reports a statement of the name and age of, and of the names and residence of the parents of, every poor child who has been placed by them in a family during the year, with 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, § 12, as amended by L. 1917, ch. 570; B. C. & G. Cons. L., p. 4237.] § 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, occupation, 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 re- quired by the state board of charities, upon forms prescribed and furnished by such board. Superintendents and overseers of the poor, and other officers charged with the relief and support of poor persons, shall furnish to the keepers or other officers in charge of such alms-houses, as full information as practicable in relation to each person sent or brought by them to such alms-house, and such keepers or other officers shall record the information ascertained at the time of the admission of such person, on the forms so furnished. All such records shall be preserved in such alms-houses, and the keepers and other officers in charge thereof shall make copies of the same on the first day of each month, and immediately forward such copies to the state board of charities. [Poor Law, § 142; B. C. & G. Cons. L., p. 4282.] § 14. BOARD OF SUPERVISORS OR TOWN BOARD MAY MAKE RUI.es AND REGULATIONS AS TO FURNISHING TEMPO- RARY RELIEF. The board of supervisors of any county may make such rules and 17. rorms of reports to be made by superintendent to the state board of charities are prescribed and furnished by such board. SUPERINTENDENT OF THE POOR; ALMS-HOUSES. QSl Poor Law, §§ 13, 14. regulations as it may deem proper in regard to the manner of furnishing- temporary or out door relief to the poor in the several towns in said county, and provided the board of supervisors shall have failed to make any such rules and regulations, the town board of any town may make such rules and regulations as it may deem proper in regard to furnishing temporary or out door relief to the poor in their respective towns, by the overseer or the overseers of the poor thereof, and also in regard to the amount such overseer 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, § 13 ; B. C. & G. Cons. L., p. 4237.] § 15. FAILURE OF OFFICER 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 [the Poor Law], or shall wilfully make any false report, or shall neglect to pay over any moneys within the time required by law, shall forfeit two hundred dollars to the town or county of which he is or was an officer, and shall be liable to an action for all moneys which shall be in his hands after the time the same should have been paid over, with interest thereon at the rate of ten per centum per 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; and such district attorney shall, on receiving such notice or in any way receiving satisfactory evidence of such default, prosecute for the recovery of such penalties or moneys in the name of the town or county entitled thereto, and the sum recovered, if for the benefit of the town, shall be paid to the overseer 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 (j83 RELIEF OF POOR. Poor Law, § 56. support of the poor of such town or county.'* [Poor Law, § 14; B. C. & G. Cons. L., p. 4238.] § 16. POOR CHILDREN NOT TO BE COMMITTED TO ALMS-HOUSE AS VAGRANTS, TRUANTS OR DISORDERLY PERSONS} SUPPORT OF POOR CHILDREN IN FAMILIES OR CHAR- ITABLE INSTITUTIONS. No justice of the peace, board of charities, police justice, or other magis- trate or court, shall commit any child under sixteen years of age, as a vagrant, truant or disorderly person, to any jail or county alms-house, but to some reformatory, or other institution, as provided for in the case of juvenile delinquents; and when such commitments are made, the jus- tice of the peace, board of charities, police justice, or other magistrate or court making the same, shall immediately give notice to the superintendents of the poor or other authorities having charge of the poor of the county in 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 superintendents, overseers of the poor, board of charity, or other officer, send any child under the age of sixteen years, as a poor person, to any county alms-house, for support and care, or retain any such child in such alms-house, but shall provide for such child or children in families, orphan asylums, hospitals, or other appropriate institutions for the support and care of children as provided by law, except that a child under two years of age may be sent with its mother, who is a poor person, to any county 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 apportionment of the city of New York, and the appropriate board 18. Application of section. This section applies to all officers required under the Poor Law to make an account, statement or report. The statements, ac- counts and reports of superintendents are required by sec. 3, sub. 1, 3, 8, 14, ante, p. 671, sec. 8, ante, p. 677, sec. 9, ante. p. 677, sec. 11, ante. p. 679, and sec. 12, ante, p. 679. Those of overseers of poor are prescribed under sec. 25, post, p. 679, sec. 26, post, p. 721, sec. 27, post. p. 722. By this section the penalty is made uniform and applies to all violations of the sections specified. 19. No proceedings necessary. Pauper children between the ages of three and sixteen years may be committed to an orphan asylum or other charitable or reformatory institution by the supervisor of a town on the recommendation of the overseer of the poor of the town, and no judicial proceeding before a magis< trate is necessary. People ex rel. Horton v. Fuller, 41 App. 404, 58 N. Y. Supp. 835. Children between two and sixteen years cannot be sent to a county poorhousBr Nuns of St. Dominick v. Long Island City, 48 Hun 306, 1 N. Y. Supp. 415. SUPERINTENDENT OF THE POOR; ALMS-HOUSES. eSS Poor Law, § 56. or body in other cities and towns shall take such action in the matter as may be necessary to carry out the provisions of this section. When any such child is committed to an orphan asylum or reformatory, it shall, when practicable, be committed to an asylum or reformatory that is gov- erned or controlled by persons of the same religious faith as the parents of such child. When any child who shall have been placed in an asylum, or other institution, as a poor person, in pursuance of this section, shall remain therein at the expense of the county or town to which such poor child is chargeable, the superintendents of the poor of such county, or the overseer of the poor of such town, may remove such child from such asylum or other institution and place such child in some similar institu- tion or make such other disposition of such child as is provided by law.^" [Poor Law, § 56, as amended by L. 1909, ch. 347 ; B. C. & G. Cons. L., p. 4256.] aO. Placing out destltnte chfldren by poor ofBcer. A local officer charge* with the relief of the poor cannot place out a destitute child unless duly licensed by the State Board of Charities. State Charities Law, § 301, as amended by L. 1909,. ch. 258, and L. 1910, ch. 449. ij84 RELIEF OF POOR. Explanatory note. CHAPTEE XLIV. ALMS-HOUSES; POWERS OF STATE BOARD OF CHARITlEa EXPLANATORY NOTE. State Board of Charities. The state board of charities have certain statutory powers and duties relative to the relief of poor persons, which must be recognized by local oflBcers. They are required to advise with officers having charge of alms-houses in respect to their official duties. Such board or any of its officers may visit and inspect alms-houses, and are to be given full and free access to the grounds, buildings, books and papers relating thereto, and may compel the giving of information by the officers and persons in charge of such alms-houses. The board may investigate the officers of such alms-houses and their conduct of the affairs of such alms-houses, and may subpoena and swear witnesses upon any such investigation. If inmates appear, upon such investigation, to have been improperly treated, the board may direct the modification of such treatment, and its orders in respect thereto are enforceable, when approvel by the supreme court. Section 1. Duties of the state board of charities relating to the poor. 2. Visitation and inspection of almshouses by state board; commis- sioners and ofiScers to be admitted. 3. Investigation by board or committee; orders thereon as to treatment of inmates, &c. 4. Almhouse construction and administration; approval of plans by board. 5. Attorney general and district attorneys to aid board in legal investigations. 6. State, non-resident and alien poor in county almshouses. 7. "Visit of almshouses by the state charities aid association. ALMS-HOUSES; POWERS OF STATE BOARD OF CHARITIES. 685 Poor Law, §§ 115, 116. f 1. DUTIES OF THE STATE BOARD OF CHARITIES RELATING TO THE POOR. The State Board of Charities shall : 1. Investigate the condition of the poor seeking public aid and devise measures for their relief. 2. Administer the laws providing for the care, support and removal of state and alien poor and the support of Indian poor persons. 3. Advise the officers of alms-houses in the performance of their official •duties. 4. Collect statistical information in respect to the property, receipts and expenditures of all alms-houses, and the number and condition of the inmates thereof. [Poor Law, § 115 ; B. C. & G. Cons. L., p. 4273.] ^ 2. VISITATION AND INSPECTION OF ArMS-HOUSES BY STATE BOARD; COMMISSIONERS AND OFFICERS TO BE AD- MITTED. Any commissioner or officer of the State Board of Charities, or any inspector duly appointed by it for that purpose, may visit and inspect any alms-house in this state. On such visits inquiry shall be made to ascertain ; 1. Whether the rules and regulations of the board, in respect to such alms-house, are fully complied with. 2. Its methods of industrial, educational and moral training, if any, and whether the same are best adapted to the needs of its inmates. 3. The condition of its finances generally. 4. The methods of government and discipline of its inmates. 5. The qualifications and general conduct of its officers and employes. 6. The condition of its grounds, buildings and other property. 7. Any other matter connected with, or pertinent to, its usefulness and good management. Any commissioner or officer of the board, or inspector duly appointed by it, shall have free access to the grounds, buildings, books and papers relating to such alms-house, and may require from the officers and persons in charge, any information it may deem necessary. Such board may prepare regulations according tp which, and provide blanks and forms upon which such information shall be furnished, in a clear, uniform and prompt manner for the use of the board ; any such officer or inspector who ■shall divulge or communicate to any person without the knowledge and consent of such board, any facts or information obtained in pursuance of the provisions of this chapter, shall be guilty of a misdemeanor, and shall at once be removed from office. The annual reports of each year shall give the results of such inquiry, with the opinion and conclusions of the board relating to the same. Any officer, superintendent or employe of any such 686 RELIEF OF POOR. Poor Law, §§ 117, 118. alms-house who shall wilfully refuse to admit any member, officer or inspector of the board, for the purpose of visitation and inspection, and who shall refuse or neglect to furnish the opinion required by the board, or any of its members, officers or inspectors, shall be guilty of a misdemeanor, and subject to a fine of one hundred dollars for each such refusal or neglect. The rights and powers hereby conferred may be enforced by an order of the Supreme Court after such notice as the court may prescribe, and an opportunity to be heard thereon, or by indictment by the grand jury of the county, or both. [Poor Law, § 116; B. C. & G. Cons. L., p. 4274.J § 3. INVESTIGATION BY BOARD OR COMMITTEE; ORDERS THEREON AS TO TREATMENT OF INMATES, ETC. The board may, by order, direct an investigation by a committee of one or more of its members, of the officers and managers of any alms- house, or of the conduct of its officers and employees ; and the commissioner or commissioners so designated to make such investigation may issue compulsory process for the attendance of witnesses and the production of books and papers, administer oaths, examine persons under oath, and exercise the same powers in respect to such proceeding as belong to referees appointed by the Supreme Court. If it shall appear, after such investigation, that the inmates of the alms-house are cruelly, negligently or improperly treated, or inadequate provision is made for their sustenance, clothing, care and supervision, oi" other condition necessary to their comfort and well being, such board may issue an order in the name of the people, and under its official seal, directed to the proper officer of such alms-house, requiring him to modify such treatment or apply such remedy, or both, as shall therein be specified. Before such order is issued it must be approved by a justice of the Supreme Court, after such notice as he may prescribe, and an opportunity to bn heard thereon, and any person to whom such an order is directed who shall wilfully refuse to obey the same shall, upon conviction, be deemed guilty of a misdemeanor. [Poor Law, § 117; B. C. & G. Cons. L., p. 4275.*] § 4. AXMS-HOUSE CONSTRUCTION AND ADMINISTRATION; AP- PROVAL OF PLANS BT BOARD. No alms-house stall be built or reconstructed, in whole or in part, except on plans and designs approved in writing hy the state board o£ charities, provided, however, tiiat such approval in writing as to alms- houses to be consitructed by the city of New York shall be by the board of estimate and apportionment of said city. It shall be the duty of such board to call the attention, in vmting or otherwise, of the board of su- pervisors and the superintendent of the poor, or other proper oflScer, in any county, of any abuses, defects or evils, which, on inspection, it may ALMS-HOUSES; POWERS OF STATE BOARD OF CHARITIES. 687 Poor Law, §§ 119, 120. find in the alms-house of sueh county, or in the administration thereof, and such county officer shall take proper action thereon, with a view to proper remedies, in accordance with the advice of such hoard. [Poor Law. § 1 18, as amended bv L. 1913, eh. 251 ; B. 0. & G. Cons L p. 427.11 § 5. ATTORNEY-GENERAI, AND DISTRICT ATTORNEYS TO AID BOARD IN LEGAL INVESTIGATIONS. If, in the opinion of the state board of charities, or any three members thereof, any matter in regard to the management or affairs of any such alms-house, or any inmate or person in any way connected therewith, require legal investigation or action of any kind, notice thereof may be given by the board, or any three members thereof, to the attorney-general, who shall thereupon make inquiry and take such proceedings in the premises as he may deem necessary and proper. It shall be the duty of the attorney-general and of every district attorney when so required to furnish such legal assistance, counsel or advice as the board may require in the discharge of its duties under this chapter. [Poor Law, § 119; B. C. & G. Cons. L., p. 4275.] § 6. STATE, NONRESIDENT AND ALIEN POOR IN COUNTY ALMS- HOUSES. The state board of charities, and any of its members or officers, may, at any time, visit and inspect any alms-house to ascertain if any inmates are state charges, nonresidents, or alien poor; and it may cause to be removed to the state or country from which he came, any such nonresident or alien poor found in any such alms-house. [Poor Law, § 130; B. C. & G. Cons. L., p. 4276.] § 7. VISIT OF ALMS>HOUSES BY THE STATE CHARITIES AID ASSOCIATION. Any justice of the Supreme Court, on written application of the state charities aid association, through its president or other officer designated by its board of managers, may grant to such persons as may be named in such application, orders to enable such persons, or any of them, as visitors of such association, to visit, inspect and examine, in behalf of such asso- ciation, any alms-house within the state. The person so appointed to visit, inspect and examine such alms-house or alms-houses, shall reside in the county or counties from which such alms-house or alms-houses receive their or some of their inmates, and such appointment shall be made by a justice of the Supreme Court of the judicial district in which such visitors reside. Each order shall specify the alms-house to be visited, inspected and ex- amined, and the name of each person by whom such visitation, inspection 688 KELIEF OF POOK. Poor Law, § 12L and examination shall be made, and shall be in force for one year from the date on which it shall have been granted, unless sooner revoked. All persons in charge of any such alms-house shall admit each person named in any such order into every part of such alms-house, and render to such person every possible facility to enable him to make in a thorough manner such visit, inspection and examination, which are hereby declared to be for a public purpose and to be made with a view to public benefit. Obedience to the orders herein authorized shall be enforced in the same manner as obedience is enforced to an order or mandate of a court of record. Such association shall make an annual report to the state board of charities upon matters relating to the alms-house subject to its visitation. Such reports shall be made on or before the first day of November for each preceding fiscal year. [Poor Law, § 121 ; B. C. & 6. Cons. L., p. 4276.] SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 689 Insanity Law, S 82. CHAPTER XLVI. SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. Section 1. Application by poor ofiBcers for commitment of the insane. 2. Costs of commitment of insane persons charge on county, city or town securing commitment; care and treatment prior to transfer. 3. Poor and indigent insane supported by state; patients committed by order of criminal court charge on county. 4. Relatives to support insane other than the poor and indigent; duties of poor officers. 6. Superintendent and overseers of the poor to see that insane poor be granted relief; hospitals to which insane to be committed. 6. Apprehension and confinement of dangerous insane; duties of superintendents and overseers of the poor. 7. Discharge of patients; duties of superintendents of the poor. 8. Manner of receiving pupils at . the Syracuse State Institution for Feeble Minded Children. 9. Discharge of state pupils from such institution; expense of return to be audited by superintendent of the poor. 10. Expense of clothing state pupils to be paid by county; support of pupils to be paid by parents and relatives; expense of removal. 11. , Commitments to Rome State Custodial Asylum; duties of super- intendent of the poor. 12. Admission of patients to Craig Colony for Epileptics; applications by superintendents of the poor; poor epileptics to be placed in colony. 13. Support of state patients at Craig Colony; payment of expense of clothing by counties. 14. Apportionment of state patients among counties. 15. State, non-resident and alien poor not to be admitted to certain institutions. § 1. APPLICATION BY POOR OFFICERS FOR COMMITMENT OF THE INSANE. An overseer of the poor of a town or a superintendent of the poor of a connty in which an alleged insane person may be, may apply to a judge of a court of record for an order committing such person to a state hos- pital for the insane. Kotice of an application for such commitment by such officer must be served personally on the alleged insane person, and €90 RELIEF OP POOR. Insanity Law, § 84. upon " lihe Iitisband or wife, father or mother or next of kin of suph alleged insane person, if there be any such known to he residing within the county, and if not, upon the person with whom such alleged insane person may reside, or at whose house he may he." The proceedings to determine the question of insanity of the person alleged to he insane are then to he conducted the same in all respects as where the commitment is sought by other persons. [See Insanity Law, § 82, as amended by L. 1912. ch. 121, and L. 1914, ch. 307; B. C. & G. Cons. L., p. 2476.] § 2. COSTS OF COMMITMENT OF INSANE PERSONS CHARGE ON COUNTY, CITY OR TOWN SECURING COMMITMENT; CARE AND TREATMENT PRIOR TO TRANSFER. The costs necessarily incurred in determining the question of the in- sanity of a poor or indigent or other person under this chapter, or under section twenty-six of chapter four hundred and forty-six of the laws of eighteen hundred and seventy-four, including the fees allowed by the judge or justice ordering the commitment to the medical examiners or medical witnesses called by him and other necessary expenses, and in securing the admission of such person into a state hospital and the expense of providing proper clothing and proper medical care and nursing, for such person in accordance with the rules and regulations adopted by the commission, shall be a charge upon the town, city or county securing the commitment; but in the city of New York all fees of medical examiners and medical witnesses appointed or called by a judge of any court in said city for the purpose of determining the question of the insanity of any such person, and not heretofore paid, may be audited and allowed in the first instance (uther by the judge or justice appointing the medical examiners or by the comptroller of said city and shall be paid by the chamberlain of said city on the warrant of the comptroller from the court fund and charged to the proper county within said city. If the person sought to be com- mitted is not a poor or indigent person, the costs and expenses of the proceeding to determine his insanity and secure his commitment paid by any town, city or county may be collected by it from the estate of such person, or from the persons legally liable for his maintenance, and the same shall be a charge upon the estate of such person, or the same shall be paid by the persons legally liable for his maintenance. The compensation or fees and expenses of health officers for duties per- formed in respect to the examination, confinement, care and treatment of insane or alleged insane persons, as required by this act, shall in each case be determined and allowed by the judge or justice ordering the com- mitment or hearing the application, and shall be a charge upon the town city or county in which such persons reside or may be. If the fees and SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 59 1 Insanity Law, § 85. expenses so determined and allowed are a charge upon the county or town, such judge or justice shall issue a certificate stating the amount thereof, to whom to be paid, and whether a charge upon the county or a town, and if the latter, the name of the town, which shall be presented to the county treasurer and be paid by him out of any moneys available for such pur- pose. The county treasurer shall report the amount paid by him on account of such fees and expenses to the board of supervisors, and the amount thereof which is chargeable against any town in the county shall be levied against the taxable property thereof in the same manner as other town charges are levied. If there is no money in the county treasury available for the payment of such fees and expenses, the county treasurer is hereby authorized and directed to borrow on the credit of the county a sum sufficient to pay such fees and expenses, and may issue certificates of indebtedness therefor, the principal and interest of which, at a rate not exceeding six per centum, shall be binding upon the county, and shall be paid in the same manner as other county obliga- tions. If the compensation or fees and expenses of health officers as so determined and allowed are a charge upon a city they shall be paid in the same manner as the other expenses of the health department or tureau in such city.^ [Insanity Law, § 84, as amended by L. 1910, ch, 608, in effect Oct. 1, 1910,] S 3. POOK AND INDIGEM HfSANE SUPPORTED BY STATE; PATIENTS COMMITTED BY OBDEB OF CBIMINAL COUET CHAB6E ON COUNTY. All poor and indigent insane persons not in confinement under crimi- nal proceedings, shall, without unnecessary delay, be transferred to a state hospital and there wholly supported by the state. The costs neces- sarily incurred in the transfer of patients to state hospitals shall be a- •charge upon the state. The commission shall, except as hereinafter pro- vided, secure from the patient's estate and from relatives or friends who are liable or may be willing to assume the costs of support of inmates of state hospitals supported by the state, reimbursement at the rate fixed by the commission, in whole or in part, of the money thus expended, either directly or through the superintendents or treasurers of the re- spective hospitals, as provided in section fifty-four of this chapter. The commission may, in its discretion, waive the whole or a portion of the claim of the state for the cost of the suDport of a patient against the estate of such patient, whenever the court by which a committee was appointed shall have directed such committee to apply any part of the patient's estate for the maintenance of his family. The commission may appoint agents, whose duty it shall be to secure from relatives and friends who are liable therefor, or who may be willing to assume the Fees specified in this section may be allowed to a health officer in addition to his salary. Rept. of Atty. Genl., March 27, 1911. Stenographer's fees at the rate of twenty cents a folio for taking and tran- scribing 1,984 folios of testimony will be approved. Matter of Murtaugh, 71 Misc. 513. 692 EELffiF OF POOR. Insanity Law, § 86. cost of support of any inmate of a state hospital who is being supported by the state, reimbursement, in whole or in part, of the money so expended. The compensation of each agent shall not exceed six dollars a day, except the agent in charge of collections in New York city which shall not exceed two thousand dollars per annum. Each agent shall receive his necessary traveling and other incidental expenses incurred by him, to be approved by the comptroller. The commission may fix the rate to be paid for the sup- port of an inmate of a state hospital by the committee of such inmate or by relatives liable for such support or by those not liable for such support, but willing to assume the cost thereof; but such rate shall be sufficient to cover a proper proportion of the cost of maintenance and of necessary repairs and improvements. The maintenance of any inmate of a state hospital, committed thereto upon a court order arising out of any criminal action, shall be paid by the county from which such inmate was committed.^^ [Insanity Law, § 85, as amended by L. 1910, ch. 389, L. 1911, ch. 768, L. 1917, ch. 355, aad L. 1918, ch. 568.] § 4. RELATIVES TO SUPPORT INSANE OTHER THAN THE POOR AND INDIGENT; DUTIES OF POOR OFFICERS. The father, mother, husband, wife and children of an insane person, if of suflBcient ability, and the committe or guardian of his person and estate, if his estate is sufBcient for the purpose, shall cause him to be properly and suitably cared for and maintained.^ The commission and the health officer of the city, town or village where any such insane per- son may be, or iu the city of New York and in the county of Albany, the commissioners of public charities, may inquire into the la. Recovery for past support. A person receiving aid as a poor person from th© officers of the poor, in the absence of representation on his part as to his responsi- lility or physical condition, incurs no liability to repay the amount expended in his behalf; but after commitment to a state hospital for the insane, the state may recover for cost of his maintenance, from time of his reception at such institution from a committee appointed subsequent to such commitment. City of Albany v. McNamara, 117 N. Y. 168; County of Oneida v. Bartholomew, 82 Hun, 80, 31 N. Y. Supp. 106, affd. 151 N. Y. 655; Agricultural Ins. Co. v. Barnard, 96 N. Y. 525. a. Relatives of poor and indigent persons who are insane may be com- pelled to support such insane persons. Code Criminal Proc, sec. 914-920, post, p. 755. But in Long Island Hospital v. Stuart, 22 Misc. 48, 49 N. Y. Supp. 372, it was held that the Insanity Law does not make the relative liable for the cost of the support and maintenance of an insane person in a state hospital. By the preceding section of the Insanity Law, sec. 85, the commission in lunacy or the treasurer of each state hospital are authorized to secure from the patient's estate or from his relatives, reimbursement for the whole or a part of the money expended by the state in the care and maintenance of such patient. Contract for support. Where the father of a lunatic who was not a pauper for whose support the county was chargeable, but whom he was himself bound to support and maintain, took her to the county poorhouse, under an agreement made by him with the superintendents of the poor to pay them a specified sum per week, for her board, it was held that this was a valid contract enforceable against the father. Alger v. Miller, 56 Barb. 227. SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 693 Insanity Law, § 87. manner in which any such person is cared for and maintained: and if, iu the judgment of any of them, he is not properly or suitably cared for, may apply, or cause application to be made, to a judge of a court of record for an order to commit him to a state hospital under the provisions of this article, but such order shall not be made unless the judge finds and certifies in the order that such insane person is not properly or suitably cared for by such relative or committee, or that it is dangerous to the public to allow him to be cared for and maintained by such relative or committee. The costs and charges of the commitment and transfer of such insane person to a state hospital shall be paid by the committee, or the father, mother, husband, wife or children of such person, to be recovered in an action brought in the name of the people by the commission, or in the name of the county, city or town, where such insane person resides or may be, by the proper officer thereof, or in the city of New York or in the county of Albany in the name of the commissioner of public charities. In all claims of the state upon relatives liable for the support of a patient, or upon moneys or property held by said patient, the state shall be deemed a preferred creditor. [Insanity Law, § 86, as amended by L. 1910, ch. 608, in effect Oct. 1, 1910.] I ib SUPEBIITTENBEirrS AITD OYEBSEEBS OF THE POOR TO SEE THAT IJiSAJfE POOB BE GBANTED BELIEF; HOSPITALS TO WHICH INSANE TO BE COMMITTED. All county superintendents of the poor, overseers of the poor, health officers and other city, or county authorities, having duties to perform relating to the poor, are charged with the duty of seeing that all poor and indigent insane persons within thfir respective municipalities, are timely granted the necessary relief conferred by this chapter. The poor officers or authorities above specified, except in the city of New York and in the county of Albany, shall notify the health officer of the town,^ city or village of any poor or indigent insane or apparently insane person within such municipality whom they know to be in need of the relief conferred by this chapter.2a. When so notified, or when otherwise informed of such fact, the health officer of the city, town or village, except in the city of New York and the county of Albany, where such insane or apparently insane person may be, shall see that proceedings are taken for the determination of his mental condition and for his commitment to a state hospital. Such health officer may direct the proper poor officer to make an application for such commitment, and, if a qualified medical examiner, may join in making the required certificate of lunacy. When so di- rected by such health officer it shall be the duty of the said poor officer to make Buch application for commitment. When notified or informed of any poor 2-a. Designation of examiners of alleged insane; dnty to notify liealth oMcer of existence of indigent insane. This section does not compel the designation of a health officer, who is a qualified examiner in lunacy, as one of the physicians to examine a person alleged to be insane and make the required certificate of lunacy. All city, town or county authorities, having duties to perform relating to the poor, except in the city of New York and the county of Albany, must notify the health officer of the town or of the village of any poor or indigent insane or apparently in- sane person within such municipality whom they know to be in med of the relief conferred by the Insanity Law. Rept. of Atty. Genl. (1912), vol. 2, p. 431. 694 RELIEF OP POOR. Insanity Law, § 87. or indigent insane or apparently insane person in need of the relief conferred by this chapter, such health officer shall provide for the proper care, treatment and nursing of such person, as provided by law and the rules of the commission, pending the determination of his mental con- dition and his commitment and until the delivery of such insane person t» the attendant sent to bring him to the state hospital, as provided in this chapter. In the boroughs of Manhattan and the Bronx, in the city of New York, it shall be the duty of the trustees of Bellevue and allied hospitals, and in the boroughs of Brooklyn, Queens and Richmond, in the city of New York and also in the county of Albany, it shall be the duty of the commissioner of public charities to see that all poor and indigent insane or apparently insane persons in such boroughs or county, respectively, are properly cared for and treated. It shall also be the duty of such trustees of Bellevue and allied hospitals, or the commissioner of public charities of the city of New York or the county of Albany, to see that proceedings are taken for the determination of the mental condition of any such person in the boroughs or county mentioned, who comes imder their observation or is reported to them as apparently insane, and when necessary, to see that proceedings are insti- tuted for the commitment of such person to an institution for the care of the insane; provided that such report is made by any person with whom such alleged insane person may reside, or at whose house he may be, or by the father, mother, husband, wife, brother, sister, or child of Any such person, or next of kin available, or by any duly licensed physi- cian, or by any peace officer, or by a representative of an incorporated society doing charitable or philanthropic work. When the trustees of Bellevue and allied hospitals are thus informed of an apparently in- sane person, residing in the boroughs of Manhattan or the Bronx, or when the commissioner of public charities of the city of New York is thus informed of an apparently insane person residing in the boroughs of Brooklyn, Queens or Richmond, it shall be the duty of these authori- ties, respectively, to send a nurse or a medical examiner in lunacy, at- tached to the psychopathic wards of their respective institutions, or both. S. JTCW clothing. A regfulation adopted by the state commission in lunacy that eaoh patient be furnished by the county with new clothing before his admission into a state hospital is reasonable and must be obeyed. People ex rel. Croft v. Man- hattan State Hospital, 5 App. Div. 249; 39 N. Y. Supp. 158. Cost of new clothing is a charge upon the county, or town securing the patient's commitment. Insanity Law, sec. 84, cmte. The cost of transfer is a state charge. Insanity Law, sec. 85, omte. SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 695 Insanity Law, § 87. to the place where the alleged insane person resides or is to be found. If, in the judgment of the chief resident alienist of the respective psychopathic wards or of the medical examiner thus sent, the person is in immediate need of care and treatment or observation for the pur- pose of ascertaining his mental condition, he shall be removed to such psychopathic ward for a period not to exceed ten days, and the person or persons most nearly related to him, so far as the same can be readily ascertained by such trustees, or commissioner, shall be notified of such removal. When an order of commitment has been made as provided in this chapter, such health officer, or, in the city of New York and in the county of Albany, the authorities above specified in their respective boroughs or county, shall see that such insane persons are, without un- necessary delay, transferred to the proper institutions provided for their care and treatment as the wards of the state. Before sending a person to any such institution, they shall see that he is in a state of bodily clean- liness and comfortably clothed with suitable or new clothing, in accord- ance with the regulations prescribed by the commission. Each patient shall be sent to the state hospital, within the district embracing the county from which he is committed, except that the commission may, in its discretion, direct otherwise, but private or public insane patients, for whom homeopathic care and treatment may be desired by their rela- tives, friends or guardians, may be committed to the Middletown state homeopathic hospital, or the Gowanda state homeopathic hospital, from any of the counties of the state, in the discretion of the judge granting the order of commitment; and the hospital to which any patient is or- dered to be sent shall, by and under the regulations made by such com- mission, send a trained attendant to bring the patient to the hospital. Each female committed to any institution for the insane shall be accom- panied by a female attendant, unless accompanied by her father, brother, husband or son. The commission may, by order, direct that any person it deems unsuitable therefor shall not be so employed or act as such attendant. After the patient has been delivered to the proper officers of the hospital, the care and custody of the municipality from which he is sent shall cease. In no case shall ■ any insane person be confined in any other place than a state hospital or duly licensed institution for the insane, for a period longer than ten days, nor shall such person be committed as a disorderly person to any prison, jail or lock-up for criminals. Except in the city of New York and the county of Albany, the health officer of the town, village or city wherein an insane or alleged insane person may 696 RELIEF OF POOR. Insanity Law, § 87. be shall see that such person is cared for in a place suitable for the com- fortable, safe and humane confinement of such person, pending the de- termination of the question of his sanity and until his transfer to a state hospital or some other proper institution for the insane as pro- vided in this chapter. Such person shall not be confined in any such place without an attendant in charge of him, and the said health officer shall select some suitable person to act as such attendant. The proper authorities of any such town, city or county may provide a permanent place for the reception and temporary confinement, care and nursing of insane or alleged insane persons which shall conform in all respects to the rules and requirements of the commission ; all poor and indigent .insane persons received at any such place for investigation of their mental condition or pending commitment and transfer to a state hospital shall be maintained therein at the expense of such town, city or county. Any person apparently insane, and conducting himself in a manner which in a sane person would be disorderly, may be arrested by any peace officer and confined in some safe and comfortable place until the question of his sanity be determined, as prescribed by this chapter. The officer making such arrest shall immediately notify the health officer of the town, village or city, except in the city of New York and in the county of Albany, who shall forthwith take proper measures for the de- termination of the question of the insanity of such person, and for his proper care and treatment as provided in this section, pending his trans- fer to an institution for the insane. Whenever in the city of New York an information is laid before a magistrate that a person is apparently insane the magistrate must issue a warrant directed to the sheriff of the county in which the information is made, or any marshal or policeman of the city of New York, reciting the substance of the information, and commanding the officer forthwith to arrest the person alleged to be in- sane, and bring him before the magistrate issuing the warrant. If upon arraignment it appears to the magistrate issuing the warrant that the person so arraigned before him is apparently insane it shall be the duty of the magistrate, if such information is laid in the boroughs of Man- hattan and the Bronx, to commit such apparently insane person to the care and custody of the board of trustees of Bellevue and allied hospitals at Bellevue hospital, and therein kept in a safe and comfortable place until the question of his sanity be determined as prescribed by this chapter, and in the boroughs of Brooklyn, Queens and Richmond the said magistrate shall commit such apparently insane person to the care of the commissioner of public charities who shall keep such person in a safe and comfortable place until the question of his sanity be determined SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 697 Insanity Law, § 88. as herein prescribed. Whenever in the city of New York a person ia committed as apparently insane as above provided it shall be the duty of the board of trustees of Bellevue and allied hospitals or the commis- sioner of public charities, as the case may be, to forthwith take proper measures for the determination of the question of the insanity of such person. [Insanity Law, § 87, as amended by L. 1910, ch. 608, and L. 1912, ch. 121.] S 6. APPEEHENSION AND CONFINEMENT OF BANGEBOU® INSANE; DUTIES OF SUPEMNTENDENTS AND OVERSEEKS OF THE POOB. When an insane person is possessed of sufficient property tO' maintain himself, or his father, mother, husband, wife or children are of sufficient ability to maintain him, and his insanity is such as to endanger his own person, or the person and property of others, the committee of his per- son or estate, or such father, mother, husband, wife or children must provide a suitable place for his confinement, and there maintain him in euch manner as shall be approved by the health officer of the town, vil- lage or city where he is confined, and in accordance with the rules of the commission.*"' The health officers of towns, villages and cities, or in the boroughs of Manhattan and the Bronx in the city of New York the board of trustees of Bellevue and allied hospitals, and in the boroughs of Brooklyn, Queens and Richmond, in said city, and also in the county of Albany, the commissioner of public charities are required to see that the provisions of this section are carried into effect in the most humane and speedy manner. Upon the refusal or neglect of a committee, guardian or relative of an insane person to cause him to be confined, as required in this chapter, the officers named in this section shall apply, or cause application to be made, to a judge of a court of record of the city or county, or to a justice of the supreme court of the judicial district in which such insane per- son may reside or be found, who, upon being satisfied, upon proper proofs, that such person is dangerously insane and improperly cared for or at large, shall issue a precept to one or more of the officers named, commanding them to apprehend and confine such insane person in some comfortable and safe place; and such officers in apprehending such in- sane person shall possess all the powers of a peace officer executing a warrant of arrest in a criminal proceeding.* Unless an order of commit- 3-a. Where tbe Insane person Is, or has responsible relatives, of sufficient ability to maintain him, the State Commission in Lunacy and the local health officer, having upon inquiry concluded that he is being improperly cared for, may apply to a judge of a court of record for his commitment to a state hospital for the insane. The expense, fees and compensation in the performance of these duties shall be allowed by the judge before whom the application is heard. Bept. of Atty. Gienl., Feb. 7, 1912. 4. Arrest of a dangerous insane person, force may be used. Penal Law, S 246, sub. 6. 698 RELIEF OP POOR. Insanity Law, § 94. ment lias been previously granted, such officers shall forthwith make, or cause to be made, application for the proper order for his commitment to the proper institution for the care, custody and treatment of the in- sane, as authorized by this chapter, and if such order is granted, such oflBcer shall take the necessary legal steps to have him transferred to such institution. Pending such transfer the health officer of the proper town, village or city, and, in the city of New York and the county of Albany, the officers above named for the respective boroughs, or county, shall see that such insane person is cared for in a suitable place and is pro- vided with proper medical care and nursing.^ The cost and expense incurred by the health officer in the performance of his duties under this section shall, when allowed by the judge or justice ordering the commit- ment, be a charge against the town, city or county liable for the costs of the commitment of an insane person under this chapter and shall be paid in the manner prescribed by section eighty-four of this chapter.* [Insanity Law, § 88, as amended by L. 1910. eh. 608, and L. 1912, ch. 121; B. C. & G. Cons. L., p. 2483.] § 7. DISCHARGE OF PATIENTS; DUTIES OF SUPERIJfTENDEJfT OF THE POOR. The superintendent of a state hospital, on filing his written certifi- cate with the commission, may discharge any patient, except one held upon an order of a court or judge having criminal jurisdiction in an action or proceeding arising out of a criminal offense at any time, as follows : 1. A patient who, in his judgment, is recovered. 2. A patient who, in his opinion, is a dotard, not insane. 5. Unlawful conflnemeiit; harsh treatment. A person who confines an Idiot, lunatic or insane person, in any other manner or in any other place than as au- thorized by law, and a person guilty of harsh, cruel or unkind treatment of or any neglect of duty towards any idiot, lunatic or insane person under confinement, whether lawfully or unlawfully confined, is guilty of a misdemeanor. Penal Law, § 1121. 6. Application of section. The above section relates to dangerously insane per- sons. The father is therein required to provide a suitable place for his lunatic son's confinement, and upon his refusal or neglect so to do, legal proceedings may be instituted, and a commitment ordered on proper proof. Long Island State Hos- pital V. Stuart, 22 Misc. 48, 51; 49 N. Y. Supp. 372. It is the duty of the committee or relatives of a lunatic to provide for his con- finement if he be dangerously insane; and in case of their neglect the duty is im- posed on certain public oflScers. Perkins v. Mitchell, 31 Barb. 461, 473. SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 699 Insanity Law, § 94. 3. Any patient who is not recovered but whose discharge in the judg- ment of the superintendent, will not be detrimental to me public wel- fare, or injurious to the patient ; provided, however, that before making such certificate, the superintendent shall satisfy himself, by sufficient proof, that friends or relatives of the patient are willing and financially able to receive and properly care for such patient after his discharge. When the superintendent is unwilling to certify to the discharge of an unreeovered patient upon request, and so certifies in writing, giving his reason therefor, any judge of a court of record in the judicial district in which the hospital is situated may, upon such certificate and an op- portunity of a hearing thereon being accorded the superintendent, and upon such other proofs as may be produced before him, direct, by order, the discharge of such patient, upon such security to the people of the state as he may require, for the good behavior and maintenance of the patient. The certificate and the proof of the order granted thereon shall be filed in the clerk's ofiice of the county in which the hospital is situated, and a certified copy of the order in the hospital from which the patient is discharged. The superintendent may grant a parole to a patient, not exceediag one year, under general conditions prescribed by the commissioner. The hospital paroling a patient shall not be liable for his expenses while on parole. Such liability shall devolve upon the relative, committee or person to whose care the patient is paroled, or the proper poor official of the town or coimty in Which he may have found domicile. The commission may, by order, discharge any patient in its judgment improperly detained in any institution. A poor and indigent patient discharged by the superintendent, because he is an idiot, or a dotard not insane, or an epileptic, not insane, or because he is not a proper case for treatment within the meaning of this chapter, shall be received and cared for by the superintendent of the poor or other authority having similar powers, in the county from which he was committed. A patient, held upon an order of a court or judge having criminal jurisdiction, in an action or proceeding arising from a criminal offense, may be dis- charged upon the superintendent's certificate of recovery, approved by any such court or judge.' •i. Discharge of patients from licensed institutions. The superin- 7. The committee of the person of an incompetent may obtain her custody by a writ of habeas corpus pursuant to this section, although she has not been declared sane. Matter of Andrews, 126 App. Div. 794, 800, 111 N. Y. Supp. 417. 700 RELIEF OP POOR. State Charities Law, § 68. tendent or physician in charge of a licensed private institution, on filing his written certificate with the commission, may discharge any patient who is reeovered, or if not recovered, whose discharge will not be detri- mental to the public welfare, or injurious to the patient. The superin- tendent or physician in charge of such institution may, subject to the approval of the commission, refuse to discharge any patient, if, in his judgment, such discharge will be detrimental to the public welfare or injurious to the patient, and if the committee or relatives of such pa- tient to provide properly for his care and treatment, the superintendent or physician in charge of such institution may apply to the commission for the transfer of the patient to a state hospital, provided the patient so sought to be transferred is a legal resident of the district in which the hospital is located, to which the transfer is sought. The superintendent or physician in charge of a licensed private insti- tution may grant a parole to a patient not exceeding six montlis, under general conditions prescribed by the commission. [Insanity Law, § 94, as amended by L. 1912, ch. 121, and L. 1917, ch. 335; B. C. & G. Cons. L., p. 2487.] § 8. MANNER OF RECEIVING PUPILS AT THE SYRACUSE STATE INSTI- TUTION FOR FEEBLE-MINDED CHILDREN.* Feeble-minded children may be received into such institution upon the official application of a county superintendent of the poor, or the commissioners of charity of a city of the state having such officers. In the admission of feeble-minded children, preference shall be given to poor or indigent children over all others, and to such as are able or have parents able to support them only in part, over those who are or who have parents who are able to wholly support such children. [State Charities Law, § 68, as amended by L. 1910, ch. 449 ; B. C. & G. Cons. L., p. 5399.] 8. The Syracuse State Institntion for Feeble-Minded Children is established and managed pursuant to article 5 of the State Charities Law. 9. Andit of accounts hy superintendent of the poor. See Poor Law, sec. 3, ante, p. 671. 8. Audit of expense of clothing to be paid by counties. See County Law. sec. 12, ante, p. 26. The accounts against the several counties for the expense of such cloth- ing should be itemized and verified as provided in County Law, sec. 24, cmte, p. 27. SUPPORT OP THE INSANE, IDIOTS AND EPILEPTICS. 700a State Charities Law, §§ 69, 70, § 9. DISCHABGE OF STATE PUPILS FEOM SUCH INSTITUTION; EX- PEJfSE OF KETUBN TO BE AUDITED BY SUPEBINTENDEIVT OF THE POOE. When the manager shall direct a state pupil to be discharged from the institution, the superintendent thereof may return him to the county from which he was sent, and the superintendent of the poor of the county shall audit and pay the actual and reasonable expenses of such return.' If any town, county or person is legally liable for the support of such pupil, such expenses may be recovered by action in the name of the county by such superintendent of the poor. If the superintendent of the poor neglect or refuse to pay such expenses on demand, the treas- urer of the institution may pay the same and charge the amount to the county ; and the treasurer of the county shall pay the same with interest after thirty days, out of any funds in his hands not otherwise appro- priated; and the supervisors shall raise the amount so paid as other county charges. [State Charities Law, § 69, as amended by L. 1910, eh. 449 ; B. C. & G. Cons. L., p. 5399.J § 10. EXPENSE OF CLOTHING STATE PUPILS TO BE PAID BY COUNTY; SUPPOET OF PUPILS TO BE PAID BY PABENTS AND RELATIVES; EXPENSE OF BEMOTAL. The supervisors of any county from which state pupils may have been received shall cause to be raised annually, while such pupils remain in the institution, the sum of twenty dollars for each pupil, for the purpose of furnishing suitable clothing, which shall be paid to the treasurer of the institution on or before the first day of April.^" The superintendent may agree with the parent, guardian or committee of a feeble-minded child, or with any person, for the support, maintenance and clothing of such a child at the institution, upon such terms and conditions as may be prescribed, in the by-laws, or approved by the managers. Every parent, guardian, committee, or other person applying for the admission into the institution of a feeble-minded child who is able, or whose parents or guardians are of sufficient ability to provide for his maintenance therein, shall at the time of his admission, deliver to the superintendent an un- dertaking, with one or more sureties, to be approved by the managers. 9. The Borne State Custodial Asylum is established and managed pursuant to State Charities Law, art. 7. See B. C. & G. Cons. L., p. 5402. 10. Craig Colony for Epileptics was established and is managed pursuant to State Charities Law. See B. C. & G. Cons. Law, p. 5405. 700b SELIEF OF POOR. State Charities Law, § 70. conditioned for the payment to the treasurer of the institution of the amount agreed to be paid for the support, maintenance and clothing of such feeble-minded child, and for the removal of such child from the in- stitution without expense thereto, within twenty days after the service of the notice hereinafter provided. If such child, his parents or guard- ians are of sufficient ability to pay only a part of the expense of support- ing and maintaining him such undertaking shall be only for his removal from the institution as above mentioned ; and the superintendent may take security by note or other written agreement, with or without sure- ties, as he may deem proper, for such part of such expenses as such child, 'his parents or guardians are able to pay, subject, however, to the ap- proval of the managers in the maimer that shall be prescribed in the by-laws. Notice to remove a pupil shall be in writing, signed by the superintendent and directed to the parents, guardians, committee or other person upon whose request the pupil was received at the institu- tion, at the place of residence mentioned in such request, and deposited in the post-office at Syracuse with the postage prepaid. If the pupil shall not be removed from the institution within twenty days after ser- vice of such notice, according to the conditions of the agreement and un- dertaking, he may be removed and disposed of by the superintendent as herein provided, in relation to state pupils, and the provisions of this article respecting the payment and recovery of the expenses of the re- moval and disposition of a state pupil, shall be equally applicable to ex- penses incurred under this section. This section, as amended, shall supersede and control any other provision of this chapter inconsistent herewith in its application to such institution. [State Charities Law, § 70, as amended by L. 1911, ch. 609 ; B. C. & G. Cons. L., p. 5400.J SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 701 State Charities Law, !§ 94, 109. S 11. COMMITMENTS TO EOME STATE CUSTODIAI ASYLUM; DUTIES OF SUPEBHfTENDEIfT OF THE POOK. The superintendents of the poor of the various counties of the state may commit to such asylum, if vacancies exist therein, such feeble- minded persons and idiots residing in their respective counties, or wlio are inmates of county almshouses, according to the by-laws and regula- tions of the asylum. All commitments shall be in the form prescribed by the board of managers. Insane idiots or epileptics shall not be com- mitted to such asylum. The maintenance of the institution and inmates thereof shall be a charge upon the state, except that a feeble-minded person or idiot who is possessed of sufficient property to pay for mainte- nance in the asylum, or the father, mother, committee or guardian who is responsible for the care of such feeble-minded person and is finan- cially able in the judgment of the board of managers to reimburse the state in addition to a proper financial ability to support himself and remaining family, shall pay the treasurer of the asylum yearly an amount equal to the yearly per capita cost of such maintenance as de- terminated by the board of managers yearly, and upon the refusal of such parent, committee or guardian to make payment as herein provided the superintendent of such asylum may bring action in the name of the asylum to recover for such reimbursement to the state for such mainte- nance. Where it becomes necessary to have a committee of a feeble- minded incompetent person appointed to legally settle an estate in which such incompetent feeble-minded person has a legal or financial interest, the superintendent of the asylum is hereby empowered to make appli- cation to a court of competent jurisdiction for the appointment of such committee. [State Charities Law, § 94, as amended by L. 1914, ch. ] 65 ; B. C. & G. Cons. L., p. 5403.] § 12. ADMIS8I01T OP PATIE1VT8 TO CRAIG COLONY FOR EPILEPTICS r APPLICATIONS BY SUPERINTENDENTS OF THE POOR; POOR EPILEPTICS TO BE PLACED IN COLONY. 1. The superintendent of the poor or the proper city poor law officer shall have two qualified physicians examine each eligible candidate for admission to the Craig Colony for Epileptics as to mental competency and have them state in writing, under afiidavit on prescribed forms the results of such examination of ihe applicant. Such examiner shall not 702 RELIEF OF POOR. State Charities Law, § 109. be a relative of the applicant or a manager, superintendent or be other- wise connected with the Craig Colony for Epileptics and shall be a reputable physician, a graduate of an incorporated medical school and shall be in the actual practice of his profession for at least three years. The superintendent of the poor or city poor law officer mentioned under the laws governing the colony shall then if the applicant appears in- competent make application to a judge of a court of record of the county or a justice of the supreme court of the judicial district in which the alleged incompetent epileptic resides or may be, for the purpose of having the incompetency of such applicant determined in the usual manner. If the applicant is adjudged incompetent he shall then bo committed by the court to the Craig Colony for Epileptics under the provisions of this act. 2. All applicants for admission to the Craig Colony for Epileptics, who are alleged to be incompetent mentally shall have an opportunity for a hearing before the court to whom the application is to be made for the commitment of the applicant to the said Craig Colony for Epileptics. Notice of the application for commitment shall be served per- sonally at least three days before making such application, upon the <^pileptic alleged to be incompetent and also upon the husband or wife, father or mother or next of kin to such alleged incompetent epileptic, it there be any such known to be residing within the county and if not, upon the person with whom such alleged incompetent epileptic may at the time reside. The judge, to whom the application is to be made, may dispense with such personal service or may direct substitute service to be made upon some person to be designated by him. He shall in the certificate to be attached to the application form state his reason for dispensing with personal service, if such service i« not deemed necessary or advis- able. The judge to whom such application is made, may if no demand 33 made for a hearing in behalf of the alleged incompetent, proceed forthwith to 'Ictermine the question of incompetency and if satisfied that the alleged epileptic is incompetent may issue an order for the commitment of such person to the custody of the Craig Colony for Epileptics. Such judge may in his discretion require other proofs in addition to the petition and certificate of the medical examiner and before mentioned poor law oflirer. SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 702a State Charities Law, § 109. 3. The order of commitment shall be accompanied by a written state- ment of the judge as to the financial condition of the incompetent epi- leptic and of the persons legally liable for his maintenance as far as can be ascertained. The superintendent of the Craig Colony for Epi- leptics shall, whenever a vacancy exists in the quota allowed the county of which the applicant is a legal resident, admit the applicant. The petition of the applicant, the certificate of the medical examiners, the order directing a further hearing as provided in this section, if one be issued, and the decision of the judge or referee, and the order of commit- ment shall be presented at the time of the commitment to the superin- tendent of Craig Colony for Epileptics and verbatim copies shall be forwarded by such superintendent and filed in the office of the state board of charities. The superintendent of Craig Colony for Epileptics may refuse to receive any person upon any suoh order, if the papers required to be presented s-hall not comply with the provisions of this section, or if in his judgment, such person is not epileptic within the meaning of this statute, or if received, such person may be discharged. If a person ordered to be committed, pursuant to this chapter, or any friend in his behalf, is dissatisfied with the final order of a judge or justice committing him, he may within ten days after the making of such order appeal therefrom to a justice of the supreme court other than the justice making the order, who shall cause a jury to be summoned as in case of proceedings for the appointment of a committee for the incompetent person, and shall try the question of such incompetency in the same manner as in proceedings for the appointment of a com- mittee. If the verdict of the jury be that such person is incompetent, the justice shall certify that fact and make an order of commitment as upon the original hearing. Such order shall be presented, at the time of the commitment of such incompetent epileptic, to the superintendent in charge of said colony to which the person is committed, and a copy thereof shall be forwarded to the state board of charities by such super- intendent or person in charge and filed in the oSiee thereof. Proceed- ings under the order shall Aot be stayed pending an appeal therefrom, except upon an order of a justice of the supreme court, and made upon a notice, and after a hearing, with provisions made therein for such temporary care or confinement of the alleged incompetent epileptic as may be deemed necessary. If a judge shall refuse to grant an appli- cation for an order of commitment of an incompetent epileptic proved to be dangerous to himself or others, if at large he shall state his reason 702b RELIEF OF POOH. state Charities Law, § 109. for such refusal in writing, and any person aggrieved thereby may ap- peal therefrom in the same manner and under like conditions as from an order of commitment. 4. The costs necessarily incurred in determining the question of the incompetency of a poor or indijgent epileptic under this chapter includ- ing the fees allowed by the judge or justice ordering the commitment to the medical examiner or medical witnesses called by him and other necessary expenses, and in securing the admission of such person into> said colony and the expense of providing proper clothing for such person in accordance with the rules and regulations adopted by the state board of charities, shall be a charge upon the town, city or county in which the alleged incompetent epileptic shall have gained a legal settlement under the provisions of the poor law and in case such person has gained no such legal settlement, then such expense shall be a charge upon the county in which the incompetent person may be at the time of the commitment ; but in the city of New York all fees of medical examiners and medical witnesses appointed or called by a judge of any court of said city for the purpose of determining the question of the incompe- tency of such person, and not heretofore paid, may be audited and allowed in the first instance either by the judge or justice appointing the medical examiners or by the comptroller of said city and shall bo paid by the chamberlain of said city on the warrant of the comptroller from the court fund and charged to the proper county within said city. If the person sought to be committed is not a poor or indigent person, the costs and expenses of the proceeding to determine his incompetency and secure his commitment paid by any town, city or county may be collected by it from the estate of such person, or from the persons legally liable for his maintenance. 6. It shall be the duty of said colony, and for that purpose it is hereby vested with the authority to detain all such mentally incompetent epilep- tics as shall be duly committed thereto in accordance with the provi- sions of law and the rules and regulations of said colony including the right to arrest and return any who may escape therefrom, until duly discharged by the board of managers of said colony, or by an order of the supreme court. 6. The superintendent of the Craig Colony for Epileptics shall be given power under this act to secure the commitment of such of its in- mates who, after being admitted in any other manner than by commit- SUPPORT OF THE INSANE. IDIOTS AND EPILEPTICS. 702© State Charities Law, S 109. ment, prove after examination to be mentally incompetent, after an op- portunity has been given the relatives or legal guardian of such patien.t to be heard, such commitment to be made by the court in the case of such an individual the same as in case of a person regularly committed at the time of admission to the colony. 7. It ehall be the duty of the superintendent of the poor in every county and of the poor authorities of every city to furnish annually to the state board of charities, a list of all epileptics in their respective jur- isdictions, so far as the same can be ascertained with such particulars as to the condition of such epileptic as shall become a charge for his or her maintenance on any of the towns, cities or counties of this state. It ehall be- the duty of all poor authorities of such city, and of the county superintendent of the poor, and of the supervisors of such county, to place such epileptics in the said colony, as soon as accommodations are available. Any parent, guardian of friend of an epileptic within this state may make application to the poor authorities of any city or the superintendent of the poor of any county where such epileptic resides, showing by satisfactory affidavit or other proof, that the health, morals, comfort or welfare of such epileptic may be endangered or not properly cared for, if not placed in such colony ; and thereupon it shall be the duty of such officer or board to whom such application may be made to place such epileptic in said colony when accommodations are available. The board of supervisors shall provide for the support of such patients, except those properly supported by the state, and may recover for the same from the parents or guardians.'^ Preference shall always be given to poor or indigent epileptics, or the epileptic children of poor or indi- gent persons, over all others; and preference shall always be given to such as are able to support themselves only in part, over those who are able or who have parents who are able wholly to furnish such support. 8. There shall be received and gratuitously supported in the colony, epileptics of normal mentality residing in the state, who, if of age, are imable, or if under age whose parents or guardians are unable to provide for their support therein. They shall be designated state patients. All such epileptics of normal mentality shall be received into the colony, only upon the official application of a county superintendent of the poor, 13. Acconnts for support of patients ctiargeable to a county should be sub- mitted to the clerk of the board of supervisors in the manner prescribed by the State Charities Law, § 47, as amended by L. 1911, ch. 405. As to the audit of such accounts by the board of supervisors, see County Law, sec. 12, arde, p. 24. 702d RELIEF OF POOR. State Charities Law, §§ 109, 110. or the poor authorities of any city upon forms approved by ihe state board of charities containing the written request of the persons desiring to send them, stating the name, age, place of nativity, if knov?n, the town, city or county in which such applicants respectively reside and the ability of their respective parents or guardians or others to provide for their support in whole or in part, and if in part only, stating what part; and stating also the degree of relationship or other circumstances of connection between the applicant and the persons requesting their ad- mission; which statement in all cases must be verified by the aifidavits of the petitioners and accompanied by the opinions regarding epilepsy and mental competency, with affidavit, of a qualified physician ; all resi- dents of the same county with the epileptic patient and all acquainted with the facts and circumstances stated. An epileptic of proved normal mentality thus received shall not be detained after he or his relative nearest of kin or legal guardian, if a minor, shall have given due notice in writing of his or their intention to leave or remove him from tbe colony. Such additional number of epileptics as can be conveniently ac- commodated shall be received into the colony by the managers on such terms as shall be just and shall be designated as private patients. [State Charities Law, § 109, as added by L. 1914, ch. 39 ; B. C. & G. Cons. L., p. 5411.] § 18. SUPPORT OF STATE PATIENTS AT CRAIG COLOM ; PATMEIVT OP EXPEIVSE OF CLOTHI>'G BY COUNTIES, State patients shall be provided with proper board, lodging, medical treatment, care and tuition; and the managers of the colony shall receive SUPPORT OF THE INSANE, IDIOTS AND EPILEPTICS. 703 State Charities Law, §§ 111, 17. for each state patient supported therein a sum not exceeding two hundred and fifty dollars per annum; which payments, if any, shall be made by the treasurer of the state, on the warrant of the comptroller, to the treasurer of the said colony, on his presenting the bill of the actual time and number of patients in the colony, signed and verified by the superintendent and treasurer of the colony and by the president and secretary of its board of managers, and approved by the fiscal supervisor. The supervisors of any county from which such patients may have been received into the colony shall cause to be raised annually while such patients remain in the colony, the sum of thirty dollars for each of such state patients for the purpose of furnishing suitable clothing, and the same shall be paid to the treasurer of the colony on or before the first day of April of each year.^^ [State Chari- ties Law, § 110, as amended by L. 1909, eh. 149, B. C. & G. Cons. L., p. 5412.] § 14. APPORTIONMENT OF STATE PATIENTS AMONG COUNTIES. Whenever applications are made at one time for admission of more state patients than can be properly accommodated in the colony, the managers shall so apportion the number received, that each county may be repre- sented in a ratio of its dependent epileptic population to the dependent epileptic population of the state, as shown by statistics furnished by the state board of charities. [State Charities Law, § 111; B. C. & G. Cons. L., p. 5412.J § 15. STATE, NONBESIDENT AND AUEN POOR NOT TO BE AD- MITTED TO CERTAIN INSTITUTIONS. A poor person shall not be admitted as an inmate into a state institution for the feeble-minded, or epileptics, unless a resident of the state for one year next preceding the application for his admission. The state board of charities, and any of its members or ofiicers, may at any time, visit and inspect any institution subject to its supervision to ascertain if any inmates 14. Clothing accounts. The superintendent of the colony is required by section 46 of the State Charities Law to report to the clerk of the board of supervisors of each county the number of patients committed to such colony from such county. The accounts for such clothing are to be itemized and verified as provided in sec. 24 of the County Law, post, p. 27. Such accounts are then to be audited by the board of supervisors. ;04 RELIEF OF POOR. State Charities Law, § 17. supported therein at a state, eouBty or municipal expense are state charges,. non-residents, or alien poor; and it may cause to be removed to the state or county from which he came any such non-resident or alien poor found in any such institution. [State Charities Law, § 17; B. C. & G. Cons. L., p. 6383.] THE BLIND AND THE DEAF AND DUMB. 705 Education Law, §§ 971, 972. CHAPTEE XLVn. EDUCATION AND SUPPORT OF THE BLIND, AND THE DEAF AND DUMB. Section 1. Appointment as state pupils in schools for the Wind and the deaf and dumb. 3. Clothing for state pupils admitted to deaf and dumb institutions. 3. Admission of pupils to New York State School for the Blind at Batavia; application for admission. 4. Clothing and traveling expenses of those admitted to State School for the Blind ; when to be furnished or paid for by the county. 5. Itemized accounts against counties, payment of such accounts. 6. Indigent deaf-mutes to be placed in institutions ; application for admis- sion; when expense a charge against county. 7. Pupils may be sent to Western New York Institution for Deaf -Mutes. 8. Admission of pupils to Northern New York Institution for Deaf-Mutea at Malone. 9. Verification of bills for support of pupils at New York Institution for the Instruction of the Deaf and Dumb. § L APPOIIfTMEIfT AS STATE PUPILS Ilf SCHOOLS FOR THE BLIND AITO THE DEAF AND DUMB. All deaf and dumb persons resident in this state and upwards of twelve years of age, who shall have been resident in this state for one year imme- diately preceding the application, or, if a minor, whose parent or parents, or, if an orphan, whose nearest friend shall have been resident in this state for one year immediately preceding the application, shall be eligible to appointments as state pupils in one of the deaf and dumb institutions of this state, author- ized by law to receive such pupils. [Education Law, § 971, as amended by L. 1910, eh. 140.] All blind persons of suitable age and possessing the other qualifications pre- scribed for deaf and dumb state pupils under section nine hundred seventy-one shall be eligible to appointment to the Institution for the Blind in the city of New York, or in the village of Batavia, as follows: 1. All such as are residents of the counties of New York, Kings, Queens, Suf- folk, Nassau, Richmond, Westchester, Putnam and Rockland, shall be sent to the Institution for the Blind in the city of New York. 2. All such who reside in other counties of the state shall be sent to the institution for the blind in the village of Batavia. Blind babies and children, not residing in the city of New York, of the age of twelve years and under and possessing the other qualifications prescribed in the preceding section of this chapter and requiring kindergarten training and instruction shall be eligible to appointment as state pupils in one of the homes for blind babies and chil- dren maintained by the International Sunshine Society, Brooklyn Home for the Blind, Crippled and Defective Children and the Catholic Institute for the Blind and any such child may be transferred to the institution for the blind in the 706 RELIEF OF POOR. Education Law, § 975. city of New York or village of Batavia, to which he or she would otherwise he eligible to appointment, upon arriving at suitable age, in the discretion of the commissioner of education. All such appointments, with the exception of those to the institution for the blind in the village of Batavia, shall be made by the commissioner of education upon application, and in those cases in which, in his opinion, the parents or guardians of the applicants are able to bear a portion of the expense, he may impose conditions whereby some proportionate share of expense of educating and clothing such pupils shall be paid by their parents, guardians or friends, in such manner and at such times as the com- missioner shall designate, which conditions he may modify from time to time, it he shall deem it expedient to do so. [Education Law, § 972, as amended by L. 1910, ch. 140, and L. 1912, ch. 60.] § 2. CliOTHING FOa STATE PUPILS ADMITTED TO DEAF AND DUMB INSTITUTIONS. 1. The supervisors of any county in this state from which county state, pupils may be hereinafter appointed to any institution for the instruction of the deaf and dumb, whose parents or guardians are unable to furnish them with suitable clothing, are hereby authorized and required to rai.so in each year for each such pupil from said county, the sum of thirty dollars. 2. The supervisors of any county in this state from which state pupils shall be sent to and received in the Xew York institution for the blind, whose parents or guardians shall, in the opinion of the commissioner of education, be unable to furnish them with suitable clothing are heieby authorized and directed, in every year while such pupils are in said insti- tution, to raise and appropriate thirty dollars for each of said pupils, and to pay the sum so raised to the said institution, to be by it applied to fur- nishing such pupils with suitable clothing while in said institution. 3. If in any case aU or any of said moneys are not expended before the expiration of the periods of appointment of such pupils, as provided in the foregoing subdivisions of this section, then the unexpended residue shall go into the general clothing fund of the said institutions, to be devoted to fur- nishing state pupils with suitable clothing. [Subd. amended by L. 1917, ch. 179.] 4. If said sums shall not be paid to the said institutions, as required in subdivisions one and two of this section, within six months after the annual meeting of the supervisors of any of said counties, the sums so unpaid shall bear interest at the rate of seven per centum per annum, from the expira- tion of said six months until the same be paid. [Subd. amended by L. 1917, ch. 179.] 5. The supervisors of any county in this state from whose pauper institu- tions pupils shall be sent to the said institution for the blind, shall raise, appropriate and pay to the order of the comptroller of the state, towards the expense of educating and clothing such pupils, a sum equal to that which the county would have to pay to support the pupils as paupers at home. This subdivision does not apply to the counties of Xew York, Kings, Queens, Nassau and Suffolk. THE BLIND AND THE DEAF AND DUMB. 707 Education Law, §§ 975, 991-993. 6. The supervisors, or officers corresponding thereto, of the counties of New York, Kings, Queens, Nassau and Suffolk, from which state pupils shall be sent to and received in the New York institution for the blind, whose parents or guardians shall, in the opinion of the commissioner of education, be unable to furnish them with suitable clothing, are hereby authorized and directed, in every year while such pupils are in said insti- tution, to raise and appropriate fifty dollars for each of said pupils from said counties respectively, and to pay the sura so raised, to the said in- stitution, to be by it applied to furnishing such pupils with suitable cloth- ing while in said institution. 7. If in any year hereafter there shall be any surplus of the amount above required to be paid yearly by the said counties for clothing for pupils from said counties, respectively, then such surplus shall be deducted pro rata the ensuing year from the amount above required to be paid by the said counties respectively. [Education Law, § 975, as amended by L. 1910, ch. 140.] § 3. ADMISSION OF PUFirS TO NEW YORK SCHOOI. FOR THE. BLIND APPLICATION FOR ADMISSION. All blind persons of suitable age and capacity for instruction, who are legal residents of the state, shall be entitled to the privileges of the New York state school for the blind, without charge, and for such a period of time in each individual case as may be deemed expedient by the board of trustees of said school ; provided, that whenever more persons apply for ad- mission at one time than can be properly accommodated in the school, the trustees shall so apportion the number received, but each county may be represented in the ratio of its blind population to the total blind population of the state; and provided further, that the children of citizens who died in the United States service, or from wounds received therein during the late rebellion, shall take precedence over all others. [Education Law,. § 991, as amended by L. 1910, ch. 140.] Blind persons from without the state may be received into the school upon the payment of an adequate sum, fixed by the trustees, for their board- ing and instruction; provided that such applicant shall in no ease exclude those from the state of New York. [Education Law, § 992, as amended by L. 1910, ch. 140. J Applications for admission into the school shall be made to the board of trustees in such manner as they may direct, but the board shall require such application to be accompanied by a certificate from the county judge or county clerk of the county or the supervisor or town clerk of the town, or the mayor of the city where the applicant resides, setting forth that 708 RELIEF OF POOR. Education Law, §§ 1004-1006. the applicant is a legal resident of the town, county and state claimed as his residence. [Education Law, § 993, as amended by L. 1910, ch. 140. j § 4. CI.OTHING AND TRAVELING EXPENSES OF THOSE ADMITTED TO STATE SCHOOL FOR THE BLIND; WHEN TO BE FURNISHED OR PAID FOR BY THE COUNTY. 1. When any blind person shall, upon' proper application, be admitted into the school, it shall be the duty of his parents, guardians or other friends, to suitably provide such person with clothing at the time of entrance and during continuance therein, and likewise to defray his traveling ex- penses to and from the school, at the time of entrance and discharge, as well as at the beginning and close of each session of the school, and at any other time when it shall become necessary to send such person home ou account of sickness or other exigency. 2. And whenever it shall be deemed necessary by the trustees to have such person permanently removed from the school, in accordance with the by- laws and regulations thereof, the same shall be promptly removed upon their order, by his parents, guardians or oth'er friends. [Education Law, § 100-1, as amended by L. 1910, ch. 140.J 1. If the friends of any pupil from within the state of Few York shall fail through neglect or inability to provide the same with proper clothing or with funds to defray his necessary traveling expenses to and from the school , or to remove him therefrom, as required in the preceding section, the trus- tees shall furnish such clothing, pay such traveling expenses, or remove such pupil to the care of the overseers of the poor of his township, and charge the cost of the same to the county to which the pupil belongs, provided that the annual amount of such expenditures on account of any one pupil shall not exceed the sum of sixty dollars. 2. And in case of the death of any pupil at the school, whose remains shall not be removed or funeral expenses borne by the friends thereof, the trustees shall defray the necessary burial expenses, and charge the same to his county as aforesaid. 3. Upon the completion of their course of training in the industrial de- partment, the trustees may furnish to such worthy poor pupils as may need it, an outfit of machinery and tools for commencing business, at a cost not exceeding seventy-five dollars each, and charge the same to the proper county as aforesaid. [Education Law, § 1005, as amended by L. 1910, ch. 140.] § 5. ITEMIZED ACCOUNTS AGAINST COUNTIES, PAYMENT OF SUCH ACCOUNTS. On the first day of October in each year, the trustees shall cause to be made out against the respective counties concerned, itemized accounts, THE BLIND AND THE DEAF AND DUMB. yO!* Education Law, §§ 1007, 977. separate in each ease, of the expenditures authorized by the preceding section, and forward the same to the board of supervisors chargeable with the account.^ The board shall thereupon direct the county treasurer to pay the amount so charged to the treasurer of the institution for the blind, on or before the first day of March next ensuing. [Education Law, § lOOG, as amended by L. 1910, eh. 140.] The counties against which said accounts shall be made out as aforesaid, shall cause their respective treasurers, in the name of their respective counties, to collect the same, by legal process, if necessary, from the parents or estates of the pupils who have the ability to pay, on whose account the said expenditures shall have been made ; provided that at least five hundred dollars' value of the property of such parents or estate shall be exempt from the payment of the accounts aforesaid.^ [Education Law, § 1007. as amended by L. 1910, ch. 140.] § 6. INDIGENT DEAF-MUTES TO BE PLACED IN INSTITUTIONS; APPLICATION FOR ADMISSION; WHEN EXPENSE A CHARGE AGAINST COUNTY. Whenever a deaf-mute child under the age of twelve years shall become a charge for its maintenance on any of the towns or counties of this state, or shall be liable to become such charge, it shall be the duty of the overseers of the poor of such town or of the board of supervisors of such county to place such child in one of the institutions enumerated in the next section. [Education Law, § 977, as amended by L. 1910, eh. 140.] Upon the application of any parent, guardian or friend of a deaf-mute child, within this state, over the age of five years and under the age of twelve years, the overseer of the poor or the supervisor of the town where such child may be, shall place such child in one of the institutions author- ized by the laws of eighteen hundred and ninety-two, chapter thirty-six, to receive such pupils as follows; 1. The New York institution for the deaf and dumb ; or, 2. The institution for the improved instruction of deaf-mutes ; or, 3. The Le Couteulx Saint Mary's institution for the improved instruc- tion of deaf-mutes in the city of Buffalo ; or, 4. The Central New York institution for deaf-mutes in the city of Eome; or. 1. As to presentation of accounts against a county, and the audit thereof by the board of supervisors, see Ch. Ill, ante. 3. Money raised by towns and counties for the care and support of inmates of charitable institutions, see General Municipal Law, § 87, post. 710 RELIEF OF POOR. Education Law, §§ 978, 980; L. 1876, ch. 331, § 2. 5. The Albany home school for the oral instruction of the deaf at Albany ; or, 6. To any other institution in the state for the education of deaf-mutes as to which the state board of charities shall have filed with the commis- sioner of education a certificate to the effect that said institution has been duly organized and is prepared for the reception and instruction of such pupils. [Education Law, § 978, as amended by L. 1910, ch. 140.] The children placed in said institutions, in pursuance of the last two sections, shall be maintained therein at the expense of the county from where they came, but such expense shall not exceed three hundred and fifty dollars each per year, until they attain the age of twelve years, unless the directors of the institution to which a child has been sent shall find that such child is not a proper subject to remain in said institution, provided, however, that during the continuance of the war with the German empire and its allies and until the thirtieth day of June following the termination thereof, such expense for each child may be at the rate of not to exceed four hundred dollars per year. [Education Law, § 979, as amended by L. 1910, chs. 140, ^22, and by L. 1917, ch. 179, and L. 1918, ch. 243.] The expenses for the board, tuition and clothing for such deaf-mute children, placed as aforesaid in said institutions not exceeding, for each child, the amount of expense for maintenance allowed by the preceding sec- tion, shall be raised and collected as are other expenses of the county from which such children shall be received; and the bills therefor, properly authenticated by the principal or one of the officers of the institution, shall be paid to said institution by the said county; and its county treasurer or chamberlain, as the case may be, is hereby directed to pay the same on presentation, so that the amoimt thereof may be borne by the proper county. [Education Law, § 980, as amended by L. 1910, chs. 140, 322, L. 1917, ch. 179, and L. 1918, ch. 243.] § 7. PITPILS MAT BE SENT TO WESTERN NEW YORK INSTITU- TION FOR DEAF MUTES. Supervisors of towns and wards and overseers of the poor are hereby authorized to send to the Western New York Institution for Deaf-Mutes, deaf and dumb persons between the age of six and twelve years, in the same manner and upon the same conditions as such persons may be sent to the New York Institution for the Instruction of the Deaf and Dumb, under the provisions of chapter three hundred and twenty-five of the laws of eighteen hundred and sixty-three. [L. 1876, ch. 331, § 2.] § 8. ADMISSION OF PUFUS TO NORTHERN NEW YORK INSTITU- TION FOR DEAF MUTES AT MALONE. The Northern New York Institution for Deaf-Mutes at Malone, is hereby authorized to receive deaf and dumb persons, between the ages of twelve and twenty-five years, eligible to appointment as state pupils, and who may be appointed to it by the superintendent of public instruction, and the THE BLIND AND THE DEAF AND DUMB. 711 L. 1884, ch. 275, §§ 1, 2; L. 1804, ch. 93, § 1. superintendent of public instruction is authorized to make appointments to the aforesaid institution. [L. 1884, ch. 275, § 1.] Supervisors of towns and wards and overseers of the poor are hereby authorized to, send to the Northern New York Institution for Deaf -Mutes, deaf and dumb persons between the ages of six and twelve years, under the provisions of chapter three hundred and twenty-five of the laws of eighteen hundred and sixty-three, as amended by chapter two hundred and thirteen of the laws of eighteen hundred and seventy-five. Provided that before any pupils are sent to said institution the board of state charities shall have made and filed with the superintendent of public instruction a certi- ficate to the effect that said institution has been duly organized and is prepared for the reception and instruction of such pupils. [Idem, § 2.] § 9. VEBIFICATIOIf OF BILLS FOR SUPPORT OF PUPILS AT NEW YORK INSTITUTION FOB THE INSTRUCTON OF THE DEAF AND DUMB. Hereafter any bill for board, lodging, clothing or tuition of pupils, in the aforesaid institution, shall be signed and verified by the principal and steward of said institution, instead of its president and secretary, any existing law to the contrary notwithstanding. [L. 1894, ch. 93, § 1.] "^12 RELIEF OF POOR. Explanatory note. CHAPTER XLVni. GENERAL POWERS AND DUTIES OF OVERSEER OP THE POOR IN RESPECT TO RELIEF OF POOR. EXPLANATORY NOTE. Overseers of the Poor. Overseers of the poor are town officers. The number, election and qualifications of such officers are considered in chapter xx. In this chapter we will treat of their powers and duties in respect to the relief of the poor. Subsequent chapters will treat of their duties as to the settlement of poor persons, the care of bastards and other subjects. Relief of Poor Persons in County Alms-house. The theory of the law is that all poor persons who require permanent relief, and who may be safely removed, shall be relieved and provided for in the county alms-house. The overseer must consider the circum- stances of each person requiring relief, and remove him to the alms- house or support him in the town, as seems most suitable. Relief of Poor Persons Generally. A person needing relief, either temporary or permanently, m ust apply to the overseer of the poor. After investigation the overseer is to furnish such relief as the necessities of the person may require. If the person relieved resides in the town, the cost of the relief is a charge upon the town. If he does not reside in the town, the ovcjrseer is allowed such sums as he necessarily expends, to be paid by the county treasurer, on the order of the county superintendent. If it appears that the person applying for relief should be relieved and cared for at his home, or is in such physical condition that he cannot be removed to the alms-house, the overseer must apply to the supervisor of the town for an order to expend such gum as may be required for such POWERS AND DUTIES OF OVERSEERS OF THE POOR. 713 Explanatory note. relief. Such order entitles the overseer to receive, either from the county treasurer or the supervisor, the amount expended or contracted to be paid by such overseer in giving such relief. Unless rules and regulations have been adopted by the board of supervisors, as provided by section 13 of the Poor Law, ante, page 680, not more than ten dollars can be ex- pended by the overseer for the temporary relief of a poor person, with- out the written sanction of the superintendent of poor. Where there is no alms-house in a county, the overseer may, with the written approval of the supervisor, make an order in vsrriting for such allowance, weekly or otherwise, as the necessities of the poor persons require. The overseer must examine monthly into the conditions and neces- sities of each person supported by the town out of the alms-house, and provide for such allowances, weekly or otherwise, as the circumstances may in his judgment require. Settlement of Accounts ; Books to be Kept. All accounts for care, support, supplies or attendance must be settled once in three months and paid, if there are available funds. Ali accounts must be verified before audit by the overseer. The overseer must keep a book in which he must enter the name, etc., of each poor person relieved by him, and a statement of the causes, direct or indirect, which operated to render relief necessary. He must also enter the moneys paid out and received on account of each person relieved. Such book must be laid before the town board at its first annual meeting, together with an itemized account of moneys received and paid out. Estimates of Expenditures. Overseers of the poor must present to the town board at its meeting held on the Thursday before the annual meeting of the board of supervisors, an estimate of the sum which they shall deem necessary to be raised for the support of the poor for the ensuing year. They should include in such estimate any deficiency in the town poor fund. The board of supervisors must cause the amount estimated to be raised by tax upon the town. ^14 RELIili iJl POOR. Poor Law, 5 20. Suction 1. When poor persons to be relieved in county alms-house ; duties of overseer of the poor in respect thereto. 2. Care of poor persons not to be put up at auction. 3. Expense of removal and temporary relief prior to removal to be paid to overseer by county treasurer. 4. Persons removed to county alms-house, how supported and when dis- charged. 6. Temporary relief of poor persons who cannot be removed to alms-houses ; order of supervisor. 6. Relief of poor persons in counties having no alms-house. 7. Overseer to examine monthly the needs of the poor supported in his town ; settlement of accounts ; form of accounts and verification. 8. Books to be kept by overseers of the poor ; overseers to present books to the town board ; duties of the town board ; overseer to have books of accounts present at town meeting. 9. 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. 10. Accounts of town officers. 11. Supervisor to report to clerk of board of supervisors, abstract of accounts of overseers of the poor. 12. Treatment of poor persons in hospitals. § 1. 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 applicant; 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 1. Who are poor persons. A poor person is one unable to maintain himself, and such person shall be maintained by the town, city, county or state according to the provisions of the Poor Law. Poor Law, sec. 2. Permanent relief for poor persons. The above section of the Poor Law was derived from R. S., pt. 1, ch. 20, tit. 1, sec. 39. Under the former law it was provided that a poor person who " is in such indigent circumstances as to require permanent relief and support, and can be easily removed, the overseer shall, by a written order, cause the poor person to be removed to the county poor house, or to the place provided as aforesaid to be relieved and provided for as the necessities of such applicant may require." But the above section has modified the law, and a poor person may now he removed to the alms-housp or be relieved and provided for elsewhere as his necessities may require. Tt is doubtful, however, if the change thus made in this section was POWERS AND DUTIES OF OVERSEERS OF THE POOR. 715 Poor Law, § 20. respective towns are required to support their own poor, the overseer shall designate in such order of removal, whether such person be chargeable for the purpose of permitting the permanent relief of poor persons in a county having a county alms-house at a place other than such alms-house. Section 33 of the Poor Law> post, prescribes the method of granting temporary relief to poor persons at a place outside of an alms-house and permits the granting of relief to a poor person who is sick, lame or otherwise disabled so that he cannot be removed to the county alms-house. The law would therefore seem to contemplate the granting of permanent relief in the county alms-house in all cases except where temporary relief only is required, and where the poor person who seeks relief is sick, lame or disabled. Under the old law it was held 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, 22 Barb. 252; Nuns of the Order of St. Dominick v. Long Island City, 48 Hun, 306 ; Robbins v. Walcott, 66 Barb. 68. In counties where there is no county poor house, and the towns are severally liable for the support of their own poor, moneys raised for the support of the poor are placed in the hands of the overseers of the poor; and when an overseer pays out money for the support of a pauper, or contracts for his support, he is entitled to appropriate the money, in the first case, and retain it in his own hands In the other. He has absolute control of the fund and is liable only for moneys not lawfully appropriated. Robbins v. Wolcott, 66 Barb. 63. In the absence of express statutorj' provisions, there is no obligation or duty imposed upon towns to contribute to the support of persons residing within their limits. People ex rel. Blenheim v. Supervisors, 121 N. Y. 345; 24 N. B. 830. Duties of overseer as to relief. The overseers are authorized by sec. 25 of the Poor Law, post, to examine into the condition and necessities of poor persons supported outside of county alms-houses. Under the above section the overseer is directed to investigate the state and circumstances 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 cases of different persons, and are so incapable of being defined by strict rules, that much must be left to the judgment and discretion of the officers. It was held in the case of City of Albany v. McNamara, 117 N. Y. 168; 22 N. B. 931, that the question as to the propriety of granting relief to a poor person is confided to the discretion of the poor authorities, and if they grant it, the presumption is that they have made such investigations as they deemed necessary and determined the question as to the right of the party to relief, and therefore their determination cannot be reviewed. In this case it was also held that where money had been supplied to a poor person by the officer without expectation of reimbursement, that such officer's misjudgment as to the necessities of the person relieved, raised no im- plied promise on the part of such poor person to repay the moneys expended in his behalf; and further, that the possession of some property by a person does not always and necessarily preclude him from a just claim for relief. The public benefit conferred by the poor laws is personal to the individual. 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 716 RELIEF OF POOR. Poor Law, §§ 143, 21, 22. io the county or not ; and if no such designation be made, such person shall be deemed to belong to the town whose overseer made such order.* [Poor Law, § 30; B. C. & G. Cons. L., p. 4239.] § 2. CARE OF POOK PERSONS NOT TO BE PUT UP AT AUCTION. No officer or persons whose duty it may be to provide for the main- tenance, 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 persons to the lowest bidder, and every contract which may be entered into in violation of this provision shall be void. [Poor Law, § 143; B. C. & 6. Cons. L., p. 4282.] § 3. EXPENSE or REMOVAL AND TEMPORARY RELIEF PRIOR TO REMOVAL TO BE PAID TO OVERSEER BY COUNTY TREAS- URER. 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 necessarily 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 inconvenient to remove such poor person, which sum shall be paid by the county treasurer, on the order of the superintendent.' [Poor Law, § 21; B. C. & G. Cons. L., p. 4239.] § 4. PERSONS REMOVED TO COUNTY ALMS-HOUSE, HOW SUP- PORTED AND WHEN DISCHARGED. The person so removed shall be received by the superintendents, 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 upon him. The poor person 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; 35 N. Y. Supp. 236. 2. For form of order of overseers of a town to remove a poor person to the county poor house, see Form No. 74, post. 3. For form of superintendent's order to pay expenses incurred by overseers for the removal of a poor person, see Form No. 75, post. Money paid for temporary relief of a pauper is the money of the county and not of the town. Robbins v. Wolcott, 66 Barb. 63. POWERS AND DUTIES OF OVERSEERS OF THE POOR. 717 Poor Law, § 23. proYided, when they may, in their discretion, discharge him. [Poor Law, § 33; B. C. & G. Cons. L., p. 4340.] § 5. TEMPOBABV BELIEF OF POOR PERSONS 'WHO CANNOT BE REMOVED TO AIMS-HOUSES ; OBDEB OF SUPEB VISOR. If it shall appear that the person so applying requires only temporary relief, or is sick, lame or otherwise disabled so that he cannot be con- veniently removed to the county alms-house, or that he is a person who should be relieved and cared for at his home under article six,'* of this chap- ter [the Poor Law], the overseers shall apply to the supervisor of the town, who shall examine into the facts and circumstances, and shall, in writing, order ° such sums 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 he may have paid out or contracted io 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 shall be expended or paid for the relief of any one poor person, or one family, without the sanction, in writing," of one of the superintendents of the poor of the county, which shall be pre- sented to the county treasurer, with the order of the supervisor, except when the board of supervisors or town board has made rules and regulations as prescribed in section thirteen of this chapter.' [Poor Law, § 33 ; B. C. & G. Cons. L., p. 4340.] 4. Article 6 of the Poor Law relates to the relief of poor or indigent soldiers, sailors and marines, and their families. 5. For form of supervisor's order for the expenditure of money for the temporary relief of a poor person, see Form No. 76, post. 6. For form of the written sanction of a county superintendent of the poor for the expenditure of a greater sum than $10 in the temporary relief of a poor person, see Form No. 77, post. 7. Power of overseer as to temporary relief. The question of the propriety •of granting relief is primarily in the sound discretion of the overseer. If the overseer applies for an order for the granting of relief to a poor per- son, and the order is given by the supervisor, the presumption is that both the overseer and the supervisor examined into the necessities of the par- ticular case, and that the condition of the poor person was such as to war- rant the issuing of the order, and that the poor person was entitled to relief. Matter of Chamberlain, 73 Misc. 256. See also City of Albany v. McNamara, 117 N. Y. 168, 22 N. E. 931. A liability in excess of $10 cannot be in- curred by the overseer without the sanction of one of the superintendents of the poor, but except in such a case, the overseer's power of granting temporary relief is independent of the control of the superintendents of the 718 RELIEF OP POOR. Poor Law, § 24. § 6. RELIEF OF POOR PERSONS IN COUNTIES HAVING NO ALMS- HOUSE. If application for relief be made in any county where there is no county alms-house, the overseer of the town where such application is made shall inquire into the facts 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 town in the same county, the overseer shall apply the moneys so allowed to the relief and support of such poor person. The moneys so paid by him, or contracted to be paid, when the poor person had no legal settlement in the town, and charged to the town in which he had legal settlement, shall be drawn by such overseer from the county treasurer on producing such order. If such person has no legal settlement in such county, the overseer shall, within ten days after granting to him poor. Gere v. Supervisors, 7 How. Pr. 26S; Nuns of St. Dominiek t. Long Island City, 48 Hun, 306, 1 N. Y. Supp. 415. Where an overseer refuses or neglects to apply for an order for the relief of a poor person settled in his town, an action will not lie against such overseer in belialf of a person who has supported such poor person at his own expense, voluntarily, and without request from such overseer. Milklaer v. Rockfeller, 6 Cow. 276. A family which has been receiving poor relief from their town, should, upon thoir confinement under quarantine by the health board of the village within which they reside, be supported at town expense. Opinion of Atty. Genl., Feb. 14, 1913. Order for relief. Under the law as it existed prior to 1896 the order was to be issued by a justice of the peace; under the present law such order Is issued by the supervisor. The requirement of an order is a statutory protection against extravagant or improper expenditure by overseers of the poor. Osterhoudt v. Rigney, 98 N. Y. 222, 237. If no fraud is shown and no injury results to a taxpayer, such taxpayer cannot maintain an action against an overseer of the poor for expending more than $10 for the relief of a poor person without the written consent, of the supervisor. Cobb v. Remsdell, 14 N. Y. Supp. 93; 37 N. Y. St. Rep. 457. The inquiry as to the necessity of the order need not be made jointly by the overseer and supervisor. The order is the act of the supervisor and may be based upon his own examination. As has been already stated, it is presumed that the overseer has determined as to the necessity of the relief before making his application for an order. See Adams v. Supervisors of Columbia County, 8 Johns. 323. The overseer of a town under this section cannot expend more than $10 for the temporary relief of a person who cannot be removed to the alms- house, unless he is authorized to do so by the order of the supervisor of the town and the written sanction of one of the superintendents of the poor of the county; he cannot comnel the supervisor to make the order, and he has performed his atitire duty when Tie has made the application therefor; he cannot be made liable for a neglect of duty where he has applied for the order and it has not been granted. Brazee v. Stewart, 59 App. Div. 476, 69 N. Y. Supp. 231. POWERS AND DUTIES OF OVERSEERS OF THE POOR. 719 Poor Law, § 25. 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, § 24; B. C. & G. Cons. L., p. 4341. J § 7. OVEBSEER TO EXAMINE MONTHLY THE NEEDS OF THE POOR SUPPORTED IN HIS TO^VN; SETTLEMENT OP ACCOUNTS; FORM OF ACCOUNTS AND VERIFICATION. The overseer of the poor of a town or city shall at least once each month, examine into the condition and necessities of each person supported by the town or city out of the 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 maintenance 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, furnished to poor persons, by order of the overseer of the poor, or otherwise, shall be audited or allowed by the overseer, unless such bill. 8. Relief in counties having no alms-house. The law as it existed prior to 1896 was construed in the case of Robbins v. Walcott, 66 Barb. 62, where the court used the following language: ", In those counties in which there is no poor house an overseer is authorized to make an order for the allowance of such sum, weekly or otherwise, as the necessities of the poor person may require. If such pauper has a legal settlement in the town where the application is made, or in any other town of the same county, the overseer is required to apply the money to the relief of such pauper. The money paid by the overseer, or contracted to be paid pursuant to such order, shall be drawn by him from the county treasury on producing the order. If such pauper has not a legal settle- ment in some town of the county in which the application is made, then notice is to be given to the superintendent of the poor, and the overseer may support the pauper after such notice and until the superintendent assumes his support, and the overseer is to be paid therefor from the county treasury." 9. The poor persons to whom allowances may be made as provided in this section, are those who, under sec. 20 of the Poor Law, ante, are relieved and provided for at a place other than an alms-house; those under sec. 23 of the Poor Law, ante, requiring temporary relief; those under sec. 24 of the Poor Law, ante, supported by towns in counties having no alms-house; and poor and indigent soldiers, sailors and marines, supported as provided in sees. 80-83 of the Poor Law, post. 720 RELIEF OF POOR. Poor Law, § 26. claim, or account be verified by the claimant, to the effect that such caro; support, supplies 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 reasonable and not above the usual market rates." [Poor Law, § 25 ; B. C. & G. Cons. L., p. 4242.] § 8. BOOKS TO BE KEPT BY OVERSEERS OF THE POOR; OVER- SEERS TO PRESENT BOOKS TO THE TOW^N BOARD; DUTIES OF THE TOAXTN BOARD; OVERSEER TO HAVE BOOKS OF ACCOUNTS PRESENT AT TOWN MEETING. Overseers of the poor, who receive and expend money for the relief and support of the poor in their 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 10. For form of order for supplies furnished to poor persons, and for verification of accounts for audit, see Form No. 78, post. Powers of overseers to contract. Overseers of the poor may contract for the support of poor persons within the scope of their authority; and con- tracts so made are valid and obligatory upon them in their official capacity and upon their successors; but if they transcend their authority, though they may be Individually responsible, their successors are not. Palmer v. Vanden- bergh, 3 Wend. 193. If an overseer makes a contract for the relief of a poor person, without the order or approval of the supervisor or other authority granted by statute, he may be held personally liable on such contract. King V. Butler, 15 Johns. 281. But the case of Olney v. Wicks, 18 Johns. 122, seems to hold a contrary doctrine. In that case it was held that, while the overseer contracts in 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 personally. And in the case of Holmes v. Brown, 13 Barb. 5D9, it was held that "the cases where an action has been held to He 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." In the case of Overseers of the Poor of Norwich v. Overseers of Pharsalla, 15 N. Y. 341, the town of Pharsalia was liable for the support of certain paupers who were for the time being In the town of Norwich. The overseer of Pharsai'a promised the overseers of Norwich, that if they would provide for such paupers, he would pay the expenses incurred. It was held that it was not within the official power of the overseer of Pharsalia to make such a contract, and that the plaintiffs were confined to the remedy given by statute, viz., the audit of the account by the superintendents of the poor and the levying of the amount by the hoard of supervisors on the town of Pharsalia for the benefit of Norwich. This case did not involve the question POWERS AND DUTIES OF OVERSEERS OF THE POOR. 721' Poor Law, § 26. 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 con- tracted by them as such overseers, the names of the persons with whom such debts were contracted, the amount and consideration oi each item, the names of the persons for whose benefit the debts were contracted, and if the same have been paid, the time and manner of such payment. The over- seer 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 meeting of said board, and a verified statement of debts contracted by them as such overseers and remaining unpaid.^^ The board or council shall compare said account with the entries of the personal liability of the overseers, but it was intimated that if the contract was not within the scope of the ofiScial power of the overseer, no action would lie thereon against the town. Under section 10 of the Town Law, post, contracts of overseers are deemed the contracts of the town. This section has shifted the direct liability of town officers for contracts made by them to the town, and makes the town the proper party defendant or plaintiff in actions or special proceedings upon contracts in which the town is interested, and it has been held under that section that the contracts of overseers of the poor in the discharge of their official duties are the contracts of the town which alone may be sued upon them. Miller v. Bush, 87 Hun, 507; 34 N. Y. Supp. 286. 11. For form of overseer's book showing statistics relating to poor persons' relief, and of book of accounts to be kept by overseers of the poor, see Forms Nos. 79, 80, post. 12. For form of accounts of overseers of the poor to be rendered to town boards, see Form No. 81, post. For penalty for failure of overseers of the poor to render accounts as provided by law, see Poor Law, sec. 14, ante. The omission of an overseer to lay his books of account before the town board, and the . audit of his accounts by the board without a comparison of the items in the account with the items in the book is a mere irregularity, and does not deprive the board of the power to audit the claim. Osterhoudt V. Rigney, 98 N. Y. 222, 237. 722 RELIEF OF POOR. Poor Law, § 27. 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 with the town or city clerk, and at every annual town meet- ing, the town clerk shall produce such town accounts 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 officers are presented, if required by a resolution of such meeting. No credit shall be allowed to any overseers for moneys paid, unless it shall appear that such payments were made necessarily or pursuant to a legal order. [Poor Law, § 26 ; B. C. & G. Cons. L., p. 4242.] § 9. STATEMENT OF ACCOUNTS AND ESTIMATE OF OVERSEER OF THE POOR TO BE MADE TO TO'WN BOARD; APPROVAL OF ESTIMATE BY TO'WV BOARD; IF APPROVED TO BE PRE- SENTED TO BOARD OF SUPERVISORS. Such overseers shall make to the town board, at its second annual meeting in each year,'' a written report, stating 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 there is no county alms-house, their estimate of such sum as they shall deem Reports of overseers as evidence in action against sureties. In an action against sureties upon the official bond of an overseer of the poor to recover the money misappropriated by such overseer, the reports made by the overseer under the provisions of this section are competent against the sureties as proof of the condition of his accounts, both as to receipts and disbursements. Town of Goshen v. Smith, 61 App. Div. 461, 70 N. Y. Supp. 623, aftd. 173 N. Y. 597. 13. The second annual meeting of the town board of a town Is held on the Thuraday preceding the annual meeting of the board of supervisors. Town Law, sec. 133, ante. The accounts of overseers of the poor are to be presented to the town board at its first meeting held on the Tuesday preceding the biennial meeting and on a corresponding date in each alternate year (Town Law, sec. 132, ante), at t]ie same time as the accounts of other town oflScers. The object of the report pro- vided for by this section is to enable the town board to make an estimate of the amount that will be required during the ensuing year for the support of the poor. POWERS AND DUTIES OF OVERSEERS OF THE POOR. , 733 Poor Law, § 27. necessary to be raised and collected therein for the support of the poor for the ensuing year. If such board shall approve the statement and esti- mate so made or any part thereof, they shall so certify in duplicate, one of which certificates shall be filed in the office of the town clerk, and the other shall be laid by the supervisor of the town, before the board of super- visors of the county, on the first day of its next annual meeting. If such overseers of any town shall fail or neglect to estimate the sum to be raised and collected for the support of, the poor of their town for the ensuing year, or the supervisor of any town shall fail or neglect to present such estimate for the support of the poor of their town to the board of supervisors, the the board of supervisors shall estimate the sum to be raised and collected by such town for the support of the poor of such town, which estimate shall be based upon the amount of the cost of the support of the poor of such town for the preceding year. The board of supervisors shall cause the amount of such deficiency and estimates, as so certified, or the sum esti- mated by such board of supervisors, 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 re- ceived by such overseers, and applied toward the payment of such defi- ciency, and for the maintenance and support of the poor, for whose relief such estimates were made. The town board shall also, on or before 14. Where estimates are not made. Under ch. 334, L. 1845, from which in part the above section was derived, it appeared that an overseer of the poor instead of pursuing the system provided by the above section, procured supplies upon his own credit and presented his accounts annually to the board of audit tor allowance, the amount audited being put in the schedule of accounts and levied by the board of supervisors with other town charges. It was held that the failure to follow the requirements of the statute did not deprive the overseer of his power to provide for the relief of the poor, and that the advances made by him were properly audited and charged against the town; that while the overseer was not bound to furnish supplies upon his own credit, and the act contemplates that he shall be put in funds in advance, under the provisions of the section, authorizing the town board to Include in its estimate such sum as shall be necessary " to supply any deficiency in a preceding year," it had power to audit all sums expended where no provision had been made therefor the preceding year. Osterhoudt v. Rigney, 98 N. Y. 222. Special town meetings may be called for the purpose of raising money for the support of the poor. Town Law, sec. 46, ante- For form of report of overseer of the poor and of estimate of amounts required to be raised, for the support ot the poor during the ensuing year, see Form No. 82, post. 724-726 RELI'EF OF POOR. Poor Law, §§ 28, 30, 141. the first day of December, annually certify to the county superintendents, the name, age, sex and native country, of every poor person relieved and supported by sucli overseers during the preceding year, with the causes which shall liave operated to render them such poor persons, the amovmt expended for the use of such person, as allowed by the board, and the amount allowed to each overseer for the services ren- dered in relation to temporary or town relief. The town board shall include in such annual statement to the county superintendents 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 such child is placed, and the occupation of the head of the family. [Poor Law, § 27, as amended by L. 1909, ch. 429 ; B. C. & G. Cons. L., p. 4245.] § 10. ACCOUNTS OF TOWN OFFICERS. The accounts of any town officer for personal or official services rendered by him, in relation to the town poor, shall be audited and settled by the town board charged to such town. But no allowance for time of services shall be made to any oflScer for attending any board solely for the purpose of having his account audited or paid.i!> [Poor Law, § 28 ; B. C. & G. Cons. L., p. 4244.] § 11. SUPERVISOR TO REPORT TO CLERK OF BOARD OF SUPER- VISORS, ABSTRACT OF ACCOUNTS OF OVERSEERS OF THE POOR. The supervisor of every town in counties where all the poor are not a county charge, shall report to the clerk of the board of supervisors, within fifteen days after the accounts of the overseers of the poor have been settled by the town board at its first annual meeting in each year, an abstract of all such accounts, which shall exhibit the number of poor persons that have been relieved or supported in such town the preceding year, specifying the number of county poor, and town poor, the whole expense of such support, the allowance made to overseers, justices, constables or other officers, which shall not comprise any part of the actual expense of main- taining the poor.is [Poor Law, §141; B. C. & G. Cons. L., p. 4282.] § 12. TREATMENT OF POOR PERSONS IN HOSPITALS. 1. Any city or county, in which a hospital duly incorporated is situated, may send to and support, in the same, such sick and disabled indigent persons as require medi- cal or surgical treatment, and when admitted the authorities of such city or county shall pay to such hospital such sum per week as may be agreed upon or found to be just during the period in which such person shall remain in such hospital. 2. In all counties of this state in which there are not adequate hospital accommo- dations for indigent persons requiring medical or surgical care and treatment, or in which no appropriations of money are made for this specific purpose, it shall be the duty of county superintendents of the poor, upon the certificate of a physician approved by the board of supervisors, or of the overseers of the poor in the several towns of such counties, upon the certificate of a physician approved by the supervisor of the town, as their jurisdiction over the several cases may require, to send all such indigent persons requiring medical or surgical care and treatment to the nearest convenient and suitable hospital, the incorporation and management of which have been approved by the state board of charities, provided transportation to such hos- pital can be safely accomplished. The authorities of such county or town shall pay to such hospital such reasonable sum per week, for the care and treatment of such indigent persons, as may be agreed upon by the authorities of the county or town and the directors of such hospital, and provision for the payment for such care and treatment shall be made in the annual budgets of such county or town. [Poor Law, § 30, as amended by L. 1912, ch. 309', and L. 1916, ch. 483 ; B. C. & G. Cons. L., p. 4245.]' 15. Accounts of town officers for services rendered in relation to the town poor are to be audited at the second meeting of the town board, held on the Thursday pre- ceding the annual meeting of the board of supervisors. The form of accounts and the verification thereof by affidavit are to be made in accordance with the provisions of sec. 175, post, of the Town Law. 16. For form of report of supervisor to the clerk of the board of supervisors of abstracts of overseer's accounts, see Form No. 83, post. SETTLEMENT AND PLACE OF RELIEF. 737 Explanatory note. CHAPTER XLIX. SETTLEMENT AND PLACE OF RELIEF OF POOR PERSONS. EXPLANATORY NOTE. Settlement of Poor Persons. Settlement in this connection has much the same meaning as residence. A poor person acquires a settlement in a town, so as to make the cost of his relief a charge against such town, by residing therein for one year. A settlement so acquired is not lost except by a continuous residence in another place for a period of one year. A minor son or daughter has the same settlement as his or her father, unless the son is married and has resided apart from his father for one year, or unles"s the daughter has married and is living with her husband, in which case her settle- ment is that of her husband. A married woman cannot gain a settle- ment apart from her husband. Relief of Poor as Affected by Settlement. The law requires every poor person to be relieved in the place where he may be. If he has a settlement in a town or city in the county, ho must be maintained at the expense of such town or city. If he has not gained a settlement in the county he must be supported and relieved by the superintendent of the poor at the expense of the county. If a poor person has a settlement in one town and is in another town where he requires relief, the overseer of the poor of the latter town must give him the necessary relief, and then give notice to the overseer of the former town requiring him to provide relief for such poor person. Determination of Dispute as to Settlement. Within ten days after the service of such notice, the overseer of the poor served therewith, may notify the overseer of the poor of the town where the poor person may be, that, at a time and place specified, he will appear before the county superintendent of the poor to contest the alleged 738 RELIEF OF POOR. Explanatory note. settlement. The county superintendent then hears and determines the controversy. The decision of the superintendent is final and conclusive. Failure to Care for Poor Person. After the decision is given the proper overseer must provide for the poor person in accordance with such decision. If he fails to do so, the overseer of the poor of the town where the poor person may he, must give the necessary relief and report the expense thereof to the board of supervisors, who must levy the amount thereof upon the town where such poor person has a settlement. Unlawful Removal of Poor Person. It is a crime to send, remove, or entice to remove, or bring or cause to be sent, removed or brought any poor or indigent person to any other town. A poor person so brought, removed, or enticed, or who shall come of his own accord from one town, city or county into another, not charge- able with his support, must be maintained by the county superintendent of the county where he may be. Such superintendent must then notify the proper officer of the removal of such poor person, and require him forthwith to take charge of such poor person. The law then providef^ the procedure for determining as to the town, city or county liable for the support of such poor person. Section 1. Settlements of poor persons, how gained; separate settlement of minor. 2. Settlement of married women; when determined by that of parents. 3. Poor person not to be removed, but supported in the town where he may be. 4. Proceedings to determine settlement; notice to appear before county superintendents. 5. Hearing before superintendents; decision. 6. Effect of failure of overseer to provide for poor person, when notified by overseer of other town; board of supervisors to charge support of poor person to proper town. 7. Superintendent to determine who are county poor; proceedings for such determination. 8. Support of county poor in counties having no alms-house; proceedings to determine who are county poor. 9. All decisions of superintendents of the poor to be entered In books; copy to be filed with county clerk. 10. Appeals to county court from decisions of county superintendents of the poor; decision on appeal. SETTLEMENT AND PLACE OF RELIEF. 729 Poor Law, § 40. Section 11. Unlawfully removing or enticing a poor person from one town to another a misdemeanor. 12. Proceedings where a person has been enticed or has come from one town or county to another. 13. Upon receipt of notice superintendent or overseer to take poor person or serve denial of removal. 14. In case of neglect to deny removal, support of poor person to be a charge upon the town and county from which removed; actions to recover. 15. Actions to recover, to be brought within three months from service of denial. 16. Penalty for bringing foreign poor into state; action to recover penalty; person found guilty, to transport poor person out of state. § 1. SETTLEMENTS OF POOR PERSONS, HOW GAINED; SEPARATE SETTLEMENT OF MINOR. Every person of full age, wlio shall be a resident and inhabitant of any town or city for one year, and the members of his family "who shall not have gained a separate settlement, shall be deemed settled in such 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 settlemeni : 1. Settlement in general. It is the purpose of the law that the settle- ment of a poor person is gained by his residence in a town or city for a period of one year. Such settlement continues until he has gained a like settlement in some other town or city. L. 1897, oh. 203, added a new sec. 57 to art. 3 of the Poor Law, which provided that a person who has gained a settlement in a town or city loses the same by continuous residence elsewhere for one year. This provision radically changed the existing law by relieving a town or city from the obligation of supporting a poor person after he has finally left its boundaries and has resided continuously for one year in other municipalities. People ex rel. May v. Maynard, 160 N. Y. 453; 55 N. E. 9; Matter of Connellan, 25 Misc. 592; 56 N. Y. Supp. 157. But the act of 1897, ch. 203, was repealed by L. 1900, ch. 345, the effect of which was to restore the law as it existed prior to. the enactment of the act of 1897. The question of the settlement of any poor person or pauper is to be considered, in determining the question of liability for his support only as between two towns of the same county which are liable for the support of their own poor, or as between such a town and the county to which it belongs. Every poor pen, on who has not a settlement in some town of the county in which he becomes poor must be supported or relieved at the expense of that county. Bellows v. Courter, 6 N. Y. Supp. 73, 74. Settlement lost by removal to another state or county, remains where it wasr acquired. Matter of Chapman, 15 Misc. 296, 37 N. Y. Supp. 763. Where an alleged poor person had resided in the city of Amsterdam for some five years prior to her removal to the city of Syracuse, and within four months of her arrival at Syracuse became a public charge, without in any way attaining a residence in the latter place, the city of Amsterdam is liable to the county of Onondaga, from whioh county the relief was forthcoming, for her support, where due and timely service is made upon the overseer of the poor of Amsterdam. Onondaga County v. City of Amsterdam, 64 Misc. 181, 117 N. Y. Supp. 1121. The words " resident and inhabitant," as used in this section, mean the local- ity of existence, permanently and firmly fixed, as is legally conveyed by the word " domicile." Matter of Town of Hector, 24 N. Y. Supp. 475. In the case of City ot Syracuse v. County of Onondaga, 25 Misc. 370 ; 55 N. Y. Supp. 634, it was held that 730 RELIEF OF POOR. Poor Law, § 40. 1. If a male, by being married and residing one year separately from the family of his father or mother. a person who comes to a cily in January, and then rents a house to which, in March following, he takes his wife, his family and household goods and resides there with them until February in the year following, when he leaves the city and disappears, has gained a settlement in the city within the meaning of the above section. Italian laborers temporarily employed in constructing a railroad, do not by their presence in a town gain a settlement therein. Matter of Town of Hector, 24 N. Y. Supp. 475. Settlement remains until another is gained. A person cannot gain a settlement in any town until he shall have resided there for at least one year; when a settlement is thus legally gained in a, town it must necessarily remain there until one is subsequently established in some other town or county. Sitterly v. Murray, 63 How. Pr. 367. In the case of Matter of Town of Hector, 24 N. Y. Supp. 475, it was said: " It has long been settled law that every person has a domicile somewhere. If he has not acquired one elsewhere he retains his domicile of origin, and to effect a, change of domicile the fact and intent must concur; that is, there must be not only a change of residence, but an intention to abandon the former domicile, and acquire another as the sole domicile." The continuous absence of a poor person from a city, without proof of his actual residence or intention, is not such a continuous residence elsewhere for one year as deprives him of his settlement in the city, and such city is, therefore, liable to support the wife of such poor person. City of Syracuse v. County of Onondaga, 25 Misc. 371; 55 N. Y. Supp. 634. Persons who are natives of a town and reside there without material interruption have a legal settlement in the town and county under this section, which continues until they gain a like settlement in some other town or city by a residence of a year. County of Broome v. County of Cortland (1912), 154 App. Div. 349. C, a laborer of full age but of nomadic habits, came into this state in which he never had a place called home, and after working on April 2, 1914, in Ontario county, where there is no distinction between town and county poor, became ill and was taken by the superintendent of the poor of that county to the county hospital, and upon his recovery several weeks later went to work and continued to be employed in said county for several months, being self-supporting all of that time. Thereafter he went to Groton, Tompkins county, where the distinction between town and county poor is still maintained and while at a hotel before securing emploj-nicnt he was taken with pneumonia and given temporary relief and furnisihed with medical care by the super- intendent of the poor of Tompkins county, and being unable to work was assisted by said superintendent for four or five weeks. He had not lived in any one place in the county of Ontario for a year prior to 1914. In an action by the county of Tompkins to charge the county of OntariiO with the support of C, held that when he left Ontario county with money and still had money when he went to Groton in Tompkins county he was not a " poor person " straying from one county to another, and that he became so only when he was again overtaken by misfortune and became ill and then that the same duty devolved upon plaintiff to care for him in the emergency as had devolved upon defendant county on the occasion of his previous sickness, and that he was entitled under this section to bei supported by plaintiff, he not having a settlement in any city or town. County of Tompkins v. County of Ontario (1915), 92 Misc. 272, 156 N. Y. Supp. 335. Change of domicile. To effect a change of domicile there must be both resi- dence in the alleged adopted domicile and intention to adopt such place of residence as the sole domicile. Eesidence alone has no effect per se, though it may be most important, as a ground from which to infer intention. Length of residence will not alone effect the change. Intention alone will not do it, but the two taken together constitute a change of domicile. Dupuy v. Wuitz, 53 N. Y. 556, 561. Settlement of children. A place of birth of an infant pauper is prima facie his place of settlement, but it may be removed to the last legal settlement of the parents when discovered. Overseers of Vernon v. Overseers of Smithville, 17 SETTLEMENT AND PLACE OP RELIEF. 73] Poor Law, § 41. 2. If a femaie, 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.3 4. By being hired and actually serving one year for wages, to be paid such minor. tPoor Law, § 40; B. C. & G. Cons. L., p. 4246.] I 2. SETTLEMENT OF MAKEIED WOMEN; WHEN DETERMINED BT THAT OF PARENTS. A woman of full age, by marrying, shall acquire the settlement of her husband. Until a poor person shall have gained a settlement in his or her own right, his or her settlement shall be deemed that of the father, if living, if not, then of the mother; but no child born in any alms-house Johns. 89 ; and see, also Delavergne v. Noxon, 14 Johns. 333 ; Overseers of Berne V. Overseers of Knox, 6 Cow. 433. Minors, who reside with their father for more than a year in the same town, in a county in which the several towns support their own poor, gain a settle- ment in that town, and where, after removing to a new town in the same county and before gaining a settlement there, they require and receive relief as poor persons, the expense of their relief is chargeable to the town from which they removed. Matter of Chamberlain, 73 Misc. 256. The settlement of a child follows that of the father, if he have any; if not, the settlement of the mother. Overseers of Miskayuna v. Overseers of Albany, 2 Cow. 537. No act of the father of a minor son can divest the son of his derivative settlement. Adams v. Poster, 20 Johns. 452. Until a poor person acquires a settlement in his own right, his settlement is that of his father or mother; and when his mother becomes a resident of a city and he follows her to that place, a residence and settlement are initiated. Stillwell v. Kennedy, 51 Hun, 114, 5 N. Y. Supp. 407. Although the child does not reside with his father and is not under his immediate charge or control, such child never- theless has a derivative settlement in the same town as his father. Adams v. Oaks, 20 Johns. 282. Settlement of married woman is that of her husband. Overseers of Sherburne v. Overseers of Norwich, 16 Johns. 186. Under the former law it was held that, if the husband has no settlement, his wife retains the settlement had by her before marriage. Overseers of Otsego v. Overseers of Smithfield, 6 Cow. 760. A married woman cannot gain a settlement separate from that of her hus- band. City of Syracuse v. County of Onondaga, 25 Misc. 371, 55 N. Y. Supp. 634; Supt. Poor of Cattaraugus v. Supt. of Poor of Erie, 50 N. Y. St. Rep. 347, 21 N. Y. Supp. 729. Where a poor person after abandonment by her husband had received aid from the overseer of the poor of the city where she resided, and on her hus- band's return went with him to a city in another county where after a subse- quent abandonment she received aid from the overseers of the poor, but did not reside in the latter county long enough to gain a settlement under the statute, she must still be deemed a poor person in the city where she originally resided and can gain no settlement in another city as a poor person. Onondaga County V. City of Amsterdam, 139 App. Div. 877, 124 N. Y. Supp 558. 3. Settlement of apprentices. If with the privity and consent of his master, rn apprentice serves another person two years, he thereby gains a settlement. Overseers of Guilderland v. Overseers of Knox, 5 Cow, 363. The fact that the indenture by which an apprentice was bound out is void is not material; if an apprentice has served one year by virtue of such Indenture, he has gained a separate settlement. Overseers of Hudson v. Overseers of Taghkanac, 13 Johns. 245; Overseers of Owasco v. Overseers of Oswegatchie, 5 Cow. 527;, Overseers of Hamilton v. Overseers of Baton, 6 Cow, 658. 732 RELIEF OF POOR. Poor Law, § 42. 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. Xo 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, § 41 ; B. C. & G. Cons. L., p. 4248.] § 3. POOR PERSON NOT TO BE REMOVED, BUT SUPPORTED IN THE TOWN AVHERE HE MAY 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 except 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: 4. Construction of section. The disjunctive " or " is to be understood after the word " alms-house " in the last sentence of the above section. Thus read, the revision of the Poor Law in 1896 did not so change the conditions of settlement that a poor person residing in a town or city for more that one year, while relieved at the expense of the county, ceases to be a county charge, and ■becomes thereafter chargeable to the town or city. People ex rel. French v. Lyke, 159 N. Y. 149; 53 N. E. 802. Settlement. A poor person does not gain or lose a settlement once estab- lished, by agreement, or after contest by the superintendent of the poor until he again maintains himself and ceases to be a public charge. Matter of Mc- Cutcheon, 25 Misc. 650, 56 N. Y. Supp. 370. Since the enactment of the above section, a person supported by the county, if not an inmate of an alms-house, may gain a settlement in a town by a residence therein for one year. Matter of Connellan, 25 Misc. 592; 56 N. Y. Supp. 157. Settlement cannot be gained in the town where the actual residence may be so long as the poor person or any member of his family is supported or re- lieved at the expense of any other municipality. People ex rel. v. Maynard, 160 N. Y. 453, 4G0. 5. The place of support of a poor person is in the town or county where he may be. Overseers of Norwich v. Overseers of Pharsalia, 15 N. Y. 341; Matter of McCutcheon, 25 Misc. 592; 56 N. Y. Supp. 370. And when a settlement is once legally gained in any town it must necessarily remain there until one is subsequently established in some other town or county. Sitterly v. Murray, 63 How. Pr. 367. Lapse of one year between the time when county aid was given, and the date when aid is applied for, to the town, is sufficient to make a poor person a resident of the town. Rept. of Atty. Genl. (1897) 84. SETTLEMENT AND PLACE OF RELIEF. 733 Poor Law, § 42. 1. If he has gained a settlement in any town or city in such county, he shall be maintained by such town or city. 2. 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 shall be supported and Telieved 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 settlement in some town -of the same county other than that in which he may then be, he shall be supported at the expense of the town or city where he may be, and the overseers shall, within ten days after the 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 Xaw, § 42 ; B. C. & G. Cons. L., p. 4248.] 6. Effect of settlement. If a poor person has gained a settlement In a town or city, he is to be maintained at the expense of such town or city, except in a county where the distinction between the town and county poor has been abolished. If he has not gained a settlement in the town where he may be, he Is to be supported and relieved by the county superintendents of the poor at the expense of the county. See, also, Matter of Town of Hector, 24 N. Y. Supp. 475; Matter of Connellan, 25 Misc. 592. Where a person who had gained a settlement in a county where the distinc- tion between town and county poor exists, moved from that town to a city in the same county and he there became poor, and was relieved by the overseer of the poor of the city, where he continued to reside, the bill for his maintenance being paid by the town from which he came, until a year from the taking effect of the act of 1897, which has since been repealed, he then became a county ■charge by force of subdivision 2 of the above section. People ex rel. May v. Maynard, 160' N. Y. 453; 55 N. B. 9. 7. For form of notice to be given by the overseers of one town to those of ■another, requiring the overseers of the town in which the poor person has a residence to provide for his support, see Form No. 84, post. Notice. Subd. 4 of the above section in regard to time within which notices, to be given by towns contesting the settlement of a poor person, must be served is mandatory and a failure to comply with the statute must result in defeat. Matter of Merville, 23 Misc. 398, 52 N. Y. Supp. 254. Settlement of poor person in another town. A man moved his wife and Infant children from a town where he had resided for six years, to another town where he remained for over a year without being supported or relieved at the expense of the latter town. It was held that he had obtained a settlement therein within the meaning of the Poor Law. This settlement was not affected by a notice mailed by the overseer of the poor of the latter town to the overseer of 734 RELIEF OF POOR. Poor Law, §§ 43, 44. § 4. PROCEEDINGS TO DETERMINE SETTLEMENT; NOTICE TO AP- PEAR BEFORE COUNTY SUPERINTENDENTS. If, within ten days after the service of such notice, the overseer to whom rhe same was directed, shall not proceed to contest the allegation of the settlement of such poor person, by giving the notice hereinafter directed, he or his successors, and the town which he or they ref)resent,. 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 section, that he will appear before the county super- intendents, 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 superintendents fail to appear at the time and place so appointed, they shall, at the request of the overseers of either town, appoint some place, and some other day, for the hearing of such allegations, and cause at least five days' notice thereof to be given to such overseers; and no poor person shall be deemed to have gained a settlement, when the proper notices 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, § 43; B. C. & G. Cons. L., p. 4249.] § 5. HEARING BEFORE SUPERINTENDENTS; DECISION. The county superintendent shall convene whenever required by any the poor for the town from which the poor person had removed, soon after the removal, stating that relief had been afforded, when in fact it had not been afforded at the time. Matter of Kelly, 46 Misc. 548, 95 N. Y. Supp. 53. Where residents of a town not poor persons within the statute remove to^ another town in the same county and receive aid there within a year from the time of their removal, the expense is charged t6 the town from which they came. Matter of Porter, 68 Misc. 124, 124 N. Y. Supp. 102. 8, Object of proceedings. In speaking of the sections of the old revised statutes from which this and the succeeding section were derived, Judge West- brook said in the case of Sitterly v. Murray, 63 How. Pr. 370 : " The object and scheme of the statute seems to be to provide for the settlement of all per- sons under the poor laws, no matter what their previous financial condition may have been, and whether they were ever paupers before or not, and to fix the liability of the proper town for their support and maintenance, whenever by misfortune or otherwise, they should become a charge upon the public. This is the reasonable and natural conclusion to be drawn from the various pro- visions of the statute and from the language of these particular sections." The provisions of this section in regard to the time within which such notice must be served are mandatory, and a failure to comply with the statute will result in the defeat of the town so failing. Matter of Mervllle, 23 Misc. 398; 52 N. Y. Supp. 254. _ For form of notice of overseers of the poor to appear before the county SETTLEMENT AND PLACE OF RELIEF. 735 Poor Law, § 45. overseer pursuant to such notice, and shall hear and determine the con- troversy, and may award costs, not exceeding fifteen dollars, to the pre- vailing party, which may be recovered in an action in a court of competent jurisdiction.' 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, § 44; B. C. & G. Cons. L., p. 4350.J § 6. EFFECT OF FAII^UBE OF OVERSEER TO PROVIDE FOR POOR PERSON, VTHEN NOTIFIED BV OVERSEER OF OTHER TOVl^N; BOARD OF SUPERVISORS TO CHARGE SUPPORT OF POOR PERSON TO PROPER TOWN. The overseers of the poor of the town in which it may be alleged any poor person has gained a settlement, may, at any time after receiving such notice requiring them to provide for such person, take and receive such poor person to their town, and there support him;^^ if they omit to do so, or shall fail to obtain the decision of the county superintendents, 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 supervisors 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, superintendent of the poor and contest the alleged settlement of a poor person, see Form No. 85, post. 9. Duty of county superintendent. The county superintendent represents not only the county at large but also every town in the county. He is required to see that each has its rights, and to settle, upon evidence, by judicial de- termination, various conflicts of interest between the different towns as well as between the county and any town. People ex rel. Russell v. Supervisors of Herkimer, 20 Abb. N. C. 123, 130. 10. For form of subpoena in case of dispute concerning settlement of poor persons, see Form No. 86, post. 11. Por form of decision of superintendents concerning the settlement of poor persons, see Form No. 87, post. 12. Personal liability of overseer. Where overseers of the poor relieved and supported paupers belonging to another town, at the request of the overseers of the poor of the town in which the paupers belonged, and the latter over- seer, after such support had been furnished, on the presentation of the bill therefor, agreed to pay the same, it was held that he was not personally liable on the contract. Holmes v. Brown, 13 Barb. 599; Overseers of Norwich v. Overseers of Pharsalia, 15 N. Y. 341. 736 RELIEF OF POOR. Poor Law, §§ 46, 47. 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 him credited to the account of the town which incurred the expenses. [Poor Law, § 45; B. C. & G. Cons. L., p. 4850. j § 7. SUPERINTENDENT TO DETERMINE WHO ARE COUNTY POOR; PROCEEDINGS FOR SUCH DETERMINATION. The support of any poor person 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 as the superintendents shall appoint, not less than twenty days thereafter, show that such town ought not. to be so charged.^' On the application of the overseers, the superintendents shall re-examine the matter and take testi- mony in relation thereto, and decide the question; which decision shall be conclusive, unless an appeal therefrom shall be taken in the manner pro- vided in this chapter." [Poor Law, § 46 ; B. C. & G. Cons. L., p. 4251.] % 8. SUPPORT OF COUNTY POOR IN COUNTIES HAVING NO ALMS- HOUSE; PROCEEDINGS TO DETERMINE ^VHO ARE COUNTY POOR. In counties having no alms-house, no person shall be supported as a county poor person, without the direction of at least one superintendent. In such eases the overseer? 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 superintendents who shall inquire into the circumstances, and if satisfied that such poor person has not gained a legal settlement in any town of the county, and is not a 13. For form of superintendent's notice that poor persons will be supported at the expense of a town in a county where the town support their own poor, see Form No. 88, post. 14. For form of decision of superintendents after re-examining settlement of poor person on application of overseers, see Form No. 89, post. SETTLEMENT AND PLACE OF RELIEF. 737 Poor Law, §§ 48, 49. State poor person, he shall give a certificate to that effect, and that such poor person is chargeable to the county. He shall report every such case to the board of superintendents at their next meeting, who shall affirm such 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 conclusive, unless an appeal therefrom shall be taken in the manner provided in this chapter. Such appeal may also be taken from the refusal of one superintendent to grant such certificate when there is but one superintendent in the county. [Poor Law, § 47; B. C. & G. Cons. L., p. 4251.J § 9. ALL DECISIONS OF SUPERINTENDENTS OF THE POOR TO BE ENTERED IN BOOKS; COPY TO BE FILED WITH COUNTY CLERK. The decisions of county superintendents in relation to the 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 superintendents as make the same; and a dupli- cate thereof, certified in the same manner, shall be filed in the office of the county clerk within thirty days after making such decision. [Poor Law, § 48 ; B. C. & G. Cons. L., p" 4352. J § 10. APPEALS TO COUNTY COURT FROM DECISIONS OF COUNTY SUPERINTENDENTS OF THE POOR; DECISION ON APPEAL. Any or either of the parties interested in a decision of the superinten- dent of the poor, or in any dispute that sTiall arise concerning the settle- ment 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 attorney, and which shall specify the grounds of the appeal. ^° The hearing of such appeal may be brought on by either party in or out of term, upon notice of fourteen days. Upon such appeal 15. For form of notice of decision of superintendents as to settlement of poor persons, and of appeal to county court from decision of superintendents, see Forms Nos. 90, 91, post. 738 RELIEF OF POOR. Poor Law, §§ 50, 51. 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 aU times. [Poor Law, § 49; B. C. & G. Cons. L., p. 4253.] § 11. UNLAWrULtY REMOVING OB 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, § 50; B. C. & G. Cons. L., p. 4252.] § 12. PROCEEDINGS WHERE A PERSON HAS BEEN ENTICED OR HAS COME FROM ONE TOWN OR COUNTY TO ANOTHER. A poor person so removed, brought or enticed, or who shall of his own accord come or stray from one city, town or county, into any other city. 16. tTnlawful removal of poor person. The criminal liability is also pro- vided for by the following section of the Penal Law: " § 1650. Any person who shall send, remove, or entice to remove, or bring, or cause to be sent, removed or brought, any poor or indigent person, from any city, town or county, to any other city, town or county without legal authority, and there leave such person for the purpose of avoiding the charge of such poor or indigent person upon the city, town or county, from which he is so sent, removed or brought or enticed to remove, shall be guilty of a misde- meanor, and on conviction, shall be imprisoned not exceeding six months, or fined not exceeding one hundred dollars or both.'' 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 criminal oSense. Foster v. Cronkhite, 35 N. Y. 139. The penalty is incurred when any person SETTLEMENT AND PLACE OF RELIEF. 739 Poor Law, § 51. town Or county, act 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 superintendents 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 forthwith to take removes, or entices the pauper to remove, without legal authority, with intent to make the county to which the removal shall be made, chargeable with the pauper's support. Cortland Co. v. Herkimer Co., 44 N. Y. 42. In the latter case it was held that the superintendent might testify directly as to the intent with which he did an act when the intent is a fact material to the issue. 17. Effect of revision. The above section of the Poor Law was derived from R. S., pt. 1, ch. 20, tit. 1, sec. 59, as amended by L. 1885, ch. 546; L. 1888, ch. 486. The commissioners in the^ revision disregarded the amendment of 1888 and retained the law as amended by the act of 1885. As the law now stands pro- ceedings to compel the support of a poor person who has, of his own accord, moved to a county not legally chargeable with his support, may be instituted against the county properly chargeable with his support. This change vitiates the doctrine laid down in the case of Coe v. Smith, 24 Wend. 341, and followed in Foster v. Cronkhite, 35 N. Y. 141, and Cortland Co. v. Herkimer Co., 44 id. 22, that: "An action will not lie by the superintendents of the poor of one county against the superintendents of another county for the maintenance of a pauper removed from the county of the latter without legal authority, into the county of the former, when the removal is made at the re- quest of the pauper, so that he may be under the care of his family and friends, and without any intent on the part of the person removing him to make the county into which he is removed chargeable with his support." But the pro- visions of L. 1885, ch. 546, from which this section is taken, did not authorize an action by the superintendent of the poor for the support of a pauper against a county from which he voluntarily removed at a time when he was not a pauper. Bellows v. Counter, 6 N. Y. Supp. 73. The term " poor person " as used in this section does not mean an able- bodied man who has always maintained himself and family by his own exer- tions, and who has come into another county and there, without fault upon bis part, by means of an accident become unable to support himself. Such a man is many degrees removed from the condition of a pauper. It is only where a poor person, who at the time of his coming into another county was a poor person that the liability of the town or county from whence he came exists. Wood V. Simmons, 51 Hun, 325; 4 N. Y. Supp. 368. It may be questioned as to whether this case would now apply under the definition of a poor person given in section 2 of the Poor Law. Poor person to be supported. A superintendent of the poor who finds a 740 RELIEF OF POOR. Poor Law, § 52. 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 thu person, by whatever name known, who has charge and care of the poor in such locality. [Poor Law, § 51; B. C. & G. Cons. L., p. 4253.] § 13. UPON RECEIPT OF NOTICE SUPERINTENDENT OB OVER- SEER TO TAKE POOR PERSON OR SERVE DENIAL OF RE- MOVAL. The county superintendents, or overseers, or other persons to whom such notice may be directed may, after the service of such notice, take and remove such poor person to their county, town or city, and there sujjpoi't him, and pay the expense of such notice, and of the support of such person ;'" or they shall, within thirty days after receiving such notice, by a written instrument under their hands, notify the county superintcn- pauper in his county has no right to remove him to another county where he be- lieves he belongs ; he must provide for his support and then pursue his remedy against the other county. Smith v. Brundage, 17 Wlc. Dig. 266. It is Ihe duty of the suoerintendent of the poor of a county to which a poor per- son has removed to furnish her with necessary relief and he cannot refrain from doing so because she had a settlement in another city, nor can he against her will remove her to her original residence. Onondaga County v. City of Amsterdam, 130 App. Div. 877 ; 124 N. Y. Supp. 558. If a poor person, not having a settlement in this state, is illegally moved by (he overseers of one town into another town, and is there supported, the overseers of the town into which he was moved may maintain an action against the overseers of the town procuring his illegal removal, for the amount expended in the support of such poor person, upon the principle that the burden of supporting such poor person was unjustly thrown upon such town, and such town should be exonerated by tlje town benefiting from such illegal removal. Pittstown v. Plattaburgh, 15 Johns. 436. Bemoval from county. Where a person removes from the' town and county in which he has gained a settlement, into another town and countj;, and while in the town and county to which he has removed, and before he has gained a settle- ment therein, he becomes a " poor person," the latter county is not entitled to re- imbursement from the town or county from which he came. County of Delaware V. Town of Delaware, 105 App. Div. 129, 93 N. Y. 954. Liability of town to which poor persons temporarily remove. Where natlven of a town, being poor persons within the meaning of the statute, leave their native town and county but return within one year, said county cannot, under this section, charge the eouniy to which they temporarily removed with support furnished. Tliis because they did not come into a town or county not chargeable with their support, but on the contrary, came baclc to the county legally chargeable therewith. County of Broome v. County of Cortland (1912), 154 App. Div. 349. 18. SufBciency of notice. Notice by a superintendent of the poor to an over- seer of another county that a person, who has gained a settlement in the latter county, is supported as a pauper in the county of the superintendent giving such notice, but does not aver that the person was a pauper while in the county from which he moved or that his change of habitation was improper, is insufficient to sus- tain an action for the amount of his support. McKay v. Welsh, 6 N. Y. Supp. 358. A notice served by mail, and a reply thereto served in the same manner, is a sufficient compliance with this statute. Stilwell v. Coons, 122 N. Y. 242. For form of notice of improper removal of a poor person from a town, city or county, see Form No. 92, post. 19. Expense of support. When a poor person removes or Is removed from a town in one county to a town in another county, not chargeable with his support, and is there necessarily relieved by the overseer of the poor of that SETTLEMENT AND PLACE OF RELIEF. 741 Poor Law, § 53. dents from whom sucli notice was received, or either of them, that thej 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.^^ Upon the application of such county superintendent, overseer or other person so notified, and upon proper proof, the county judge of the county wherein such superintendent, overseer or other person to whom such notice shall have been directed, resides, shall issue a warrant directed to the sheriff of the county, or to some other proper person or persons, directing him or them to take and remove such poor person from the place where he may be, to the county, city or town legally chargeable for his support. [Poor Law, § 52, as amended by L. 1916, ch. 175 ; B. C. & G. Cons. L., p. 4254.] § 14. IS CASE OF NEGIiECT TO DENY REMOVAT, SUPPORT OF POOR PERSON TO BE A CHARGE UPON THE TOVTN 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 contesting 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, § 53 ; B. 0. & G. Cons. L., p. 4254.] town, the expense incurred and the burden of thereafter maintaining such poor per- son is, as between that town and its county, a charge on the county, provided the overseer gives the superintendent of the poor of his county notice of the circum- stances of the ease, as provided by law. Stillwell v. Ooons, 122 N. Y. 242 ; 25 N. E. 316. 20. Denial of removal. For form of notice of denial of removal of poor per- sons, see Form No. 93, post. The denial of liability need not follow the language of the section, but it is sufficient if it contains an unequivocal denial of the liability asserted in the notice of im- proper removal. Stillwell v. Coons, 122 N. Y. 242; 25 N. E. 316. If such denial be served by mail, and is received and retained by the party upon whom it is served without objection, the service is sufficient. Stillwell v. Kennedy, 51 Hun 114; 5 N. Y. Supp. 407. 21. Acquiescence implied if poor person is not removed. Foster v. Cronkhite, 35 N. Y. 139. Iiiability for support absolute unless allegations of notice are denied. McKay v. Welch, 24 N. Y. St. Rep. 838, 6 N. Y. Supp. 358. 742 RELIEF OF POOR. Poor Law, §§ 54, 55. § 15. ACTIONS TO RECOVER, TO BE BROUGHT WITHIN THREE MONTHS FROM SERVICE OF DENIAI.. Upon service of any such notice of denial the county superintendents upon whom the same may be served, shall, vs^ithin three months com- mence an action in the name of their county, against the town, city or county so liable for the expense incurred in the support of such poor person, and prosecute the same to effect ; if they neglect to do so, their town, city or county, shall be precluded from all claim against the town, city or county to whose officers such first notice was directed. Such action shall be tried in the county in which the cause of action arose, subject to the power of the court to change the place of trial in the cases provided by law." [Poor Law, § 54, as amended by L. 1916, ch. 203 ; B. C. & G. Cons. L., p. 4255.] § 16. PENALTY FOR BRINGING FOREIGN POOR INTO STATE; AC- TION TO RECOVER PENALTY; PERSON FOUND GUILTY, TO TRANSPORT POOR PERSON OUT 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 th" 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 mis- demeanor, and the court or magistrate before whom any person shall be convicted for a violation of this section shall require of such person satis- factory security that he will within a reasonable time, to be named by the court or magistrate, transport such person out of the state, or indemnify the town, city or county for all charges and expenses which may be in- curred 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, § 55 ; B. C. & G. Cons. L., p. 4255.] Action must be commenced within three months after service of notice. Stilwell T. Coons, 122 N. Y. 242; Cortland Co. v. Herkimer Co., 44 N. Y. 22; Foster v. Cronkhite, 35 N. Y. 139. 23. Penalty. Action for penalty will not lie unless person removing poor person into the state act in bad faith. Thomas v. Ross & Shaw, 8 Wend. 672. Action will not lie against person bringing pauper within the state for cost of maintenance of pauper, but must be for penalty. Crouse v. Mabbett, 11 Johns. 167. It is no defense in such action, that the poor person formerly had a settle- ment in the place to which he was brought, and had not subsequently gained one elsewhere. Winfield v. Mapes, 4 Den. 571. SUPPORT OF BASTARDS. J43. Explanatory note. CHAPTER L. SUPPORT OP BASTARDS. EXPLANATORY NOTE. Support of Bastards. Both the mother and a bastard child are in the eyes of the law poor persons, from the fact that they are liable to become chargeable to the town or county. It is made the duty of superintendents and over- seers of the poor to take necessary proceedings, as prescribed in the Code of Criminal Procedure, to compel a putative father of a bastard to support the mother during her confinement, and the child after its birth. Duties of Poor Officers. The mother of a bastard, during her confinement, and the bastard, after its birth, are to be supported and eared for in the same manner as other poor persons. The superintendents of the poor of the county and the overseers of the poor of the several towns have the same duties to perform in respect to such mother and her bastard child, as in respect to other poor persons. If such mother has a settlement in the town where she may be, that town is chargeable with her support, in case poor persons are supported therein at the expense of the town. If the mother have, a settlement in any other town or city in the same county, such support is chargeable to such town or city. In any other case the support is chargeable to the county. The same proceedings are taken to determine the settlement of the mother and the proper town, city or county chargeable with her support, as in the case of other poor persons. An overseer of the poor of the town where a mother may be must provide for her support and comfort during her confinement and re- covery therefrom, whether she has a settlement in the town or not.. 7i4 RELIEF OF POOR. Poor Law, § 60. She cannot be removed from one town or city, or from one county to another without her consent. Moneys Received from Father. The overseer of the poor of a town may apply moneys received from the putative father of a bastard in the support and sustenance of the mother and child, without paying the same into the county treasury. The overseer must account to the town board for the moneys so received mid expended. Section 1. Penalty for removal of mother of bastard; support of mother. 2. Definition of bastard. 3. Who liable for support of bastard. 4. Mother and child poor persons; proceedings in case of removal of mother from one town or county to another. 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 superintendent of cases of bastardy, when county is chargeable. 8. Superintendents to provide for mother and child. 9. Until taken charge of by superintendents, to be supported by over- seers. 10. Overseers of town to support bastard and mother, whether charge- able or not. 11. Moneys received by overseers from parents of bastards, how applied and accounted for. 12. When moneys received on account of bastard chargeable to county; how to be disposed of. 13. Disputes concerning settlement of bastard, how determined. 14. Proceedings when bastard is chargeable to another town. 15. Mode of ascertaining sum to be allowed for support of bastard. 16. When mother and child to be removed to county alms-house. 17. Superintendents and overseers may compromise with father of bas- tard; when mother may receive money. ^ 1. PENALTY FOB REMOVAL OF MOTHER OF BASTARD; SUP- PORT 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 bringing, removing or enticing such mother to remove, as are provided in the case of the fraudulent re- SUPPORT OP BASTARDS. 745 Code Grim. Proc, §§ 838, 839. moval of a poor person.^ Such mother, if unable to support herself, shall be supported during her confinement and recovery therefrom, and her child shall be supported, by the county superintendents of the poor of the county where she shall be, if no provision be made by the father of such child.- [Poor Law, § 60 ; B. C. & G. Cons. L., p. 4257.] § 2. 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 Crim. Pro., § 838.] S 3. WHO LIABLE FOR SUPPORT OF BASTARD. The father and mother of a bastard are liable for its support. In case of their neglect or inability, it must be supported by the county, city or town chargeable therewith under the provisions of the Poor Law.'' [Code Crim. Pro., § 839.] § 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 per- sons ; and the same proceedings may be had by the county superintend- ents to charge the town, city or county from which she was removed or enticed, or shall have of her own accord come or strayed, for the expense of supporting her and her child, as are provided in the case of poor 1. Penalties for removal of poor person from one town or city to another. See Poor Law, sec. 50, ante. The unlawful removal of a poor person from one town or city to another is a misdemeanor. Penal Law, § 1650; see ante. 2. The mother and child, in all cases relating to bastardy, are deemed poor persons from the fact that they are lilcely to become chargeable to the county as poor persons. Neajy v. Eobinson, 27 Hun 145. 3. Proceedings to compel support of bastard hy father. Title 5 of the Code of Criminal Procedure (sees. 838-886), prescribe a method of compelling a pu- tative father of a bastard to support the mother during her conflnement 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 or police justice to inquire into the facts. Code Crim. Proc, § 840. Putative father is not required to pay for medical services rendered to the child in the absence of an agreement or of an order of filiation. Bissell v. Myton, 160 App. Div. 280, 145 N. Y. Supp. 591. 74:6 RELIEF OF POOR. Poor Law, §§ 61-63. persons ; and an action may be maintained in the same manner for said expenses and for all expenses properly incurred in apprehending the father of such child, or in seeking to compel its support by such father or its mother. [Poor Law, § 61, as amended by L. 1916, ch. 205; B. C. & G. Cons. L., p. 4258.] § 5. MOTHER AND BASTAKD TO BE SUPPORTED AS OTHER POOR PERSONS. The mother of every bastard, who shall be unable to support herself, during her confinement and recovery therefrom, and every bastard, after it is born, shall be supported as other poor persons are required to be supported by the provisions of this chapter, at the expense of the city or town where such bastard shall be born, if the mother have a legal settle- ment 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, § 62 ; B. C. & G. Cons. L., p. 4258.] § 6. MOTHER AND CHILD NOT TO BE REMOVED WITHOUT HER CONSENT. The mother and her child shall not be removed from any city or town to any other city or town in the same county, nor from one county to any other county, in any case whatever, unless 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, § 63 ; B. C. & G. Cons. L., p. 4259.] 4. Proceedings to compel support of mother or child by proper county or town, see Poor Law, sees. 51-54, ante. The settlement of a bastard child is the last legal settlement of the mother, however such settlement may have been acquired. There is in this respect no distinction between an acquired settlement, and one that is merely derivative. Overseers of Canajoharle v. Overseers of Johnstown, 17 Johns. 41. If the mother has no settlement within the state, her bastard child must be adjudged settled where it was born. Wynkoop v. Overseers of New York, 3 Johns. 15. A bastard child is settled in the town where it was bom, until it acquires a settlement for itself, and the justices of the peace of such a town may make an order of filiation and maintenance, though the legal settlement of the mother be elsewhere. Delavergue v. Noxon, 14 Johns. 333. SUPPORT OP BASTARDS. 747 Poor Law, §§ 64-67. § 7. OVERSEEKS TO NOTIFY SUPERINTENDENTS OF CASES OF BASTARDY, 'WHEN COUNTY IS CHARGEABI.E. The overseers of the poor of any city or town where a woman shall be pregnant with a child, likely to born a bastard, or where a bastard shall be born, which child or bastard shall be chargeable, or likely to become chargeable to the county, shall, immediately on receiving information of such fact, give notice thereof to the county superintendents, or one of them. [Poor Law, § 64; B. 0. & G. Cons. L., p. 4259.] § 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, § 65 ; B. C. & G. Cons. L., p. 4259.] § 9. UNTIL TAKEN CHARGE OF BY SUPERINTENDENTS, TO BE SUPPORTED BY OVERSEERS. Until the county superintendents take charge of and provide for the support of such bastard and its mother so chargeable to the county, the overseers of the poor of the city or town shall maintain and provide for them; and for that purpose, the same proceedings shall be had as for the support of a poor person chargeable to the county, who cannot be con- veniently removed to the county alms-house. [Poor Law, § 66; B. C. & 6. Cons. L., p. 4259.] § 10. OVERSEERS OF TOWN 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 overseers of the poor of the city or town where such bastard shall be born. 5. Neglect of duty by poor officers. The neglect of the superintendent to provide for the support of a bastard and its mother is a misdemeanor. The following section of the Penal Law provides the punishment: § 1843. Neglect of duty hy superintendent or overseer of the poor. The county superintendent of the poor, or any overseer of the poor, whose duty it shall be to provide for the support of any bastard and the sustenance of its mother, who shall neglect to perform such duty, shall be guilty of a misde- meanor, and shall, on conviction, be liable to a fine of two hundred and fifty dollars, or to imprisonment not exceeding one year, or both such fine and im- prisonment. 748 RELIEF OF POOR. Poor Law, § 68. or likely to be born, whether the mother have a legal settlement therein or not, shall provide for the support of such child and the sustenance of its mother during her confinement and recovery therefrom, in the same manner as they are authorized by this chapter to provide for and support the poor of their city or town.* [Poor Law, § 67; B. C. & G. Cons. L., p. 4259.] § 11. MONEYS RECEIVED BT OVERSEERS FROBI PARENTS OF BASTARD, HOW AFFI.IED 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 the support of such child, and the sustenance of its mother as aforesaid, without paying the same into the county treasury.' They shall annually account, on oath. 6. The neglect of an overseer of the poor to provide for the support of the bastard and Its mother is a misdemeanor. See Penal Law, § 1843, in preceding note. 7. Order of filiation. If a person has been adjudged to be the father of a bastard by the magistrates before proceedings have been instituted, the order of filiation must specify the sum to be paid weekly by the father for the support of the bastard; and if the mother be Indigent the sum to be paid for her support during her confinement and recovery. See Code Crim. Procedure, sec. 850. Such father must thereupon give an undertaking to the effect that he will pay the amounts for the support of the bastard and mother, as specified in the order. Code Crim. Procedure, sec. 851. If the mother is possessed of property in her own right she may be com- pelled to pay for the support of the child. Code of Crim. Procedure, sec. 857. Prosecution of undertaking. The following sections of the Code of Criminal Procedure authorize superintendents of the poor and overseers of the poor to compel the support of a bastard and of its mother: " Sec. 881. — If an undertaking for the appearance at the County Court of a person charged as the father or mother of a bastard, be forfeited, the court may order it to be prosecuted; and the sum mentioned therein may be re- covered, and when collected, must, except in the city of New York, be paid to the county treasurer, and by him credited to the town in the same county, liable to the support of the bastard, or If there be none, to the county. In the city of New York, the court must order the undertaking to be prosecuted by the com- missioners of charities and corrections, and when collected, it must be paid into the city treasury. In every other county, it must be prosecuted by the district attorney. " Sec. 882. — ^When an undertaking to obey an order, in relation to the support of a bastard, or of a child likely to be born a bastard, or of its mother, is for- feited, it may be prosecuted in the name of the county superintendents of the county, or the overseers of the poor of the town, which was liable for the support of the bastard, or which may have incurred any expense in the support of the SUPPORT OF BASTARDS. 749 Poor Law, § 69. 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, § 68 ; B. C. & G. Cons. L., p. 4260. J § 12. WHEIf MONEYS BECEIVED ON ACCOUNT OP BASTARD CHAKGEABLE TO COUNTY; HOW^ TO BE DISPOSED OF. All moneys which shall be ordered to be paid by the putative father. bastard, or of its mother, during her confinement or recovery; or in the city of New York, in the name of the corporation of that city." Action on undertaking. A bond to indemnify a town concerning a bastard child is broken, and an action may be maintained upon it as soon as the town becomes liable or bound to maintain the child; and an action may be main- tained upon it without actual disbursement, advance or payment by the town. Rockefeller v. Donnelly, 8 Cow. 623. Evidence that the mother is of sufficient ability to support the bastard child is not admissible in discharge of the defendants, but proof of her having in fact maintained the child would be proper. People v. Corbett & Easton, 8 Wend. 520. An order of filiation is conclusive, unless it has been appealed from, and an undertaking given as provided in subdivision 2 of section 851 of the Code of Criminal Procedure. The order of filiation is equivalent to a judgment that the defendant should pay the weekly sum mentioned therein. It rests with the defendant to show himself exonerated from the payment in order to avoid the recovery against him. Wallsworth v. Mead, 9 Johns. 367. This case was followed In Rockefeller v. Donnelly, 8 Cow. 623. This case is an important and leading one and disposes of the whole question of the liability of a father to support his bastard child. The extent of the liability of the defendants is definitely settled by the order and recognizance; no assessment of damages is necessary, and the defendants have no right to inquire what amount has been expended. The People v. Cor- bett & Easton, 8 Wend. 520. Action on order. Section 886 of the Code of Criminal Procedure provides that: " An action may be maintained by the parties authorized by section 882, upon an order made by two magistrates, or a County Court, for the payment of a sum weekly or otherwise, for the support of the bastard or its mother, notwithstand- ing an undertaking may have been given to comply with the order; and in case of the death of the person against whom the order was made, an action may be maintained thereon against his executors or administrators. But when an undertaking is given to appear at the next term of the County Court, no action can be brought on the order until it is affirmed by the court." 8. Accounts of overseers of the poor are to be rendered in the manner pro- 750 RELIEF OF POOR. Poor Law, § 70. or by the mother of a bastard chargeable to any coTjnty, shall be collected for the benefit of such county; and all overseers of the poor, superinten- dents, sheriffs, 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 be 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, § 69; B. C. & G. Cons. L., p. 4260.] § 13. DISPUTES CONCERNING SETTLEMENT OF BASTARD, HOW- DETERMINED. When a dispute shall arise concerning the legal settlement 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 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, § 70; B. C. & G. Cons. L., p. 4260.] § 14. PROCEEDINGS WHEN BASTARD IS CHARGEABLE TO AN- OTHER TOW^N. 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 person, 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.'" vided by- section 26 of the Poor Law, ante, p. 720; for penalties for failure to account, see Poor Law, sec. 14, ante, p. 681. For form of accounts of overseers for moneys received and paid out for sup- port of bastards, see Form No. 94, post. 9. Settlement of poor persons, proceedings relating to disj)utes as to. See Poor Law, sees. 43-45, ante, p. 734. 10. Proceedings to determine place of settlement of poor person are pre- scribed by Poor Law, sees. 43, 44, ante, p. 734. See Forms Nos. 84-87, post. SUPPORT OP BASTARDS. 751 Poor Law, §§ 71-73. 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 settlement, 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 recovery therefrom ; which expenses, after being allowed by the county superintendents, shall be assessed, together with the lawful interest on ihe 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 credited to, the town which incurred such expenses. [Poor Law, § 71; B. C. & G. Cons. L., p. 4261.] § 15. MODE OF ASCERTAINING SUM TO BE ALLOWED FOB SUP- PORT 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 expenses 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 ease of poor persons, and the moneys paid or contracted to be paid by the overseer, pursuant to such order, shall be paid by the county treasurer in the same manner as for poor persons, and be charged to the town to whose ofBcers such payment shall be made. [Poor Law, § 72; B. C. & G. Cons. L., p. 4261.] f 16. MTUEV MOTHER AND CHILD TO BE REMOVED TO COUNTY ALMS-HOUSE. If there be a county alms-house in any county where the towns are re- quired 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 11. Order of supervisor for support of poor person is to be obtained as pro- -vided in section 23 of the Poor Law, ante, p. 717. 752 RELIEF OP POOR. Poor Law, § 74. of the mother will allow it, remove the mother of such hastard, with her child, to such alms-house, in the same manner as poor persons may be 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.12 [Poor Law, § 73; B. C. & G. Cons. L., p. 4261.] § 17. SUPERINTENDENTS AND OVERSEERS MAT COMPROMISE WITH FATHER OP BASTARD; WHEN MOTHER MAY RE- CEIVE MONET. 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 equi- table 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 maintenance 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 compromise." If the mother of such 12. Bemoval of poor persons to alms-house regulated by Poor Law, sec. 20, ante, p. 714. 13. For form of agreement upon compromise with putative father, see Form No. 95, post. An action will not lie by the county superintendents of the poor against the putative father of a bastard child on a promise to indemnify the county, made by him to the supervisor of the town in which the child was born, where it is not shown that the supervisor, in obtaining the promises, acted in the premises, at the request or with the privity of the county superintendents. Birdsall v. Edgerton et al., 25 Wend. 619. Money paid upon a compromise to a superintendent of the poor by a person charged with being the father of an unborn bastard may be recovered, upon its appearing that the supposed mother was not pregnant. The statute authorizes a compromise and arrangement with the putative father relative to the support of the child. The compromise is merely a mode of getting indemnity on the part of the county for the support of the bastard. Whether the superintendent takes a bond or a sum of money, he but indemnifies the county against an actual or impending expense; and when there has been no expense to the county^ and there is to be none, against which the money was paid as an indemnity,, then the money belongs to the person paying it. Rheel v. Hicks, 25 N. Y. 289. 14. Mother of child entitled to money on giving security for support of child. People ex rel. Allen v. Superintendent, etc., of Cayuga, 3 Hill 116. SUPPORT OF BASTARDS. J53 Poor Law, § 74. 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 pre- scribed, regulated or reduced, as in the ease of an order of filiation. [Poor Law, § 74; B. C, & G. Cons. L., p. 4262.] 754 RELIEF OF POOR. Explanatory note. CHAPTER Lt SUPPORT OP POOR PERSONS BY RELATIVES; ABSCONDING PARENTS OR HUSBAND. EXPLANATORY NOTE. Liability for Support of Poor Relatives. A father or mother must support his or her children, and children must support their parents, assuming that they are able to do so. A person cannot be made a charge upon the town or county if he have a father or mother, or a son or daughter able to support him. The liability thus imposed by statute may be enforced by the overseer by proceedings instituted as provided in this chapter. Abandonment of Wife or Children. The Code of Criminal Procedure provides that a person who actually abandons his wife or children, without adequate support, so that they are in danger of becoming a burden upon the public, is a disorderly person. Upon such a person being arrested he is required to give a bond for the support of his wife and children. If the husband fails to support his wife and children, such bond may be prosecuted by the superintendent of poor of the county or the overseer of the poor of the town, and the sum collected is to be paid into the county treasury. The procedure is prescribed by the sections of the Code of Criminal Procedure included in this chapter. Section 1. Who may be compelled to support poor relatives. 2. Overseers to apply to court for order compelling support of poor person by relatives. 3. Court to hear cause and make order of support. 4. Support; when to be apportioned among different relatives. 6. Order to prescribe time during which suppdrt is to continue, or may be Indefinite: when and how order may be varied. SUPPORT OF POOR PERSONS BY RELATIVES. 755 Code Grim. Proc, § 914. Section 6. Costs by whom paid, and how enforced. 7. Action on the order or failure to comply therewith. 8. Husbands abandoning wives or children are disorderly persons. 9. Absconding parents or husband, seizure of property of, for support of children or wife; application for warrant. 10. Overseer may seize property; sale or transfer void; inventory of property seized. 11. Warrant and seizure, when confirmed or discharged by court. 12. Warrant to be discharged upon return of parent or husband, or upon security. 13. Sale of property seized, and application of its proceeds. 14. When superintendent of poor has power of overseer. 15. Sale of property of absconding parents; application to court; ap- plication of proceeds for benefit of minors; accounting of guardians. 16. Superintendent or overseer may redeem real property of abscond- ing father or husband, sold at sheriff's sale. 17. How superintendent or overseer may acquire title. 18. Money used for redemption; how repaid. 19. When warrant of seizure may be discharged. § 1. WHO MAY BE COMFErrED 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 main- tain 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 commissioners of public charities.^ If such poor person be insane, he shall be maintained in the manner prescribed by the insanity law. The father, mother, hus- band, wife or children of a poor insane person legally committed to and confined 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 the time of his reception in such institution.^ [Code Crim. Pro., § 914.] 1. Liability of relatives. The duties of children to their parents arise from a principle of natural justice and retribution. For to those who gave us exist- ence we naturally owe subjection and obedience during our minority and honor and reverence ever after; they who protected the weakness of our infancy are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper ought in return to be supported by that offspring in case they stand in need of assistance. 1 Black- stone's Com. 453. At common law no legal duty rests upon a child to support his indigent parent, and until proceedings to charge him with such support are taken as 756 RELIEF OF POOR. Code Crim. Proc, S§ 915, 916. § 2. OTERSEERS TO APPLT TO COTJUT FOR ORDER COMPELLING SUP- PORT OF POOR PERSON BY RELATIVES. If a relative of a poor person fail to relieve and maintain him, as provided in the last section, the overseers of the poor of the town where he is, or in the city of New York, the commissioners of public charities may apply to the court of general sessions of the county of New York, or to the supreme court of the state of New York, or to the county court of any other county where the poor person dwells, for an order to com- pel such relief, upon at least five days' written notice, served personally, or by leaving it at the last place of residence of the person to whom it is directed, in case of his absence, with a person of suitable age and dis- cretion. If such poor person be insane and legally committed to and con- fined 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 Crim. Pro., § 915, as amended by L. 1913, ch. 143.] § 3. COURT TO HEAR CAUSE AND MAKE ORDER OF SUPPORT. At the time appointed in the notice, the court or a judge thereof must proceed summarily to hear the allegations and proofs of the parties, and provided by statute, he Is not liable therefor. Frazer v. DeT/itt, 49 Hun, 53; 1 N. Y. Supp. 467; see, also, Edwards v. Davis, 16 Johns. 281, where it was held that the liability of a child to support his parents who are infirm, destitute or aged, is wholly created by statute, and therefore the law does not imply a promise from the child to pay for necessaries furnished, without his request to an indigent parent. Liability of husband for support of wife. The common law affords no means of compelling a husband to support his wife otherwise than by making him liable to third persons who have supplied her with necessaries after he has improperly refused so to do, and the statute providing for the compulsory support of indigent relatives does not apply to husband and wife. People ex rel. Kehlbeck v. Walsh, 11 Hun, 292. The wife of a man who is abundantly able to provide for her cannot be deemed a poor person. Superintendents of the poor cannot, therefore, maintain an action in their oflScial capacities against a hus- band for boarding, clothing and medical aid furnished to his wife as a pauper. Norton v. Rhodes, 18 Barb. 100. 2. Insane poor. If a person is insane, he is to be committed to a state hospital for the insane, to be there supported at the expense of the state. If there is any one legally liable for his support under fie above section, action may be taken by the poor ofRcers, the commission in lunacy, or the hospital authorities against such person to compel him to support or contribute toward the support of the Insane person so maintained. See Insanity Law, sees. 54, 86-89, ante, p. SUPPORT OP POOR PERSONS BY RELATIVES. 757 Code Crim. Proc. § 917. Inust order such of the relatives of the poor person mentioned in section nine hundred and fourteen, as were served with the notice and are of sufficient ability, to relieve and maintain him, specifying in the order the sum to be paid weekly for his support, and requiring it to be paid by the father, or if there be none, or if he be not of sufficient ability, then by the children, or if there be none, or if they be not of sufficient ability, then by the mother. If the application be made to secure an order compelling relatives to pay for the maintenance of insane poor persons com- mitted to and confined in an institution supported in whole or in part by the state such order shall specify the sum to be paid for his maintenance by his relatives liable therefor, from the time of his reception in such insti- tution to the time of making such order, and also the sum to be paid weekly for his future maintenance in such institution. The relatives served with such notice shall be deemed to be of sufficient ability, unless the contrary shall affirmatively appear to the satisfaction of the court or a judge there- of. [Code Crim. Pro., § 916.] § 4. SUPPORT; WHEN TO BE APPORTIONED AMONG DIFFERENT RELATIVES. If it appear that any such relative is unable to wholly inaintain the poor person or to pay for his maintenance if confined in a state institution for the insane but is able to contribute toward his support, the court or a judge thereof may direct two or more relatives of different degrees, to maintain him or to pay for his maintenance in such an institution if insane, prescribing the proportion which each must contribute for that purpose; and if it appear that the relatives are not of sufficient ability wholly to maintain him, or to pay for his maintenance in such an institu- tion, if insane, but are able to contribute something, the court or a judge thereof must direct the sum, in proportion to their ability, which they shall pay weekly for that purpose. If it appears that the relatives who are liable for the maintenance of an insane poor person confined in a state institution for the insane are not able to pay the whole amount due for such maintenance from the time of such poor person's admission to such institution, the court or a judge thereof must direct the sum to be paid for such mainteijance in proportion to the ability of the relatives liable therefor.^ [Code Crim. Pro., § 917.] 3. Contribution, effect of. This section authorizes the court to require per- sons equally liable for the support of an indigent parent to contribute toward such support according to their ability, and where one of two persons is unable to contribute his entire proportion of such support, the court is authorized to 758 RELIEF OF POOR. Code Crim. Proc, §§ 918, 919. § 3. ORDER TO PRESCRIBE TIME DURING WrHICH SUPPORT IS TO CONTINUE, OR MAY BE INDEFINITE; WTHEN AND TLO'W ORDER MAY BE VARIED. The order may specify the time during which the relatives must maintain the poor person, or during which any of the sums directed by the court or a judge thereof are to be paid or it may be indefinite or until the further order of the court or a judge thereof.* If the order be for payment of a weekly sum for the maintenance of an insane poor person in a state institution, the order shall specify that such sum shall be paid as long as such insane poor person is maintained in such institution. The court or a judge thereof may from time to time vary the order, as circumstances may require, on the application either of any relative affected by it, or of any officer on whose application the order was made, upon ten days' written notice. [Code Crim. Pro., § 918.] § 6. COSTS. BY WHOM PAID, AND HOW ENFORCED. The costs and expenses of the application must be ascertained by the court, and paid by the relatives against whom the order is made; and the payment thereof, and obedience to the order of maintenance, and to any order for the payment of money, may be enforced by attachment. [Code Crim. Pro., § 919.] require him to contribute according to his ability, and to require the other to pay the residue. Stone v. Burgess, 47 N. Y. 521; 2 Lans. 439. And an order reciting that the two are of suflBcient ability, and directing the proportion each one is to pay, if the proportion is unequal, is, in effect, a determination that the one required to pay the less sum is unable to pay his full proportion, but is able to pay the sum fixed, and such order is valid. Id. 4. Order, in effect a judgrment. So long as an order, made by a court of sessions, directing the relative of a poor person to pay a specified sum period- ically to the superintendent of the poor for the support of such poor person, remains unchanged, such relative is liable to pay the sum therein prescribed. If he or she desires to be relieved therefrom application should be made under the above section of the code for an amendment of the order. Aldridge v. Walker, 73 Hun, 281; 57 St. Rep. 273; 26 N. Y. Supp. 296. Such an order is not void because it gives no option to such person either to support her daughter or to pay the amount provided, and if it is irregular the remedy is by appeal, and the question of its irregularity cannot be properly raised in an action brought to collect the amount directed to be paid by such person. While the determination provided for by this title is denominated an order, it is a final determination of the matter, and in effect a judgment. Id. TTotice. The notice required by this section should be served upon the officer making application for the order compelling the relative to support the poor person. SUPPORT OF POOR PERSONS BY RELATIVES. 759 Code Crim. Proc, §§ 920, 899, subs. 1, 2. § 7. ACTION ON THE ORDER ON FAII,URE TO COMPLY THERE- WITH. If a relative, required by an' order of the court or a judge thereof to relieve and maintain a poor person, neglect to do so in the manner ap- proved by the officers mentioned in section nine hundred and fourteen, and neglect to pay to them weekly the sum prescribed by the court or a judge thereof, the officers may maintain an action against the relative, and recover therein the sum prescribed by the court or a judge thereof for every week the order has been disobeyed, to the time of the recovery, with costs, for the use of the poor.° If the order directs a relative to pay for the maintenance of an insane poor person in a state institution, and such relative refuses or neglects to pay the amount specified therein, an action may be brought by the treasurer of such institution in its corporate name to recover the amount due to such institution by virtue of such order. [Code Crim. Pro., | 920.] § 8. HUSBANDS ABANDONING WIVES OR CHILDREN ARE DISOR- DERLY PERSONS. Persons who actually abandon their wives or children, without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means; and persons who threaten to run away and leave their wives or children a burden upon the public are disorderly persons.* [Code Crim. Pro., § 899, subs. 1, 2.] 5. When action will lie. Defendant is not in default of an order of the court requiring him to support his mother at his own house when he has to support her for about a year, and she leaves without any just cause and does not return, he being willing to receive and support her in his family. Converse V. McArthur, 17 Barb. 410. When an order is made requiring the relative of a person to support him, and fixing a sum to be paid weekly, the relative inay provide for the support of the pauper, at such place and in such manner as he shall deem proper, pro- vided the place and manner are approved by the overseer, and it is not until he has neglected or refused to do this that he is liable for the sum directed to be paid. Duel v. Lamb, 1 T. & C. 66. 6. Object of statute. The statute is designed to protect the public against the burden of supporting a wife and children when the husband, without just cause, neglects or refuses to perform his ler.l obligation in that regard. It does not impose any new duty upon a husband toward his wife, but simply declares that unreasonable neglect or refusal to perform certain existing obli- gations, in a case where such conduct will result in imposing a burden upon the public, shall be punishable as a crime. A husband is not to be restricted by the statute in his right to determine the place and manner of supporting his wife. If he neglects or refuses to properly provide for her, or so maltreats 760 RELIEF OF POOR. Code Crim. Proc, §§ 900, 901, 921. On complaint to a magistrate that a husband is a disorderly person, a warrant will issue for his arrest. If the magistrate be satisfied that he is a disorderly person he may require him to give an undertaking to the following effect: 1. If he be a person described in the first or second subdivision of section eight hundred and ninety-nine, that he will pay to the county superinten- dent of the poor or to the overseer of the poor of the town, city or village, or to a society for the prevention of cruelty to children, weekly for the space of one year thereafter a reasonable sum of money to be specified by the magistrate for the support of his wife or children. Or that the sureties will pay the sum mentioned in the undertaking, and which must be fixed by the magistrate. [Code Crim. Pro., §§ 900; 901, as amended by L. 1917, eh. 517.] § 9. ABSCONDING PARENTS OS HUSBAND, SEIZURE OF PROP- ERTY OF, FOR SUPPORT OF CHII.DREN OR 'WIFE; APPLI- CATION FOR WARRANT. When the father, or the mother being ar 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 her that she would be justified In refusing her submission to his requirements, he may be deemed a disorderly person under the above statute. People ex rel. Douglas V. Naehr, 30 Hun, 461. But a husband cannot be made a vagrant and a disorderly person by not complying with any condition in respect to support which the wife may see fit to Impose. The husband has a right to select his own residence and the support that the statute was intended to secure is the necessaries of life, or such as the party had been accustomed to and the husband is able to provide. People v. Petit, 74 N. Y. 320; see, also, Lute v. Shelley, 40 Hun, 197. If the husband gives the undertaking, he must be discharged, but if not, the magistrate must convict him as a disorderly person and take a certificate in the form prescribed by the statute. (Code Crim. Pro., § 902.) Such certifl' cate constitutes a record of conviction and the magistrate must by a warrant commit the husband to a county jail or a penitentiary for not exceeding six months at hard labor, or until he gives the security prescribed by statute. (Code Crim. Pro., § 902; § 903, as amended by L. 1916, ch. 243.) If the husband fails to support his wife and children and the undertaking has been given, such undertaking may be prosecuted by the county superintendents of the poor or the overseers of the poor of the town, and the sum collected must be paid into the county treasury for the benefit of the poor. (Code Crim. Pro., § 905.) SUPPORT OF POOR PERSONS BY RELATIVES. 761 Code Grim. Proc, § 922. public, the officers mentioned in section nine hundred and fourteen may apply to any two justices of the peace or police justices in the county in which any real or personal property of the father, mother or husband is situated, for a warrant to seize the sameJ Upon due proof of the facts, the magistrate must issue his warrant, authorizing the officers so applying to take and seize the property of the person so absconding. Whenever any child shall be committed to an institution pursuant to any provision of law, any criminal court or magistrate may issue a warrant for the arrest of the father of the child, and examine into his ability to maintain such child in whole or in part; and if satisfied that such father is able to contribute toward the support of the child, then such court or magis- trate shall, by order, require' the weekly payment by such father of such sum and in such manner as shall be in said order directed, towards the maintenance of such child in such institution, which amount when paid shall be credited by the institution to the city, town or county against any sums due to it therefrom on account of the maintenance of the child. [Code Crim. Pro., § 921.J § lO. OVERSEER MAY SEIZE PROPERTY; SALE OR TRANSFER VOID; INVENTORY 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 be absconded, made after the issuing of the warrant, whether in payment of an antecedent debt or for a new consideration, is absolutely void. The 7. Who may maintain, proceedings. One of two overseers of the poor is authorized to institute and carry on proceedings for the seizure 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. Downing v. Rugar, 21 Wend. 178. Evidence. It is the duty of the court, before confirming the warrant and seizure and directing the sale of property, to require the overseers to produce some evidence to establish the case charged in the warrant, against the party whose property is seized, and the case may be contested by such party. Read V. Triangle, 23 Barb. 236. Sums paid to institution to be credited to town, etc. In cases of commit- ment 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 be credited by the institution to the city, town or county against any sum due for maintenance. People v. Dickson, 57 Hun, 315. ':gz relief of pocr. Code Crim. Proc, §§ 923-925. officers must immediately make an inventory of the property seized by them, and return it, together with their proceedings, to the next County Court of the county where they reside, there to be filed. [Code Crim. Pro., § 922.J § 11. WARRANT AND SEIZURE, WHEN CONFIRMED OR DIS- CHARGED BT 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 mainte- nance of the children or wife of the person abscondnig. [Code Crim. Pro., § 923.] § 12. WARRANT TO BE DISCHARGED UPON RETURN OF PARENT OR HUSBAND, OR UPON SECURITY. If the party against whom the warrant issued, return and support the wife or children so abandoned, or give security satisfactory to any two justices of the peace or police justices in the city, village or town, to the overseers of the poor of the town, or in the city of New York, to the 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 Crim. Pro., § 924.] § 13. SALE OF PROPERTY SEIZED, AND APPLICATION OF ITS PROCEEDS. The officers must sell at public auction the property ordered to be sold, and receive the rents and profits of the real property of the person absconding, and in those cities, villages or towns which are required to support their 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 County Court of the county, for all money so received by them, and for the application thereof, from time to time, and may be compelled by that court to render that account at any time. [Code Crim. Pro., § 925.] SUPPORT OF POOR PERSONS BY RELATIVES. i}'6g Code Crim. Proc, § 926 ; Poor Law, § 130. f 14. WHEN SUPERINTENDENT OF POOR HAS POWER OF OVER- SEER. When the poor person for whom relief is sought is a charge upon a 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 a 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 Crim. Pro., § 936, as amended by L. 1918, ch. 154.] § 15. SATE OF PROPERTY OF ABSCONDING PARENTS; APPLICA- TION TO COURT; APPLICATION OF PROCEEDS FOR BENE- FIT OF MINORS; ACCOUNTING OF GUARDIANS. When property of absconding persons to he applied to support of families; how application made. — ^Whenever the father, or the mother being a widow or living separate from her husband, has absconded or shall abscond from his or her children, or a husband from his wife, leaving any of such children or such wife chargeable, or likely to become chargeable upon the public for their support, and any real or personal estate of such father, or mother, or husband, has been or shall be seized by a superin- tendent of the poor or an overseer of the poor, or by a board of charities, or by other officers authorized to make such seizure, by warrant of the justices of the peace of the county where such real or personal property may be situated; and the court of sessions or county court of the county wherein such superintendent or overseer of the poor, or board of charities,, or other officers authorized to make such seizure resides, has confirmed,, or shall confirm said warrant and seizure, and has heretofore directed or shall hereafter direct what part if any of said personal property shall be- sold, and how much if any of the proceeds of such sale and of the rents- and profits of the real estate, if any, be applied toward the maintenance- 8. For provisions relating to abolition or restoration of distinction between town and county poor, see Poor Law, sec. 138, post, p. 779. Maintenance of actions by poor officers. An action cannot be maintained by superintendents of the poor for boarding, clothing and medical aid fur- nished to his wife as a pauper; notwithstanding he has maltreated her and^ expelled her from his house without just cause, and refused to provide for- her, though of suflScient ability to do so. Norton v. Rhodes, 18 Barb. 190. It was held proper for the overseers of the town of Cazenovia to begin pro- ceedings against a father to compel him to support his poor and Infirm son.. Tlllotson V. Smith, 12 N. Y. St. Rep. 331. 764 RELIEF OF POOR. Poor Law, §§ 130-132. of the children or wife of the person so absconding; then the said superin- tendent or overseer of the poor, board of charities or other officers so authorized and directed, shall apply the said proceeds of sale of said personal property, or rents and profits of the real estate as the case may be, first, to the payment of such taxes and assessments as may be outstanding and existing liens upon the said real estate, and repairs necessary to be made upon said real estate, and premiums for insurance on the buildings on said real estate; and the balance, if any, directly to the maintaining, bringing up and providing for the wife, child or children so left and abandoned, as the same may be required from time to time ; and for all such expenditures they shall take proper vouchers, and from the rents and profits thereafter received from any real estate so seized they shall fiist pay all legal taxes and assessments, as they shall be assessed ag:iinst said real estate, and such premiums for insurances and expenses for such repairs thereon as they may deem necessary for the protection and preservation of said real estate, and the balance of said rents and profits shall be applied by said overseers, superintendents, boards of charities, or other persons authorized to make such seizures, to the maintaining, bringing up, and providing for the wife, child, or children so left and abandoned, and proper vouchers shall be taken thereof. [Poor Law, § 130; B. C. & G. Cons. L., p. 4278.] Guardians for minors; proceeds not to he mingled with other funds; officer to give security and to account. — Whenever any child or children, entitled to the benefits provided by this article, shall be a minor or minors whose mother is dead and whose father has absconded from his children, or whose mother, being a widow or living apart from her hus- band, has absconded from her children, and such minor or minors shall have no guardian, the court of sessions or county court having jurisdiction of this matter shall appoint some suitable person guardian ad litem or next friend of such minor or minors, whose duty it shall be to see that the provisions of this article are carried into effect. The proceeds of the sale of said personal property and the rents and profits of said real estate shall not be mingled or placed with any other funds held or owned by the officer or officers receiving the same, but shall be kept separate and distinct. Such superintendent, overseer of the poor, board of charities or other authorized officer shall give security for the faithful performance of the duties hereby imposed in such form and in such sum as the aforesaid court may direct, and shall account to the court of sessions for all moneys so received by them and for the application thereof from time to time and may be compelled by the said court to vender such account at any time. [Poor Law, § 131 ; B. C. & G. Cons. L., p. 4278.] Notice of accounting. — Notice pi such accounting shall be given to the wife or children, so left and abandoned, as the case may be, and to the SUPPORT OF POOR PERSONS BY RELATIVES. 763 Poor Law, §§ 133-135. guardian of such children, if any of them be minors. And in the event that no guardian or next friend has been appointed, as hereinbefore pro- vided, the said court shall, prior to such accounting being had, appoint some suitable person to attend upon such accounting in behalf of said minors, and notice of such appointment and of such accounting shall be given to the person so appointed. [Poor Law, § 133; B. C. & G. Cons. L., p. 4279.] Penalties; how applied. — All penalties received from the prosecution of any recognizance given by any person who shall have abandoned or neglected his wife or children, or who shall have threatened to run away and leave his wife or children a burden on the public, shall be retained by the officer at whose instance such recognizance was prosecuted, and ap- plied for the same purpose and in the same manner as in section one hun- dred and thirty of this chapter provided for the disposition of the proceeds of the sale of personal property and the rents and profits of real estate seized under the provisions of this article. [Poor Law, § 133; B. C. & G. Cons. L., p. 4279.] ^16. SUPERINTENDENT OR OVERSEER MAV REDEEM RE AX. PROPERTY OF ABSCONDING FATHER OR HUSBAND, SOLD AT SHERIFF'S SALE. County superintendents and overseers of the poor may redeem real property, which may have been seized by them pursuant to sections 921 to 926 of the Code of Criminal Procedure, the same as judgment creditors under section 1430 to 1478 of the Code of Civil Procedure. No such re- demption shall be made, unless at the time of such redemption, the seizure of the property sought to be redeemed, shall have been confirmed by the County Court of the county where the premises may be situated, nor unless such property shall, at the time of making such redemption, be held by the superintendents or overseers, under and by virtue of such seizure. [Poor Law, § 134; B. C. & G. Cons. L., p. 4279.] § 17. HOW SUPERINTENDENT OR OVERSEER MAY ACQUIRE TITLE. To entitle such superintendents or overseers to acquire the title of the original purchaser, or to be substituted as purchaser, from any other creditor, they shall present to and leave with such purchaser or creditor, or the officer who made the sale, the following evidence of their right : 1. A copy of the order of the County Court, confirming the warrant and seizure of such property, duly verified by the clerk of the court. 2. An affidavit of one of the superintendents or overseers that such property is held by them under such warrant and seizure, and that the 766 RELIEF OF POOR. Poor Law, §§ 136, 137. same have not been discharged, but are then in full force. [Poor Law, § 135; B. C. & G. Cons. L., p. 4279.] § 18. MOITET USES FOK BEDEBCPTION; HOW KEPAID. 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 so redeemed. [Poor Law, § 136; B. C. & G. Cons. L., p. 4280. J § 19. WHEN WARRANT OF SEIZXTRE 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, he shall, before such warrant and seizure are discharged, in addition to the security required to be given by section nine hundred and twenty-four of the Code of Criminal Procedure, pay to such superinten- dents or overseers the sum paid by them to redeem such property, together with interest thereon, from the time of such redemption. [Poor Law, § 137; B. C. & G. Cons. L., p. 4280. J RELIEF OF SOLDIERS, SAILORS AND MARINES. 'JQ'Y Poor Law. § 80. CHAPTER LII. RELIEF OF VETERAN SOLDIERS, SAILORS AND MARINES. Section 1. Relief to veteran soldiers, sailors and marines; not to be sent to alms-houses; duty of Grand Army of Republic. 2. Grand Army post commander to file notice and undertaking. 3. Poor or indigent soldiers, etc., without families to be sent to soldiers' home. 4. Board of supervisors to designate persons to conduct burial of soldiers, sailors or marines; where burial made. 5. Headstones to be provided for soldiers' graves at expense of county; board of supervisors to audit cost thereof. § 1. REriEF TO VETERAN SOI.DIERS, SAILORS AND MARINES; NOT TO BE SENT TO ALMS-HOUSES; DUTY OF GRAND ARMY OF REPUBI.IC. No poor or indigent soldier, sailor or marine who lias served in the mili- tary or naval service of the United States and who has been honorably discharged from such service nor his family nor the families of any who may be deceased, shall be sent to any almshouse, but shall be relieved and provided 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 super- intendent, 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 commander and quarter- master of any post of the Grand Army of the Republic, or of any camp of the United Spanish War Veterans of the city or town, made upon the written recommendation of the relief committee of such post or camp ; or if there be no post or camp in a town or city in which it is necessary that such .relief should be granted, upon the like request of the com- mander and quartermaster and recommendation of the relief committee of a Grand Army post, or a camp of the United Spanish War Veterans, located in the nearest town or city, to the town or city requested to so furnish relief, and such written request and recommendation shall be 768 BELIEF OF POOR. Poor Law, § 81. a sufficient authority of the expenditures so made ;* and such auditing hoard 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 sujch audit- ing board in those counties may also pay to the chairman of the relief com- mittee of such Grand Army post or camp of the United Spanish War Veterans, a reasonable sum for his services in connection therewith, [Poor Law, § 80, as amended by L. 1910, ch. 102, in effect Apr. 19, 1910, L, 1915, ch. 120, and L. 1917, eh. 129; B. C. & G. Cons. L., p. 4263.] § 2. GRAND ARMY POST COMMANDER TO TILTE NOTICE AND UN- DERTAKING. The commander of any such post or camp which shall undertake to super- vise the 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 tovra, city or coimty a notice that such post or camp intends to undertake such supervision of relief, which notice shall contain the names of the relief committee, commander and other ofiBcers of the post or camp ; and also an undertaking to such city, town or coimty, with sufiBcieat and satisfactory sureties for the faithful and honest discharge of his duties under this article ; such undertaking to be approved by the treasurer of the city or county, or the supervisor of the town, from which such relief is to be re- ceived.^ Such commander shall annually thereafter, during the month of October, file a similar notice with said city or town clerk, with a detailed statement of the amount of reUef 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 1. The intention of the Legislature in enacting §§ 90-85 was to secure relief for veterans, even though not honorably discharged. Kept, of Atty. Genl., Feb. 25, 1911. Power to determine who so entitled to relief. Under the above section the power to determine who are indigent persons and families, the necessity for their relief, the measure thereof, the place where and the circumstances under which the same shall be administered, is not vested exclusively in a relief committee of a Grand Army post, but the proper officers of the town, city or county, having jurisdiction to raise and appropriate money for the reUef of the poor, have jurisdiction and control over the same, and may determine the amount of money necessary. The Grand Army post may apply to the auditing board of the municipality for such sum of money as it deems necessary, and that board may exercise its judgment and discretion as to the amount to be appropriated; and where it has so done, its determination is final and not subject to review by any court. People ex rel. Crammond v. Common Council, 136 X. Y. 489; 32 N. i^. 984. Order directing veteran's sons to contribute to his support. Where an honorably discharged veteran eighty years of age with poor eyesight and in feeble health has no property but his pension of twenty-two dollars a month, which is not suf- ficient for his support, and the appropriation made by the town authorities under tins section for the use of its veteran relief committee is nearly or quite exhausted, and it appears that the veteran has two sons, one earning seventeen dollars a week who has a wife and two children, his son being self-supporting, the other son, married. RELIEF OF SOLDIERS, SAILORS AND MARINES. 759 Poor Law, § 81. committee, upon whose recommendation the relief was requested, pro- vided, however, that in cities of the first class, said notice and said detailed statement 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, such notice, and such detailed statement, each in dupli- cate, shall be filed with the comptroller, and he shall forward one of said duplicates to the commissioner or deputy commissioner of charities for the borough in which the headquarters of such post or camp is situ- ated, except that in the boroughs of the city of New York, no undertak- ing shall be filed by the commander or the committee of the post or camp nor shall any annual statement of the amounts of relief granted be required. And it shall be the duty of the commissioner of charities to annually include in his estimate, of the amount 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-three, and except in the city of New York, eighty-four and eighty-five of this chapter, 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. Pro- vided, further, that in the city of New York the relief shall be paid direct to the beneficiaries by the commissioner of public charities on a written recommendation signed by the relief committee, the commander and the quartermaster of such post or camp. The comptroller of the city of New York shall, out of the amount appropriated for such relief, provide a cash fund to be placed under the control of the commissioner of public charities from which to pay such relief, and he shall replenish said fund upon presentation of properly receipted recommendations for and earning about fifteen dollars a week but without children, an order will be granted under section 914 of the Criminal Code directing each of the veteran's sons to contribute two dollars a week to his support. Matter of Conklin (1912), 78 Misc. 269. Disobedience of statute; misdemeanor. A public officer who wilfully dis- obeys the statute relative to the care and burial of indegent veterans is guilty of a misdeamor. Rept. of Atty. Genl., March 20, 1911. 2. For form of notice of commander of post of Grand Army as to the relief of poor persons, etc., see Form No. 95, post. 3. For form of request of oflScers of Grand Army post for the relief of vet- erans with a statement of the relief committee upon, whose recommendation the relief was requested see Form No. 96, post. 770 RELIEF OF POOR. Poor Law, § 81. tte amounts paid out of said fund. Moneys actually laid out and ex- pended except in the boroughs of the city of New York by any such post or camp for the relief specified in section, eighty of this chapter shall be reimbursed monthly to such post or camp by the comptroller on vouchers duly verified by the commander and quartermaster of said post or camp, showing the date and amount of each payment, the cer- tificate of the post or camp 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 recommend 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 public charities for the bor- ough in which the headquarters of the post or camp 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 said duplicates in his office and forward the other to the comp- troller, who shall pay the same by a warrant drawn to the order of the said commander. And provided further that in the city of New York if the comptroller is satisfied that a poor or indigent soldier, sailor or marine, who has served in the military or naval service of the United States, or his family, and has been honorably discharged therefrom, or the families of any who may be deceased, are in actual want, and that immediate relief is needed by either, provided he or they shall have been residents of the state for the year last past, and is or are actual resi- dents of said city, he may in his discretion authorize and empower the commander of the post or camp to furnish relief to him, or them, in a reasonable amount, and pay the amount by warrant to the commander of the post or camp, taking the receipt in duplicate of the commander of the post or camp therefor, and file one of said receipts in his office, and forward the other to the commissioner or deputy commissioner of charities for the borough in which the headquarters of the post or camp is situated; and said duplicate receipts shall be the vouchers for the payment of the same. And provided further, that in any city, county or borough, in which Grand Army posts or camps have organized or may organize a memorial and executive committee, the latter shall be re- RELIEF OF SOLDIERS, SAILORS AND MARINES. 771 Poor Law, §§ 83, 84. garded as a post of the Grand Army of the Republic or a camp of the United Spanish War Veterans. 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, quarter- master and relief committee of a post or camp, 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, § 81, as amended by L. 1910, ch. 102, L. 1913, ch. 594, L. 1915, ch. 563, and L. 1916, ch, 532.] § 3. POOR OR INDIGENT SOLDIERS, ETC., WITHOUT FAMILIES TO BE SENT TO SOLDIERS' HOME. Poor or indigent soldiers, sailors or marines provided for in this ar- ticle, who are not insane, and who have no families or friends with whom they may be domiciled, may be sent to a soldiers' home.* Any poor or indigent soldier, sailor or marine provided for in this chapter, or any member of the family of any living or deceased soldier, sailor or marine, who may be insane, shall, upon recommendation of the commander and relief committee of such post of the Grand Army of the Republic or camp of the United Spanish War Veterans, within the jurisdiction of which the case may occur, be sent to the proper state hospital for the insane. [Poor Law, § 83, as amended by L. 1910, ch. 102; B. 0. & G. Cons. L., p. 4265.] § 4. BOARD OF SUPERVISORS TO DESIGNATE PERSONS TO CON- DUCT BURIAL OF SOLDIERS, SAILORS OR MARINES; W^HERE BURIAL MADE. The board of supervisors in each of the counties shall designate some proper person or commission, other than that designated for the care of poor persons, or the custody of criminals, who shall cause to be interred the body of any honorably discharged soldier, sailor or marine, who has served in the military or naval service of the United States, or the body of the wife or widow of any soldier, sailor or marine, married to him 4. Soldiers' Homes. The New York State Soldiers' and Sailors' Home at Bath is managed by a board of trustees, imder the provisions of sees. 60 and 61 of the Public Buildings Law, and admissions to such home are regulated pursuant to sec- tion 64, as amended by L. 1911, ch. 577, and L. 1912, oh. 190. The New York State Home for the aged dependent veteran and his wife, veterans' mothers, widows and army nurses, is located at Oxford, N. Y., and is established, managed, and admis- sions thereto are regulated by article 18 of the State Charities Law. 771a RELIEF OF POOR. Poor Law, § 85. p]-evious to nineteen hundred and ten, who shall die such widow, and who shall hereafter die without leaving sufficient means to defray his or her funeral expenses, but such expenses shall in no case exceed fifty dollars.^ If the deceased has relatives or friends who desire to conduct the burial, but are unable or unwilling to pay the charges therefor, such sum shall be paid by the county treasurer to the person so conducting such burial upon due proof of the claim, made to such person, or commission of the death and burial of the soldier, sailor or marine, or the wife or widow of such soldier, sailor or marine, and audit thereof. Such interment shall not be made in a cemetery or cemetery plot used exclusively for the burial of poor persons deceased, and the board of supervisors of each county is hereby authorized and empowered to purchase and acquire lands, or to appropriate money for the purchase and acquisition of lands, for a cemetery or cemetery plot for the burial of any such honorably dis- charged soldiers, sailors or marines and their wives and widows and also to provide for the care, maintenance, or improvement of any cemetery or plot where such honorably discharged soldiers, sailors or marines and their wives and widows are buried or may hereafter be buried. [Poor Law, § 84, as amended by L. 1912, ch. 306, L. 1914, ch. 135, and L. 1915, ch. 445 ; B. C. & G. Cons. L., p. 4266.] § 5. HEADSTONES TO BE PROVIDED FOR SOLDIERS' GRAVES AT EXPENSE OF COUNTY; BOARD OF SUPERVISORS TO AUDIT COST THEREOF. The grave of any honorably discharged soldier, sailor or marine who served in the army or navy of the United States or of the wife or widow of such an honorably discharged soldier, sailor or marine, whose body has been heretofore or shall hereafter be interred pursuant to the last preceding section, the grave of any honorably discharged soldier, ,'iailor or marine who served in the army or navy of the United States who shall have been heretofore buried in any of the counties of this state, but whose grave is not marked by a suitable headstone, and who 5. Burial expenses of soldiers, sailors and marines Avho die without sufficient means may be a charge upon the county. So held where the only property of a veteran who died leaving a widow was fifty-four dollars in money. People ex rel. Brown v. Prendergast, 146 App. Div. 714. This is so, although the children of the deceased are able to pay the charge. Rept. of Atty. Genl., May 4, 1910. Burial plots in towns. It is provided by sec. 336 of the Town Law, that town boards shall purchase and maintain burial plots for use of soldiers. See ante, p. 365. RELIEF OF SOLDIERS, SAILORS AXD MARINES. 771b Poor Law, § 85. died without leaving means to defray the expense of such headstone; or whose grave shall have remained unmarked for twenty-five years, by a suitable headstone, shall be marked by a headstone containing the name of the deceased, the war in which he served, and, if possible, the organization to which he belonged or in which he ser^sed. The head- stone at the grave of the wife or widow of such an honorably discharged soldier, sailor or marine shall contain the name of the deceased, the war in which her husband served, and, if possible, the organization to which he belonged or in which he served. Such headstone shall not cost more than twenty-five dollars, and shall be of such design and material as shall be approved by the board of supervisors, and the expenses of such burial and headstone as above provided for, and a reasonable sum for the services of the person or commission designated in section eighty-four and the necessary expenses of said person or commission, shall be a charge upon and shall be paid by the county in which the said soldier, sailor or marine, or the wife or widow of such soldier, sailor or marine, shall have died; and the board of supervisors or other board or officer vested with like powers, of the county of which sudh deceased soldier, sailor or marine, or the wife or widow of such soldier, sailor or marine, was a resident at the time of his or her death, is hereby authorized and directed to audit the account and pay the expenses of such burial and headstone, and a reasonable sum for the services of the person or com- mission designated in section eighty-four and the necessary expenses of said person or commission ; provided, however, that in case such deceased soldier, sailor or marine, or the wife or widow of such soldier, sailor or marine, shall be at the time of his or her death an inmate of any state institution, including state hospitals and soldiers' homes, or any institu- tion, supported by the state and supported by public expense therein, the expense of such burial and headstone shall be a charge upon the county of his or her legal residence. It shall be the duty of the person or commission in this article provided prior to the annual meeting of the board of supervisors to make an annual report to such board of super- visors of all applications since the last annual report for burial and the erection of tombstones .as provided herein together with the amounts allowed ; all applications herein referred to shall accompany said annual report and be placed and kept on file with the board of supervisors. [Poor Law, § 85, as amended by L. 1910, ch. 102, L. 1914, ch. 135, and L. 1915, ch. 147 ; B. C. & G. Cons. L., p. 4266.] 771c RELIEF OF POOR. Poor Law, §§ 86, 87. § 6. RELIEF OF WOMEN NURSES; PERSONS ENITLED TO RELIEF. No poor or indigent woman who served not less than ninety days as a nurse in hospital, field or camp with the military or naval service of the United States, in the war of the rebellion, the Spanish-American war or the war of the Philippine insurrection, shall be sent to any almshouse, but shall be relieved and provided for at her home in the city or town where she may reside, so far as practicable, provided such woman nurse is, and has been a resident of the state for one year. [Poor Law, § 86, as added by L, 1913, ch. 595.] § 7. APPLICATION FOR RELIEF; BT WHOM MADE. Upon application being made by such woman nurse poor person to the superintendent of the poor of the county where such woman nurse poor person resides, or to any other officer charged with the support and relief of the poor, and on satisfactory proof being made that such woman nurse is a poor person as defined in this section, such superintendent or other officer or such 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 boards in those counties, shall provide such sum or sums of money as may be necessary to be drawn upon by the president and treasurer of the New York State Department of the National Association of Civil War Army Nurses made upon the written recommendation of such relief committee of such New York State Department of the National Association of Civil War Army Nurses, and such written request shall be sufficient authority for the expenditures to be made. Immediately upon such relief and aid being provided for, the written recommendation of the relief committee of the New York State Depart- ment of the National Association of Civil War Army Nurses, and all other testimony and all facts relating thereto, together with a verified statement of the sum or sums of money expended shall be transmitted to the state board of charities. Such board shall examine all matters relating thereto and if satisfied that such expenditure was proper, and that the expenses thereof were actually and necessarily incurred in such care and support, shall audit and allow the amount of such expense, which when so audited and allowed shall be paid by the state treasurer, on the warrant of the comptroller, to the person incurring the same out of any money appropriated therefor. The amount of such aid and its RELIEF OF SOLDIERS, SAILORS AND MARINES. Yfid. Poor Law, § 87. duration shall be determined by the state board of charities. The New York State Department of the National Association of Civil War Army Nurses shall on the first day of January and the first day of July of each year furnish to the state board of charities a verified statement of the names and addresses of its ofiicers, and the names and addresses of its relief committee. No person shall be aided under the provisions of this act who is receiving or may hereafter receive an annuity from this state. [Poor Law, § 87, as added by L. 1913, ch. 595. j 773 RELIEF OF POOR. Poor Law, § 90. CHAPTER LHL THE STATE POOR. Section 1. Who are state poor, and how relieved. 2. Notice to be given to county clerks of location of state alms- houses. 3. State poor to be conveyed to state alms-houses. 4. Punishment for leaving alms-house. 5. Expenses for support. 6. Duty of keepers; superintendent of state and alien poor to keep record of names. 7. Visitation of alms-houses by superintendent of state and alien poor. 8. Insane state poor. 9. Care and binding out of state poor children. 10. Transfer to other states or counties. 11. Powers of superintendent of state and alien poor. 12. Indian poor persons; removal to county alms-house. 13. Contracts for support of Indian poor persons. 14. Expenses for support of Indian poor persons. 15. Duty of keepers; superintendent of state and alien poor to keep record. ^ 1. WHO ABE STATE POOR, AND HOW KEUEVED. Any poor person who shall not have resided sixty days in any county in this state within one year preceding the time of an application by him for aid to any superintendent or overseer of the poor, or other officer charged with the support and relief of poor persons, shall be deemed to be a state poor person, and shall be maintained as in this article pro- vided. The state board of charities shall, from time to time, on behalf of the state, contract for such time, and on such terms as it may deem proper, with the authorities of not more than fifteen counties or cities of this state, for the reception and support, in the alms-houses of such counties or cities respectively, of such poor persons as may be committed thereto. Such board may establish rules and regulations for the discipline, employment, treatment and care of sixeh poor persons, and for their THE STATE POOR. 773 Poor Law, §§ 91, 92. discharge. Every such contract shall be in writing, and filed in the office of such board. Such alms-houses, while used for the purposes of this article, shall be appropriately designated by such board and known as state alms-houses. Such board may, from time to time, direct the transfer of any such poor person from one alms-house to another, and may give notice from time to time to counties, to which alms-houses they shall send poor persons. [Poor Law, § 90 ; B. C. & G. Cons. L., p. 4367.] § 2. NOTICE TO BE GIVEN TO COUNTY CLERKS OF LOCATION OF STATE ALMS-HOUSES. Such board shall give notice to the county clerks of the several counties of the location of each of such alms-houses, who thereupon shall cause such notice to be duly promulgated to the superintendents and overseers of the poor, and other officers charged with the support and relief of poor persons in their respective counties. A circular from the superintendent of state and alien poor appointed by such board shall accompany such notice, giving all necessary information respecting the commitment, sup- port and care of the state poor in such alms-houses, according to the pro- visions of this article. [Poor Law, § 91 ; B. C. & G. Cons. L., p. 4268.] § 3. STATE POOR TO BE CONVEYED TO STATE ALMS-HOUSES. County superintendents of the poor, or officers exercising like powers, on satisfactory proof being made that the person so applying for relief as a state poor person, as defined by this chapter, is such poor person, shall, by a warrant issued to any proper person or officer, cause such person, if not a child under sixteen years of age, to be conveyed to the nearest state alms-house, where he shall be maintained until duly discharged, but a child under two years of age may be sent with its mother, who is a state poor person, to such state alms-house, but not longer than until it is two years of age. All testimony taken in any such proceeding shall be forwarded, within five days thereafter, to the superintendent of state and alien poor, and a verified statement of the expenses incurred by the person in making such removal, shall be sent to such superintendent. Such board shall examine and audit the same, and allow the whole, or such parts thereof, as have been actually and necessarily incurred; pro- vided that no allowance shall be made to any person for his time or service in making such removal. All such accounts for expense, when so audited and allowed, shall be paid by the state treasurer, on the warrant of the comptroller, to the person incurring the same. [Poor Law, § 93; B. C. & G. Cons. L., p. 4368.] '^74 RELIEF OF POOR. Poor Law, §§ 93-95. § 4. PUNISHMENT FOR I.EAVING ALMS-HOUSE. An inmate of a state alms-house, who shall leave the same without being duly discharged, and within one year thereafter is found in any city or town of this state soliciting public or private aid, shall be pun- ished by confinement in the county jail of the county in which he is so found, or in any work-house of this state in such county, for a term not exceeding three months, by any court of competent jurisdiction; and it shall be the duty of every superintendent and overseer of the poor and other officers charged with the support and relief of poor persons, to cause, as far as may be, the provisions of this section to be enforced. [Poor Law, § 93 ; B. C. & G. Cons. L., p. 4269.] § 5. EXPENSES FOR SUPPORT. The expenses for the support, treatment and care of all poor persons who shall be sent as state poor to such alms-houseS, shall be paid quarterly, on the first day of January, April, July and October in each year, to the treasurer of the county, or proper city officers incurring the same, by the treasurer of the state, on the warrant of the comptroller; but no such expenses shall be paid to any county or city, until an account of tho number of persons thus supported, and the time that each shall have been respectively maintained, shall have been rendered in due form and approved by the state board of charities. [Poor- Law, § 94; B. C. & G. Cons. L., p. 4869.] § 6. DUTY OF KEEPERS; SUPERINTENDENT OF STATE AND AI.IEN POOR TO KEEP RECORD OF NAMES. The keeper or principal officer in charge of such alms-house shall enter the names of all persons received by him pursuant to this article, with such particulars in reference to each as the board from time to time may prescribe, together with the name of the superintendent by whom the commitment was made, in a book to be kept for that purpose. Within three days after the admission of any person, such keeper or principal officer shall transmit the name of such person, with the particulars herein- before mentioned, to the superintendent of state and alien poor; and notice of the death, discharge or absconding of any such person shall in like manner and within the time above named, be thus sent to such super- intendent. Such superintendent shall cause the name of such persons in each such almshouse furnished as above provided for, to be entered in a book to be kept for that purpose in the office of such board, and he shall verify the correctness thereof by comparison with the books kept in such alms-house, and by personal examination of the several inmates thereof. THE STATE POOR. 775 Poor Law, §§ 96-98. and in any other manner the board may from time to time direct; and he shall furnish the board, in tabulated statements, on or before the second Tuesday in January, annually, the number of inmates maintained in each and all of such alms-houses during the preceding year, the number discharged, transferred to other institutions, bound out or removed from the state, and the number who died or left without permission during the year, with such other particulars and information as the board may require. [Poor Law, § 95; B. C. & G. Cons. L., p. 4369. j § 7. VISITATION OF ALMS-HOUSES BY SUPERINTENDENT CF STATE AND ALIEN POOR. The superintendent of state and alien poor shall visit and inspect each of such alms-houses, at least once in each three months, and at such other times as he may deem expedient,, or as the board may direct. And he shall also visit and inspect all alms-houses in which are Indians who are poor persons at least once a year. For the purposes of all such inspections, the superintendent shall possess all the powers of a member of the board and the further powers hereinafter mentioned. The officer in charge of each and every alms-house shall give to such superintendent free access to all parts of the ground, buildings, hospitals and other arrangements connected therewith, and to every inmate thereof, and extend to him the same facilities for the inspection of such alms-house and its inmates, as is required by law to be extended to such board of commissioners; and, in default thereof such officer shall be subject to the same penalty as if access were denied to any member of the board. Such board shall also cause each of such alms-houses to be visited periodically by some of its members, who . shall examine into their condition and management, re- spectively, and make such report thereof to the board as may be deemed proper. [Poor Law, § 96 ; B. C. & G. Cons. L., p. 4370.] § 8. INSANE STATE POOR. If any inmate of such alms-house becomes insane, such superintendent of state and alien poor shall cause his removal to the appropriate state hospital for the insane, and he shall be received by the officer in charge of such hospital, and be maintained therein until duly discharged. [Poor Law, § 97; B. C. & G. Cons. L., p. 4270.] § 9. CARE AND BINDING OUT OF STATE POOR CHILDREN. Such superintendent of state and alien poor shall cause the state poor children, under sixteen years of age, unless committed with the mother as hereinbefore provided by this chapter, to be maintained and cared for at 776 RELIEF OF POOR. Poor Law, §§ 99-101. such orphan asylums in this state as he may deem proper ; and the expenses thereof shall be paid by the state treasurer on the certificate of such super- intendent and the warrant of the comptroller. Such superintendent, in his discretion,. may bind out a state poor orphan or indigent child which may be committed to any such state alms-house, or placed in any orphan asylum, if a male child under twenty-one years, if a female under the age of eighteen, to be clerks, apprentices or servants until such child, if a male, be twenty-one years old, or if a female, shall be eighteen years old, which binding shall be as efEectual as if such child had bound himself with the consent of his parents or other legal guardian. [Poor Law, § 98; B. C. &. G. Cons. L., p. 4271.J § 10. TRANSFER TO OTHER STATES OR COUNTRIES. When any person becomes an inmate, of any such alms-house, and expresses a preference to be sent to any state or country where he may have a legal settlement, or friends willing to support him or to aid in supporting him, the superintendent of the state and alien poor may cause his removal to such state or country, provided, in the judgment of the superintendent, the interests of the state and the welfare of such poor person will be thereby promoted. [Poor Law, § 99 ; B. C. & G. Cons. L., p. 4271.] §11. POWERS OF SUPERINTENDENT OF STATE AND ALIEN POOR. The superintendent of state and alien poor shall possess and exercise the like powers, and be subject to the like duties as to the state poor as superintendents of the poor exercise and are subject to in the care and support of the county poor. In the absence or illness of the superintendent such powers and duties may be performed and discharged, by any person appointed by the state board of charities for such purpose. [Poor Law,. § 100; B. C. & G. Cons. L., p. 4271.] § 12. INDIAN POOR PERSONS; REMOVAL TO COUNTY ALMS- HOUSE. Every Indian residing within this state or upon any of the Indian reservations of this state, who is a poor person within the meaning of this chapter, shall be maintained as provided in this article. Upon application being made by such Indian poor person to the superintendent of the poor of the county where such Indian resides, or to any other officer charged with the support and relief of the poor, and on satisfactory proof being made that such Indian is a poor person as defined in this chapter, such superintendent or other officer shall bv warrant, cause such Indian ,to be THE STATE POOR. 777 Poor Law, §§ 102, 103. conveyed to the alms-house of the county where such Indian resides, where he shall be maintained at state expense. Immediately upon the removal of such Indian who is a poor person to such alms-house, all testimony taken and all facts relating thereto, together with a verified statement of the expenses incurred in making such removal, shall be transmitted to the state board of charities. Such board shall examine all matters relating thereto, and if satisfied that such removal was proper, and that the expenses thereof were actually and necessarily incurred, shall audit and allow the amount of such expenses, which when so audited and allowed shall be paid by the state treasurer, on the warrant of the comptroller, to the person in- curring the same. If, however, it shall appear to the satisfaction of such superintendent that the Indian poor person making application for relief is in such physical condition as to make it improper to remove him to the alms- house, the superintendent may, subject to such rules and regulations as may be prescribed by the state board of charities, provide for the care and support of such Indian poor person, without removing him to the alms- house, and the expenses incurred in such care and support shall be paid by the state treasurer on the warrant of the comptroller, upon the order and allowance thereof by the state board of charities as in cases of support of Indian poor persons in alms-houses. [Poor Law, § 101; B. C. & G. Cons. L., p. 4271.] § 13. CONTRACTS FOR SUPPORT OF INDIAN POOR PERSONS. The state board of charities shall from time to time, on behalf of the state, contract with the proper officers of the county within which such Indians who are poor persons reside, on such terms and for such times as it may deem proper, for the reception and support in the alms-house of such counties of such Indians who are poor persons as may be committed thereto. Such board may establish rules and regulations for the discipline, treatment and care of such Indians and provide for their discharge. Every such contract shall be in writing and filed in the office of such board. [Poor Law, § 102; B. C. & G. Cons. L., p. 4272.] § 14. EXPENSES FOR SUPPORT OF INDIAN POOR PERSONS. The expenses for the support, treatment and care of all Indians who arc poor persons and shall be sent to such county alms-house pursuant to this chapter, shall be paid quarterly on the first day of January, April, July and October in each year, to the treasurer of the county wherein such Indians are supported, by the state treasurer, on the warrant of the comp- troller, but no such expenses shall be paid until an account of the number 778 RELIEF OF POOR. Poor Law, § 104. of Indians thus supported and the time that each shall have been respec- tively maintained shall have been rendered in due form and approved by the state board of charities. [Poor Law, § 103; B. C. & G. Cons. L., p. 4272.J § 15. DUTY OF KEEPERS; SUPERINTENDENT OF STATE AND ALIEN POOR TO KEEP RECORD. The keeper or principal officer in charge of such alms-house shall enter the names of all Indians committed thereto, with such particulars in relation thereto as the state board of charities may prescribe. Immediately upon the admission of any such Indian, such keeper or principal officer shall transmit by mail the names of such Indians, with the particulars herein- before mentioned, to the superintendent of state and alien poor; and notice of the death, discharge or absconding of any such Indian shall in like manner be transmitted to such superintendent. Such superintendent shall cause the names of such Indians in such county alms-house to be entered in a book to be kept for that purpose in the office of such board, and he shall verify the correctness thereof by comparison with the books kept in the alms-house by personal examination of such Indians or in such ' other manner as the board may direct; and he shall furnish the board in tabulated statements, annually on or before the second Tuesday in January, the number of Indians maintained in all such county alms-houses during the preceding year, the number discharged, bound out, removed from the state, and the number who died or left without permission during the year, with such other information as the board may require. [Poor Law, § 104; B. C. & G. Cons. L., p. 4273.] TOWN AND COUNTY POOR; MISCELLANEOUS PROVISIONS. 77^ Poor Law, § 138. CHAPTER LIV. DISTINCTION BETWEEN TOWN AND COUNTY POOR AND OTHER MISCELLANEOUS PROVISIONS RELATING TO THE POOR. Section 1. Boards of supervisors may abolish or revive distinction between town and county poor. 2. Overseers to pay town poor moneys to county treasurer, within three months after notice of abolition of distinction between town and county poor. 3. Town poor money, Invested, to be under control of overseer; may be applied' to town expenses when distinction between town and county poor is abolished. 4. Poor persons owning property. 4a. Burial of poor persons ; expense, how paid. ■ 5. Money raised by towns and counties for the care and support of inmates of charitable institutions. 6. Reports with relation to children placed In family houses. 7. Reports to clerk of board of supervisors of appointments and commitals to charitable institutions. 8. Reports by officers of certain institutions to clerks of supervisors and cities. 9. Verified accounts against counties, cities and towns. 10. Pauper, when not admitted to asylum. 11. Commitment to the " Shelter for Unprotected Girls " at Syracuse; board of supervisors to pay expenses of Inmates. % 1. BOARDS OF SUPERVISORS MAY ABOUSH OR REVIVE DIS- TINCTION BETWEEN 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, as to poor persons over the age of sixteen years, or as to poor persons of the age of sixteen years or under, or as to both, by a vote of two-thirds of all the members elected to such board, and until such abolition or re- vival, 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 determina- 1. Distinction between town and county poor. Boards of supervisors may ^Ibolish or revive distinctions between town and county poor, in their discretion, in the manner prescribed by this section. People ex rel. Supt. of the Poor v. Y80 RELIEF OF POOR. Poor Law, § 139. tion, serve, or cause to be served, a copy of the resolution upon the clerk of each tov^n, village or city vsrithin such county, and upon each of the superintendents and overseers of the poor therein. Upon filing such determination to abolish the distinction between such town and county poor, duly certified by the clerk of the board, in the offiee of the county clerk, such poor of the county shall thereafter be maintained, and the expense thereof defrayed by the county; and all costs and charges at- tending the examinations, conveyance, support and necessary expenses of such poor persons therein, shall be a charge upon the county. Such charges and expenses shall be reported by the superintendent of the poor, to the board of supervisors, and shall be assessed, levied and col- lected the same as other county charges. [Poor Law, § 138, as amended by L. 1916, ch. 379; B. C. & G. Cons. L., p. 4280.] § 2. OVERSEERS TO PAY TOAVN POOR MONEYS TO COUNTY TREASURER, WITHIN THREE MONTHS AFTER NOTICE OF ABOI.ITION OF DISTINCTION BETWEEN TOWN AND COUNTY POOR. Within three months after notice shall have been served upon the over- seers 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 bands as overseers 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 thereafter received by them, as such overseers, for the use of the pbor 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 Supervisors, 103 N. Y. 541. But they have no authority to make a distinction,, in part, between town and county poor. Rept. of Atty 6enl. (1900) 276. Determination of supervisors must be filed to effect a change of system. Thompson v. Smith, 2 Den. 177. The effect of abolishing the distinction between town and county paupers is to deprive the town of the right of reimbursement from the county. People ex rel. V. Bd. Sup's St. Lawrence Co., 103 N. Y. 541, 546; Robbins v. Wolcott, 66 Barb. 63, 68. Review. The acts of supervisors in distinguishing between town and county poor are legislative and not judicial, and cannot be reviewed by certiorari.. People ex rel. Allen v. Supervisors of Westchester Co., 113 App. Div. 773, 99 N. Y. Supp. 348. TOWN AND COUNTY POOR; MISCELLANEOUS PROVISIONS. 'J'81 Poor Law, §§ 140, 57, 58. 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, § 139 ; B. C. & G. Cons. L., p. 4281.] § 3. TOWN POOR MONET, INVESTED, TO BE TJNDEK CONTROI. OF OVERSEER; MAY BE APPLIED TO TOVrN EXPENSES "WHEN DISTINCTION BETWEEir TOWN AND COUNTY POOR IS ABOLISHED. When any town shall have any moneys raised for the support of the poor, invested in the name of the overseers of the poor of such town, such overseers shall continue to have the control thereof, and shall apply the interest arising therefrom 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 inhabitants thereof shall at an annual town meeting, or a special town meeting called for the purpose, determine. [Poor Law, § 140; B. C. & G. Cons. L., 4281.] § 4. POOR PERSONS OWNING PROPERTY. If it shall at any time be ascertained that any person, who has been assisted by or received support from any town, city or county, has real or personal property, or if any such perosn shall die, leaving real or personal- property, an action may be maintained in any court of competent juris- diction, by the overseer of the poor of the town or city, or the superintend- ent of the poor of any county which has furnished or provided such assistance or support, or any part thereof, against such person or his or her estate, to recover such sums of money as may have been expended by their town, city or county ia the assistance and support of such person during the period of ten years next preceding such discovery or death. [Poor Law, § 57 ; B. C» & G. Cons. L., p. 4257.] § 4a. BURIAL OF POOR PERSONS; EXPENSE, HOW PAID. It shall be the duty of the superintendent of the poor or every county and the overseer of the poor of every town, and the person or official having in charge the care of the poor of every city or village, to cause the remaias of each deceased poor person to be properly buried. The expense of such burial shall be a state, county, town, city or village charge, as the case may be, and the money therefor shall be raised as other charges of the state, county, town,! city or village are raised. [Poor Law, § 58, as added by L. 1917, eh. 512.] 2. In counties where the poor are a county charge, money expended for the tempo- rary or permanent relief of the poor belongs to the cunty, and a town cannot main- tain an action against a person alleged to have fraduulently received such money.. Eobbins. v. Wolcott, 66 Barb. 63; People v. Harris, 16 How. Pr. 256, 260. 782 RELIEF OF POOR. General Municipal Law, § 87; Poor Law, § 146. § 5. MONET RAISED BY TOWNS AND COUNTIES FOR THE CARE AND SUPPORT OF INMATES OF CHARITABIiE INSTITU- TIONS. Boards of CBtimate and apportionment, common councils, boards of alder- men, boards of supervisors, town boards, boards of trustees of villages and all other boards or officers of counties, cities, towns and villages, authorized to appropriate and to raise money by taxation and to make payments there- from, are hereby authorized, in their discretion, to appropriate and to raise money by taxation and to make payments from said moneys, and from any moneys received from any other source and properly applicable thereto, to charitable, eleemosynary, correctional and reformatory institu- tion wholly or partly under private control, for the care, support and maintenance of their inmates, of the moneys which are or may be appropri- ated therefor; such payments to be made only for such inmates as are received and retained .therein pursuant to rules established by the state boards of charities; except that boards of trustees of villages and town boards of towns in which there is no hospital located, and which are situ- ated upon and adjoin the boundary line of a neighboring state, are hereby authorized, in their discretion, to appropriate and to raise money by taxa- tion and to make payments from said moneys, and from any moneys received from any other source and properly applicable thereto, to hospitals in such adjoining state for the purpose of maintaining a bed or beds in such hospital for the benefit of and to be used exclusively by the inhabitants of such village or town. Boards of trustees of villages and town boards of towns situate upon the boundary line of a neighboring state, which have appropriated and raised money by taxation for the purpose of main- taining a bed or beds in a hospital in such adjoining state and have not paid the same, are hereby authorized to use said money for the purpose for which it was appropriated and raised. Payments to such hospital in an adjoining state shall be made only for such inmates as are received and retained therein pursuant to rules established by the state board of charities. [General Municipal Law, § 87; B. C. & G. Cons. L., p. 2138. "| § 6. REPORTS WITH RELATION TO CHILDREN PLACED IN FAM- ILY HOMES. The superintendents of the poor of counties, the overseers of the poor of cities and towns, and all other public officers by whatsoever name or title known who are authorized by law to place out dependent children in family homes by adoption, indenture or otherwise, are hereby required to report to the state board of charities on blanks provided by such board, the partic- ulars with relation to each child so placed out. Such report shall state the TOWN AND COUNTY POOR; MISCELLANEOUS PROVISIONS. 733 State Charities Law, §§ 450, 451. name, age and sex of the child so placed out, together with the father's full name and residence, the mother's full name and residence, and the reKgi ous faith of the parents. The report shall also state the full names and residences of the heads of the family with whom such child is placed, their relationship to the child, if any, the religious faith of the heads of such family, and their occupation or occupations, together with such further information as the state hoard of charities may require on the blanks pro- vided. Such reports for the preceding months shall be filed with the state board of charities on or before the tenth day of each month. [Poor Law, § 146 ; B. C. & G. Cons. L., p. 4383.] § 7. REPORTS TO CLERK OF BOARD OF SUPERVISORS OF AP- POINTMENTS AND COMMITALS TO CHARITABLE INSTI- TUTIONS. Every judge, justice, superintendent or overseer of the poor, supervisor or other person who is authorized by law to make appointments or com- mitments to any state charitable institution, in which the board, instruc- tion, care or clothing is a charge against any county, town or city, shall make a written report to the clerk of the board of supervisors of the county, or of the county in which any town is situated, or to the city clerk of any city, which is liable for any such board, instruction, care or clothing, within ten days after such appointment or commitment, and shall therein state, when known, the nationality, age, sex and residence of each person so appointed or committed and the length of time of such appointment or commitment. This and the two following sections shall apply to each of the asylums, reformatories, homes, retreats, penitentiaries, jails or other institutions, except alms-houses, in each of the counties of this state, except the county of Kings, in which the board, instruction, care or clothing of persons committed thereto is, or shall be, a charge against any county or to-wn therein. [State Charities Law, § 450. as amended hvL. 1909, ch. 258 ; B. C. & G. Cons. L.. p. 5481.] § 8. REPORTS BY OFFICERS OF CERTAIN INSTITUTIONS TO CLERKS OF SUPERVISORS AND CITIES. The keeper, superintendent, secretary, director or other proper officer of a state charitable institution to which any person is committed or appointed, whose board, care, instruction, tuition or clothing shall be chargeable to any city, town or county, shall make a written report to the clerk of such city or to the clerk of the board of supervisors of the county, or of the county in which such town is situated, within ten days after receiving such person therein. Such report shall state when such person was received into the institution, and, when known, the name, age, sex, nation- 784: RELIEF OF POOR. State Charities Law, §§ 452, 17. ality, residence, length of time of commitment or appointment, the name of the officer making the same, and the sum chargeable per week, month or year for such person. If any person so appointed or committed to any such institution shall die, be removed or discharged, such officers shall immediately report to the clerk of the board of supervisors of the county, or of the county in which such town is situated, or to the city clerk of the city from which such person was committed or appointed, the date of such death, removal or discharge. [State Charities Law, § 451, as amended by L. 1909, eh. 258 ; B. C. & G. Cons. L., p. 5481,J § 9. VERIFIED ACCOUNTS AGAINST COUNTIES, CITIES AND TOWNS. The officers mentioned in the last section shall annually, on or before the fifteenth day of October, present to the clerk of the board of super- visors of the county, or of the county in which such town is situated, or to the city clerk of a city from which any such person is committed or appointed, a verified report and statement of the account of such institu- tion with such county, town or city, up to the first day of October, and in case of a claim for clothing, an itemized statement of the same ; and if a part of the board, care, tuition or clothing has been paid by any person or persons, the account shall show what sum has been so paid; and the report shall show the name, age, ser., nationality and residence of each person mentioned in the account, the name of the officer who made the appointment or commitment, and the date and length of the same, and the time to which the account has been paid, and the amount claimed to such first day of October, the sum per week or per annum charged, and if no part of such account has been paid, the report shall show such fact. Any officer who shall refuse or neglect to make such report shall not be entitled to receive any compensation or pay for any services, salary or otherwise, from any town, city or county affected thereby. The clerk of the board of supervisors who shall receive any such report or account shall file and present the same to the hoard of supervisors of his county on the second day of the annual meeting of the board next after the receipt of the same. [State Charities Law, § 4-52, as amended by L. 1909, ch. 258; B. 0. & G. Cons. L.. p. 5482.] § 10. PAUPER, ■WHEN NOT ADMITTED TO ASYLUM. A poor person shall not be admitted as an inmate into a state institu- tion for the feeble-minded, or epileptics, unless a resident of the state for one year next preceding the application for his admission. [State Charities Law, § 17, first sentence; B. C. & G. Cons. L., p. 5383.] TOWN AND COUNTY POOR; MISCELLANEOUS PROVISIONS. 785 State Charities Law, § 387. § 11. COMMITMENT TO THE "SHELTER FOR UNPROTECTED GIRLS " AT SYRACUSE; BOARDS OF SUPERVISORS TO PAY EXPENSES OF INMATES. Each board of supervisors of the several counties within the fifth, sixth, seventh and eighth judical districts of this state is hereby authorized and directed to audit the bills for boarding any inmate of said institution [The Shelter for TJnprotected Girls at Syracuse] received therein from the •. Shasley, 23 Misc. 100, 51 N. Y. Supp. 835. Treble damages for trespass in cnttin!r shnde trees in highway in front of ovsmer's lands may be awarded, based upon the easement which the abutting owner retains in such trees. Suoh damages may not be recovered unless it appears that the injury to the trees was not necessary for the improvement of the hi^hwav Pfohl V. Eupp, 166 App. Div. 630, 152 N. Y. Supp. 47. Rights of electric corporations in respect to shade trees. In stringing its wires a corporation has no right to cut branches of trees belonging to abutting owners, unless such course is demanded by an existing necessity which cannot be avoided by insulating the wires or by employing other practical means which may be more expensive and less convenient. Van Siclen v. Jamaica Electric Light Co., 45 App. Div. 1, 61 N. Y. Supp. 210. The right to the protection of shade trees vested in the owners of adjoining lands is subservient to the proper and legitimate use of the highway by the public. The question as to whether or not the use of public highways in the country by electric lighting companies is within the proper public use of such highways is, in all cases, to be determined by the necessity of the light for the proper use of such highways. Farmer v. Larchment Electric Co 158 N. Y. 231. TOWN SUPERINTENDENT; POWERS AND DUTIES. 335 Highway Law, §§ 62, 63. f ormity with the topography thereof, which order with a map or diagram, showing the location of the sidewalk and tree planting, certified by the town superintendent, shall be filed in the office of the town clerk, within ten days after the making of the order. [Highway Law, § 61 ; B. C. & G. Cons. L., p. 2203.] § 23. EXPENDITURES FOR SIDEWALKS. The town superintendent of any town may, with the consent of the town board, maintain and repair existing sidewalks in such town, and the expense thereof shall be a town charge. Where such sidewalk shall consist of a board walk not more than ten feet in width located on a high- way less than two rods in width the town superintendent of such town may maintain and repair such board walk or renewal thereof and with the consent of the town board may replace such board walk with a walk of concrete or other suitable construction and the expense thereof shall be a town charge. The town board of any such town may on the petition of not less than twenty-five taxpayers of the town, by resolution, direct the town superintendent to construct a sidewalk along a described portion of any highway of the town, in the manner and not exceeding an expense to be specified in the resolution, and the expense of constructing such sidewalk shall be a town charge, and shall be paid in the same manner as other town charges. [Highway Law, § 62, as amended by L. 1915, ch. 322 ; B. C. & G. Cons. L., p. 2204.] § 24. ALLOVTANCE FOR SHADE TREES. There shall be allowed by the town superintendent, with the consent 38. Side-walks as part of highivay. Sidewalks are a part of the highway, and the owners of the adjoining lands have no greater duty in regard to keeping them in repair than they have in regard to any other part of the highway. Village of Fulton V. Tucker, 3 Hun, 529. A town which constructs a highway with a side- walk in an incorporated village is under the same obligation to keep it in order as exists in the case of the center of the street. Birngruber v. Town of Eastchester, 54 App. Div. 80; 66 N. Y. Supp. 278; and see Clapper v. Town of Waterford, 131 N. Y. 382; 30 N. E. 240. The controlling principle in the case of injuries caused by defective sidewalks is stated in the case of Saulsbury v. Village of Ithaca, 94 N. Y. 27, where it is said : " It is true that whether a municipal corporation shall build, or permit to be built, a sidewalk on any of its streets, is a matter of discretion not to be regu- lated by the courts; yet when a sidewalk is built with or without its permission it becomes responsible for its condition,, and is bound, so long as it exists, to keep it in order." Establishment of sidewalk districts, and the maintenance of sidewalks therein, by the town board, see Town Law, §§ 250-254, ante. DriTing animals on sidewalks. Section 1907 of the Penal Law provides that : " A person who wilfully and without authority or necessity drives any team, vehicle, cattle, sheep, horse, swine or other animal along upon a sidewalk is punish- able by a fine of fifty dollars, or imprisonment in the county jail not exceeding thirty days, or both." 836 HIGHWAYS AND BRIDGES. Highway Law, §§ 64, 65. of the town board, to each such owner or occupant, who shall set out or transplant by the side of the highway adjoining his premises, any forest shade trees, fruit trees, or nut bearing trees suitable for shade trees, in conformity with the preceding section, the sum of one dollar for each three living trees so set out or transplanted, to be paid by the supervisors to such owner or occupant, upon the order of the town superintendent out of moneys levied and collected for miscellaneous purposes. Such allowance shall only be made for trees so set out or transplanted during the preceding year, and living and well protected from animals at the time of the allow- ance. Such trees shall be set out or transplanted not more than eight feet from the outside line of any highway three rods wide, and not more than one additional foot distant 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 side of the highway, in place of trees which have died, shall be allowed for in the same manner. [Highway Law, § 63; B. C. & G. Cons. L., p. 3205.] § 25. CUSTODY OF SHADE TREES. The town superintendent shall have the full control of all shade trees in the public highways of the town, but not within the limits of an incor- porated village, and shall prosecute complaints for malicious injury to, or unlawful acts concerning, public shade trees.^*"^ Upon the recommenda- tion of the town superintendent, the town board may, by resolution, ap- propriate a sum, not exceeding two hundred dollars, to be known as the " Shade Tree Fund." Such fund shall be placed in the hands of the supervisor as custodian, and shall be expended by him upon the written order of the town superintendent, for the setting out and preservation of shade trees along the highways in such town. [Highway Law, § 64; B. C. & G. Cons. L., p. 2205.] § 26. COMPENSATION FOR WATERING TROUGHS. The town superintendent may, with the consent of the town board, authorize the owner or occupant of lands to construct and maintain a watering trough beside the public highway, to be supplied with fresh water, the surface of which shall be three or more feet above the level of the ground and easily accessible for horses with vehicles, but when possi- ble, all such watering troughs shall be constructed on the lower side of the highway.^' Such watering trough shall be maintained by such owner or 38a. Fermission to trim and cnt shade trees witbont assent of town super, intendent. — An owner of adjacent land, who has planted trees along the high- way to which he owns the fee subject to the use by the public, may permit a telephone and telegraph company to trim or cut such trees without assent of the town superintendent. Rept. of Atty. Genl., May 4, 1911. 39. Abatement of toll for watering trough. Where a watering trough is TOWN SUPERINTENDENT; POWERS AND DUTIES. 837 Highway Law, §§ 66, 67. occupant and kept supplied with fresh water. The town superintendent shall annually give a written order upon the supervisor for three dollars to be paid to such owner or occupant by the supervisor, for maintaining such watering trough, and keeping the same supplied with fresh water, out of moneys levied and collected for miscellaneous purposes. [Highway Law, § 65 ; B. C. & G. Cons. L., p. 2205.] § 27. CREDIT ON PRIVATE ROAD. Any person living upon a private road may be credited on account of his highway taxes in any year an amount equal to the value of the work which the town superintendent may deem necessary to be done in such year upon such road. The town superintendent shall issue to him a statement con- taining the name of the person, the location of the road, the amount of work so deemed necessary to be done, and the value thereof. Such statement shall be presented to the town board at its annual meeting for the audit of town accounts, and if approved by such board, and such work shall have been done, an order shall be issued directing the supervisor to pay the sum specified in such statement to the person therein named, or his assignee, out of moneys in the hands of the supervisor available for highway pur- poses. The amount so paid in any year shall not exceed the amount payable by the person named in such statement on account of moneys levied in such town for the repair and improvement of highways as provided in this chapter. This section shall not apply to private roads or rights of way over lands of the owner thereof used by him for his own con- venience." [Highway Law, § 66 ; B. C. & G. Cons. L., p. 2206.J § 28. NEGLECT OR REFUSAL TO PROSECUTE. If the town superintendent shall neglect or refuse to prosecute for any penalty, knowing the same to have been incurred, he shall be liable to a penalty of ten dollars for every such neglect or refusal, which shall be constructed and maintained by an owner of premises along a turnpike or plankroad, the company owning such plankroad or turnpike mast abate the toll of such owner in the annual sum of three dollars. The town superintendent of the town in which the watering trough is constructed must designate the watering troughs along such plankroad or turnpike necessary for public con- venience. See Transportation Corporations Law, § 130. For form of certificate of authority, see Form No. 105, posf . 40. Private roads are to be laid out as provided in Highway Law, sees. 211-225, post. The use of a private road is prescribed by Idem, sec. 226, post. For form of statement of credit, see Form No. 106, post. 838 HIGHWAYS AND BRIDGES. Highway Law, § 68. Teeovered by action in the name of the town, by the supervisor, or by any taxpayer of the town who shall indemnify the town for the costs arid ex- pense of the action, in such manner as the supervisor may approve.*^ [Highway Law, § 67; B. C. & G. Cons. L., p. 2206.] § 29. ERECTION OF GUIDE BOARDS. The town superintendent may, with the consent of the town board, cause guide posts with proper inscriptions and devices to be erected at the intersections of such highways therein, 36 may be necessary, which shall be kept in repair by him at the expense of the town. Upon written appli- cation to him, of five resident taxpaj'ers of any town or twenty resident taxpayers of the county in which such town is located, requesting the erection of one or more guide boards at the intersection of highways in such town, it shall be his duty to cause to be erected at the intersections mentioned in such application, 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 maintenance of such boards shall be a town charge. If the town superintendent refuses or neglects for a period of sixty days after receiving such application to comply with the request contained therein, he shall, for such neglect 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, ^ 68; B. C. & G. Cons. L., p. 2206.] 41. Collection of penalties. This section evidently has reference to the duty of the town superintendent to collect all penalties prescribed by this chapter, as required by Highway Law, sec. 47, subd. 12, ante. For actions to recover penalties under the former law, see Bentley v. Phelps, 27 Barb. 524 (1858) ; McFadden v. Kingsbury, 11 Wend. 667 (1834) ; Bartlett V. Crozier, 17 Johns. 439 (1820); Haywood v. Wheeler, 11 Johns. 432 (1814). 42. Other provisions relative to milestones and ^ideposts. A willful or malicous injury to mileboards, milestones or guideposts is a misdemeanor. Penal Law, § 1423, sub. 11, as added by L. 1911, ch. 316. Whoever shall injure, deface or destroy a milestone or guidepost erected on any highway shall, for every such offense, forfeit treble damages. See High- way Law, sec. 330, post. It is thus provided that a person who injures a milestone or guidepost may be proceeded against either criminally under the Penal Law, or civilly under the Highway Law. As to erection of milestones TOWN SUPERINTENDENT; POWERS AND DUTIES. §39 Highway Law, §§ 69-71. § 30. MEASUREMENT OF HIGHWAYS AND REPORT. Within six months after the taking effect of his chapter, and as often as the commission shall direct, the town superintendent shall measure all highways of his town. Such measurements shall be made either by the use of a cyclometer or otherwise as the commission shall direct. He shall ascertain, and indicate in his report, the town highways which have been surfaced with gravel, those which have been surfaced with crushed stone and those which have been shaped and crowned. He shall report in trip- licate on forms to be prescribed and furnished by the commission, the total mileage of all highways within his town, specifying as above provided as to town highways, one of which shall be filed with the town clerk, one with the district or county superintendent, and one with the commission. [Highway Law, § 69 ; B. C. & G. Cons. L., p. 2207.] S 31. APPLICATION FOR SERVICE OF PRISONERS. After satisfying himself that proper quarters can be secured, the town superintendent may, with the consent of the town board, request the super- visor of the town, under the provisions of section ninety-three of the county law, to procure the services of prisoners serving sentence in the county jail, for general work upon the public highways of the town. [Highway Law, § 70 ; B. C. & G. Cons. L., p. 2207.] § 32. CONSTRUCTION AND REPAIR OF APPROACHES TO PRIVATE LANDS. The owners or occupants of lands shall construct and keep in repair all approaches or driveways from the highway, under the direction of the district or county superintendent, and it shall be unlawful for such owner or occupant of lands to fill up any ditch or place any material of any kind or character in any ditch so as to in any manner obstruct or interfere with the purposes for which it was made. The town superintendent may, when and guideposts by turnpike and plankroad companies, see Transportation Corporations Law, sec. 136, post. For form of application for erection of guide boards, see Form No. 107, -post. State and county highways. In the preparation of maps, plans, specifica- tions and estimates for the construction or improvement of State and county highways provision must be made for the erection of suitable guideposts. Highway Law, sec. 125, subd. 7, post. The expense of erecting and maintaining guidehoards is made by this sectiop a town charge and is payable by the supervisor upon Lhe order of the to'RTi superintendent after audit by the town board, as provided in Highway Law, sec. 106, post. 340 HIGHWAYS AND BRIDGES. Highway Law, §§ 72, 73. directed by the town board, construct and keep in repair such approaches and the expense thereof shall be a town charged* [Highway Law, § 71; B. C. & G. Cons. L., p. 2208.] § 33. UNSAFE TOLI. BRIDGE. Whenever complaint in writing, on oath, shall be made to the town superintendent, 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 town superintendent shall forthwith make a careful and thorough examina- tion of such toll bridge, and if upon the examination thereof he shall be of the opinion that the same has from any cause become dangerous or un- safe for public use, he 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 such bridge, that he has, on complaint made, carefully and thoroughly examined the bridge and found it to be unsafe for 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 such reasonable time thereafter as may be necessary to thoroughly repair the bridge, so as to make it in all respects safe and con- venient for public use. For neglect to take prompt and effective meas- ures 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. The town superintendent 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 superintendent, and upon the neglect or refusal to pay the same upon presentation of an account therefor, the town superintendent may recover the same by action, in the name of the town. [Highway Law, § 72 ; B. C. & G. Cons. L., p. 2208.] § 84» ACTIONS FOB INJURIES TO HIGHWAYS. The town superintendent shall 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 town highway in the town, and to enforce the perfonnance of any duty enjoined upon any person or corporation in relation thereto, 42a. Plans for nndergronnd crossings of a railroad, providing for sidewallts through the proposed subway, may be approved by the highway commission; but such commission cannot approve plans for construction of approaches to highways on lands of adjacent owners. Rept. of Atty. Genl., March 11, 1911. 48. Toll bridge corporations. Rights, duties and liabilities of toll bridge cor- porations in respect to toll bridges are set forth in Transportation Corporations Law, sees. 122-151. Form of complaint of unsafe toll bridges, see Form No. 108, post. TOWN SUPEUINTENDENT; POWERS AND DUTIES. 841 Highway Law, § 73. and to recover any damages sustained or suffered, or expenses incurred by such town, in consequence of any act or omission of any such person or corporation, in violation of any law or contract in relation to such high- way." [Highway Law, § 73 ; B. C. & G. Cons. L., p. 2208.] 44. Penalties for injuries to highways are prescribed by section 330 of the Highway Law, post. It is also provided in sec. 47, subd. 12, and sec. 337 of the Highway Law, ante, that all penalties incurred pursuant to the Highway Law shall be recovered by the town superintendent in the name of the town. Abatement of nuisance. A town superintendent may abate a nuisance caused by an unsafe bridge over a mill-race by repairing the same at the expense of the owner, and an action will lie against such owner for the amount expended. Town of Clay v. Hart, 25 Misc. 110; 55 N. Y. Supp. 43. Surrendering turnpike. Where a turnpike has been abandoned the owners may be compelled, by an action brought under this section, to surrender possession of all parts of the turnpike road to the control of the town superin- tendent. Town of Palatine v. N. Y. C. & H. R. R. R. Co., 22 App. Div. 181; 47 N. Y. Supp. 1024. Drainage commissioners appointed for the drainage of marsh lands, who, without the consent of the town authorities, cut a channel for the drainage of water across a town highway, and have omitted to construct a suitable bridge across such channel, may be compelled to construct such bridge by an action maintainable under this section in the name of the town, in spite of the fact that the statute under which the drainage commissioners acted did not in express terms confer upon them the power to construct such bridge. Town of Conewango v. Shaw, 31 App. Div. 354; 52 N. Y. Supp. 327. Bailroads using highways. A railroad corporation may construct its rail- road upon or along a highway upon the order of the Supreme Court of the district in which such highway is situated upon at least ten days' notice to the town superintendent of highways. Where such railroad is so con- structed, it is made the duty of the corporation to restore the highway to its former state, " or to such state as not to have unnecessarily impaired its usefulness." See Railroad Law, sec. 22. The intention of the statute is to impose upon a railroad company, whose track is upon an original highway, the duty of maintaining the restored as well as of restoring the original highway, at least so far as affected by its own operations; and so long as changes are made in the highway by the railroad, or occur in consequence of its operation, which affect the safety of the highway, the statutory duty to preserve the usefulness of the highway attaches and remains until fully complied w;ith. Allen v. Buffalo, Rockland & Pittsburg R. Co., 151 N. Y. 434; 45 N. E. 845; see, also, Schild v. Central Park, etc., R. R. Co., 133 N. Y. 447; 31 N. E. 327; Wiley v. Smith, 25 App. Div. 351; 49 N. Y. Supp. 934; Town of Windsor v. D. & H. C. Co., 92 Hun, 127; 36 N. Y. Supp. 863. The town superintendent of highways of a town has no power to control the location of a railway within the line of the highway of the town, and while for any failure of the railroad company in the performance of the duty of 842 HIGHWAYS AND BRIDGES. Highway Law, § 74. § 35. LIABILITY OF TOWNS FOB DEFECTIVE HIGHWAYS. Every town shall be liable for all damages to persons or property sus- tained by reason of any defect in its highways or bridges, existing be- cause of the neglect of any town superintendent of such town. No action shall be maintained against any town to recover such damages, unless a verified statement of the cause of action, including the time and place at which such injury is alleged to have been received, shall have been filed with the town clerk and supervisor of the town within ninety days after the cause of action accrued. And no such action shall be commenced until fifteen days after the service of such statement.*^ [Highway Law, § 74, as amended by L. 1913, ch. 389, and L. 1918, ch. 161; B. C. & G. Cons. L., p. 2211.] restoration, he is authorized by the above section to maintain an action for its performance in the name of the town, or for damages sustained by the town. It is for the company in the first instance to determine the method of restoration. Post v. West Shore R. R. Co., 123 N. Y. 580; 26 N. E. 7. If the railroad has proceeded to restore a highway in a manner which has proven ineffectual, the town superintendent may by mandamus compel a proper per- formance of the duty of the railroad company, and the court in the writ should point out how the corporation has failed in its duty, and direct particularly what should be done so that it may not fail again. People ex rel. Green v. Duchess and Columbia R. R. Co., 58 N. Y. 152. See, also, McMahon v. S. A. R. R. Co., 75 N. Y. 231; Masterson v. N. Y. C. & H. R. R. Co., 84 N. Y. 247. A street railroad company is required by § 11 of the Railroad Law to restore the highways to the condition in which they were before the railroad was constructed; and it is made the duty of the town superintendent, by this sec- tion, to compel such company to malie such restoration and in case of a failure he may bring an action in the name of the town against the company. Report of Atty. Genl. (1902) 230. Application to Tillages. Since § 141 of the Village Law constituted a village a " separate highway district," the trustees of a village may maintain an action under this section to prevent an encroachment upon a village street. Village of Oxford V. Willoughby, 181 N. Y. 155. A village being a separate highway dis- trict, the authority of the town superintendent is transferred to and vested in the village authorities and the latter may resort to a court of equity for the preservation of the village streets and highways. Village of Haverstraw v. Eckerson, 192 N. Y. 54, affg. 124 App. Div. 18, 108 N. Y. Supp. 506. 45, Under the statute a town is liable only for the negligence of tlie to^vu. superintendent. Hence, where the plaintiff's horse ran away and injured her: owing to the fact that it became frightened by the smell left by powder which had been used by the overseer of the road district in blasting rock for the roadbed, the town is not liable unless it appear that the work was done under the direction of the town superintendent, or that he knew that it was going on, or that by the exercise of reasonable diligence he could have known of the condition. Booth v. Town of Orleans, 147 App. Div. 240. Defective highways, A consideration of the law relating to the liability of towns for injuries caused to users of the highway by defects therein is beyond the scope of this work. The cases which have arisen under the above section are very numerous. They involve a determination of what constitutes a defect and what is negligence upon the part of the town or the highway officers. Nearly, if not all, of such cases are cited in B. C. & G. Cons. L., pp. 2210-2216, to which reference is here made. Railroad company not liable for defects in highway caused by erection of fence along railroad right of way to prevent snow drifting on tracks. It was the duty of the town superintendent to keep tlie highway in a passable condition. The rail- road company had a legal right to erect the fence on its own land and if there was any liability for the injuries caused by the snow in the highway, it was that of the town. Cooney v. Northern Central Ry. Co. (1917), 180 App. Div. 675. SufSciency of statement. Where the statement has served the object intended by the statute, viz., to give the town notice of the claim, such statement did not operate to limit proof of the actual extent of the plaintiff's injuries nor the amount of damages she could recover. Eggleston v. Town of Chautauqua, 90 TOWN SUPERINTENDENT; POWERS AND DUTIES. 343 Highway Law, § 75. § 36. ACTION BY TO'WN AGAINST SUPERINTENDENT. If a judgment shall be recovered against a town for damages to person or property, sustained by reason of any defect in its highway or bridges, existing because of the neglect of any town superintendent, such town superintendent shall be liable to the town for the amount of the judgment, and interest thereon, but App. Div. 314, 86 N. Y. Supp. 276. The object of the statute plainly is that the town shall have fair and timely notice of the cause of action and of the claim made against It, and time is given after the notice and before the suit is commenced for the town to examine into the claim and decide what to do with reference to it. This notice is not required to have all the formalities of a complaint or of a bill of particulars; its purpose is served by bringing the general nature of the claim to the attention of the town. Quinn v. Town of Semproniua, 33 App. Div. 70, 53 N. y. Supp. 325; Eggleston v. Town of Chautauqua, 90 App. Div. 314, 86 N. Y. Supp. 279. The legislature having made the presentment of the statement of the cause of action to the supervisor a prerequisite to the bringing of an action the court cannot permit any substitute for it; the statute must be strictly complied with; so, where plaintiff's attorney wrote a, letter to the supervisor, which was not returned as not being the statement required, and the town officers acted thereon and negotiated for a settlement with plaintiff, the claimant is not relieved from a literal compliance with the statute, nor have the town officers the power to waive the statutory requirement. Bourst v. Town of Sharon, 24 App. DiV. 599, 48 N. Y. Supp. 996. A verified statement in the following language; " Town of Sardinia. " To Ella D. Spencer, administratrix of the estate of Frank Spencer, late of the town of Sardinia, Erie County, N. Y., debtor. " To damages resulting from the death of Frank Spencer, caused by the breaking of an unsafe and defective bridge in the highway in said town near the residence of Mr. Henshaw, $20,000. "Dated, Sardinia, N. Y., November 5, 1897. " ELLA D. SPENCER, " Administratrix." Subjoined to this statement was an affidavit of the administratrix. It was held that this statement was sufficnently definite and specific to give the authorities of the town opportunity to investigate and determine whether they would allow the claim. Spencer v. Town of Sardinia, 42 App. Div. 472; 59 N. Y. Supp. 412. The statement should state facts showing the occurrence of the accident, the defects in the highway or bridge which caused it, that the town superintendent was negligent and the plaintiff was free from negligence, and that the plaintiff was injured and was entitled to damages therefor. It might well state the nature and extent of the injuries sustained, and the amount of damages claimed therefor, but the amount of damages would be merely an estimate and the plaintiff would not be restricted to the amount stated. Eggleston v. Town of Chautauqua, 90 App. Div. 314, 86 N. Y. Supp. 279. The notice should state the time and place of the injury. Lutes v. Town of Warwick, 149 App. Div. 809, 134 N. Y. Supp. 298. An action against a town for damages to persons or property sustained by reason of any defect in its highway or bridges existing because of the neglect of the town superintendent of highways can be maintained only by virtue of this section; but where the complaint, otherwise good, contains no allegation that a verified state- ment of the cause of action was filed with the town clerk within six months after the cause of action accrued, as required by said section, the complaint must be dismissed, with leave to serve an amended complaint on payment of a full bill of costs. Dye v. Town of Cherry Creek (1914), 87 Misc. 207, 149 N. Y. Supp. 497. The purpose of the notice required by section 74 of the Highway Law before bringing an action against a town for damages is to fairly apprise the officers of the 844 HIGHWAYS AXD BRIDGES. Highway Law, §§ 76, 77. such judgment shall not Ibe evidence of the negligence of the superintendent in the action against him.*6 [Highway Law, § 75; B. C. & G. Cons. L., p. 2217.] § 37. AUDIT OF DAMAGES WITHOUT ACTION. The town board of any town may audit as a town charge, in 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 pre- sented to the supervisor and town clerk of the town within ninety days after it accrued, nor if any action thereon shall be barred by the statute of limitations.*? The town board may also audit any unpaid judgment heretofore or hereafter re- covered against a town superintendent for any such damages, if such town board shall be satisfied that he acted in good faith, and the defect causing such damages did not exist because of the negligence or misconduct of the superintendent against ■whom such judgment shall have been recovered. [Highway Law, § 76, as amended by L. 1918, ch. 161; B. C. & G. Cons. L., p. 2217.] § 38. CLOSING HIGHWAYS FOB REPAIR OR CONSTRUCTION. If it shall appear necessary to close any highway in order to permit a proper completion of any worli of improvement thereon conducted by the state, county or town, the district or county superintendent shall,, upon re- quest of the division engineer, or direction of the state commissioner of highways, execute a certiiicate and file the same in the ofBce of the town town of the nature and circumatances of the accident, so that they may investigate the same fully and intelligently, and with certainty as to the place and conditions of the accident. Such a notice, to the effect that on a certain date while the plain- tiff was driving his horse to a certain place, and when he was about twenty-five rods below the foot of a certain hill in the town stated, the horse stepped through a hole in a sluice and broke her leg, making it necessary to shoot her, damaging the plain- tiff to a certain sum, no part of which has ever been paid, is a substantial compli- ance with the statute. It seems, that the notice need not be framed with the same particularity as a complaint, and need not contain facts showing that the commis- sioner of highways was negligent, and that the plaintiff was free from negligence. Griffin v. Town of Ellenburgh (1916), 171 App. Div. 713, 157 N. Y. Supp. 813. 46. Liability of tovra superintendents. Town superintendents since the act of 1881, oh. 700, are no longer liable for their negligence to persons injured; the primary liability to such persons is that of the town. Williams v. Village of Port Chester, 97 App. Div. 84, 89 N. Y. Supp. 671. The section, as it existed in the former Highway Law, was passed in view of the law as it had been* announced by the courts without contemplating any change. People ex rel. Cole v. Cross, 87 App. Div. 56, 83 N. Y. Supp. 1083. Where the commissioner of highways of a town negligently permits the Tiighways to become out of repair, a person sustaining injuries thereby may bring an action against the commissioner individually, notwithstanding the provisions of this section, permitting an action to be brought against the town because of the neglect of its highway commissioner. Campbell v. Powers (1913), 155 App. Div. 862. Proof of negligence. The n^ligence of the town superintendent, although established in the action against the town, must be again proved in the action by the town against the superintendent. Lane v. Town of Hancock, 142 N. Y. 510. See also Waller v. Town of Hebron, 5 App. Div. 577, 39 N. Y. Supp. 381. Liability of town superintendent to town is the test of the town's liability. Mack V. Town of Shawangunk, 98 App. Div. 577, 90 N. Y. Supp. 760. 47. Audit of toTvn accounts. Town accounts are to be audited as provided in see. 133 of the Town Law, post. See, also. Highway Law, sec. 106, post. Judgments against a town are town charges. See Town Law, sec. 170, post. TOWN SUPERINTENDENT; POWERS AND DUTIES. 845 Highway Law, §§ 78, 79. clerk of the town in which such highway is situated. Such certificate shall fitate the necessity for the closing of such highway and describe the por- tion thereof to be closed; not more than two miles of any highway shall be closed, at any one time. At the time of filing such certificate such district or county superintendent shall notify the town superintendent to close the highway, who shall thereupon close the same to public travel by erecting suitable obstruction and posting conspicuous notices to the effect that the highway is closed. The town superintendent shall, if practicable, provide a new location for, and construct a temporary highway to be used by the traveling public in lieu of the closed highway and may erect temporary bridges when necessary, or cause other existing highways to be used, when so directed by the district or county superintendent. For the purpose of locating, constructing and erecting such temporary highway or bridge the town superintendent may enter upon the lands adjoining or near to the closed highway and may, with the approval of the town board, agree with the owners of such land as to the damages, if any, caused thereby. If the town superintendent is unable to agree with such owner upon the amount of damages thus sustained the amount thereof shall be ascertained, deter- mined and paid as provided in section fifty-eight. When such highway shall have been closed to the public as provided herein any person who disregards the obstruction and notice, and drives, rides or walks over the portion of the highway so closed shall be guilty of a misdemeanor. The district or county superintendent in his discretion may temporarily close a town highway or a county road for a period of not to exceed ten days. In closing such highway or road the district or county superintendent shall proceed in the manner provided in this section, and he shall immediately transmit to the division engineer a written notice of such closing. The provisions of this section with regard to the closing of highways generally shall apply in like manner to such temporary closing. [Highway Law, § 77, as amended by L. 1911, ch. 646, and L. 1918, ch. 148; B. C. & G. Cons. L., p. 3319.] § 39. ADOPTION OF LABOB SYSTEM FOB BEMOVING SNOW. The town board of any town at its annual meeting on the first Thursday after general election, may, by resolution, determine that no money shall be raised in such town for the ensuing year for the removal of obstructions in the highways caused by snow, and that such obstructions shall be re- moved by the labor of persons and corporations liable to be assessed in such towns for highway taxes. [Highway Law, § 78 ; added by L. 1909, ch. 488, and amended by L 1910, ch. 136, in effect Apr. 31, 1910 ; B. C. & G. Cons. L., p. 3319.] § 40. ASSESSMENT OF LABOR FOB THE REHOVAI. OF SNOW. The town superintendent of a town in which the obstructions in the highways caused by snow shall be removed by the labor of persons and corporations liable to assessment in each town for highway taxes, pursu- .ant to the last preceding section shall annually on or before November 846 HIGHWAYS AND BRIDGES. Highway Law, § 80. fifteenth divide the town into a convenient number of highway distriete and file a description thereof in the office of the town clerk, and before such date shall make an estimate giving the probable number of days' labor needed during the following year for the removal of obstructions caused by snow in the highways and for the prevention of such obstructions and shall assess one day's labor upon each male inhabitant of the town above the age of twenty-one years, excepting honorably discharged soldiers and sailors who lost an arm or a leg in the military or naval service of the United States, or who are unable to perform manual labor, by reason of injuries received or disabilities incurred in such service, members of any fire company formed or created pursuant to any statute, and situated within such town, persons seventy years of age or over, clergymen and priests of every denomination, paupers, idiots and lunatics. The balance of such estimated number of days 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 parcel or tract of land owned by the nonresidents, 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 city or village exempted from the jurisdiction of the town superintendent, and personal property of an inhabitant thereof, shall not be assessed for such labor by the town superintendent. Whenever the assessors of any town shall have omitted to assess any inhabitant, corporation or property therein, the town superin- tendent shall assess the same, and apportion the labor as above provided. [Highway Law, § 79, as added by L. 1909, ch. 488, and amended by L. 1910, ch. 136, in effect Apr. 21, 1910.] § 41. LISTS OF PERSONS ASSESSED FOR RESfOVAL OF SVIOW. A copy of the lists of persons and corporations assessed shall be prepared by the town superintendent and filed in the office of the town clerk. The town superintendent may at any time file in the office of the town clerk a supplemental list containing the names of persons or corporations omitted from the original list, and the names of new inhabitants, and shall assess them in proportion to their real and personal estate as others as- sessed by him on such list. [Highway Law, § 80, as added by L. 1909, ch. 488; B. C. &G. Cons. L., p. 2219.] TOWN SUPERINTENDENT; POWERS AND DUTIES. 847 Highway Law, §§ 81, 82. S 42. DISTRICT FOREMAN; RETURN AND LEVY OF UNWORKED TAX. The town superintendent shall also, immediately after the town has been divided into districts as provided in section seventy-nine of this chapter, appoint a foreman in each district, who shall be a taxable resident thereof, who shall serve for one year and until his successor is appointed and shall receive such per diem compensation, not exceeding two dollars per day, for time actually spent in performing his duties, as the town board may prescribe, payable as the compensation of others town officers is paid. The superintendent shall prepare, from the lists prescribed in section eighty, a separate list for each district of persons and corporations assessed therein for the then current year for labor in removing obstructions caused by snow, showing the number of days' labor for which each person or cor- poration is assessed, and shall deliver each such list to the foreman of the proper district. It shall be the duty of each foreman to notify the several persons and corporations thus assessed, or such of them as the occasion demands, from time to time as needed, that they are required to appear and perform labor in the removal of obstructions caused by snow at a time and place stated by the foreman. On or before the first day of May each district list, showing the portions worked or commuted for, the portions in which parties were notified but failed to perform work after being so notified, and the portions upon which no notice to perform work was served, shall be returned by the district foreman to the town superin- tendent. All • assessments upon which parties have been notified and failed to appear or commute shall then be certified by the town superin- tendent to the town board, who shall return the same to the board of supervisors of the county and which shall be included by them in the next tax-roll of the town and levied against the persons and corporations assessed at the rate of one dollar and fifty cents per day as other taxes are levied. [Highway Law, § 81, inserted by L. 1910, ch. 136, in effect Apr. 21, 1910.J § 43. APPEALS BY NONRESIDENT; CERTAIN ASSESSMENTS TO BE SEPARATE; TENANT MAY DEDUCT ASSESSMENT. Whenever any nonresident owner of unoccupied land shall conceive himself aggrieved by any such assessment of any town superintendent, such owner or his agent, may, within thirty days after such list has been filed in the office of the town clerk, appeal to the county judge of the county in which such land is situated, who shall within twenty days there- after hear and decide such appeal, the owner or agent giving notice to the town superintendent of the time of the hearing before the judge, and his decision thereupon shall be final and conclusive. Whenever the town 848 HIGHWAYS AND BRIDGES. Highway Law, § 82. superintendent shall assess the occupant for any land not orned by such occupant, he shall distinguish in his assessment list the amount charged upon such list, from the personal tax, if any, of the occupant thereof; but when any such land shall be assessed in the name of the occupant, the owner thereof shall not be assessed during the same year on account of the same land. Whenever any tenant of any land, for a less term than twenty-five years, shall be assessed to work on the highways for such land, and shall actually perform such work or commute therefer, he shall be entitled to a deduction from the rent due or to become due from him for such land, equal to the full amount of such assessment, estimating the same at the rate of one dollar per day, unless otherwise provided for by- agreement between the tenant and his landlord. Whenever the highways in any district are obstructed by snow, the town superintendent shall im- mediately call upon the persons and corporations in such district assessed for labor in pursuance of the preceding sections to assist in removing such obstruction, and shall credit such persons or corporations with the days'' labor so performed. If any persons, corporations or occupants of land owned by nonresidents so called out neglect or refuse to appear at the place designated by the town superintendent or to commute at a dollar a dinj within twenty-four hours after due notice, the town superintendent shaii cause the obstruction to be immediately removed and on or before Septem- ber first of each year, or at such other time as the board of supervisors may by resolution prescribe, make out a list of all persons, corporations or occupants of lands owned by nonresidents who shall fail to work out such labor or commute therefor, with the number of days not worked out or com- muted for by each, charging for each day in such list at the rate of one- dollar and fifty cents per day, verified to the effect that such persons, corpor- ations or occupants of lands owned by nonresidents have been notified to appear and perform such labor or commute therefor, and that the same ha& not been performed or commuted. Such list shall be certified by the town superintendent of such town to the town board and by such town board to the board of supervisors and the highway commission, and the amount of such arrearages shall be levied by such board of supervisors against and collected from the real or personal estate of such persons and corpora- tions and from the real estate owned by nonresidents 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 supervisor to be by him added to the high- way fund of the town. No persons or corporations shall be allowed any sum for highway labor performed in removing obstructions caused by snow, unless authorized or directed by the town superintendent to perform such labor. It shall be the duty of the town superintendent on or before- ttie thirty-first day of October in each year to file with the highway com- TOWN SUPERINTENDENT; POWERS AND DUTIES. S49 Highway Law, § 82. mission a statement showing the number of days' labor assessed. It shall also be the duty of the town superintendent to iile with the highway com- mission on or before the first day of June in each year a statement showing the number of days' labor performed or commuted for, the number of days' labor on which parties were notified but failed to labor, also the number of days' labor upon which no notice to appear was given. [Highway Law, § 82, as added by L. 1909, ch. 488, as § 81, renumbered and amended by L. 1910, ch. 136, in efEect Apr. 21, 1910.] 850 HIGHWAYS AND BRIDGES. Explanatory note. CHAPTER LIX. HIGHWAY MONEYS; STATE AID. EXPLANATORY NOTE. Highway Taxation. This chapter pertains to the raising of money by town tax for the construction and maintenance of town highways and bridges; the apportionment among the towns of moneys appropriated by the state for town highways ; the expenditure of such moneys and the duties of town officers in respect to all of such matters. One of the most important changes made by the present Highway Law is the abolishing of the old labor system of taxation, and substitut- ing therefor the so called money system of raising highway taxes. The present law requires that the expense of maintaining highways and bridges shall be paid by tax ; the town superintendent is to have charge of such maintenance and all expenditures legally made by him are charges upon the town to the same extent as other town expenditures. The law does not fix the maximum tax to be raised, but it specifies the minimum amount to be levied. Annual Estimates of Expenditures. The town superintendent must consider the needs of the town in respect to its highways and bridges, and prepare a statement of the amount which, in his opinion, the town should raise by tax for the various purposes specified therein. The purposes for which a tax may be raised are specified in § 90, as amended by L. 1914, ch. 84, and L. 1915, ch. 322 ; the state commission of highways has prepared and furnishes blanks to be used by town superintendents in making such statements. Such statements are known as estimates of highway and bridge expenditures. Each estimate is to be submitted HIGHWAY MONEYS; STATE AID. ggj Explanatory note. to the town board for its approval. It becomes effectual and binding upon the town when so approved. The supervisor must submit the approved estimate to the board of supervisors, who thereupon must cause the amounts specified in the estimate to be levied and collected in the same manner as other charges against the town are levied and collected. The estimate must be submitted to the tovrai board on or before October 31, so that the board may act upon it at its meeting held on the Thursday preceding the annual meeting of the board of supervisors. Additional Tax ; Extraordinary Repairs. If the town superintendent finds that the amounts included in his estimate are insufficient for the purposes named he shall report the fact to the town board, and such board may cause a vote to be taken at a biennial or special town meeting on a proposition to appropriate an additional sum. If so voted the amount must be added to the regular highway tax. If a bridge or highway is unsafe the town superintendent with the approval of the tovsm board may cause the same to be rebuilt or repaired. If the expense exceeds $500 it must be done by contract, approved by the town board. The amount required is to be added to the amount of other highway taxes in the town. Limitation of Amounts to be Raised by Tax. The law imposes a limit upon the amount to be raised by tax without a vote of the town, for all purposes except the repair and improvement of highways. The limit for bridges is placed at $1500, for road machinery the limit is $500; for extraordinary repairs of bridges and highways which have become unsafe, the limit is $1500. Borrowing Money ; Bonds. Money may be borrowed by the supervisor, in anticipation of taxes,^ when authorized by the town board. Certificates of indebtedness are required to be issued for the money so borrowed. When authorized by a vote of a town meeting the town may borrow money, and issue bonds therefor, to build, rebuild or repair highways and bridges and to purchase stone crushers, rollers and traction engines.. The law provides for the issue and sale of such bonds. 853 HIGHWAYS AND BRIDGES. Explanatory note. State Aid. Section 101 of the Highway Law prescribes the amount of money to be paid to the towns to aid them in the repair and improvement of highways. The amounts are graded in accordance with the assessed valuation of taxable property in the town for each mile of highways. JTo part of this money may be used for the building and repairing of bridges. The state money is paid to the county treasurer and by him distributed among the towns. Supervisor as Custodian of Moneys. The supervisor is the custodian of all highway moneys. The collector is directed in his warrant to pay to the supervisor all moneys collected for highway and bridge purposes, and all state moneys are paid to him by the county treasurer. He must give a separate undertaking for the safe-keeping of such funds, to be approved by the town board. Agreement as to Expenditures ; Audit and Payment. The town superintendent and town board must enter into a written agreement as to the parts of the town and the manner in which the highway moneys are to be expended. Such agreement must be executed in duplicate ; one copy is to be filed with the town clerk, and the other with the district or county superintendent. All moneys are required to be paid out by the supervisor, in accordance with such agreement upon the order of the town superin- tendent, after audit by the town board. Such audits are to be made at any meeting of the board called for the purpose by the supervisor or town clerk, on the request of the town superintendent. The supervisor must present to the town board an itemized report of money received and paid out. The form of such report is prescribed by the commission and blanks are furnished or demanded. [Highway Law, art. V.l Sectioit 1. Estimate of expenditures for highways and bridges. 2. Duties of town board in respect to estimates; levy of taxes. 3. Additional tax. HIGHWAY MONEYS; STATE AID. 853 Highway Law, § 90. Section 4. Extraordinary repairs of highways and bridges. 5. Limitations of amounts to be raised. 6. Submission of propositions at town meetings. 7. Borrowing money in anticipation of taxes. 8. Towns may borrow money for bridge and highway purposes. 9. Issue and sale of town bonds. 10. Assessment of village property. 11. Statement by clerk of board of supervisors. 12. Amount of state aid. 13. Mileage and assessed valuation. 14. Payment and distribution of state money. 15. Custody of highway moneys; undertaking of supervisor. 16. Expenditures for repair and improvement of highways. 17. Expenditures for bridges and other highway purposes. 18. Reports of supervisor as to highway moneys. 19. Highway accounts; forms and blanks. 20. Duty of town clerk. 21. Compensation of supervisor and town clerk. 22. Additional expenditure for improvement, repair and maintenance of town highways. % 1. ESTIDIATE OF EXPENDITURES FOB HIGHWAYS AND BBIDGES.i The town superintendent shall annually, on or before the thirty-first day of October, make a written statement in respect to the amount of money which should be raised by tax in the town for the ensuing year, beginning on the first day of November, for the purposes therein set forth, which shall be filed with the town clerk.^ Such statement shall specify: 1. Legalization of taxes levied In 1911. The taxes levied for the repair of highways upon the assessment-rolls of the several towns for the year 1911 were legalized by L. 1912, eh. 64 (in effect March 23, 1912), which reads as follows: Section 1. The taxes levied in the year nineteen hundred and eleven for the re- pair of highways, upon the real and pergonal property in the several towns, are hereby legalized and confirmed so as to be of the same force and effect as though the boards of supervisors had, in said year, levied the minimum amount required to be levied and collected under the provisions of subdivision one, section ninety, chapter thirty of the laws of nineteen hundred and nine, entitled "An act, etc." 2, Highway tax. The present Highway Law abolishes the labor system of taxation in all towns and substitutes in place thereof what was formerly known as the money system of taxation. On and after the taking effect of this section all towns will be required to provide for the raising of highway money by tax. The town superintendent is required under this section to esti- mate the money which will be required for all highway and bridge pur- poses iu the town during the ensuing year. This estimate is revised by the 854 HIGHWAYS AND BRIDGES. Highway Law, § 90. 1. The amount of money necessary to be levied and collected for the repair and improvement of highways, including sluices, culverts and bridges having a span of less than five feet, and board walks or renewals thereof on highways less than two rods in width, and also the amount necessary to construct or repair anypublic roads, walks, places or avenues on any sand beach separated by more than two miles from the main body of the to^vu. Such amount shall not be less than an amount which when added to the amount of money to be received from the state, under the provisions of section one hundred and one, will equal thirty dollars for each mile of highways within the town, oiitside the limit.s of incorporated villages, except that no town having an assessed valuation of three thousand seven hundred and fifty dollars or less per mile out- side of incorporated villages shall be required to levy and collect a tax imder this subdivision in excess of four dollars on each thousand dollar.-* of assessed valuation.^ [Sub. amended by L. 1914, ch. 84, and L. 1915, eh. 322.] town board under sec. 91 of the Highway Law, and when so revised the amount provided for is to be raised by tax levied by the board of supervisors upon the taxable property of the town. The \evj is made by the board of supervisors at its annual meeting and when the tax warrant reaches the hands of the collector it pro- vides for the collection of money sufiBcient to take care of highway improvement during the next year. Such moneys will be paid over to the supervisor, for the most part, in the months of January, February or March, prior to the time when active operations upon the highways are required to be begun. It will be noticed that under this section the town superintendent is to determine the amount required for highways and bridges in the towns in the first instance. Form of estimate of highway and bridge expenditures, and town board'b approval thereof, see Form No. 109, post. Statement under former law. The former statute made it the commissioner's imperative duty to make a statement of the necessary improvements to be made on bridges and highways in each highway district, and an estimate of thp probable expense thereof, to the town board at its second meeting, that is the meeting held on the Thursday prior to the annual meeting of the bc^rcl of supervisors. A duplicate of such statement and estimate was required to be delivered to the supervisor of the town. The board of supervisors at its next meeting was then required to cause the amount to be assessed upon and col- lected in the to-vn. Lament v. Haight, 44 How. Pr. 1. The object of providing for such statement and estimate is to enable the town to raise money for high- way purposes by annual taxation rather than by incurring indebtedness or bor- rowing money. Wells v. Town of Salina, 119 N. Y. 280, 290. 3. Minimum amount for repair and improvement. It will be noticed under 3ubd. 1 that the minimum amount which is to be raised by tax In each town for the repair and improvement of highways will vary according to the amount which the towns receive from the State under sec. 101 of the Highway Law. If the assessable valuation per mile is less than the limit prescribed in this subdivision, the amount available for repair and improvement of high- ways may be less than thirty dollars, but in every other case the amount raised by the town and the amount received from the State must at least equal the sum of thirty dollars for each mile. It was intended by this subdivision to orotect the smaller and poorer towns by limiting the amount which they HIGHWAY MONEYS; STATE AID. 855 Highway Law, § 91. 2. The amount of money necessary to be levied and collected for the repair and construction of bridges, having a span of five Jeet or more. 3. The amount of money necessary to be levied and collected for the pur- chase, repair and custody of stone crushers, steam rollers, traction engines, road machines for grading and scraping, tools and Implements.* 4. The amount of money necessary to be levied and collected for the re- moval of obstructions caused by snow and for other miscellaneous purposes.^ The amounts specified in such statement shall not exceed the limitations prescribed in section ninety-four. If the town superintendent is of the opinion that an amount in excess of the limitations therein prescribed be raised by tax, he shall include in his statement his reasons therefor in detail. [Highway Law, § 90; B. C. & G. Cons. L., p. 2221.] § Z. DUTIES OF TO'WN BOABD IN RESPECT TO ESTIMATES; LEVY OF TAXES. The town board, at its meeting held on the Thursday succeeding general election day in each year, shall consider the estimates contained in such statement. It may, by a majority vote of the members thereof, approve such statement, or increase or reduce the amount of any of the estimates contained therein, subject to the limitations prescribed in section ninety- four.6 The statement, as thus approved, increased or reduced shall be signed in duplicate by a majority of the members of the town board, one should be required to raise by tax at four dollars for each thousand dollars of assessed valuation. There is nothing in the law which prevents any town from imposing a tax greater than such sum. 4. Road macbinery may be purchased by the town superintendent with the approval of the town board under Highway Law, sec. 49, ante. The expenses con- nected with the purchase, repair and custody of such machinery pursuant to the provisions of such section 49 of the Highway Law is chargeable against the fund raised under subd. 3 of the above section. 5. Removal of snovr. — It is made the duty of the town superintendent to cause highways to be kept free from obstructions caused by snow. See Highway Law, sec. 47, subd. 2, ante. It is provided by sections 78-81 of the Highway Law (preced- ing chapter) that the board of supervisors of a county may adopt the labor system of taxation for removing snow. Building a ne\r higbivay is a " miscellaneous purpose " within the mean- ing of subdivision 4. There is no limitation of the amount which may be raised for " miscellaneous purposes " except as it is controlled by the public necessities of a town. Eept. of Atty. Genl., Oct. 18, 1910. Moneys raised as provided by sections 90-101 cannot be used either for con. struction or maintenance of town highways constructed under sections 320 or 320-a of the Highway Law. Opinion of Attorney General (1916), State Dept. Reports, Adv. Sheet 41, p. 98. Estimates may be made by the town superintendent under subd. 4 of money necessary for building a new highway, said estimate is then laid before the town board and if it approves, the several amounts are laid before the board of super- visors and raised in the same manner as other highway taxes in the town. Rept. of Atty. Genl., Oct. 18, 1910. 6. The town board has the power, under this section, to control the amount which shall be raised for the purposes specified in the statement of the town superintendent. The approval of the town board, when the estimate is not changed, should be endorsed on the statement of the town superintendent and signed by the members of the town board. If the amounts contained in the statement are reduced or increased it may be better to make a new statement containing the revised estimates, signed in duplicate by the members of the S'jij HIGHWAYS AND BRIDGES. Highway Law, § 92. of which shall be filed in the office of the town clerk, and the other shall be delivered to the supervisor. The town clerk shall make and transmit a copy of such statement to the commission. The supervisor shall present such statement to the board of supervisors and such board shall cause the amounts contained therein, subject to the limitation requiring a vote of the electors as hereafter provided, to be assessed, levied and collected in such town in the same manner as other town charges, and such amounts shall be expended for the purposes specified in such statement.' The warrant for the collection of taxes in such town shall direct the payment of the money so collected to the supervisor of the town, to be held by him and paid out for the purposes specified in such statement, as provided in this chapter.' [Highway Law, § 91; B. C. & G. Cons. L., p. 2323.] § 3. ADDITIONAL TAX. Whenever the town superintendent and the town board shall determine that the sum of one thousand five hundred dollars will be insuflBeient to pay the expenses actually necessary for the removal of obstructions caused by enow and the prevention of such obstructions, and whenever they shall de- termine that the amounts levied and collected for any of the purposes board. It is the statement, as finally acted upon by the town board, which becomes the basis for the levy of the taxes by the board of supervisors. Insufficient appropriations. In the absence of authority conferred upon him as provided in this and the following section the town superintendent has no power to proceed with the improvements, and apply In payment therefor the appropriation for the succeeding year, and expenditures so made create no legal claim against the town. People ex rel. Peterson v. Clark, 45 App. Div. 65, 60 N. Y. Supp. 1045. 7. The board of supervisors in assessing and levying taxes for highway purposes are governed by the provisions of this section. The provisions of subds. 3 and 4 of sec. 12 of the County Law, ante, authorizing the board of supervisors to direct the raising of such sums in each town as shall be necessary to pay its town charges are, so far as they pertain to taxes for highway purposes, superseded by this section. The board of supervisors cannot exceed the amount estimated for in the statement submitted to it by the several towns of the county, except in the cases specified in sees. 92 and 93 of the Highway Law. 8. Collection of taxes and expenditures. The board of supervisors provides for the preparation of the tax-roll of each town to which is attached a warrant under the seal of the county, signed by the chairman and the clerk of the board of supervisors, to collect from the persons named in the roll the sums mentioned therein. Tax Law. sees. 58 and 59, ante. Under sec. 59 of the Tax TLavr, ante, it is provided that the collector's warrant shall direct him to pay " to the commissioners of highways of the town such sum as shall have been raised for the support of highways and bridges therein." This provision is superseded by the above section, which provides that the warrant shall direct HIGHWAY MONEYS; STATE AID. 857 Highway Law, § 93. mentioned in the statement presented to the board of supervisors, as pro- vided in the preceding section, are insufSeient to pay the expenses neces- sarily incurred for any of the purposes therein specified they may cause® a vote to be taken by ballot at a biennial town meeling or at a special town meeting duly called therefor, 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.^" [Highway Law, § 93, as amended by L. 1918, ch. 147; B. C. & G. Cons. L., p. 2324.] § 4. EXTBAORDIWABY REPAIRS OF HIGHWAYS AND BRIDGES. If any highvi^ay or bridge or the board walk on any highway less than tvro rods in v^idth, or a walk built to replace the same under section sixty-two, shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe for public use and travel, or if any bridge or the board walk on any highway less than two rods the payment of the money so collected to the supervisor of the town. Ex- penditures for the repair and improvement of town highways are to be made as provided in sec. 105 of the Highway Law, post, and expenditures for bridges and other highway purposes are to be made as provided in sec. 106 thereof, post. 9. Form of application for special meeting to vote upon such a proposition, see Form No. 110, post. A proposition may be submitted at a town meeting as provided in the Town Law, see ante, pp. . . 10. Former Highway Law, sec. 9, authorized the submission of a proposition to a town meeting to raise a sum in addition to one thousand dollars for highway repairs and maintenance, removal of obstructions caused by snow and the purchase of road machines. The present law provides for a submission of a proposition whenever any of the amounts levied and collecetd for the purposes mentioned in the highway estimate are insufficient to pay the expenses necessarily incurred. Object and effect of section. The purpose of this section is to provide for an amount in addition to that contained in the annual statement submitted to the board of supervisors when it is found that such amounts are insufficient to properly care for the highways and bridges of the town. The limitation of one-third of one per centum of the taxable property of the town cannot be exceeded. The additional amount so voted by the people must be raised by tax upon the town. Such sum is not to be raised by the issue of bonds, but money may be borrowed in anticipation of additional taxes so to be levied, as provided In Highway Law, sec. 96, post. Effect of failure to secure additional sum. It is the duty of a town super- intendent and town board to take action under this section to secure such sum, in addition to that estimated for in his annual statement, as may be necessary to keep the highways and bridges of the town in a safe condition. It has been held that as a defense to an action for injuries sustained by reason of a defective highway, it is not sufficient to show that the superintendent had no funds, but it must also be shown that he had sought through the proper 858 HIGHWAYS AXD BRIDGES. Highway Law, § 93. in width, or any such walk built to replace the same, be condemned by the commission, as provided in this chapter, the towu superintendent shall cause the same to be immediately repaired or rebuilt, with the approval of the town board."' Such highway or bridge or walk shall channels to procure them. Whitlock v. Town of Brighton, 2 App. Div. 21, S7 N. Y. Supp. 333, affirmed, 154 N. Y. 781; Warren v. Clement, 24 Hun 472; McMahon v. Town of Salem, 25 App. Div. 1, 49 N. Y. Supp. 310. 11. Former Highway Law, sec. 10, as amended by L. 1906, ch. 417, provided for the repair or rebuilding of a highway or bridge which at any time had been damaged or destroyed by the elements or otherwise, or had become unsafe. The work was required to be done under written contract, if the amount to be expended exceeded five hundred dollars. If the expense of the construc- tion exceeded fifteen hundred dollars, the work could only be done after the submission and adoption of a proposition at a town meeting. Limitation of expenditure. Not more than fifteen hundred dollars can be levied in any one year for the repair or construction of a highway or bridge under this section, unless duly authorized by a vote of a town meeting. See Highway Law, sec. 94, subd. 4, post. Power of town superintendents to bind town. Town superintendents of highways have no general authority to bind the town by their contracts save in exceptional cases prescribed by statute. People ex rel. Everett v. Supervisors, 93 N. Y. 397; Berlin Bridge Co. v. Wagner, 57 Hun, 346; 10 N. Y. Supp. 840. In the case of People ex rel. Bowles v. Burrell, 14 Misc. 217; 35 N. Y. Supp. 608, Justice Rumsey held that highway commissioners have no power to pledge the credit of the town for materials for the repair of highways, and the person furnishing such material has no claim therefor upon the town, notwithstanding the existence of a local custom to buy such material upon credit. And in the case of Lyth v. Town of Evans, 33 Misc. 221, 227, 68 N. Y. Supp. 356, It was said: " If extraordinary repairs become necessary, and the funds supplied are insufficient for the purpose, the law provides the method of procedure to be taken by the commissioners with the consent of the town board whereby a legal obligation to pay for the necessary expenditure may be created directly against the town itself. In no other way may the commissioners create an obligation or liability against the town." a. town superintendent of highways is not an agent of the town authorized to contract a debt in real or supposed emergencies, and cannot make a con- tract binding upon the town unless authorized by statute. So where a town superintendent contracts individually with a person to supervise the construc- tion of a bridge authorized by a town board, such contract is not binding upon the town, unless the town board consented to such contract. People ex rel. Morey v. Town Board, 175 N. Y. 394. The consent mentioned in the statute is a judicial act contemplating a decision of the board upon evidence as to whether or not the highways are in such a condition as to require immediate repair. Town superintendents _ of highways are charged with the duty of keeping town highways in repair as independent officers and not as agents of the town, and when they contract for ordinary repairs, it is as such officers and the liability therefor, if they exceed the statutory limitation, is assumed by them personally and not as agents of the town. Opinion of State Comptroller (1916), 9 State Dept. Rep. 482. In the case of People ex rel. Peterson v. Clark, 45 App. Div. 65; 60 N. Y. Supp. 1045, it was held that where the appropriation for the improvement of highways, made under sec. 19 of the Former Highway Law, is insufficient, the proper course of the commissioner was to apply, under sees. 10 and 11 of that HIGHWAY MONEYS; STATE AID. 359 Highway Law, § 93. be so repaired or rebuilt in accordance with tbe directions or the plans and specifications prepared or approved by the district or county super- law, t6 the town board for consent to make the necessary improvements. In the absence of such consent the highway commissioner had no power to pro- ceed with the improvements, and apply in payment thereof the appropriation for the succeeding year; and expenditures so made create no legal claim against the town. The court said: " We are unable to find in the Highway Law, or other statutes of the state, any provision authorizing a highway com- missioner to create a debt against a town, except In the manner provided in sec. 10 of the Highway Law." See, also, in respect to the powers of town superintendents to bind a town for highway improvements, Mather v. Craw- ford, 36 Barb. 565; Barker v. Loomis, 6 Hill, 464; Van Alstyne v. Freday, 41 N. Y. 174. A town superintendent has no authority to create a liability upon the part of his town to a person hired to cut brush along a town highway, and even if such liability were created, it would not become actionable until the claim had been acted upon by the town auditors. Wright v. Town of Wilmurt, 44 Misc. 456, 90 N. Y. Supp. 90. An unsafe condition which is the result of ordinary wear and tear is not such an emergency as will warrant action under this section. Such a con- dition may be remedied in the ordinary manner, by including the amount required in the annual statement as provided in sees. 90 and 91. The re- pairs provided for in sec. 93 are those arising only from emergencies which could not have been foreseen. This section does not authorize the town super- intendent, upon determining that a highway bridge has become unsafe from natural wear and decay, to make a contract for the rebuilding of such bridge, with the approval of the town board, at a cost exceeding the moneys appro- priated for highway purposes. The phrase, " or become unsafe," means an unsafe condition arising from extraordinary cause. Livingston v. Stafford, 99 App. Dlv. 108, 91 N. Y. Supp. 172. The commissioners of highways [town superintendent] and town board of a town cannot contract for the building of new bridges in the place of old bridges not damaged except by natural wear, unless the electors of a town duly authorize the raising of money for such purpose. A contractor is ■charged with the knowledge of the want of such authority. People ex rel. United Construction Co. v. Voorhies, 114 App. Div. 351, 99 N. Y. Supp. 918, affd. 187 N. Y. 539. Consent of town board. Where a bridge has been destroyed by the ele- ments it is contemplated that the town superintendent shall proceed to rebuild if authorized by the town board. When the consent of the town board is given, the town superintendent may contract for its rebuilding, and the contract is to be deemed the contract of the town and should be made in the name of the town. Town of Saranac v. Groton Bridge Co.,. 55 App. ■Div. 134; 67 N. Y. Supp. 118. When once the consent has been given the duties of the town board, so far as the construction of the bridge is con- cerned, are at an end. The board cannot direct the town superintendent as to -what kind of a bridge shall be erected or how and by whom it shall be built. People ex rel. Groton Bridge Co. v. Town Board, 92 Hun, 585; 36 860 HIGHWAYS AND BRIDGES. Highway Law, § 93. intendent; except if the bridge or walk to be repaired or rebuilt is one whieli has been condemned by the commission,^^ as provided in this chap- ter, the same shall be repaired or rebuilt in accordance with plans and specifications to be prepared or approved by the commission. The town N. Y. Supp. 1062. But where a resolution was passed by a town board providing for the rebuilding of the bridge containing certain conditions, it was held that in case such conditions were not complied with the resolution conferred no authority, and that a bridge constructed without regard to such conditions by the commissioner was unauthorized. Town of Saranac v. Groton Bridge Co., 55 App. Div. 134; 67 N. Y. Supp. 118. Where a resolution authorized a commissioner " to repair the bridges that may have gone down since the annual town meeting to the best of his judg- ment," it was held that if in his judgment it was deemed best or necessary to remodel or reconstruct the bridge, the consent would authorize such an action on his part. People ex rel. Slater v. Smith, 83 Hun, 432; 31 N. Y. Supp. 749; see Huggans v. Riley, 125 N. Y. 88; 25 N. E. 993; Hall v. Town of Oyster Bay, 61 App. Div. BOS, 511; 70 N. Y. Supp. 710. No particular form of consent by the town board is required; and where it formally resolves that an unsafe bridge be replaced by a new one, the super- intendent has sufficient authority to contract for the bridge, although the board subsequently attempts to delay action that it may obtain legal advice In the matter. Basselin v. Pate, 30 Misc. 368, 69 N. Y. Supp. 653. Where it does- not appear whether the consent was in writing or not, it will be presumed, if that be a requisite, that a record of the consent was properly made. Boots V. Washburn, 79 N. Y. 207. Mandanus to compel approval. Where the commissioner of highways [super- intendent] of a town, without the previous consent of the town board, has expended moneys in excess of the amount in his hands, for the purpose of repairing highways which were in a dangerous and unsafe condition, a writ of mandamus will not issue commanding the officers of the town to convene as a town board, and give their consent to the payment of the highway com- missioner's claim for reimbursement. The fact that if an application had been made to the town board prior to the expenditure of the money, they would undoubtedly have consented to the making of the repairs, does not justify the issuance of a mandamus. The consent mentioned in the statute is a judicial act contemplating a decision of the board upon evidence as to vyhether or not the highways are in such condition as to require immediate repair. People ex rel. Graham v. Studwell, 91 App. Div. 469, 86 N. Y. Supp. 967 (1904), affirmed 179 N. Y. 520. The town board may make the judgment of the superintendent the measure of its consent as to reconstruction of a bridge; and it Is not in the province of a writ of mandamus to review the exercise of a judicial or discretionary power of such board, or to direct what the result of its exercise shall be. People ex rel Slater v. Smith, 83 Hun 432, 31 N. Y. Supp. 749. 12. Condemnation of bridge by the State commission and duties of dis- trict or county superintendent in respect thereto, see Highway Law, sec. 20, ante. HIGHWAY MONEYS; STATE AID. 861 Highway Law, § 9i. clerk shall prepare a statement showing the probable eost of improving, repairing or rebuilding such highway or bridge or walk, which statement shall be signed in duplicate by a majority of the members of the town board, one of which duplicates shall be filed with the town clerk and one be delivered to the supervisor. The town clerk shall make a copy of such statement and transmit the same to the commission. The supervisor shall present such statement to the board of supervisors, who shall cause the amount contained in such statement to be assessed, levied and collected in the same manner as amounts levied and collected for other highway and bridge purposes, as provided by law. The amount so raised shall be paid to the supervisor to be expended for the purposes specified in such state- ment. [Highway Law, § 93, as amended by L. 1913, eh. 631, L. 1915, eh. 323, and L. 1917, ch. 261 ; B. C. & G. Cons. L., p. 2225.] § 5. LIMITATIONS OF AMOUNTS TO BE BAISED. The amounts to be raised by tax upon the vote of a town board, as pro- vided in this article, shall be subject to the following limitations:^* 1. The amount to be levied and collected in each year for the repair and improvement of highways, including sluices, culverts and bridges having a span of less than five feet and board walks or renewals thereof, on high- ways less than two rods in width, shall not be less than the amount pre- scribed under subdivision one of section ninety. [Subd. amended by L. 1915, eh. 322.] 2. Not more than fifteen hundred dollars shall be levied and collected in any one year in any town for the repair and construction of a bridge unless by unanimous consent of all members of the town board, but in no case shall more than three thousand dollars be levied and collected un- less duly authorized by the vote of a town meeting." 3. Not more than five hundred dollars shall be levied and collected in any one year in any town for the purchase or repair of stone crushers, steam rollers, motor trucks, scarifiers, concrete mixers, traction engines or road machines for grading and scraping, tools and implements, imless duly au- 13. Debts in excess of limitation. A town superintendent has no general authority to bind the town by his contracts. He must find his authority in the statute, and those who deal with him, and with the other officers of the town are presumed to know this limitation of power. See People ex rel. Everett v. Super- visors, 93 N. Y. 397; Berlin Bridge Co. v. Wagner, 57 Hun 346, 10 N. Y. Supp. 840. 14. Limit of amount to be raised for bridges. If more than fifteen hundred dollars is required to be raised in any one year for the repair or construction of a single bridge, it must be after a vote at a town meeting. Under the former Highway Law, sec. 10, as amended by L. 1905, oh. 417, a bridge which had become unsafe or had been destroyed by the elements, could not be repaired or constructed if the amount required would exceed fifteen hundred dollars unless the expense had been duly authorized by a vote at a town meeting. g63 HIGHWAYS AND BRIDGES. Highway Law, §§ 94, 95. thorized by the vote of a town meeting.^^ [gubd. 3, as amended by L. 1918, cbs. 320, 329.] 4. Kot more than fifteen hundred dollars shall be levied and collected in any one year in any town for the repair or construction of any high- way or bridge which has been damaged or destroyed as provided in section ninety-three or which has been condemned by the commission as provided in this chapter, unless by unanimous consent of all members of the town board, but in no case shall more than three thousand dollars be levied and collected unless duly authorized by the vote of a town meeting. [High- way Law, § 94, as amended by L. 1916, ch. 578 ; B. C. & G. Cons. L., p. 3228.] § 6. SUBMISSION OF PROPOSITIONS AT TO WN MEETINGS. A proposition to authorize the levy and collection of an amount greater than that specified in the preceding section for any of the purposes therein mentioned may be submitted upon the written application of twenty-five taxpayers upon the last town assessment-roll or by a majority of the members of the town board, at a biennial town ^^ meeting or a special town meeting duly called as provided by law. The provisions of the town law relating to the submission of town propositions at a biennial or special town meeting shall apply to the submission of such propositions.^^ If such proposition be adopted the town board shall include in the estimates contained in the next statement submitted by it to the board of supervisors, as provided in section ninety-one, the amounts authorized to be raised by such proposition for the purposes therein stated, and thereupon such amounts shall be levied and collected, and paid to the supervisor, to be expended by him as directed by such proposition. [Highway Law, § 95 ; B. C. & G. Cons. L., p. 2229.] § 7. BOHEOWING MONET IN ANTICIPATIOIf OF TAXES. The supervisor may, v?hen authorized by the town board, borrow money 15. Boad machJuery. The town superintendent may, with the approval of the town board, purchase stone crushers, steam or other power rollers, traction en- gines, road machines, etc., under Highway Law, sec. 49, ante. It is here provided that not more than five hundred dollars shall be levied and collected in any one year for any of these purposes unless a vote be had at a town meeting. Under former Highway Law, sec. 7, stone crushers and power rollers could only be purchased after a, submission of a proposition at a town meeting. Road machinery may not be purchased under a contract of conditional sale. Such machinery can only be purchased when there are funds available therefor. A con- ditional contract which provides for the sale of such machinery upon payment of the purchase price at some time in the future is not authorized. Payments can only be made from funds raised by tax and not more than $500 of the funds of the tovim are available for such purposes, unless a proposition has been adopted at a town meeting, authorizing the issue and sale of bonds. Gardner v. Town of Cameron, 155 App. Div. 750, 140 N. Y. Supp. 634. See, also, Shoemaker v. Buffalo Steam Roller Co.. 83 Misc. 162, 144 N. Y. Supp. 721. 16. Form of application for submission of proposition to a town meeting, see Form No. Ill, post. 17. Submission of propositions at town meetings, see Town Law, sees. 46-50, ■^6, ante. HIGHWAY MONEYS; STATE AID. 863 Highway Law, § 97. in anticipation of taxes to be levied and collected, on the credit of the town, and issue certificates of indebtedness therefor in the following cases: 1. When an additional sum is directed to be levied and collected by a vote of a town meeting as provided in section ninety-two. 3. When an amount necessary for the payment of expenses incurred in the improvement, repair and rebuilding of a highway or bridge has been directed to be levied and collected as provided in section ninety-three. 3. When a proposition has been adopted at a town meeting as provided in section ninety-five authorizing the levy and collection of an amount greater than that specified in section ninety-four for any of the purposes therein mentioned. 4. When the board of supervisors has authorized a town board to borrow its share of the cost of improving a town highway as provided by section three hundred and twenty-a. Such certificates of iudebtedness shall be signed by the supervisor and the town clerk and shall bear interest at a rate not exceeding six per cen- tum for a period not exceeding one year.^* The amoimt so borrowed shall be paid out by the supervisor for the purposes for which the taxes, in anticipation of which such certificates were issued, are to be levied and collected. The principal and interest of such certificates shall be paid by the supervisor immediately upon the collection of the taxes levied for such purposes. [Highway Law, § 96, as amended by L. 1918, ch. 321 ; B. C. & G. Cons. L., p. 2239.] § 8. TOWNS MAY BORROW MONEY TOR BRIDGE AND HIGHWAY PURPOSES. A proposition may be submitted at a regular or special town meetihg in the manner provided by the town law,^** authorizing the town to borrow money upon its bonds, or other obligations, to be expended for the follow- ing purposes:^" 18. Certificates of indebtedness to be in form prescribed by the Commission,, Bee Form No. 112, post. 19. Submission of propositions at town meetings must be made as provided in Town Law, sec. 46, ante. A proposition to raise money for building a new highway may be submitted to th« voters ot a town pursuant to this section. Rept. of Atty. Genl., Oct. 18, 1910. 20. Limitation of indebtedness of town is prescribed by County Law, sec. 13, post. Purpose of section. The statute exists for the purpose of permitting a town to raise more money than is authorized by general statute for the construction of highways and bridges. People ex rel. Morrill v. Supervisors of Queens, 112 N. Y. 585. Power to borrow, generally. The power to raise money for municipal pur- poses never means a power to borrow; it is intended that it be raised by tax- ation unless there be express provision of statute to the contrary. Wells v. Town of Salina, 119 N. Y. 280. The established theory is that money for all hishway and bridge purposes be raised by annual tax, and without some express. 864 HIGHWAYS AND BRIDGES. Highway Law, § 97. 1. Constructing, building, repairing or discontinuing any highway or bridge therein, or upon its borders. 2. Repairing or rebuilding any highway or bridge or board walk, or renewal thereof, on any highway less than two rods in width, which shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe for public use and travel. [Subd. amended by L. 1915, ch. 322.] 3. Repairing or rebuilding any bridge which has been condemned by the commission, as provided in this chapter. 4. The purchase of stone crushers, steam rollers and traction engines. The vote upon any such proposition shall be by ballot. If any such proposition shall be adopted, the board of supervisors, upon the appli- cation of the town board, shall by resolution^' authorize the town to issue bonds not exceeding the amount specified in said proposition, which shall be sufficient to refund and pay any temporary loan or certificate of indebtedness, and to provide for the completion of any work authorized. There shall accompany such application a statement signed by a majori- provision as that contained in tlie above section, the borrowing of money by a town is unlawful. Van Alstyne v. Freday, 41 N. Y. 174. Town board is powerless to act where the provisions of the section have not been complied with. Matter of Niland v. Bowron, 193 N. Y. 180, affg. 113 App. Div. 661, 99 N. Y. Supp. 914. 21. Besolutions authorizing issue of bonds must provide for raising an- nually, by tax, a sum suflBcient to pay the interest and principal of the bonds. See General Municipal Law, sec. 5, post. Such resolutions must also specify the form, place of payment, etc., of the bonds, and require the supervisor to give adequate security for the lawful application of the funds raised. See County Law, sec. 14, post. Porms of application for authority to issue bonds; of certified proceedings of town meeting, and of resolution authorizing town to borrow money, see Forms, Nos. 113, 114, 115, post. Conditions imposed by boards of supervisors. In legislating for a town under the provisions of this section, the board of supervisors may impose con- ditions as to details for the interest of the taxpayers, not specified in the statute, such as safe guards in the letting of contract, and provisions that the work shall be prosecuted under competent supervision and the money de- posited with the county treasurer to be paid out only upon the certificate of the engineer; and such conditions when so Imposed are binding upon the ofBcers affected. People ex rel. Wakeley v. Mclntyre, 154 N. Y. 628 (1898). Board may authorize issue of long term bonds; and may direct payment of interest out of proceeds until a tax therefor can be collected. Ghiglione v. Marsh, 23 App. Div. 61, 48 N. Y. Supp. 604. Kesolution of board. The act of the board of supervisors is purely legis- lative and cannot be reviewed on certiorari. People ex rel. Trustees v. Super- visors, 131 N. Y. 468. Board may impose conditions as to details respecting the letting of contracts, although not expressly authorized by statutes. People ex rel. Wakeley v. Mclntyre, 154 N. Y. 628. HIGHWAY MONEYS; STATE AID. ggs Highway Law, § 97. ty of the members of the town board, and certified by the town clerk, con- taining a copy of the proposition submitted, as above provided, the vote for and against the same, and specifying the amount which it is esti- mated will be required to be expended, pursuant to such proposition. If the highway or bridge, proposed to be constructed, built, repaired or discontinued, is situated in two or more towns in the same county, the board of supervisors shall, if application be made by any one of such towns, apportion the expense thereof among such towns, in such pro- portion as shall be just.^^ If the tovsm. adopting any such proposition shall contain any portion of the land of the forest preserve, the board of supervisors shall not authorize such town to borrow moneys without the written approval of the forest, fish and game commissioner, except in payment of a debt. lawfully incurred by the town. [Highway Law, § 97, as amended by L. 1914, ch. 202 ; B. C. & G. Cons. L., p. 2230.] Power of certain towns in the Adirondack park to borrow money for high- way purposes. — No money shall be borrowed, as provided in sections ninety- eix and ninety-seven of this act, by a town containing lands of the Adiron- dack park, where the assessed value of the real property of the state equals or exceeds twenty-five per centum of the assessed value of the taxable prop- erty of the town, until the consent, in writing, of the state comptroller that such loan or loans be made, be procured and filed in the office of the town clerk of the town intending to negotiate the loan or loans. Any loan made in violation of this section for an indebtedness thereby intended to be created, shall be null and void and no moneys of the town shall be paid thereon. [Highway Law, § 97a, as added by L. 1917, ch. 565.] § 9. ISSUE AND SALE OF TOWN BONDS. The board of supervisors shall, from time to time, impose upon the -taxable property of the town a tax sufficient to pay the principal and in- ierest of such obligations as they shall become due. The supervisors and 22. Liability of towns for construction of bridges over streams constituting boundary lines of towns, see Highway Law, sec. 250, post. Issue and sale. Bonds issued under this section may be made payable in gold and run for thirty years. Effect of revision upon former law. Ghiglione v. Marsh, 33 App. Div. 61, 48 N. Y. Supp. 604. rt has been held that to entitle a party to recover in an action upoa bonds issued by a municipality there must be affirmative and extrinsic proof that all the preliminary conditions required to authorize the issue of such bonds have been complied with. Starin v. Town of Genoa, 23 N. Y. 439'; Town of Venice V. Woodruff, 62 N. Y. 465; Dodge v. County of Platte, 82 N. Y. 218. Form of bonds. The fact that the names of the officers authorized to issue the bonds were lithographed on the coupons of such bonds was held not to make them invalid, where it appeared that such officers adopted and delivered as their own the signatures in that form. Beattys v. Town of Solon, 64 Hun 120, 19 N. Y. Supp. 37. Payment of bonds. It is the duty of the town to provide for the payment of its bonds lawfully issued. In case of a failure to perform such duty, the holder of the bonds may maintain an action against the town thereon, although by the act under which they were issued it is made the duty of the board of supervisors of the county to impose and levy a tax to pay the bonds. Such settled and ad- mitted obligations of the town need not be audited and allowed by the board of town auditors. Marsh v. Town of Little Valley, 64 N. Y. 112; Horn v. Town of New Lots, 83 N. Y. 101. 866 HIGHWAYS AXD BRIDGES. Highway Law, §§ 99, 100. town clerk shall keep a record, showing the date and amount of the obliga- tions issued, the time and place of their payment, and the rate of interest thereon. The obligations shall be delivered to the supervisor of the town, who shall dispose of the same for not less than par and apply the proceeds thereof for the purposes for which they were issued. [Highway Law, § 98, as amended by L. 1916, ch. 578; B. C. & G. Cons. L., p. 2231.] § 10. ASSESSMENT OF VILLAGE PROPERTY. 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 collection of taxes levied in the town, as provided by section ninety-one of this article, for the repair and im- provement of highways, including sluices, culverts and bridges having a span of less than five feet."' The assessors of such town shall indicate in a separate column the value of the real and personal property included in such incorporated village." [Highway Law, § 99; B. C. & G. Cons. L., p. 2232.] § 11. STATEMENT BY CLERK OF BOARD OF SUPERVISORS. The clerk of the board of supervisors of each county shall, on or before the first day of January of each year, transmit to the state comptroller and the commission a statement, signed and verified by the chairman of the board, and certified by the clerk, which shall state the name of each town, the assessed valuation of real property, and the assessed valuation of 23. Exemption of villages. By the above section villages are exempt -froin any taxes for the maintenance and repair of highways lying outside thereof. But this does not relieve them from assessments made for damages and charges for laying out or altering any road or erecting and repairing a bridge in the town. The section is general, and applies to every case where an incorporated village within a town may be a separate road district. Thus from a certain class of public charges or expenses connected with the highways the villages are exempt, while to another class they are subject. Bonds issued by a town for the construction and repair of highways and bridges therein would be a charge upon the whole town including the villages within it. Matter of Shaffer V. Carrol, 18 App. Div. 390, 392; 46 N. Y. Supp. 202. 2i. Section 21 of the former Tax Law was amended by L. 1908, ch. 437, to provide for the insertion of an additional column in the assessment-roll to contain valuations of village property. HIGHWAY MONEYS; STATE AID. 867 Highway Law, § 101. personal property, each separately, in the towns outside incorporated villages, and the amount of tax levied therein for the repair and improve- ment of highways, including sluices, culverts and bridges having a span of less than five feet. The towns' valuation of real property to be used in such statement shall he the valuation thereof, as equalized by the boards of supervisors, or other competent authority, during the year prior to the levy of taxes upon which is based the determination of the amounts to be paid to the several towns, as provided in this article.^^ [Highway Law, § 100 ; B. C. & G. Cons. L., p. 2233.] § 12. AMOUNT OF STATE AID.25a There shall be paid by the state to the several towns, in the manner hereinafter provided, an amount based upon the amount of taxes levied therein for the repair and improvement of highways, sluices, culverts and bridges having a span of less than five feet, and to be determined as fol- lows: 1. In towns where the assessed valuation of real and personal prop- erty, exclusive of such property in incorporated villages, shall be less than five thousand dollars for each mile of highways in such towns, out- side of incorporated villages, an amount equal to the amount of such taxes. 2. In towns where such assessed valuation shall be five thousand dol- lars or over and less than seven thousand dollars for each mile of such highways, an amount equal to ninety per centum of the amount of such taxes. 3. In towns where such assessed valuation shall be seven thousand dollars or over and less than nine thousand dollars for each mile of such highways, an amount equal to eighty per centum of the amount of such taxes. 4. In towns where such assessed valuation shall be nine thousand dol- lars or over and less than eleven thousand dollars for each mile of such highways, an amount equal to seventy per centum of the amount of such taxes. 5. In towns where such assessed valuation shall be eleven thousand dollars or over and less than thirteen thousand dollars for each mile of such highways, an amount equal to sixty per centum of the amount of such taxes. 6. In towns where such assessed valuation shall be thirteen thousand dollars or over for each mile of such highways, an amount equal to fifty per centum of such taxes. Provided that no town shall receive from the 25. Form of statement of clerk of board of supervisors as to moneys raised by towns for highway purposes. See Form No. 116, post. 25a, Moneys known as " state aid " cannot be used for the building and con- struction of new town roads, or for the payment of damages awarded to land owners for the laying out of a new highway, or for any other purpose except the " repair and improvement '" of the highways of the town. Kept, of Atty. Genl., Oct. 18, 1910. A village incorporated after the collection of the highway tax in a town is iiot entitled to any portion of the highway fund raised ejther by taxation or contributed by the state. Rept. of Atty. Genl., May 18, 1911. 868 HIGHWAYS AND BRIDGES. Highway Law, §§ 102. 103. state in any year, under this section, an amount exceeding an average of twenty-five dollars per mile, for the total mileage of its highways outside of incorporated villages, except that in towns where the assessed valuation of real and personal property therein, exclusive of such prop- erty in incorporated villages, average more than twenty-five thousand dollars for each mile of highways herein outside of such villages, the amount paid hereunder shall not exceed one-tenth of one per centum of such assessed valuation. 7. Where a town, having within its limits an incorporated village or city of the third class, shall levy a tax upon the whole town including such incai'porated village or city, the same to be spent wholly without the limits of such village or city, for the repair and improvement of highways, sluices, culverts and bridges having a span of less than five feet, the amount of such tax shall be included in the statement to be transmitted by the clerk of the board of supervisors to the comptroller as required by section one hundred of the highway law and such amount shall be used as an additional basis of the amount of state aid under this section, the same as if such tax were levied wholly without the limits of such incorporated village or city of the third class. [Highway Law, § 101, subd. added by L. 1913, ch. 375 ; B. C. & G. Cons. L., p. 2233.] § 13. MILEAGE AND ASSESSED VALUATION. The mileage of highways in towns to be used in determining the amounts to be paid to such towns under the provisions of this article shall be the tables of mileage heretofore prepared by the state engineer, until the corrected tables of mileage prepared as provided in section fifteen of this chapter are filed. Such tables and all corrections thereof shall be filed with the commission and comptroller. The assessed valua- tion of real property to be used in determining such amounts shall be the valuation thereof, equalized as provided in section one hundred and forty-one of this chapter, during the year prior to the levy of taxes upon which is based the determination of the amounts to be paid to the several towns, as provided in this article. [Highway Law, § 10'2; B. C. & G. Cons. L., p. 2234.1 § 14. PAYMENT AND DISTRIBUTION OF STATE MONET. The comptroller shall determine the amount due to the several towns, under the provisions of this article, and shall draw his warrant upon the state treas- urer in favor of the county treasurer of each county for the total amount to be paid to the towns in such county, as so determined by him, and shall Indicate the amount to be paid to each town. The county treasurer shall pay to the supervisor of each town the amount to which such town is entitled, as deter- mined and indicated by the comptroller. No such payment shall be made until the supervisor has filed in the office of the county treasurer a certified copy of the undertaking given by him, as provided in this article.^* [Highway Law. § 103; B. C. & G. Cons. L., p. 2234.] 26. The nndertaklng of the supervisor is to be given to the town as pro- vided in the next section. This undertalcing is in addition to the oflBcial undertaking required by Town Law, sec. 100, ante. For form of undertaking, see Form No. 117- post. HIGHWAY MONEYS; STATE AID. 869 Highway Law, §§ 104, 105. § 15. CUSTODY OF HIGHWAY MONEYS; UNDERTAKING OF SUP- ERVISOR. All moneys levied and collected, as provided in this article, all moneys collected as penalties under this chapter, or received from any other source and available for highway, bridge and miscellaneous purposes and all moneys received from the state, as provided in section one hundred and one, shall be paid to the supervisor, who shall be the custodian thereof, and accountable therefor.''^ Before receiving any such moneys the super- visor shall give an undertaking to the town in an amount to be specified by the commission and with such sureties, as shall be approved by the town board, conditioned for the faithful disbursement, safekeeping and account- ing of the moneys so received by him. Such undertaking shall be filed in. the office of the town clerk and a certified copy thereof shall be filed in the office of the county treasurer before any moneys received from the state shall be paid to him, and also in the office of the commission. In case of a failure of the supervisor to faithfully disburse, safely keep or account for moneys received from the state the commission may bring an action on such bond in the name of the town.^* [Highway Law, § 104; B. C. & G. Cons. L., p. 2234.] § 16. EXPENDITURES FOR REPAIR AND IMPROVEMENT OF HIGHWAYS. The moneys levied and collected for the repair and improvement of liighvsrays, including sluices, culverts and bridges having a span of less than five feet and board walks or renewals thereof, on highways less than 27. Custody o£ Ughway moneys. The supervisor has always been the cus- todian of the funds received from the State for the repair and improvement of high- ways. The present law makes him the custodian of all moneys received from any source and available for highway and bridge purposes. Supervisor as custodian of town moneys. The statute which relates gener- ally to the powers and duties of the supervisor assumes that he is the legal custodian of the moneys of the town and chargeable with the duty not only of receiving and keeping them, but also of guarding their disbursement. Bridges v. Board of Super- visors, 92 N. Y. 570. 28. Bonds of supervisors of towns for the receipt of State liighiray moneys must be given for the faithful disbursement, safe-keeping and accounting of all such moneys received by them and may cover the full term of office. Eept. of Atty. Genl. (1911), vol. 2, p. 688. Liability of supervisor for breach of bond. The fact that the supervisor of a town in good faith deposited as a general deposit, moneys received by him in his official capacity, with a reputable firm of individual bankers, believed to be solvent, and that thereafter such firm failed and such moneys were lost is not a defense to an action brought upon the bond of such supervisor. Tillinghast v. Merrill, 77 Hun, 481, 28 N. Y. Supp. 1089. The liability upon the bond given under this section can only extend to moneys received by the supervisor thereunder. See Bissell v. Saxton, 66 N. Y. 55. 870 HIGHWAYS A>sT) BRIDGES. Highway Law, § 105. two rods in width, and the moneys received from the state, as provided by- section one hundred and one, shall be expended for the repair and im- provement of such highways, sluices, culverts and bridges and walks, at such places and in such manner as may be agreed upon by the town board and town superintendent. The town board and the town superintendent shall constitute a board for the purpose of determining the places where and the manner in which such moneys shall be expended. Such agree- ment shall be written and signed in duplicate by a majority of the mem- bers of the board so constituted, and shall be approved by the commission, before the same shall take eSect.^^ One of such duplicates shall be filed in the office of the town clerk and one in the office of the district or county superintendent. Such moneys shall be paid out by the supervisor on the written order of the town superintendent in accordance with such written agreement.*" The town board and town superintendent may also appro- priate from such moneys such a sum of money as they deem proper for the construction or repair of any public road, walk, place or avenue upon any sand beach separated by more than two miles of water from' the main body of the town, although such road, walk, place and avenue is narrower than the width of highways required by statute, but the construction or repair of any such road, walk, place or avenue' with such moneys on any such beach shall not be construed as imposing any liability upon the town or upon the superintendent of highways for any injury to person or property happening thereon. [Highway Law, § 105, as amended by L. 1914, ch. 84, and L. 1915, ch. 322; B. C. & G. Cons. L., p. 2235.] 29. Form of agreement as to places and manner of expenditure of highway mon- eys, see Form No. 118, post. Mandamus to compel performance of duty. As a meeting of the town board with the elected superintendent of highway for the purpose of dividing the road funds, under this section, is obligatory, the court has power to direct the town board to perform the duty of a, peremptory writ of mandamus and to recognize a lawfully elected superintendent of highways. People ex rel. Dare v. Howell (1916), 174 App. Div. 118, 160 N. y. Supp. 959. 30. Purposes for which expenditures ynay be made. The money to be ex- pended by a town in the repair and maintenance of its hip;hways, a portion of which is to be contributed by the state must be expended in the improvement and betterment of the highways, and not in the payment of salaries of town officers «t the purchase of personal property, the title of which woulrl vest in the town. R"pt. of Atty. Genl. (1906) 341. The town superintendent of highways has no authority to purchase supplies for purposes not included in the written agreement pursuant to this section or otherwise authorized by the town board. Eept. of Atty. Genl., March 31, 1911. The opening and laying out of new highways is provided for separately and apart from the care and maintenance of highways and expenditures therefor cannot be made from the fund levied, collected and received as provided in this chapter for the repair and improvement of highways, a part of which is contributed by the state. Rept. of Atfy. Genl. (1904) 308. _ Sidewalks are a part of the highways and moneys raised and collected for the repair and improvement of highways, and moneys received from the state may be ex- pended in the repair thereof. Rept. of Atty. Genl. (1901) 213. Bemoval of town superintendent of highways for expenditure of town funds on highwavs otherwise than those specified in the statement, is justified. Carlisle V. Burke. 82 Mi<=c. 2S2. 144 N. Y. Supp. 163. SI. Certificates of indebtedness issued as provided in Highway Law, sec. 96, ante. HIGHWAY MONEYS; STATE AID. 87;!^ Highway Law, §§ 106, 107. § 17. EXPENDITURES FOR BRIDGES AND OTHER HIGHWAY PUR- POSES. The moneys levied and collected, or raised by the issue and sale of bonds or certificates of indebtedness in anticipation of taxes, as provided in this article,^^ for purposes other than the repair or improvement of highways, as specified in the preceding section, shall be paid out by the supervisor upon the written order of the town superintendent. An ac- count shall not be so paid unless the expenditure be in accordance with the annual estimate of the town superintendent, as approved or modified by the town board, or be authorized by the town board or by a vote of a town meeting, as provided in this article, or be lawfully a charge upon the town. Except as herein otherwise provided the provisions of the town law relating to the audit of town accounts and claims shall apply to accounts and claims against the town arising under this chapter.'^ [Highway Law, § 106, as amended by L. 1916, ch. 463 ; B. C. & G. Cons. L., p. 2236.] § 18. REPORTS OF SUPERVISOR AS TO HIGHWAY MONEYS. The supervisor shall present to the town board at its meeting held in each year, for considering the estimates contained in the statement of the town superintendent, as provided in section ninety-one, a verified report showing: 31. Certificates of indebtedness issued as provided in Highway Law, see. 96, ante. 32. Matters made to-wn charges. The following are some of the special high- way and bridge charges which may be audited under this section. (For places in this manual where the sections here referred to may be found, see Table of Laws, following Table of Contents) : Compensation and expenses of town superintendents and their deputies. Highway Law, § 45. Kemoval of obstructions caused by snow. Idem, § 47, subd. 2. Inspec- tion of highways to be constructed or improved as State or county highways. Idem, § 47, subd. 9. Erection an-d repair of monuments marking the boundaries of high- ways. Idem, § 47, subd. II. Purchase, repair and storage of stone crushers, power rollers, traction engines, road machines, tools and implements. Idem, §§ 49, 90, 91, 92. Purchase of gravel and stone. Idem, § 51. Removal of obstructions, noxious weeds and brush, in the first instance. Idem, §§ 52, 54. Purchase of wire fences to be used in place of fences causing the drifting of sifow. Idem, § 56. Bamages for entry upon lands by town superintendent for opening ditches, etc. Idem, § 57. Damages for change of grade. Idem, § 59. Maintenance an-d repair of sidewalks. Idem, § 62. Allowances for shade trees. Idem, § 63. Setting out and preservation of shade trees. Idem, § 64. Allowances for watering troughs. Idem, § 65. Credit for repairs on private roads. Idem, § 66. Erection and maintenance of guide boards. Idem, § 68. Construction and repair of approaches to private lands, when authorized by town board. Idem, § 71. Damages for injuries sustained by defects in highways and bridges. Idem, §§ 74, 76. Expense incurred in closing highways for repair or construction. Idem, § 77. Amount apportioned to town for construction of , county highwaiy. Idem, § 141. Cost to town for maintenance of state and county highways. Idem, § 172. Costs and damages awarded in proceed- ings to lay out, alter or discontinue highways. Idem, § 203. Construction and repair of bridges. Idem, § 250. Cost of constructing and maintaining bridges over boundary streams. Idem., § 254. Audit of town accounts. Meeting of town board for audit. Town Law, sec. 133, post. Form of verified accounts against town, Town Law, sec. 175, post. 872 HIGHWAYS AND BRIDGES. Highway Law, § 107. 1. The moneys received from the state, as provided in section one hundred and one, during the year ending October thirty-first. 2. The moneys received by him during such year on account of taxes levied and collected and from the issue and sale of bonds and certificates of indebtedness in anticipation of taxes, for highways, bridges, purchase and repair of machinery, tools and implements, the removal of obstruc- tions caused by snow and for miscellaneous purposes. 3. The moneys received by him during such year as penalties recovered pursuant to this chapter, or from any other source and available for highway purposes in his town. 4. The expenditures during such year for the improvement, repair and maintenance of highways, for the maintenance and repair of bridges, for the construction of new bridges, for damages and charges in laying out, altering and discontinuing highways, for the removal of obstructions caused by snow, for the purchase of machinery, tools and implements, for the rental or hire of stone crushers, steam rollers and traction engines, for town superintendents' salary or compensation and audited expenses, for allowances as fees on account of receiving and disbursing highway moneys, or for other highway purposes. 5. All machinery, tools and implements owned in whole or in part by the town, the present value of each article thereof, and the estimated cost of all necessary repairs thereto, as shown by the annual inventory of the town superintendent.^^ The form of such report shall be prescribed by the commission.'* Such report shall be filed in the office of tlie town clerk within three days after the presentation thereof and shall be open to public inspection during the office hours of such town clerk and a duplicate shall at the same time be mailed to the commission. A certified copy of such report shall also be filed by the supervisor with the clerk of the board of supervisors, who shall cause the same to be printed in the next issue of the annual pro- ceedings of the board of supervisors. The town board shall cause a certi- fied copy of the report to be published in a newspaper published in the town, or if there be none published therein, then in a newspaper published within the county and having the greatest circulation within the town. Allowance of travelling fees, Town Law, sec. 176, post. Town abstracts, Town Law, sec. 155, post. Presentation of claim for andit; action npon claim; judgment " npou tie merits." Under the provisions of this sectios a claim against a to^vn for the contract price of building a bridge with a span of more than five feet over a creek in said town, and for extra work, should be presented to the town board for audit. A judgment dismissing the complaint in an action against the town to recover upon suoh claim should be modified by striking therefrom the words " upon the merits," as it may in the future be urged that there was no merit to the claim. Gaffey v. Town of Newfield (1914), 163 App. Div. 66, 148 N. Y. Supp. 772. 33. Inventory of machinery, tools and implements to be made by town super- intendent and presented to the supervisor. Highway Law, sec. 49, ante. 34. Commission required to prescribe and furnish blank forms of reports. High- way Law, see. 18, ante. For form of report, see Form, No. 119, post. HIGHWAY MONEYS; STATE AID. g^g Highway Law §§ 108-110. The expense of such publication, which shall not exceed ten dollars, shall be a town charge. The clerk of the board of supervisors shall transmit three copiies of the journal of the proceedings of the board containing such report to the commission and three copies to the comptroller. [Highway Law, § 107; B. C. & G. Cons. L., p. 2337.] § 19. HIGHWAY ACCOUNTS, FORMS AND BLANKS. The commission shall prescribe the method of keeping town accounts of moneys received and expended, as provided in this article, for highways, bridges, purchase, leasing, rental or hire and repair of machinery, tools and- implements, the removal of obstructions caused by snow, and miscel- laneous purposes, which shall be uniform, so far as practicable, throughout the state. Such commission may adopt forms and blanks for keeping such accounts. The commission shall also prescribe the- form of order to be made by the town superintendent, upon the supervisor, and the form of the agreement to be entered into by the town board and town super- intendent as provided in section one hundred and 'five. The town super- intendent and supervisor shall keep their accounts in the method, and shall use the blanks and forms, prescribed by the commission. All orders and records of accounts shall be filed in the town clerk's office and pre- served as a part of the town records.'^ [Highway Law, § 108; B. C. & G. Cons. L., p. 3339.] § 20. DUTY OF TOAVN CLERK. It shall be the duty of the town clerk, annually, between the fifteenth day of November, and the fifteenth day of December, to transmit to the commission a list containing the names of each supervisor, town super- intendent, justice of the peace, town clerk, assessor and collector, showing his post office address, the date of his appointment or election and the expiration of his term of office. [Highway Law, § 109; B. C. & G. Cons. L., p. 2339.] § 21. COMPENSATION OF SUPERVISOR AND TOWN CLERK. The supervisor and town clerk of each town shall receive annually, as compensation for services under this chapter in lieu of all other com- pensation and fees, an amount to be fixed by the town board. Such 35. Commission to have access to accounts and records required to be kept under this chapter. Highway Law, sec. 19, ante. 874 HIGHWAYS AND BRIDGES. Highway Law, § 111. compensation shall be a town eharge.^^ [Highway Law, § 110; B. C. & G. Cons. L., p. 2339.] § 22. ADDITIONAL EXPENDITURE FOR IMPROVEMENT, REPAIR AND MAINTENANCE OF TOWN HIGHWAYS. Upon the written application of tweney-five tax payers of a town, filed with the town clerk, the electors thereof may, at a regular or special meeting, vote by ballot upon a proposition for the expenditure of a sum, not exceeding one-third of one per centum of the total taxable property of the town, including incorporated villages, in addition to the sum authorized by this chapter for the improvement, repair and maintenance of town highways in such town. Such proposition shall be submitted in the manner provided by law for the submission of questions or propositions at a town meeting. If such proposition be adopted, the amount specified therein shall be a town charge and shall be levied and collected in the same manner as other town moneys, and when collected shall be paid to the supervisor and expended for the purposes specified in such proposition as provided in this chapter. [Highway Law, § 111 ; B. C. & G. Cons. L., p. 2239.] 36. Compensation of supervisor and town clerk for duties performed under the Highway Law, should be fixed at a stated sum annually. When so fixed the compensation is In lieu of the compensation prescribed by Town Law, sec. S5, post. The compensation of a supervisor for services under the Highway Law is fixed by the town board and he is not entitled to commissions on bridge and highway moneys paid out by him. Kept, of Atty. Genl., May 22, 1911. STATE AND COUNTY HIGHWAYS. 875 Explanatory note. CHAPTER LX. STATE AND COUNTY HIGHWAYS. EXPLANATORY NOTE. State Highways. The routes of the state highways are prescribed by § 120 of the Highway Law. The location of such routes may be ascertained by referring to that section. Lack of room prevents our including them in this chapter. The boards of supervisors and town officers are not directly interested in their construction and maintenance. All matters pertaining to such highways are under the control of the state commis- sion and its officers. County Highways. County highways are constructed at the joint expense of the state, county and town. The commission finally determines as to the high- ways to be improved as county highways. The board of supervisors are first required to adopt a preliminary resolution stating that public interests demand the improvement of a highway described therein. The clerk of the board must transmit a certified copy thereof to the State commission. After examination the commission approves or disap- proves the resolution and certifies the same to the board. If the resolu- tion is approved, the commission causes its engirieers to make the neces- sary maps, plans, specifications and estimates. Such maps, plans &c. are then referred to the district or county superintendent, who must examine the highway to be improved and the proposed maps, plans, &e., and report thereon to the commission. If the commission may then adopt the proposed plans and specifications and transmit the same to the board of supervisors, with its certificate of approval attached thereto. The board of supervisors may then approve such plans and specifications, bTG HIGHVv'AYS AND BRIDGES. Explanatory note. and adopt a resolution that the highway be improved in accordance with such plans and specifications. The board may suggest modifications which become effectual when approved by the commission. The resolu- tion must provide available funds for the payment of the county's and towns' portion of the cost of the improvement. The foregoing is an outline of the procedure required for securing the improvement. The law provides in detail for the method of con- struction; such law is included in this chapter. [Highway Law, art. VI.] Section i. Highways to be constructed or improved by the State. 2. Construction or improvement of State highways. 3. Construction or improvement of county highways. 4. Preliminary resolution of board of supervisors. 5. Examination of county highway; approval or disapproval of com- mission. 6. Maps, plans, specifications and estimates. 7. Submission of maps, plans and specifications to district or county superintendent. 8. Action of commission in respect to maps, plans, specifications and estimates. 9. Pinal resolution of board of supervisors. 10. Order of construction of county highways. 11. Contracts for construction or improvement of highways. 12. Award of contracts to board of supervisors or town board. 13. Responsibility of State superintendent for performance of contracts; suspension of work under contract, completion by State superin- tendent of highways. 14. Acceptance of State highway when completed. 15. Acceptance of county highway. 16. Entry upon adjacent lands for drainage purposes. 17. Damages for entry. 18. State and county highways in villages and cities. 18a. State and county highways in certain cities of the second and third class. 19. Connecting liighways in villages and cities. 19a. State and county highways of additional width and increased cost at expense of town. 20. Resolution to provide for raising money. 21. Modifying method of payment. 22. Division of cost of county highways; payments by county treasurer. 23. County or town may borrow money. 23a. Apportionment and payment of expense of constructing county high- way through or into cities of the second and third classes. 24. Payments from State treasury. 25. Payment of cost of State highway. 26. Abolition of railroad grade crossings. 27. Street surface or other railroads on highways. 28. Where cost is assessable against abutting owners. 29. Acquisition of lands for right of way and other purposes. 30. Purchase of lands. 31. Petition to acquire lands. 32. Commissioners to be appointed. STATE AND' COUNTY HIGHWAYS. 877 Highway Law, §§ 120, 121, 122. Section 33. Duties of commissioners. 34. County treasurer to pay award. 35. Costs; commissioners' fees. 36. Lands may be sold or leased; disposition of proceeds. 37. Provisions of labor law not applicable. 38. Highways and bridges on Indian reservations. 39. Custody of moneys, etc. 40. Maintenance of detours during construction. I 1. HIGHWAYS TO BE COlfSTEUCTED OE IMPEOVED BY THE STATE. The highways which have been heretofore constructed or improved under the provisions of chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, and the acts amendatory thereof, which are included in the routes hereinafter described, together with such other highways as are constructed or improved by the commission in accordance with the routes set forth and described in this section, shall be state highways and shall be constructed or improved at the sole ex- pense of the state as provided in this article. Such routes are hereby set forth and described as follows: (The description of these routes is omit- ted.) [Highway Law, § 120 ; B. C. & G. Cons. L., p. 2251.] § 2. CONSTEUCTIOJf OE IMPEOVEMENT OF STATE HIGHWAYS. The mileage of state highways to be constructed or improved from the amount available from the sale of bonds issued as provided by chapter four hundred and sixty-nine of the laws of nineteen hundred and six, as amended by chapter seven hundred and eighteen of the laws of nineteen hundred and seven, and appropriated for the construction or improve- ment of state highways, shall be equitably apportioned by the commission among the several counties without discrimination; but not more than one-half of the amount appropriated each year from the proceeds of the sale of such bonds shall be expended under this article for the construc- tion and improvement of state highways. In making the apportionment between counties the commission shall take into consideration, the mile- age which may be constructed from the amount to be expended under this article in each county for the construction or improvement of county high- ways, together with the mileage of state and county highways theretofore constructed out of moneys derived from the sale of bonds issued as above provided. If moneys are not available for the improvement of any portion of a state route described in this article, the same may be improved as a county highway, provided the board of supervisors of the county within which such section is located designate it as a county highway as provided in this chap- ter, and proceed in all respects as provided herein for the improvement of county highways. [Highway Law, § 121, as amended by L. 1911, ch, 646, and L. 1917, ch. 315; B. C. & G. Cons. L., p. 3251.] § 3. CONSTRUCTION OR IMPROVEMENT OF COUNTY HIGHWAYS. The coimty highways to be constructed or improved under this article at the joint expense of the state and county shall be those highways in each county determined by the commission to be of sufficient public 878 HIGHWAYS AND BRIDGES. Highway Law, §§ 123, 124. importance to come within the purposes of this chapter, so as to constitute a part of a properly developed system of improved market roads within the county, taking into account the use, location and value of such highways for the purposes of common traffic and travel. Such county highways shall be equitably apportioned by the commission among the several coun- ties without discrimination. In making such apportionment the commis- sion shall take into consideration the total mileage of state highways which shall be hereafter constructed or improved in each county, and also the highways therein which have been constructed or improved prior to the taking effect of this article from funds made available by the issue and sale of bonds as provided in section twelve of article seven of the constitution, so that there shall be an equitable distribution as between the counties of all highways built in whole or in part from such funds. [Highway Law, § 122, as amended by L. 1912, ch. 83 ; B. C. & G. Cons. L., p. 2251.] § 4. FREUMINABT RESOLUTION OF BOARD OF SUPERVISORS. The board of supervisors of any county may pass a resolution ^ stating that public interest demands the improvement of a highway or section thereof within the county, and requesting that it be constructed or im- proved as provided in this article. Such resolution shall contain a descrip- tion of such highway or section thereof. Such highway or section thereof sliall not include a portion of a highway within a city, except that portion of the cities of Eome and Oneida lying outside of the respective corporation tax districts of said cities, nor any portion of a highway within an incor- porated village, unless it be necessary to complete the connection of such liighway with a highway already improved or to be improved under this article. The clerk of the board of supervisors shall, within ten day» after the passage of such a resolution, transmit, a certified copy thereof to the commission. [Highway Law, § 123, as amended by L. 1909, ch. 487 ; B. 0. & G. Cons. L., p. 2252.] § 5. EXAMINATION OF COUNTY HIGHWAY; APPROVAI, OR DIS- AFPROVAI, BY COMMISSION. The commission after receipt of such resolution, and at such times as it deems proper, shall examine the highway or section thereof sought to be constructed or improved, and shall determine whether it is of the character specified in section one hundred and twenty-two, and whether 1. The resolution to be adopted under this section should be in the form prescribed by the commission, blank forms of which will be furnished upon apolication. STATE AND COUNTY HIGHWAYS. 879 Highway Law, § 125. the construction or improvement thereof will provide for an equitable apportionment of the highways among the several counties as provided in such section. After such examination the commission shall certify its approval or disapproval of such resolution to the board of supervisors adopting it; if it disapprove thereof it shall certify its reasons therefor. [Highway Law, § 134; B. C. & G. Cons. L., p. 2252.] § 6. MAPS, FI.ANS, SPECIFICATIONS AND ESTIMATES. Whenever the commission shall have determined upon the construction or improvement of a state highway, or section thereof, or shall have approved a resolution adopted by a board of supervisors in any county requesting the construction or improvement of a county highway, or a section thereof, the commission shall direct the division engineer of the -division wherein such highway or section thereof is situated to make surveys, and prepare suitable preliminary maps, plans and specifications. Such division engineer shall, subject to the direction and control of the commission, have the following powers and duties in respect to such highways : 1. He shall cause the highway or section thereof designated by the commission, or described in such resolution, to be mapped both in out- line and profile. 2. He may provide for a deviation from the line of a highway already existing, if thereby a shorter or more direct highway, or a lessened gradient may be obtained without decreasing the usefulness of the highway. 3. He may provide for the widening of an existing highway. 4. He shall prepare preliminary plans and specifications for the con- struction or improvement of such highway or section thereof providing for a telford, macadam or gravel roadway, or other suitable construction, iaking into consideration climate, soil and materials to be had in the vicinity thereof, and the extent and nature of the traffic likely to be upon such highway, specifying in his judgment the kind of highway a wise economy demands. 5. He shall provide in such plans and specifications for necessary cul- verts, drains, ditches, waterways, embankments, guard-rails and retaining walls. 6. He may provide therein for the removal or planting of trees, and seeding or sodding, vyithin the boundaries of the highvray, when neces- sary for the preservation thereof. 6-a. He may provide therein for the removal of, or the trimming of any trees within the boundaries of the highway necessary for the con- venience or safety of the public, or the construction or preservation of the highway. 880 HIGHWAYS AND BRIDGES. Highway Law, §§ 126, 127. 7. He shall provide therein for the erection of suitable guide boards. 8. He may provide for such other work as may be required to com- plete the construction or improvement in a proper manner. 9. He shall cause an estimate to be made of the cost of the construction of such highways, or section thereof in accordance with such plans and specifications. In making such estimate he shall ascertain with all prac- tical accuracy the quantity of embankment, excavation and masonry, the quantity of all materials to be used and all items of work to be placed under contract and specify the estimated cost thereof. [Highwav Law, § 125, as amended by L. 1911, ch. 646 ; B. C. & G. Cons. L., p. '2253.] § 7. SUBOTSSION OF MAPS, PLAIVS ATfl) SPECIFICATIOIVS TO DISTRICT OB COUNTY SCPEBINTENDENT, The commission shall cause the preliminary maps, plans and specifica- tions for either a state or county highway, or a copy thereof, to be pre- sented to the district or county superintendent of the district or county in which such highway or section thereof is situated, who shall person- ally examine the highway or section thereof and the proposed maps, plans and specifications, and shall recommend any modification thereof which in his judgment seems to be necessary and shall report thereon within fifteen days to the commission. He shall also take such other action in respect thereto as may be required by law or by the commission.^ [High- way Law, § 126, as amended by L. 1911, ch. 646 ; B. C. & G. Cons. L.", p. 2253.] § 8. ACTION OF COMMISSION IN RESPECT TO MAPS, PLANS, SPECIFICATIONS AND ESTIMATES. Upon receiving the report of the district or county superintendent, as provided in the preceding section, the commission shall finally adopt the maps, plans, specifications and estimates which are to be used for the construction or improvement of the state or county highway to be con- structed or improved. If such highway be a state highway the commission shall thereupon proceed to advertise and award contracts for the con- struction or improvement thereof as provided in section one hundred and thirty. If such highway be a county highway the commission shall trans- mit such plans, specifications and estimates as adopted by them to the board of supervisors of the county from which the resolution proceeded, together with their certificate approving the construction or improvement of the highway or section thereof designated in such resolution. [Highway Law, § 137; B. C. & G. Cons. L., p. 2254.] 2. See, also, as to duty of commission in respect to final plans, spedficatlona and estimates for state and county highways, Highway Law, see. 15, subd. 11, ante. The determination of the details of the route of a state highway is vested in the state commissioner of highways and not in the town or county officers. Kept, of Atty. Genl. (1912), vol. 2, p. 225. STATE AND COUNTY HIGHWAYS. 881 Highway Law, §§ 128, 129. § 9. FINAL RESOLUTION OF BOARD OF SUPERVISORS. The board of supervisors, after the receipt of plans, specificatione and estimate of a county highway or section thereof, and after such modification thereof as may be made by a majority vote of such board, with the consent of the commission, may approve such plans, specifications and estimate, and adopt a resolution requesting that such county highway or section thereof be constructed or improved under the provisions of this article, in accordance therewith. In the case of a county highway or a section thereof which divides two or more counties, such resolution must be separately adopted by the board of supervisors of each county within ■which a portion of such highway lies. The form of such resolution shall be prescribed by the commission and shall contain the matter required by this article to be inserted therein. Immediately upon the adoption of such resolution the clerk of the board of supervisors shall transmit, a certified copy thereof to the commission. When a board of supervisors has once adopted a resolution providing for the construction or improve- ment of a highway or a section thereof in accordance with such plans and specifications, no resolution thereafter adopted by such board shall rescind or annul such prior resolution either directly or indirectly, ex- cepting under the advice and with the consent of the commission. Not- withstanding the adoption of such a resolution, the commission may modify such plans, specifications and estimate, prior to the award of a contract therefor and, upon the approval thereof by the board of super- visors as above provided, such highway or section thereof shall be con- structed or improved in accordance with such plans, specifications and estimate.^* [Highway Law, § 128, as amended by L. 1909, eh. 240 ; B. C. & G. Cons. L., p. 2254.] § 10. ORDER OF COIVSTRUCTION OF COUNTT HIGHWAYS. Upon the receipt of such resolution the commission shall proceed with the improvement or construction of such county highway as provided in this article. The construction and improvement of such county highways and sections thereof shall be taken up and carried forward within a county in the consecutive order as determined by the date of the receipt by the commission in each case of the certified copy of the final resolu- tion, so far as is .practicable in the opinion of the commission. No such highway shall be placed upon the list of highways to be constructed or improved nor receive a consecutive number on such list, unless such reso- lution shall appropriate and make . immediately available for such con- 2a, Alteration in proposed highway. — Since the amendment of 1909 it is evi- dent that the board of supervisors, with tlie consent of the Commission, may make alterations in a proposed highway at any time before the bids are ac- cepted. Sutherland v. Skene, 142 App. Div. 162, 126 N. Y. Supp. 901. 882 HIGHWAYS AND BRIDGES. Highway Law, § 130. struction or improvement the counties' share of the cost thereof. [High- way Law, § 129, as amended by L. 1910, ch. 247, L. 1911, ch, 646, and L. 1912, ch. 83.] § 11. COJfTRACTS FOE CONSTRUCTION OR IMPROYEMENT OF WATS. State and county highways shall be constructed or improved by con- tract. Upon the completion and final adoption or approval, as provided by law, of the plans, specifications and estimate for the construction or improvement of a state or county highway, contracts therefor shall be executed as provided herein. 1. Advertising for proposals. — The commission shall advertise for proposals for the construction or improvement of such, highways or sec- tions thereof according to the plans, specifications and estimate prepared therefor. The advertisement shall be limited to a brief description of the work proposed to be done, with an announcement stating where the maps, plans, specifications and estimate may be seen, the terms and conditions under which proposals will be received, the time and place where the same will be opened, and such other matters as the commission may deem advisable to include therein. Such advertisement shall be published at least once in each week for two successive weeks in a newspaper pub- lished at the county seat of the county in which such highway or section thereof is to be constructed or improved, and in such other newspapers as. the commission may designate. If no newspaper is published at such county seat, then the publication of the advertisement shall be in such newspaper or newspapers within the county as the commission may select. If no newspaper is published in the county, the publication of the adver- tisement shall be in such newspaper or newspapers in an adjoining county as may be selected by the commission.^" [Subd. amended by L. 1917, ch. 261.] 2. Proposals. — Each proposal shall specify the gross sum for which the work will be performed and shall also include the amount to be charged for each item specified in the estimate. The commission may prescribe and furnish forms for the submission of such proposals and may prescribe the manner of submitting the same which shall not be inconsistent herewith. The proposals when opened shall be subject at all reasonable times to pub- lie inspection, and at the time of opening shall be publicly read, and conspicuously posted in such a maimer as to indicate the several items of the proposal.^"^ 2b. Specifications for improvement of state and county highways should be prepared and finally adopted before advertising for proposals. Kept, of Atty. Genl., May S, 1911. 2c. Proposal changing specifications. Where a proposal for the construction of a section of State or county highway according to specifications is accompanied by a letter modifying or changing the specifications as to kind of material proposed to be used, though of the same kind of construction, such proposal or bid is not en- titled to compete with other bids which aie Strictly according to the specifications. Kept, of Atty. Genl., May 5, 1911. STATE AND COUNTY HIGHWAYS. 883 Highway Law, § 130. 3. Award of contracts. — The contract for the construction or improve- ment of such highway or section thereof sliall be awarded to the lowest responsible bidder, except that no contract shall be awarded at a greater sum than that required for the work alone as shown in the estimate made for the construction or improvement of such highway or section thereof in accordance with such plans and specifications. The lowest bid shall be deemed to be that which specifically states the lowest gross sum for which the entire work will be performed, including all the items specified in the estimate therefor. [Subd. amended by L. 1917, eh. 261.] 4. Estimates may he amended. — If no proposal otherv^ise acceptable is made within tiie estimate accompanying the plans and specifications, the commission may cause the estimate to be amended. If the highway to be constructed or improved is a county highway the commission shall certify the amended estimate to the board of supervisors and the board shall take action thereon as in a case where plans, specifications and esti- mates are originally submitted to a board of supervisors. Upon the amendment of such estimate, and its approval by the board of supervisors in case of a county highway, the commission may proceed anew to obtain proposals and award the contract as provided in this section. 5. Rejection of proposals. — The commission may reject any or all proposals and may advertise for new proposals as above provided if, in their opinion, the best interests of the state will thereby be promoted.^" 6. Form of contract. — The commission shall prescribe the form of contract and may include therein such matters as they may deem advan- tageous to the state. Such forms shall be uniform so far as may be. 7. Bond of contractor. — Each contractor, before entering into a con- tract for such construction or improvement, shall execute a bond in the form prescribed by the commission, with sufficient sureties, to be ap- proved by the commission, conditioned that he will perform the, work in accordance with the terms of the contract, and with the plans and specifi- cations, and that he will commence and complete the work within the time prescribed in the contract. Such bond shall also provide against any direct or indirect damages that shall be suffered or claimed on ac- coiint of such construction or improvement during the time thereof, and until the highway is accepted. Alternate bids should not be invited on different classes of construction for improvement of the same section of highway; the kind of construction should be finally determined before advertising for bids. Kept, of Atty. Genl., May 5, 1911. 2d. Tlie po-wer of the Commissioner to reject bids is discretionary, but should be exercised for the benefit of the state. Rept. of Atty. Genl., March 22, 1911. He may cancel an uncompleted contract, if the work is not being done in full accord with the terms of the contract and the specifications. Rept. of Atty. Genl. (1912), vol. 2, p. 567. Tbe Commissioner of Highways has authority to reject the lowest bids and award the contract to the next lowest bidder, or may reject all the bids and 884 HIGHWAYS AXD BRIDGES. Highway Law, § 130. 8. Payments on contract. — The contract may provide for partial pay- ments to an amount not exceeding ninety per centum of the value of the work done, which shall be paid in the manner provided by this article when certified to by the commission. Ten per centum of the contract price shall be retained until the entire work has been completed and ac- cepted. ^^ 9. Contingencies. — ^All contingencies arising during the prosecution of the work shall be provided for to the satisfaction of the commission and as may be agreed upon in the original or by a supplemental contract executed by the commission ; the amount to be expended shall not exceed the original estimate, unless such estimate shall have been duly amended by the commission and, in the case of a county highway, submitted to the board of supervisors for its approval. If a supplemental contract be executed by the commission for the performance of work or furnishing of material not provided for in the original contract, the amount to be charged thereunder for any such work or material shall not exceed the rate for which similar work or material was agreed to be performed or furnished under the original bid upon which the contract was awarded. Such supplemental contract shall not be binding unless it be approved by the commission in case of a state highway and in case of a county highway, by the chairman of the board of supervisors and the district or county superintendent. [Highway Law, § 130; B. C. & G. Cons. L., p. 2255.] readvertise the work, and may adopt whichever course is deemed for the best interest of the State, but the course to be pursued in that respect is one of policy, the respon- sibility therefor resting upon the Highway Department. Atty. Genl. Opin., 6 State Dep. Rep. 413 (1915). Where a conti'actor has defaulted in performing several contracts, his bid on another contract, although the lowest, may be rejected. Atty. Genl. Opin., 6 State Dep. Rep. 413 (1915). 2e. The State Commissioner of Highways may pay over the balance of the money due upon a contract to the assignee thereof, unless conflicting claims are made to it, notwithstanding the fact that the contractor refuses to enter into or sign a special agreement covering the changes made in the contract. Atty. Genl. Opin., 6 State Dep. Rep. 491 (1916). Retention of ten per cent, of contract price. The provision of this sub- division that "ten percentum of the contract price shall be retained until the entire work has been completed and accepted " is mandator}', and a contractor cannot be paid any portion of such amount until his contract has been finally completed and the road accepted. Atty. Genl. Opin., 6 State Dep. Rep. 428 (1915). STATE AND COUNTY HIGHWAYS. 885 Highway Law, § 131. § 12. AWARD OF CONTRACTS TO BOARD OF STTPFR VISORS OR TOWTN BOARD. A board of supervisors of a county, or a town board of a town, in.which any portion of a state or county highway is situated, may present pro- posals and be awarded a contract for the construction or improvement of such highway, as provided in this article, for and on behalf of such- county or town. If such contract be awarded to a board of supervisors or a town, board such board shall, by resolution, designate some suitable person or persons to carry into effect, on behalf of the town, such con- tract, and transact all business in respect thereto as may be necessary. A member of the board of supervisors or town board at the time such contract was awarded or such designation was made, or a person who is a partner of, or a stockholder in the same corporation as that of such member, shall not be so designated. A member of the board of super- visors or town board at the time such designation was made, or a firm, corporation or association of which he is a member or has an interest, shall not be directly or indirectly interested in any such contract nor shall such member, or such firm, corporation or association furnish materials or perform labor or services, either directly or indirectly, under or in connection with the performance of any of the work required in accordance with such contract, nor shall such member, firm or corpo- ration or association, be paid for materials furnished or services rendered in respect to such contract. The clerk of the board of supervisors or the town clerk shall transmit a certified copy of the resolution designating the person or persons to carry into effect such contract to the commission prior to the awarding of a contract to the board of supervisors or town board. The person or persons so designated shall, before the contract is executed, give an undertaking to the county or town, with sureties to be approved by the commission and the board of supervisors or town board, for an amount equal to at least twenty-five per centum of the face of the contract. Such undertaking shall be conditioned on the faithful per- formance of their duties in respect to such contract and for the proper accounting, safe-keeping and lawful disbursement of all moneys that may come into their hands thereunder. Such undertaking shall be filed in the office of the county or town clerk and a copy thereof shall be trans- mitted to the commission. The person or persons so designated shall thereupon be competent to receive all moneys payable under such con- tract under the provisions of this article, and they shall account therefor 886 HIGHWAYS AND BEIDGES Highway Law, § 131. to the county or town. The board of supervisors or town board, after such contract is awarded, shall designate, by resolution, a banking corpo- ration or a trust company wherein the moneys received under such con- tract shall be deposited. Such bank or trust company shall, upon the request of the board of supervisors or town board, make a statement of the money so deposited. The commission shall, by rules and regulations, prescribe the manner in which the moneys received under such contract shall be expended and the forms of accounts be kept by the person or persons designated as above provided ; and where convict labor is used, as hereinafter provided, an account shall be kept of the items incurred, daily for maintenance of convicts and compensation of other laborers, if any. Reports may be required by the commission from time to time from such person or persons. When a contract is entered into under the provisions of this section, the board undertaking thereby to construct or improve a highway or section thereof, may, by resolution, direct the person or persons desig- nated for carrying out the contract to apply to the superintendent of state prisons for convict labor, in the construction of such highway or section thereof. The resolution shall specify the maximum number of convicts to be applied for, for such work. Such designated person or persons shall make request, in writing, to the superintendent of state prisons for convict labor, in conformity to the provisions of such reso- lution, such request to be accompanied with a copy of such resolution. A copy of such resolution and of such request shall also be filed with the commission. The superintendent may detail for labor, pursuant to such resolution and request, such number of convicts as may be available therefor, not exceeding the number applied for. Such convicts shall be in the immediate charge and custody of the ofiicers and guards detailed by the superintendent of state prisons, and at all times subject to the control of such superintendent, except that the work to be done shall be directed by the engineers and foremen of the state highway de- partment. The expense of maintenance of such convicts shall be paid by the county or town entering into such contract from funds due there- on, to such municipality. A county or town may purchase machinery and tools for the construction of a highway or section thereof, under any such contract, out of moneys to be paid thereon, within the estimates for such items contained in the proposals at the time of the letting of the con- tract, but such machinery and tools shall be the property of the state, and after the completion of the work shall be subject to disposal or to any law- STATE AND COUNTY HIGHWAYS. 887 Highway Law, § 133. ful use by the commission. Moneys realized from selling or renting any such used machinery or tools shall be paid into the state treasury to the credit of the highway fund. Any such used machinery or tools may be loaned by the commission, if requested, for construction of a highway or section thereof, by a county or town, by contract under this section, to be kept in repair and operated at the expense of the county or town with moneys payable under the contract. If a county or town shall construct a highway or section thereof, by contract as above provided, for a lesser sum than the contract price, as the same shall appear from the accounts and reports herein provided for, the county or town, as the case may be, shall be paid only the amount of the actual cost of snch construction, paid or incurred, and the surplus shall remain in the state treasury and continue available for any state or county highway construction for which the same may have been or shall be appropriated. [Highway Law, § 131, as amended by L. 1914, eh. 60, and L. 1918, ch. 328; B. C. & G. Cons. L., p. 2357.] § 13. RESPONSIBILITY OF COMMISSIONER OF HIGHWAYS FOR THE PERFORMANCE OF CONTRACTS FOR CONSTRUCTION OR IMPROVEMENT OF STATE AND COUNTY HIGH\(rAYS; SUSPENSION OF WORK UNDER CONTRACT; COMPLETION BY COMMISSIONER OF HIGHW^AYS. The performance of every contract for the construction or improvement of a state or covmty highway shall be under the supervision and control of the commissioner of highways, and it shall be his duty to see that every such contract is performed in accordance with the provisions of the contract and with the plans and specifications forming a part thereof. For such purpose, the commissioner of highways, shall have the direction and con- trol of the deputies, secretary, division engineers, officers, clerks and employees of the commission. If the commissioner of highways shall deter- mine that the work upon any contract for the construction or improvement, maintenance, repair or reconstruction, of a state or county highway, is not being performed according to the contract or for the best interests of the state, the execution of the work by the contractor may be temporarily sus- pended by the commissioner of highways, who may then proceed, with the work under his own direction in such manner as will accord with the con- tract specifications and be for the best interests of the state; or he may cancel the contract and either readvertise and relet as provided in section one hundred and thirty, or complete the work under his own direction in such manner as will accord with the contract specifications and be for the best interests of the state. Any excess in the cost of completing the contract beyond the price for which it was originally awarded shall be charged to and paid by the contractor failing to perform the work. Every contract for the construction or improvement, maintenance, repair or reconstruction of a state or county highway shall reserve to the commission the right to 887a HIGHWAYS AN^D BRIDGES. Highway Law, § 132. suspend or cancel the contract as ahove provided, and to complete the wort thereunder or readvertise and relet as the commission may determine. In the case of a contract for the construction or improvement, other than maintenance, repair or reconstruction, of a state or county highway executed under the provisions of this chapter prior to January first, nine- teen hundred and eighteen, the state commissioner of highways shall, upon the written request of the contractor and the surety company on the bond accompanying such contract, suspend or defer operations on any portion or portions of such contract on which no work has been performed except the installation of culverts and proper backfill, or the installation of curbs or other structures which do not interfere with such portion of the highway for traffic purposes, and he may also upon like request suspend or defer operations on any portion or portions which have been partially completed, where it is shown to the satisfaction of the com- missioner of highways that work cannot proceed on such portion or por- tions either because there is no market supply of certain necessary materials or because lack of transportation facilities renders it impossible to obtain such materials; provided that the contractor before the suspension of such work shall place such partially completed portion or portions in a suitable condition for traffic and shall agree that the state department of highways may, during the period of suspension, maintain such portion or portions in a proper condition for traffic, the expense thereof to be paid from moneys appropriated for such contract and to be a charge against the contractor and to be deducted from any moneys which may be due or hereafter become due the contractor under such contract. It is further provided that such contractor and surety company shall, in connection with any such suspension, enter into a written agreement with the commissioner, whereby it shall be stipulated and agreed that the acceptance of, and full payment for, all the work performed within the completion points designated, as hereinafter provided, by the commissioner, shall in no way change or alter the terms of the contract or the obligations of the contractor or of the surety company on the bond accompanying said contract with regard to proceeding to the completion of the remainder of the contract; except that upon the acceptance in the manner herein pro- vided of the completed portion of any contract, the amount of the bond accompanying such contract shall, from the date of such acceptance of such completed portion, be reduced to such an amount as will equal fifty per centum of the value of the work remainiag to be performed under such contract, such value to be determined by applying to the quantities of work to be performed the item prices therefor contained in the contract. Such work of completion, however, shall not, except by mutual consent of the parties to the agreement, begin upon a date earlier than March first, nine- teen hundred and nineteen, unless the war in which the United States is now engaged shall have terminated prior thereto by the signing of peace terms, and in that event not earlier than the date of such signing. In STATE AND COUNTY HIGHWAYS. 887 b Highway Law, § 132. case the war shall not have terminated by the signing of such terms of peace on or before March first, nineteen hundred and nineteen, then the commissioner may extend the commencemnt of the completion of such con- tract to March first, nineteen hundred and twenty, but no longer. Should peace terms be signed during the period of suspension as above authorized, such suspension may thereupon be terminated by the commissioner by the service of a written notice upon the contractor and his surety company directing the resumption of work within sixty days after such service. The commissioner of highways is hereby authorized and empowered to enter into such an agreement and to accept as finally completed, and to order full payment for, all work embraced in such contract within such points as shall be designated by the commissioner for such acceptance, if within such points all work provided by the contract is fully performed, notwithstanding the provision for the retention of ten per centum of the contract price required under section one hundred and thirty, subdivision eight of this chapter. All of the provisions of this section relating to the suspension of con- tracts upon the joint request of the contractor and the surety company, shall apply in like manner upon the written request of the surety company only, with regard to a contract which shall hereafter be abrogated or cancelled upon failure of the contractor to perform, except the provision relating to the payment of the retained percentage, which percentage shall be retained until the final completion of the entire contract. In the case of such a suspension of operations under a contract in which there is provision for the maintenance of the road by the contractor for a period of three years from the final completion and acceptance of the entire contract with a bond executed by a surety company guaranteeing such maintenance, the operation of such guarantee clause shall commence imrbediately upon the acceptance of the completed portion or portions of the road and shall be in full force and operation over such portion or por- tions for the specified period of three years from the date of such acceptance. The provisions of article seven of this chapter, relative to maintenance and repair, shall apply to such portion or portions of any contract as may be completed and accepted as hereinbefore provided in this section. The provisions of sections one hundred and thirty-three and one hundred and thirty-four of this chapter, relative to the final acceptance of fully completed contracts, shall apply with respect to the acceptance of portions of contracts under this section. The town superintendent of a town within which is located the portion of a highway which is included in such a partially completed contract, but upon which portion no work has been performed by the contractor except the installation of culverts with proper backfill and the completion of which has been suspended, deferred or extended as hereinbefore provided in this section, is hereby authorized, empowered and directed to keep and maintain 888 HIGHWAYS AXD BRIDGES. Highway Law, §§ 133, 134. the same in a good and passable condition in the same manner as other town highways are kept and maintained; such portion of highway being deemed during the period of such suspension a town highway for the pur- poses of maintenance and upkeep, the jurisdiction and authority of the town superintendent over such highway to cease when work is resumed by the contractor upon such portion, provided, however, that the work to be performed by the town superintendent shall be of a surface nature only. [Highway Law, § 132, as amended by L. 1911, ch. 646, L. 1913, ch. 517, and L. 1918, ch. 413; B. C. & G. Cons. L., p. 2259.] § 14. ACCEPTANCE OF STATE HIGHWAY WHEN COMPLETED. Upon the completion of a state highway or section thereof constructed or improved under a contract let as provided in this article, the division engineer shall inspect the same and if it be completed as provided in the contract, he shall thereupon so report to the commission, which shall, if it approve, notify the county or district superintendent of the county in which the road is located, in writing, that it will accept the work within twenty days from the date of such notice, unless protest in writing be filed by such county or district superintendent. In case a protest is filed the commission shall hear the same and if it is sustained then it shall delay the acceptance of the highway or section thereof until the same is properly completed. In case no protest is filed the highway or section thereof shall at the expiration of said twenty days be deemed finally completed and accepted and shall thereafter be maintained as provided in this chapter.^' [Highway Law, § 138, as amended by L. 1911, ch. 646, and L. 1915, ch. 548; B. C. & G. Cons. L., p. 2259,] § 15. ACCEPTANCE OF COUNTY HIGHWAY. Upon the completion of a county highway or section thereof, con- structed or improved under a contract let as provided in this article, the division engineer shall inspect the same and if it be completed as pro- vided in the contract he shall thereupon so report to the commission, 2f. Payment of final estimate to contractor should be made when the con- tract is fully performed and the work accepted, without waiting for the expiration of the time in which to file lien under section 12 of the Lien Law. Eept. of Atty. Genl., March 14, 1911. Where liens are filed against contractors between the time of issuance of requisi- tion upon the state comptroller for final estimate but before the delivery of the state treasurer's check to the contractor, such cheek should be held until the liens are discharged. Eept. of Atty. Genl., March 20, 1911. Liability for injnries to persons using a state highway is not assumed by the town until such highway has been completed and accepted by the state. Farrell v. Town of North Salem, 205 N. Y. 453. STATE AND COUNTY HIGHWAYS. g^g Highway Law, § 135. which shall, if it approve, notify, in writing, the county or district super- intendent and the board of supervisors of the county in which such high- way or section thereof is located that it will accept the highway within twenty days from the date of such notice unless protest in vn-iting be filed with the commission by such district or county superintendent or by the board of supervisors.^^ In case a protest is filed, the commission shall hear the same, and if it is sustained, the commission shall delay the acceptance of the highway or sectior! thereof until it be properly completed. In case no protest is filed, the highway or section thereof shall at the expiration of the said twenty days be deemed finally com- pleted and accepted on behalf of the county and the state, and shall thereafter be maintained as provided in this chapter.^ [Highway Law, § 134, as amended by.L. 1911, ch. 646, and L. 1916, ch. 460; B. C & G. Cons. L., p. 2259.J § 16. ENTRY UPON ADJACENT LANDS FOB DRAINAGE PURPOSES. Lands adjacent to a state or county highway may be entered upon and occupied for the purpose of opening or constructing a drain or ditch so as to properly drain such highway : 1. By a contractor, or any of his agents or employees, when directed by the commission, during the construction or improvement of such Mghway. 2. By the commission or its duly authorized officers, agents or em- ployees, at any time, for the purpose of making surveys for such drain or ditch. 2g. Waiver of t-wenty day period. — A resolution by the board of supervisors waiving the twenty-day period prescribed by this section after receiving notice of the completion of the worlc on a county highway, is not alone sufficient to warrant the immediate acceptance of the work and payment of the contract price by the State Highway Commission. 3. In order that the board of supervisors may be properly informed as to the progress of the work it is provided by Highway Law, sec. 33, subd. 9, ante, that the district or county superintendent shall inspect the work during the construction and certify to the board as to the progress thereof. Acceptance of a higliway may be revoked by the State Commissioner of highways at any time before the final account is paid, where such acceptance was procured through fraud, mistake, concealment or misrepresentations. Atty. Genl. Opin., 4 State Dep. Eep. 547 (1915). But where the work has been done according to contract and payment made, and no fraud exists, the commissioner cannot revoke or rescind the acceptance of a highway. Atty. Genl. Opin., 5 State Dep. Rep. 451 (1915). 890 HIGHWAYS AND BRIDGES. Highway Law, §§ 135-137. 3. By the commission, or its duly authorized officers, agents or em- ployees, or by a county, district or town superintendent, when directed by the commission, after the completion and acceptance of the highway for the purpose of opening, constructing or maintaining ditches or drains upon such lands, necessary for the proper maintenance of such highway. [Highway Law, § 135 ; B. C. & G. Cons. L., p. 2260.J § 17. DAMAGES FOR ENTRY. The commission may agree with the owner of lands entered upon and occupied as provided in the preceding section for the payment of dam- ages caused by such entry, or if unable to so agree the right to enter and occupy such lands may be acquired and the damages therefor shall be ascertained as provided in the condemnation law. Such damages shall, in the case of a state highway, be paid out of moneys available for the construction or improvement of .such highway, and in the case of a county highway shall be a county charge and paid in the same manner as other county charges. [Highway Law, § 136 ; B. C. & G. Cons. L.^ p. 2260.] § 18. STATE AND COUNTY HIGHWAYS IN VILLAGES. A state or county highway may be constructed through a village, un- less the street through which it runs has, in the opinion of the commis- sion, been so improved or paved as to form a continuous and improved highway of sufficient permanence as not to warrant its reconstruction, in which case such highway shall be constructed or improved to the place where such paved or improved street begins. A state or county highway within a village shall be of the same width and type of con- struction as the highway outside of the village which connects with the highway within the village, unless a greater width or different type of construction is desired by the municipality, in which case the board of trustees of such village shall by resolution petition the commission to provide the width and type of construction desired. The additional exp'ense caused by the increased uidth or different type of construction or both shall be borne wholly by the village. The commission shall, in its discretion, upon receipt of such petition, if filed prior to the adver- tisement for bids, provide for the width and type of construction de- scribed in such petition. Whenever the commission shall have approved such a village petition the plans, specifications and estimates of cost. STATE AND COUNTY HIGHWAYS. ggx Higliway Law, § 137. together with an estimate showing the additional cost to be borne by the village, to provide for the greater width or different type of construction or both, shall be submitted to the board of trustees who, if it approve such plans, specifications and estimate of cost, shall by resolution appro- priate the funds necessary to provide for the portion of the cost of con- struction to be borne by the village. Such fund shall, prior to the award of the contract, be deposited by the village with the state comptroller subject to the draft or requisition of the state commission of highways, and a certified copy of the resolution shall be filed with the commission. The moneys so required shall be raised by tax or from the issue and sale of bonds as provided in the village law. Upon the completion of a highway within a village where a portion of the cost is borne by the village the commission shall transmit to the board of trustees a state- ment showing the actual cost of the additional width or changed con- struction including a proportionate charge for engineering, and shall notify the village clerk that it will accept the work within twenty days from the date of such notice, unless protest in writing against the ac- ceptance shall be filed by such clerk with the commission. In case a protest is filed the commission shall hear the same and if it is sustained the commission shall delay the acceptance of the highway or section thereof until the same be properly completed. If no protest is filed the highway or section thereof shall at the expiration of the said twenty days be deemed finally completed and accepted on behalf of the village and the state, and shall thereafter be maintained in the manner provided in this chapter for the maintenance and repair of state and county high- ways. The provisions of the village law, special village charters and other general or special laws relative to the pavement or improvement of streets and the assessment and payment of the cost thereof shall apply, .as far as may be, to such additional construction and the assess- ment and payment of the cost thereof, except that the provisions of any general or local act affecting the pavement or improvement of streets or avenues in any village and requiring the owners, or any of the owners, of the frontage on a street to consent to the improvement or pavement thereof, or requiring a hearing to be given to the persons who, or whose premises, are subject to assessment, upon the question of doing such paving or making such improvement shall not apply to the portion of the improvement or pavement of a state or county highway the expense for which is required to be' paid by the village to the state. 892 HIGHWAYS AND BRIDGES. Highway Law, § 138. Tlie provisions of tliis act shall not prevent the improvement by state aid under the statute as it existed prior to the passage of this act, of streets in cities of the second and third class, where, prior to the passage of this act, highway numbers had been assigned as provided by article six of this act ; nor shall the provisions of this act prevent the improve- ment in such cities of streets heretofore petitioned for and approved, in cases where the proposed improvement of each street does not exceed one and one-half miles in length ; but the total mileage of all such streets not exceeding one and one-half miles in length, shall not in the aggregate exceed four miles. Wherever plans for such improvement in a city of the second class have been approved and a highway number assigned, and the work is ready for contract as hereinbefore described and the common council of such city has appropriated and made available the city's share of the cost of such improvement, the city treasurer of such city is hereby authorized and empowered to borrow a sufficient amount in anticipation of the collection thereof, and to pledge the faith and credit of the city for the payment of such amount when due, with interest, and is further authorized, empowered and directed to deposit such moneys with the state comptroller in the same manner as is provided by this section with regard to the improvement of village streets.* [Highway Law, § 137, as amended by L. 1910, ch. 233, L. 1911, cL 88, L. 1912, ch. 88, L. 1913, chs. 131, 319, and L. 1916, ch. 571,] § 18a. STATE AND COUNTY HIGHWAYS IN CERTAIN CITIES Or THE SECOND AND THIRD CLASS. A state or count}' highway may be constructed through a city of the second or third class situated in a county containing over three hundred thousand inhabitants if at least two cities in such county adjoin a city of 4. Constiuction of county highways through cities, even to form a connecting link, is not autliorized by statute. Kept, of Atty. G«nl., Oct. 20, 1910. Liability of municipality for proportonate share of cost. Where a board of super- visors has charged back to a town included therein fifteen per cent, of the cost of constructing a state road built pursuant to L. 1898, ch. 115, an incorporated village situated within the town, or a city so situated where the city has subsequently become incorporated as such, is liable for its proportionate part of the fifteen per cent., although at the time the road was built the village formed a separate road district and maintained its streets at its own expense without contribution from the town at large. Town of Queensbury v. City of Glens Falls, 143 App. Div. 847, 128 X. Y. Supp. 833. STATE AND COUNTY HIGHWAYS. 893a Highway Law, § 137a. the first class containing over two million inhabitants, unless the street through which it runs has, in the opinion of the commission, been so im- proved or paved as to form a continuous and improved highway of sufBcient permanence as not to warrant its reconstruction, in which ease, if the com- mission approve, such highway shall be constructed or improved to the place where such paved or improved street begins, but not more than fifty per centum of money appropriated by the state, and now or hereafter avail- able for the construction of state or county highways in such county, shall be applied to the construction of a state or county highway through a city of the second or third class in such county. A state or county highway within such a city shall be of the same width and type of construction as the highway outside of such city which connects with the highway within such city, unless a greater width or different type of construction is desired by the mimicipality, in which case the board of aldermen or common coun- cil of such city shall by resolution petition the commission to provide the width and type of construction desired. The additional expense caused by the increased width or different type of construction or both shall be borne wholly by such city. The commission shall in its discretion upon receipt of such petition, if filed prior to the advertisement for bids, provide for the width and type of construction described in such petition. ,When- ever the commission shall have approved such a city petition the plans, specifications and estimates of cost, together with an estimate showing the additional cost to be borne by such city to provide for the greater width or different type of construction or both shall be submitted to the board of aldermen or common council who, if it approve such plans, specifications and estimate of cost, shall by resolution appropriate the funds necessary to provide for the portion of the cost of construction to be borne by such city. Such fund shall prior to the award of the contract be deposited by such city with the state comptroller subject to the draft or requisition of the state commission of highways, and a certified copy of the resolution shall be filed with the commission. The moneys so required shall be raised by tax or from the issue and sale of bonds as provided by the general or special act governing bond issues and taxation in any such city. Upon the comple- tion of such state or county highway within such city of the second or third class, where a portion of the cost is borne by such city, the commission shall 892b HIGHWAYS AND BRIDGES. Highway Law, § 13-8. transmit to the board of aldermen or common council a statement showing the actual cost of the additional width or changed construction including a proportionate charge for engineering, and shall notify the city clerk that it will accept the work within twenty days from the date of such notice unless protest in writing against the acceptance shall be filed by such clerk ■with the commission. In case a protest is filed the commission shall hear the same and if it is sustained the commission shall delay the acceptance of the highway or section thereof until the same be properly completed. If no protest is filed the highway or section thereof shall at the expiration of said twenty days be deemed finally completed and accepted on behalf of such city and the state. The provisions of the general city law, special city charters and other general or special laws relative to the pavement or improvement of streets and the assessment and payment of the cost thereof shall apply as far as may be to such additional construction and the assess- ment and payment of the cost thereof, except that the provisions of any general or local act affecting the pavement or improvement of streets or avenues in any such city and requiring the owners or any of the owners of the frontage on a street to consent to the improvement or pavement thereof, or requiring a hearing to be given to the persons who or whose premises are subject to assessment upon the question of doing such paving or making such improvement shall not apply to the portion of the improvement or pavement of a state or county highway the expense for which is required to be paid by such city to the state. Such street so improved shall there- after be maintained at the expense of the municipality within which such street or part thereof is situated. [Highway Law, § 137a, as added by L. 1918, ch. 386.] § 19. CONNECTING HIGHWAYS IN VILI.AGES. The board of trustees of a village may, by resolution, petition the commission for the construction or improvement of a highway to con- nect streets or highways within the village which have been paved or improved with county highways which have been heretofore built under STATE AND COUNTY HIGHWAYS. 393 Highway Law, § 138. the provisions of ebapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, and the acts amendatory thereof. ^^ If in the judgment of the commission puhlic convenience requires the construc- tion- or improvement of such connecting highway, the commission shall cause plans, specifications and estimates to be prepared, and shall cause the same to be transmitted to the board of supervisors of the county wherein such highway is situated. The board of supervisors shall thereupon adopt a resolution providing for such construction or improve- ment as provided in this article. The payment of the cost of such construction or improvement shall be provided for in such resolution and such payment shall be made in the same manner as provided for other county highways. A certified copy of such resolution shall be filed in the office of the commission. The construction or improvement of such connecting highway shall then be taken up in the order and manner provided in this article for the construction or improvement of county highways. If it is desired to construct or improve any portion of such a connecting highway at a width greater than that provided for in the plans and specifications therefor, or if a modification of such plans and specifications is desired by which the cost thereof will be increased, the board of trustees of the village shall proceed as in the preceding section to secure such a modification of the plans and specifi- cations as will provide for such desired construction. The provisions of the preceding section shall apply in like manner to the connecting Jiighway to be constructed or improved as provided in this section. The provisions of this act shall not prevent the improvement by state aid under the statute as it existed prior to the passage of this act, of streets in cities of the second and third class, where, prior to the pas- sage of this act, highway numbers had been assigned as provided by article six of this act; nor shall the provisions of this act prevent the improvement in such cities of streets heretofore petitioned for and approved in cases where the proposed improvement of each street does not exceed one and one-half miles in length ; but the total mileage of all such streets not exceeding one and one-half miles in length shall not in the aggregate exceed four miles. Wherever plans for such improvement in a city of the second class have been approved and a highway number assigned, and the work is ready for contract as hereinbefore described and the common council of such city has appropriated and made available the city's share of the 894 HIGHWAYS AND BRIDGES. Highway Law, § 138-a. cost of such improvement, the city treasurer of such city is hereby authorized and empowered to borrow a sufficient amount in anticipation of the collection thereof, and to pledge the faith and credit of the city for the payment of such amount when due, with interest, and is further authorized, empowered and directed to deposit such moneys with the state comptroller in the same manner as is provided by this section with regard to the improvement of village streets. [Highway Law, § 138, as amended by L. 1911, ch. 88, L. 1912, ch. 88, and L. 1916, ch. 570; B. C. & G. Cons. L., p. 2261.J § 19a. STATE AND COUNTY HIGH'nTATS OF ADDITIONAL VTIDTH AND INCREASED COST AT EXPENSE OF TO^VN. Whenever the commission shall have determined upon the construc- tion or improvement of a state or county highway or section thereof and it is desired by any town in which such proposed highway is situ- ated to .construct or improve the same at a greater width or in a manner involving greater cost, or both, than that provided in the plans and specifications as prepared by the commission, the town board may peti- tion the commission for an estimate of the additional cost of construct- ing or improving the same to a width or in a manner, or both, as desired by such board. The commission shall as soon as practicable make an estimate of such additional cost and transmit the same to the town board, and the town board may thereupon by resolution petition the commission to provide the width and type of construction desired. The additional expense caused by the increased width or different type of construction, or both, shall be borne wholly by the town. The com- mission shall, in its discretion, upon receipt of such resolution, if filed prior to the advertisement for bids, provide for the width and type of construction described in such resolution. AVhenever the commission shall have approved such a resolution the plans, specifications and esti- mate of cost shall be submitted to the town board, who, if it approve such plans, specifications and estimate of cost shall, by resolution, duly adopted by a vote of a majority of all the members of such board, appro- priate the funds necessary to provide for the portion of the cost of con- struction to be borne by the town. Such funds shall, prior to the award of the contract, be deposited by the town with the state comptroller, subject to the draft or requisition of the state commission of highwavR, and a certified copy of the resolution shall be filed with the commission. STATE AND COUNTY HIGHWAYS. 394^ Highway Law, §§ 139, 140. If the town board adopts a proposition to raise such funds by the issue and sale of town bonds the bonds may be issued and sold in the manner prescribed in section one hundred and forty-two of this chapter. Upon the completion of the highway within a town where a portion of the cost is borne by the town the commission shall transmit to the town board a statement showing the actual cost of the additional width or changed construction including a proportionate charge for engineering and shall notify the town clerk that it will accept the work within twenty days from the date of such notice unless protest in writing against the acceptance shall be filed by such clerk with the commission. In case a protest is filed the commission shall hear the same and if it "is sustained the commission shall delay the acceptance of the highway or section thereof until the same be properly completed. If no protest is filed the highway or section thereof shall at the expiration of the said twenty days be deemed finally completed and accepted on behalf of the town and the state and shall thereafter be maintained in the manner provided in this chapter for maintenance and repair of state and county highways. [Highway Law, § 138a, as added by L. 1911, ch. 375, and amended by L. 1916, ch. 461.] § 20. RESOLUTION TO PROVIDE FOR RAISING MONEY. The resolution of the board of supervisors providing for the construc- tion or improvement of a county highway or section thereof shall appro- priate and make immediately available to the requisition of the commis- sion an amount sufficient to pay the share of the cost of such construction or improvement which is to be borne by the county within which such highway or section thereof is located. [Highway Law, § 139, as amended by L. 1910, ch. 247, and L. 1911, ch. 83'.] § 21. MODIFYING METHOD OF PAYMENT. If a resolution has been heretofore adopted by a board of supervisors requesting the state to pay the entire cost of the construction or improve- ment of a county highway in the first instance and that the state charge the county and town or towns annually with their share of the interest and sinking fund, as provided in chapter four hundred and sixty-nine of the laws of nineteen hundred six, and the acts amendatory thereof, such board of supervisors may adopt a resolution rescinding such prior resolu- tion and appropriating and making immediately available an amount sufficient to pay the share of the cost of the construction or improvement 89-ib HIGHWAYS AND BRIDGES. Highway Law, § 141. of such highway. The clerk of the board of superviirors shall transmit certified copies of such resolution to the commission and the state comp- troller. If such prior resolution shall not be so rescinded it shall have the same force and effect which it had prior to the amendment of this section. The adoption of a resolution modifying the method of pay- ment of the share of the county and town or to^vns shall not affect or change the date of the filing of the original resolution providing for the construction or improvement of such highway nor alter in any way the order of construction determined by the date of the filing of the original resolution. Wherever a board of supervisors has in the past by resolution requested, and the state has paid, the entire cost of the construction or improvement of a county highway, the board of supervisors of a county wherein any such highway is located may, by resolution, provide for the payment of such share of the cost so advanced by the state towards the construction of such county highway, and said board of supervisors is hereby authorized to appropriate and make immediately available an amount sufficient to pay to the state the share due to the state on account of the construction and improvement of such highways. If any board of supervisors shall pass such resolution providing for the payment to the state of the moneys so advanced the said board of super- visors shall have the power and authority to borrow the moneys neces- sary to make such payment, and in case there is due to the county any sum of money from the town in which said county highway is located, the said town is also authorized to borrow and appropriate its share of the cost of such county highway to the county treasurer of the county in which said highway is located. All moneys paid to the state pursuant to the provisions of this section shall be deposited by the comptroller with the state treasurer to the credit of the highway improvement fund, from which fund the said moneys so advanced to said counties were originally taken, and may be used by the state commission of highways in the construction of state and county highways in any county or counties designated by the state commission of highways. [Highway Law, § 140, as amended by L. 1910, ch. 247, and L. 1915, ch. 400.] § 22. DIVISION OF COST OF COUNTY HIGHWAYS; PAYMENT BY COUNTY TREASURER. Whenever the construction or improvement of a county highway or section thereof under a contract shall be completed and final payment STATE AND COUNTY HIGHWAYS. S94c Highway Law, § 141. therefor shall have been made the commission shall prepare a statement of the cost of such construction or improvement, including engineering expenses, inspection and all charges and expenses properly chargeable thereto, showing in detail the date of each payment, and the purpose and amount of such payment. Such payments shall be grouped as far as practicable by dates and the total thus obtained shall be deemed the cost of such construction or improvement, and a certified copy of said state- ment shall be filed by the commission in the oflSce of the comptroller. If a county highway or section thereof so constructed or improved shall be situate in two or more counties, the commission shall apportion such expense to such counteis according to the cost of such construction or im- provement in each of such counties. Such statement when audited and approved by the comptroller shall be filed in his ofiice and shall be final, and a duplicate thereof shall be filed with the county treasurer of each county wherein the highway or section thereof has been improved. If the board of supervisors of any county shall have theretofore provided funds to pay two per centum of the cost of such county highway as thus determined, for each one thousand dollars of assessed valuation of real and personal property liable to taxation in said county for each mile of public highway within such county to be ascertained and determined by dividing the total assessed valuation of taxable property in said county as equalized for state purposes by the total mileage of highways in said county, exclusive of the streets and highways within any incorporated city or village in said county, but not exceeding thirty-five per centum of the cost for the county as shown by such statement, it shall be the duty of the county treasurer to pay the amount thereof upon the requisition of the commission and thereafter the county shall be deemed to be fully dis- charged of its obligation to the state on account of the construction or im- provement of such county highway, except the obligation to pay their proportionate amount of the state tax for the state's share of the cost of construction. At least ten days' notice shall be given by the commission to the county treasurer prior to the making of such a requisition. A copy of each contract providing for the construction or improvement of a county highway, and the plans and specifications therefor, together with copies of certificates showing the progress of the work, upon which requisitions are drawn, shall be filed with the county treasurer. The mileage of highways to be used in determining the amounts to be charged to a county or town under this section shall be the tables of 894(i HIGHWAYS AND BRIDGES. Highway Law, § 141-a. mileage formerly prepared by the state engineer until the tables as pro- vided in this chapter are filed. [Highway Law, § 141, as amended by L. 1912, ch. 83; B. C. & G. Cons. L., p. 3263.] § 22a. ALTERNATIVE METHOD OF APPORTIONING THE EXPENSE OF COUNTY HIGHWAYS. The board of supervisors of any county may in its discretion provide by resolution that fifty per centum of the cost of construction or improve- ment of any county highway within the county shall be borne by the county. The portion of the cost to be borne by the county shall be appropriated and made immediately available to the requisition or draft of the state com- mission of highways at the time of the final resolution of the board of super- visors approving the plans and estimate of cost submitted by the state com- missioner of highways as provided by section one hundred and twenty- eight of this act. If, in any county, a town shall have heretofore paid or become liable to pay fifteen per centum or less of the cost of construction or improvement of any such county highway pursuant to the former provisions of this section, the amount so paid or to be paid may be repaid by the county to such town, and a tax may be levied by the board of supervisors on the taxable property in the county at large sufficient to provide moneys for such repayment so far as other county moneys are not available therefor. In the case of a county highway where the plans have heretofore been approved by the board of supervisors of a county, and the distribution of cost for such highway has been made as provided by section one hun- dred and forty-one of this act, and the county has heretofore appropriated and made available its share of the cost of the construction or improve- STATE AND COUNTY HIGHWAYS. 894e Highway Law, §141-a. ment of such highway based upon an apportionment other than that pro- vided by this section, but the final payment has not been made by the county, the board of supervisors may in accordance with the provisions of section one hundred and twenty-eight of this act rescind the resolution previously adopted appropriating its share of the cost, and in such sase, shall adopt a resolution appropriating such an amount as will equal fifty per centum of the total estimated cost of such highway as shown in an estimate to be provided by the state commissioner of highways, making such amount so appropriated immediately available to the draft or requisition of the com- mission for the construction or improvement of such highway. If there be not suflBcient funds in the county treasury to pay the share of the county, the county treasurer is hereby authorized and empowered to borrow, in anticipation of taxes to be collected therefor or of the issuance of honds as hereby provided, such an amount as may be necessary, and is here- by authorized to pledge the faith and credit of the county for the payment, with interest, of the moneys' so borrowed. The board of supervisors of the county may by resolution authorize the issuance of county highway bonds, in amounts to be determined by such board the proceeds of which shall be applied to the payment of the share of the cost of construction or improvement of such highway to be borne by the county as hereinbefore provided. Such bonds shall be payable not more than thirty years from their date. The board of supervisors shall provide for the assessment, levy and collection by tax of the moneys required to meet the obligation of the county for its share of the cost of such improved highway ; and the moneys so raised shall be paid into the county treasury and shall become available for the draft or requisition of the state commission of highways, or for the pay- 894f HIGmVAYS ANT> BRIDGES. Higliway Law, § 142. nient of moneys borrowed by the county treasurer as hereinbefore pro- vided together with interest thereon, or for the payment of bonds and the interest thereon issued as hereinbefore provided, or any part thereof. [Highway Law, § 141a, as added by L. 1916, ch. 179, and amended by L. 1917, eh. 550.] § 23. COUNTY OB TOWN MAY BORROW MONEY. Whenever the board of supervisors shall have, by resolution, appro- priated and made immediately available to the requisition of the com- mission an amount sufficient to pay its share of the cost of such construc- tion or improvement vs^hich is to be borne by the county within which such highway or section thereof is located, such amount so appropriated shall be a county charge and shall be paid by the county treasurer of the county in which such highway or section thereof is located, upon the requisition of the commission. If there is not sufficient funds in the county treasury to pay such share of the county of the cost of construc- tion of such improvement so appropriated and made available, the county treasurer is authorized to borrow a sufficient amount to pay such share in anticipation of taxes to be collected therefor, or the issuance of bonds as hereinafter provided, and to pledge the faith and credit of the county for the payment of the amount when due, with interest. The board of supervisors may, by resolution, authorize the issuance and sale of bonds of the county to an arnount not exceeding the share of the county as apportioned by the commission, or if such apportionment has not been made, to an amount not exceeding thirty-five per centum of the estimated cost of the construction or improvement of such county highway as shown by the estimate approved by the board of supervisors, pursuant to section one hundred and twenty-eight of this chapter, and apply the proceeds of such bonds to the payment of the share of the cost of construction of such highway to be borne by the county, appropriated and made immediately available as aforesaid or to the payment and redemp- STATE AND COUNTY HIGHWAYS. 894ff Highway Law, § 143. tion of any certificates of indebtedness issued as above provided. Said bonds shall be payable not more than thirty years from their date. The board of supervisors shall provide for the assessment, levy and collec- tion by tax of all or any part of the share of the cost of such improve- ment apportioned to the county which has not been provided for by the issuance of county bonds as a county charge. Upon the petition of the town board of any town, the board of supervisors of the county may, by resolution, authorize the town to borrow a sufficient sum to pay the share of the cost of the construction or improvement of a county highway, which is to be borne by the town as apportioned by the commission and to issue and sell town bonds therefor. Such bonds shall be payable not more than thirty years from their date, to be sold by the supervisor for not less than par, and the proceeds thereof shall be paid into the county treasury to be applied in payment of the share of such cost which is to be borne by such town and the redemption of any bonds or certificates of indebtedness issued by the county to pay such share. The board of supervisors shall, from time to time, impose upon the taxable property of the town a tax sufficient to pay the principal and interest of such bonds as the same shall become due. The board of supervisors shall provide for the assessment, levy and collection by tax of all or .any part of the share or shares of the tovm or towns which has not been provided for by the issuance of town bonds as a town charge. [Highway Law, § 142, as amended by L. 1909, ch. 486, L. 1910, ch. 580, L. 1912, ch. 83, and L. 1913, chs. 538, 623.] § 23a. APPORTIONMENT AND PAYMENT OF EXPENSE OF CON- STKTJCTING COUNTY HIGHWAY THROUGH OR INTO CITIES OF THE SECOND AND THIRD CLASSES. If a county highway be constructed, under the provisions of this chap- ter, through or within a city of the second or third class, the board of su- pervisors of the county in which the city is situated shall, by resolution, apportion the cost thereof between the county and city as follows : Fif- teen per centum of the portion of such highway within a city shall be 894B HIGHWAYS AND BRIDGKS. Highway Law, §§ 144, 145. borne by the city and thirty-five per centum thereof by the county. The share to be borne by the county shall be paid or provided for in the manner required by this chapter in the case of an apportionment of such cost between the county and a town. The share to be borne by the city shall be paid by the imposition of a tax therein for the full amount thereof or, in case of a city of the second class, if the common council and the board of estimate and apportionment shall so determine, then by the issuance and sale of city bonds as provided in the second class cities law, and in the case of a city of the third class, if the common council or board of aldermen thereof so determine, then by the issuance and sale of city bonds, to be payable in not more than thirty years from their date, bearing interest at not to exceed the legal rate, and to be sold for not less than par ; or, such common council or board of aldermen may cause a portion of the city's share to be raised by tax at the time of the next ensuing annual city tax levy and the balance to be raised by the issuance and sale of bonds as herein above provided. [Highway Law, § 143, as added by L. 1912, ch. 88.] § 24, PAYMENT OP COST OF STATE HIGHWAY. The entire expense of the construction or improvement of a state high- way shall be paid by the state treasurer upon the warrant of the comp- troller issued upon the requisition of the commission out of any specific appropriation made available for tho construction or improvement of 'state highways. [Highway Law, § 144 ; B. C. & G. Cons. L., p. 2266.] § 25. ABOLITION OF RAILROAD GRADE CROSSINGS. The commission shall provide for and cause the abolition of railroad grade crossings on a state or county highway whenever practicable, in the manner provided by the railroad law.'^ The portion of the cost of 5. Apportionment against to-wn need not be made until after a contract in let, or it is definitely known what the cost of the work will be. Matter of Business Men's Association, 54 jMi.sc. 11, 103 N. Y. Supp. 847. For proceedings relative to abolition of railroad grade crossings, see Railroad] Law (L. 1910, ch. 481), §§ 89-96, post, p. 991. STATE AND COUNTY HIGHWAYS. 894i Highway Law, § 146. abolishing such grade crossings, which is payable under the railroad law hj the state and town or village, shall be paid out of the funds available for the construction or improvement of such state or county highway as provided in this article. [Highway Law, & 145 ; B. C. & Gr. Cons. L., p. 2266.] § 26. STREET SURFACE OB OTHER RAILROADS AND OTHER WORKS AND STRUCTURES. ON HIGHWAYS. No street surface or other railroad shall be constructed upon any portion of a state or county highway which has been or may be improved under the provisions of this article, nor shall any person, firm or cor- poration enter upon or construct any works in or upon any such highway, or construct any overhead or underground crossing thereof, or lay or maintain therein drainage, sewer or water pipes underground, except under such conditions and regulations as may be prescribed by the com- missioner of highways, notwithstanding any consent or franchise granted by any town, county or district superintendent, or by the munici- pal authorities of any town. Any person, firm or corporation violating this section shall be liable to a fine of not less than one hundrede* dollars nor more than one thousand dollars for each day of such violation, to be recovered by the commissioner of highways and paid to the state treasurer to the credit of the fund for the maintenance and repair of state and county highways, and may also be removed therefrom as a trespasser by the commissioner of highways upon petition to the county court of the county or the supreme court of the state. [Highway Law, § 146, as amended by L. 1911, cL 646, and L. 1913, ch. 80 ; B. C. & G. Cons. L., p. 2266.] Where a street surface railroad shall be laid in any street, highway or public place in any town, village, or in any city of the second or third classes, which it was heretofore or shall hereafter be determined to pave, improve, reconstruct or repair, as provided in this chapter, the proposals and contract for such improvement, reconstruction or repair shall in- clude the improvement, reconstruction or repair of the space between S94f HIGHWAYS AXD BRIDGES. Highway Law, §§ U2-a, 147. the tracks of such street surface railroad, the rails of such tracks and two feet in width outside of such tracks, and the work of improvement, reconstruction or repair in such space shall be done at the same time and under the same supervision as the work of improvement, recon- struction or repair of the remainder of such street, highway or public place. The commission may prescribe the materials to be used in pav- ing, improving, reconstructing or repairing such street, highway or public place within the railroad space above described, and upon the proper completion of the work, the commission shall certify to the board of trustees of such village, or the common council of cities of the second or third classes, as the case may be, the cost of the pavement, improvement, reconstruction or repair of such street, highway or public place within such railroad space, and the entire expense of the pave- ment, reconstruction or repair within su;ch railroad space whether here- tofore or hereafter made or ordered, shall be assessed and levied upon the property of the company owning or operating such railroad, and shall be collected in the same manner as other expenses for local im- provements are assessed, levied and collected in such town, village or city ; and an action may also be maintained by the inunicipality against the company in any court of record for the collection of such expense and assessment. This section shall not apply to such pavement, recon- struction or repairs in villages in counties adjoining cities of the first class. [Highway Law, § 142a, as added by L. 1913, ch. 177, and amended by L. 1916, ch. 578.] § 27. ■VSTHERE COST IS ASSESSABLE AGAINST ABUTTING OWNERS. If fifteen per centum of the cost of constructing or improving a high- way has been or may be assessed upon abutting owners, as authorized by section ten of chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, as the same existed prior to its repeal by chapter four hundred and sixty-eight of the laws of nineteen hundred and six, such highway shall be constructed or improved at the joint ex- pense of the state, county and town as provided herein, and the portion of the cost so assessable upon such owners shall be paid by the town in STATE AND COUNTY HIGHWAYS. 894k Highway Law, §§ 148, 149. which such highway is located, as provided in this article. [Highway Law, § 147; B. C. & G. Cons. L., p. 2366.] f 28. ACQUISITION OF I.ANDS FOR RIGHT OF WAT AND OTHER PURPOSES. If a state or county highway, proposed to be constructed or improved as provided in this article, or which shall have been heretofore constructed, or which it is proposed to repair or reconstruct as provided in article seven of this chapter, or in which it is proposed to change the course of a dangerous section thereof, shall deviate from the line of a highway already existing, the board of supervisors of the county where such highway is located, shall acquire land for the requisite right of way prior to the advertisement for proposals. The board of supervisors may also acquire lands for the pur- pose of obtaining gravel, stone or other material, when required for the construction, reconstruction, improvement or maintenance of highways, or for spoil banks together with a right of way to such spoil banks and to .any bed, pit, quarry, or other place where such gravel, stone or other material may be located.^ [Highway Law, § 148, as amended by L. 1917, ch. 261, and L. 1918, ch. 336; B. C. & G. Cons. L., p. 2267.] § 29. PURCHASE OF LANDS. The board of supervisors may, by resolution, authorize its chairman, a member, or a committee to purchase the lands to be acquired for the pur- poses specified in the preceding section. But the amount to be paid under this section to a single owner shall not exceed the sum of two hundred dollars, unless approved by the county judge and county treasurer, and in no case shall such amount exceed the sum of one thousand dollars. The purchase price of such lands shall be a county charge, and shall be paid in the same manner as awards are paid in cases where the proceedings are taken as herein required. [Highway Law, § 149; B. C. & G. Cons. L., p. 2367.] 6. Eminent domain. The act of 1901, ch. 240, from which this section was in 3)art derived, was intended to confer upon the board of supervisors, as the ofKoial representative of the county in its corporate capacity, the power of eminent domain in respect to rights of way, required for the 'construction and improvement of state and county highways. County of Orange v. Ellsworth, 9S App. Div. 275, 90 N. Y. Supp. 576. An order appointing commissioners to acquire lands at the base of a mountain so as to furnish a place to place excavated materials from a state road being con- structed along such mountain is not appealable, since the taking of land for such purpose is for a permitted public use and is not in excess of the right of eminent domain. County of Orange v. Storm King Stone Co. (1917) 180 App. Div. 208. 8941 HIGHWAYS AND BRIDGES. Highway Law, §§ 149-a, 150. Purchase of land in certain counties. The board of supervisors in a county adjoining a city of tlie first class containing over two million inhabitants may, by resolution, authorize the purchase of lands to be acquired for the purpose specified in section one hundred and forty- eight of this chapter. The purchase price of such lands, however, shall not exceed the sum of five thousand dollars ; it shall be a county charge and shall be paid in the same manner as other county charges are paid. [Highway Law, § 149a, as added by L. 1916, ch. 12.] § 30. PETITION TO ACQUIRE LANDS. If the board of supervisors is unable to acquire land by purchase as provided for in the last section, the board may present to the county court of the county or to the supreme court, at a special term thereof, to be held in the judicial department in which said county is located, a petition for the appointment of three commissioners of appraisal to ascer- tain and determine the compensation to be paid to the owners of the land to be acquired and to all persons interested therein. Such petition shall describe the land to be acquired with a reference to the map upon which the same is shown which shall be annexed to such petition. A copy of such petition and map shall be filed in the office of the county clerk. Such petition shall be signed and verified in the name of the board of supervisors, by the chairman or a member thereof designated for that purpose by resolu- tion. Notice of presentation of such petition to such court shall be given by the petitioner by publishing such notice in two newspapers published in such county, once in each week for two weeks successively preceding the day of such presentation, and also at least eight days preceding the day of such presentation by serving a copy of such notice, personally or by mail, on the occupant or owner of the land to be acquired, and by posting a copy of said notice in not less than three public places in each town in which property to be acquired is located.'' [Highway Law, § 150, as amended by L. 1911, ch. 503, and L. 1917, eh. 140; B. C. & G. Cons. L., p. 2267.] 7. Pleading of land owner. While this section does not provide that the STATE AND COUNTY HIGHWAYS. 895 Highway Law, §§ 151, 152. § 31. COMMISSIONERS TO BE APPOINTED. Upon such presentation, such court shall, after hearing any person owning or claiming an interest in the lands to be acquired who may appear, appoint three disinterested persons as commissioners. And in case a com- missioner shall at any time decline to serve, or shall die, or for any cause become disqualified or disabled from serving as such, the said court, at a similar special term, may, upon similar notice, application and hearing, and upon such notice to the land owners as the court may prescribe, appoint another person, similarly qualified, to fill the vacancy caused thereby. [Highway Law, § 151; B. C. & G. Cons. L., p. 2268.] § 32. DUTIES OF COMMISSIONERS. The said comissioners shall take the oath of office prescribed by the constitution, which oath shall be filed in the office of the county clerk of the county. Upon the filing of such oath the title to the lands described in the petition and map filed in the oflfice of Dhe county clerk shall vest in the county for tlie purpose of a highway forever. The commissioners shall, with all 'reasonable diligence, proceed to examine such high^vays and lands. Said commissioners shall cause a notice to be published in two such newspapers as aforesaid, once eadh week for two weeks successively next preceding the day of meeting mentioned in such notice, that at a stated time and place within such county they will meet for the purpose of hearing the parties claiming an interest in the damages to be awarded for the lands taken for such highways. Said notice shall also state the fact that a map or maps showing the land acquired has been filed in the county clerk's office. At the time and place of said meeting and at any adjournment thereof which said commissioners shall publicly make, they shall hear the proofs and allegations of all inteirested parties. They may adjourn the proceedings before them from time to time, issue subpoenas or administer oaths in such proceedings ; and shall keep minutes of their proceedings and reduce to writing all oral evidence given before them. They shall thereafter make and sign a report in writing, in which they shall assess, allow and state the amount of damages to be sustained by the owners of the several lots, pieces or parcels of land to be taken for the purposes aforesaid. .Such report s'hall contain the names of the owners of any parcel of land acquired as aforesaid, defendant land owner shall have an opportunity to deny or controvert the petition, or to interpose any pleading or defense or to litigate the right of the plaintiff to maintain the proceeding, such land owner may interpose a defense by petition and do whatever is authorized to be done under the Condemnation Law to protect his interests in respect to the premises sought to be acquired. County of Orange v. Ellsworth, 98 App. I)iv. 275, 90 N. Y. Supp. 576. 896 HIGHWAYS AND BRIDGES. Highway Law, § 153. except that in case the commissioners are unable to ascertain the names of such owners, they may in place of the names of such undiscovered parties insert the words "unknown owners," in their report. The said commis- sioners shall file their said report, together with the minutes of their pro ceedings, in the office of county clerk of such county. After said report shall have been completed and filed as aforesaid, the commissioners shall, after publishing a notice in like manner as that provided in section one hundred and fifty-two, apply to the county court of the county or to the supreme court, at a special term thereof to be held in the judicial depart- ment in which said county is located, to have the said report confirmed. If no sufficient reason to the contrary shall appear, the court shall confirm said report. Otherwise it may refer the same back to the said commissioners for revision or correction; and after such revision or correction the same proceedings shall be taken as are hereinbefore provided for, and the com- missioners shall in the same manner make renewed application for the confirmation of such report, and the court shall thereupon confirm or refer back the said report, and such proceedings shall be repeated until a report shall be presented which shall be confirmed by the said court. [Highway Law, § 152, as amended by L. 1911, ah. 503; B. C. & G. Cons. L., p. 2268.] § 33. COUNTY TREASURER TO PAY AWARDS. Within six months after the report of said commissioners shall be con- firmed as aforesaid, the county treasurer of such county shall pay to the persons named therein the amounts awarded to them for damages with six per centum interest thereon from the day of the filing of the oath of the commissioners in the oSice of the county clerk. Such amounts with interest and the amounts paid in pursuance of this article shall be a county charge and shall be paid by the county treasurer, in case of pur- chase upon requisition of the chairman of the board of supervisors of said coimty, or by any member or committee thereof designated for that purpose by said board and in case of a petition for the acquisition of such lands, upon service of a certified copy of the order confirming such awards. In case there are unknown owners, to whom the award is made in said report, the said county treasurer shall deposit the amounts awarded to them with like interest in some trust company or bank in such manner as the court shall in the order of confirmation direct, such amount to be paid out upon the application of said unknown owners when discovered. [High- way Law, § 153, as amended by L. 1911. ch. 503; B. C. & G. Cons. L. p. 2269.] Damages to well on adjacent lands. When it appears that a well on adjacent lands, which is fed by a subterranean water, was depleted by the blasting for a high- way, the owner of the lands is entitled to damages for such injury as an incident to the taking of his lands for highway purposes. County of Erie v. Fridenburg (1917), 221 N. Y. 389. STATE AND COUNTY HIGHWAYS. §97 Highway Law, §§ 154-155. § 34. COSTS; COMMISSIONERS' FEES. In all cases of asaessment of damages by commissioners appointed by the court, the costs thereof sihall be awarded pursuant to the provisions of section thirty-tliree hundred and seventy-two of the code of civil procedure and shall be a county charge in the first instance, and be paid by the county treasurer as hereinbefore provided, except when reassessment of damages shall be had on the application of the party for whom 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 reassessment of damages all persons who may be liable for costs under this section shall be liable in proportion to the amount of damages respectively assessed to them by the first assessment, and may be recovered by action. Each commissioner appointed by the court as provided in this article for each full day necessarily employed as such, shall be entitled to the sum of six dollars and his necessary expenses. The amount of compensation to whioh such commissioners are entitled shall be determined by the court in which the proceeding is pending, upon verified accounts presented by such commissioners, stating in detail the .number of hours necessarily employed in the discharge of their duties; and the nature of the services rendered, upon eight days' notice to the attorney for the petitioner in the proeeeding.oa [Highway Law, § 154, as amended by L. 1912, ch. 183, and L. 1915, ch. 497; B. 0. & G. Cons. L., p. 2270. § 35. LAND MAY BE SOI.D OB I.EASED; DISPOSITION OF FBO- CEEDS. Any lands acquired by purchase or condemnation, for the purpose of obtaining gravel, stone or other materials, for the construction or maintenance of highways improved or constructed as provided in this article, or required for spoil banks, may be sold or leased by the board of supervisors of any county, when no longer needed for any such purposes. The proceeds thereof shall be paid into the county treasury and shall be retained therein as a separate fund available for the construction or maintenance of highways improved or constructed under this article. The board of supervisors may, where it has acquired land by purchase or condemnation as a right-of-way for a state or county highway, sell, convey, grant or lease to the owner or owners of property adjoining the same, so much thereof as may be unnecessary for such highway purposes, provided the strip of land retained for such highway purposes is not less than sixty feet in width, and provided such sale, conveyance, grant or lease will give said adjoining owner or owners of land a frontage imme- diately in front of their respective premises upon the new highway and right-of- way when completed. The board of superivisors may make such sale, conveyance, grant or lease to such owner or owners of real property for the purpose of compen- sating such owner or owners for damages sustained by reason of the change of the location of such highway and in full settlement thereof. [Highway Law, § 155, as amended by L. 1911, ch. 552; B. C. & G. Cons. L., p. 2270.] Ga. Effect of Amendment of 1915. The amendment of this section by chapter 497 of L. 1915 does not deprive the court of the power to allow costs in a condemnation proceeding, unless such costs may be allowed under § 3372 of the Code of Civil Procedure. Costs are allowable where essential to secure to the owner just com- pensation for his property. The court may not, however, grant an extra allowance. County of Erie v. Fridenberg (19'17), 321 N. Y. 389. 89'8 HIGHWAYS AND BRIDGES. Highway Law, §§ 156, 157, 158, 159. § 86. APPLICATION OF PROVISIONS OF lABOK LAW. The provisions of section three of the labor law, as amended by chapter five hundred and six of the laws of nineteen hundred and six, which ex- cept from the provisions of that section labor performed in the construc- tion, maintenance and repair of highways outside the limits of cities and villages, shall apply to the construction, improvement and maintenance of state and county highways as provided in this chapter. [Highway Law, § 156; B. C. & G. Cons. L., p. 2270.] § 37. HIGHWAYS AND BRIDGES ON INDIAN RESEKVATIONS. When any portion of a county highway designated for improvement or construction in a county, as provided in this article, is located on an Indian reservation, the entire cost of the improvement or construction of such portion shall be paid by the state in the same manner as the S'tate's share of the cost of such county highway, out of any specific ap- propriation made available for the construction or improvement of county highways. The commission shall have exclusive supervision and control of all bridges constructed or to be constructed by the state on any Indian reservation, and may makg and enforce such reasonable rules and regulations concerning their use, as it shall deem necessary. [High- way Law, § 157; B. C. & G. Cons. L., p. 2271.] § 38. APPOINTMENT OF EESEBVATION SUPERINTENDENT. The commission may appoint a reservation superintendent for any Indian reserva- tion in the state who shall exercise the powers and perform the duties conferred and imposed upon town superintendents, except that the written statement as provided for by section ninety of the highway law shall bs filed with the commission on or before the thirty-first day of October in each year, and excepting that all orders of the Indian reservation superintendent shall be drawn upon and presented for pay- ment as hereinafter provided to the county treasurer of the county in which Buch Indian reservation or major portion thereof exists. While any such reservation superintendent shall be acting in that capacity no highway within such reservation shall be laid out, altered, or discontinued, with- out his consent. Whenever land may be acquired without expense or is dedicated for highway purposes within any Indian reservation, the reservation superintend?nt in charge thereof may make an order laying out the said highway by filing and re- cording said order in the town clerk's office of the town in which said highway is located. He shall also file said order with the recording ofiBcer of the tribe through whose lands such highway extends. [Highway Law, § 158, as added by L. 1910, ch. 46, and amended by L. 1913, ch. 474.] § 39. CUSTODY OF MONEYS, ET CETERA. There shall be paid by the state treasurer to the county treasurer of each countv in the state containing an Indian reservation, reservations or major portion of an Indian reservation, an amount which shall be not less than thirty dollars per mile, based on the entire mileage of the public highways within the Indian reservation in such county. All moneys of the state available for the improvement, repair and maintenance of highways and bridges and for the purchase of machinery, tools and implements within Indian reservations shall b? paid to the county treasurer of each county containing such Indian reservation or major portion thereof, who shall be the custodian thereof and accountable therefor, and it =hall be e\- liended for the repair and improvement of the public highways and bridges and for the purchase of machinery, tools and implements within STATE AND COUNTY HIGHWAYS. 899 Highway Law, §§ 159, 160. smell Indian reBervations at such places and in such manner as may be di- rected by the commission, and such moneys shall be paid out by the county treasurer upon the written order of the Indian reservation superintendent in accordance with such directions. The county treasurer and the Indian reser- vation superintendent shall keep their accounts according to the methods and use the blanks as prescribed by the commission. All orders and records of accounts shall be filed in the office of the commission on or before the thirty- first day of October in each year and shall be preserved by the commission as Indian reservation records. The reservation superintendent shall receive a per diem or annual allowance as compensation for services and expenses in an amount to be fixed by the commission, which shall be paid by the county treasurer to the reservation superintendent upon orders of the commission. The commission shall annually cause to be Inspected all of the bridges within Indian reservations of each county and shall require a complete report of such inspection which shall show in detail the condition of the bridges Inspected, the necessary work to be performed in the repair and maintenance of such bridges and the estimated cost thereof. The commission shall revise such estimates and annually report to the legislature Its estimated cost for such repairs and construction for the ensuing year in detail by reservation and county. The maintenance, repair and construction of the public highways within the Indian reservations shall be under the direct supervision and control of the commission and the state superintendent of highways and they shall be responsible therefor as herein provided. There shall be annually appropriated for the construction, repair and maintenance of such highways and bridges and for the purchase and repair of machinery, tools and implements, an amount i-ufficient to provide therefor, based upon the estimates prepared and submitted by the commission to the legislature. The comptroller upon requisition of the commission shall draw his warrant on the state treasurer in favor of the county- treasurer who is the custodian of such funds as herein provided for an amount. which shall not be in excess of the total amount apportioned by the commission to the Indian reservation of any county. The moneys so paid shall be deposited by said county treasurer to the credit of the fund for the maintenance, repair and construc- tion of highways and bridges and the purchase and repair of machinery, tools and implements in the Indian reservation of said county.2b [Highway Law, § 159, as added by L. 1910, ch. 46, and amended by h. 1911, ch. 646, and L. 1913, ch. 474.] § 40. MAINTENANCE OF DETOTTRS DURING CONSTRUCTION. The maintenance and repair of any highway or right of way designated by the commission for use as a detour, during the construction, reconstruction or repair of a state or county highway, shall be under the supervision of the commission and shall be paid for out of the construction fund. In cases of construction or improve- ment contracts, or the state's share of the money available for maintenance and repair of improved roads in such county in cases of reconstruction or repair con- tracts. Such highway or right of way designated as a detour by the commission shall be deemed as an improved highway during construction, reconstruction or repair. [Highway Law, § 160, as added by L. 1912, oh. 83, and amended by L. 1916, ch. 578.] 7. Construction of bridges on Indian reservation is within the control of the Commission. Towns have no authority to build. Kept, of Atty. Genl., Jan. 21, 1911. 899a mamvAYS and bridges. Highway Law, § 161. CHAPTER LX-A. IMPROVEMENT OF HIGHWAYS WITH FEDERAL AID. (This chapter contains Article 6-A of the Highway Law as added by L. 1917, ch. 462, in effect May 14, 1917.) Section 1. Commissioner of highways to designate roads. 3. Cost of perliminary surveys. 3. Approval of plans. 4. Advertisements, proposals, contracts, appropriation, closing roads, de- tours, termination of contract, entry for drainage, permits, main- tenance and repair, contingencies and agreements. 5. Acceptance of work. 6. Acquisition of right of way. 7. State's share of cost. 8. General authorization. § 1. COMAnSSIONER OF HIGHWAYS TO DESIGNATE ROADS. The state commissioner of highways is hereby authorized, empowered and directed to designate the public highways or portions thereof, outside of cities, which, in his discretion, he may deem proper to be improved or constructed as co-operative roads with the moneys to be appropriated by the state of New York and the moneys contributed to the state of New York for highway improvement by the federal government under the provisions of an act of congress, entitled " An act to provide that the United States shall aid the states in the construction of rural post roads, and for other purposes," approved July eleventh, nineteen hundred and sixteen ; provided that the highways or portions thereof thus designated shall form a portion of the system of state or of county highways as provided by this chapter, or shall form a connection between state, county and federal highways duly authorized by law of this or any other state or nation, for the purpose of aiding in the completion of a system of improved highways in the United States of America. The highways thus designated shall be tentatively indicated on a map to be prepared by, and filed in the office of, the state commissioner of highways ; and a duplicate thereof shall be filed in the office of the secretary of state of New York state on or before the fifteenth day of JTaj', nineteen hundred and seventeen; subject, however, to such modifica- tion as may hereafter be submitted by the state commissioner of highways and approved by the United States secretary of agriculture in accordance with section one of the act of congress hereinbefore refererd to. The desig- nations indicated on such map are dependent, however, on provision being made by the governing boards of the political subdivisions of the state for IMPROVEMENT OF HIGHWAYS WITH FEDERAL AID. 899b Highway Law, §§ 162, 163, 164. the improvement of such other highways as are deemed necessary, in the opinion of the state commissioner of highways, to complete the combined highway system of the state. [Highway Law, § 161, as added by L. 1917, ch. 463.] § 2. COST OF FBEI.IMINABY SURVEYS. Preliminary surveys, plans, specifications and estimates of cost for the highways or portions thereof so designated shall be made by the state depart- ment of highways in the same manner as prescribed in section one hundred and twenty-five of the highway law and the expense thereof shall be paid out of the moneys appropriated by the state for the purposes of this article. [Highway Law, § 162, as added by L. 1917, oh. 462.] § 3. AFFKOVAI. OF FI.ANS. After the submission to, and approval by the secretary of the United States department of agriculture, of such plans, specifications and esti- mates of cost, as required by the provisions of said act of congress, the same shall be approved by the commissioner of highways by executive order; which order shall give a consecutive number to the highway or portion thereof covered by said plans. A certified copy of such order shall be filed Tvith the said secretary of agriculture and with the state comptroller. Eoads shall be taken up for construction or improvement in the order of final approval unless the commissioner of highways deems otherwise advisable, in which event an executive order shall be filed in the office of the highway •department giving the reasons for deviating from such order, and a certified ■copy thereof filed with said secretary and with the state comptroller. [High- way Law, § 163, as added by L. 1917, ch. 462.] % 4. ADVERTISEMENTS, FROFOSAI.S, CONTRACTS, APFBOPRIA- TION, CI.OSING ROADS, DETOURS, TERMINATION OF CON- TRACT, ENTRY FOR DRAINAGE, FERMITS, MAINTENANCE AND REPAIR, CONTINGENCIES AND AGREEMENTS. The form of proposal, contract and bond, the method of advertising for proposals, the rejection of proposals, the award of contracts and the pay- ments to contractors shall be governed by the provisions of section one hundred and thirty of this chapter. To expedite the payment of the share of the federal government as shown by monthly estimates rendered on ■existing contracts as provided herein it is hereby provided that upon the filing of the report of the commissioner of highways with the legislature, showing the amount of construction under federal aid contemplated for the ensuing year, and in case an appropriation is made by the legislature to provide the state's share of the construction shown in such report, there shall also be appropriated such an additional amount as is necessary to 899c HIGHWAYS AND BRIDGES. Highway Law, § 16-t. pay in the first instance the share of the federal government of the cost of such work. Itemized statements showing the entire cost of construction of such roads shall be rendered by the commissioner of highways to the state comptroller and the federal government as the work progresses and such statements shall show the subdivision of cost between the state and the federal government and shall be accompanied by drafts on the federal government for the amount of its share of such cost. Upon the payment of such drafts the proceeds shall be deposited by the commissioner of high- ways with the treasurer of the state for the purpose of reimbursing the appropriation made by the state on account of such advance payments, and upon the final completion of the work a report thereof filed with the state comptroller. The provisions of sections seventy-seven and one hun- dred and sixty of this chapter, relative to closing highways for repair or construction and the maintenance of detours during construction; also the provisions of section one hundred and thirty-two of this chapter relative to the authority of the commissioner to secure the completion of the work; also the provisions of sections one hundred and thirty-five and one hundred and thirty-six of this chapter, relative to the entry upon adjacent lands for drainage purposes and the payment of damages for such entry; also the provisions of sections one hundred and thirty-seven, one hundred and thirty- eight and one hundred and thirty-eight-a, relative to construction in villages and to additional width and increased cost; also the provisions of section one hundred and fortj'-six of this act, relative to the issuance of permits for work by persons, firms or corporations; also the provisions of section one hundred and fifty-six relative to the application of the labor law; shall all be applicable for the purposes of highways improved or constructed under the provisions of this article. The provisions of article seven of this chapter relative to the maintenance of state and county highways shall apply to the maintenance and repair of highways improved or constructed imder the provisions of this article. AU contingences arising during the prosecution of the work shall be provided for to the satisfaction of the commissioner of highways and as may be agreed upon in the original or by a supple- mental contract executed by the commissioner. If a supplemental contract be executed for the performance of work or the furnishing of material not provided for in the original contract, the amount to be charged thereunder for any such work or material shall not exceed the rate for which similar work or material was agreed to be performed or furnished under the original bid upon which the contract was awarded. Any work necessarily- required for the proper completion of the contract and for which no item price bid was contained in the proposal shall be performed upon prices to be agreed upon by the contractor and the commissioner prior to the perform- ance of such work, and such work and the prices therefor shall be provided IMPROVEMENT OF HIGHWAYS WITH FEDERAL AID. 899d Highway Law, §§ 165, 166, 167, 168. in a supplemental contract. The total amount to be expended in the im- provement or construction of a highway or section thereof shall not exceed the original estimate, unless such estimate shall have been duly amended by the commissioner with the approval of the secretary of agriculture. [High- way Law, § 164, as added by L. 1917, ch. 463.] § 5. ACCEPTANCE OF WORK. Upon the completion of a highway or section thereof constructed or improved under the provisions of this article, the division engineer shall inspect the sailie and shall report in writing to the state commissioner of highways his recommendation as to whether or not the contract should be finally accepted, and the decision of the said commissioner, which shall be conclusive, as to the acceptance of said highway or portion thereof thus constructed or improved, shall be entered ia the form of an executive order, a certified copy of which shall be filed with the secretary of agriculture. [Highway Law, § 165 as added by L. 1917, ch. 462.] § 6. ACQtnSITION OF RIGHT OF WAY. The provisions of article six of this chapter relative to the acquisition of lands for right of way and other purposes shall be applicable for the purposes of highways improved or constructed under the provisions of this article. [Highway Law, § 166, as added by L. 1917 eh. 462.] § 7. STATE'S SHARE OF COST. The proportion of the total cost of the improvement or construction of highways to be borne by the state of 'New York imder the provisions of this article, exclusive of the expenses incurred prior to the beginning of con- struction work for the purposes of making surveys, plans, specifications and estimates of cost, shall not exceed fifty per centum of such total cost. [Highway Law, § 167, as added by L. 1917, ch. 462.] § 8. GENERAI. ATTTHORIZATIOIT. The state commissioner of highways is hereby authorized, empowered and directed to perform and do such other and further acts not hereby specifically provided in this article as may be necessary to conduct the improvement or construction of co-operative highways with state and federal aid in compliance with the act of congress hereinbefore referred to and the rules and regulations promulgated by the secretary of agricul- ture under authority conferred upon him by said act of congress, the pro- visions of which act are hereby assented to, the good faith of the state of New York being hereby pledged to make such provision from time to time as may be necessary to provide its share of the cost of improvement of such highways. [Highway Law, § 168, as added by L. 1917, eh. 463.] 900 HIGHWAYS A^^D BRIDGES. Highway Law, § 170. CHAPTER LXI. MAINTENANCE OF STATE AND COUNTY HIGHWAYS. [Highway Law, art. VII.] ■ ^ECTioiT 1. Commission to provide for maintenance and repair. la. State to maintain roads improved by state appropriation under special laws, lb. Maintenance and repair by the state of certain improved roads. Ic. Maintenance by state of canal bridge approach. 2. Appropriations by state; apportionment of moneys. 3. Cost to town for maintenance of state and county highways. 4. Disbursement of maintenance funus. 5. Reports of county treasurer. 6. Compensation of town superintendents. 7. Liability of state for damages. 8. Additional width or different type of construction under repair contracts. 9. Sprinkling; removal of filth and refuse. 10. Payment by counties of a portion of the cost of construction under repair contracts. ^ 1. COMMISSION TO PROVIDE FOR MAINTENANCE AND REPAIR. The maintenance and repair of improved state and county highways in towns and incorporated villages, exclusive, however, of the cost of maintaining and repairing bridges having a span of five feet or over, shall be under the direct supervision and control of the commissioner of highways and he shall be responsible therefor.^ Such maintenance and repair may be done in the discretion of the commissioner either directly by the department of highways or by contract awarded to the lowest re- sponsible bidder at a public letting after due advertisement, and under such rules and regulations as the commissioner of highways may pre- 1. Orange County Act. The special law (L. 1901, oh. 8.3) providing for the construction and maintenance of highways in the county of Orange is not repealed by the provision of this section relative to the maintenance and repair of state and county highways. Matter of Business Men's Association, 54 Misc. 13, 103 N. Y. Supp. 843 (1907). Duty of abutting owners to construct and keep in repair approaches or drive-ways from highways. On examination of the provisions of articles 4, 6 and 7 of the Highway Law as they stood on July 21, 1909, held, that the statute required abutting owners under the direction of the district or county superintendent, to construct and keep in repair approaches or driveways from the highway, but that the duty of maintenance did not rest on the town unless the town board decided to assume it, and only in that event was the town superintendent under any duty of inspection, which is but an incident to the duty of maintenance and repair. Fer- guson v. Town of Lewisboro, 213 X. Y. 141. MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 901 Highway Law, §§ 170a, 170b. scribe. The commissioner of highways shall also have the power to adopt such system as may seem expedient so that each section of such highway shall be under constant observation and be effectively and economically pre- eerved, maintained and repaired. The commissioner of highways shall have the power to purchase materials for such maintenance and repairs, except where such work is done by contract, and contract for the delivery thereof at convenient intervals along such highways. [Highway Law, § 170, as amended by L. 1911,. ch. 646, L. 1912, ch. 83, L. 1913, ch. 80, and L. 1916, ch. 578; B. C. & G. Cons. L., p. 2371.] i la. STATE TO MAINTAIN BOADS IMPROVED BT STATE AFPBO- FBIATIONS UNDEB SFECIAI. LAWS. When any highway has been constructed or improved under a special law, with moneys taken from the state treasury and under plans prepared by a state department, the commissioner of highways may at any time in- spect such highway and if he determine it to be of sufficient importance and properly constructed, he may make an order directing that such high- way become a part of the system of state and county highways in such county, and thereafter such highway shall be maintained as a state or county highway in the manner provided in article seven of the highway law. Such order shall be served upon the chairman' of the board of supervisors, and a certified copy thereof shall be filed in the office of the county clerk and one in the office of the state comptroller. [Highway Law, § 170a, as added by L. 1917, ch. 261.] § lb. MAINTENANCE AND BEPAIB BY THE STATE OF CEBTAIN IMFBOVED BOADS. Whenever a county shall have constructed therein, at its expense, an im- proved stone road for a distance of not exceeding two miles, extending be- tween two points, each on the dividing line between such county and an adjoining county, and connecting at both points with a county highway in such adjoining county, the commissioner of highways may at any time in- spect such road and if he deems it to be of sufficient importance and prop- erly constructed, he may determine that such road shall be thereafter main- tained and kept in repair by the state ; in which case, such maintenance and repair shall be under the supervision of such commissioner. Such deter- mination shall be in the form of an order and shall be served upon the chairman of the board of supervisors of the county in which the road is located that is to be maintained by the state, and a certified copy thereof shall be filed in the office of the county clerk and one in the office of the state comptroller. [Highway Law, § 170b, as added by L. 1918, ch. 146.] 902 HIGHWAYS AXD BRIDGES. Highway Law, §§ 170e, 171. § le. MAINTENANCE BY STATE OF CANAL BRIDGE AFFBOACHES. Where a waterway which is a part of the canal system of the state inter- sects a Btate or county highway which is maintained adjacent to such in- tersection pursuant to this article, the pavement and shoulders of the ap- proaches to the bridge structure carrying such highway across such water- way shall be considered eligible for maintenance under this article, pro- viding such approach has, in the opinion of the state commissioner of highways, been properly graded in connection with the construction of the canal system of the state. The state commissioner of highways may at any time make an order directing that such section of highway become a part of the system of state or county highways in such county, and there- after the pavement and shoulders of such approach shall be maintained as a state or county highway in the manner provided in article seven of this chapter. Such order shall be served upon the chairman of the board' of supervisors and a certified copy thereof shall be filed in the office of the county clerk and one in the office of the state comptroller. In maintain- ing such section of highway the commissioner may lay such type of pave- ment as in his opinion is advisable. [Highway Law, § 170c, as added by L. 1918, ch. 324.] § 2. APPROFBIATIONS BY STATE; AFPOBTIONMENT OF MONEYS. There shall be annually appropriated for the maintenance and repair of improved state and county highways an amount sufficient to provide there- for, based upon the estimates prepared and submitted by the commission to the legislature as provided in section twenty-three of this chapter. Not less than ninety per centum of the amount so appropriated shall be appor- tioned by the commission each year among the counties in accordance with the proportion which the amount to be apportioned bears to the total amount of such estimates. The comptroller, upon the requisition of the commission, shall draw his warrant upon the state treasurer in favor of the county treasurer of the county in which the improved state or county high- ways are located, for an amount which shall not be in excess of the total amount apportioned by the commission to such county. The moneys so paid shall be deposited by the county treasurer to the credit of the fund for the maintenance of improved state and county highways in the county. Any moneys so deposited and placed to the credit of the fund for such main- tenance shall be available and subject to the order of the state highway commission at any time prior to the total expenditure thereof. Not more than ten per centum of the amount so appropriated each year may be re- served by the commission for the repair or rebuilding of improved state or county highways, which ten per centum shall not be deemed to be avail- able until after the moneys paid the county treasurer of a county as MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 903 Highway Law, § 172. heretofore provided shall have been expended, and which shall be paid by the state treasurer upon, the warrant of the comptroller drawn upon the requisition of the commission issued when required for such purposes. [Highway Law, § 171, as amended by L. 1912, ch. 83, and L. 1916, ch. 578; B. C. & G. Cons. L., p. 2273.] S 3. COST XO TOWN FOB MAINTENANCE OF STATE AND COUNTY HIGHWAYS. Each town shall pay for the maintenance and repair of state and county highways each year the sum of fifty dollars for each mile or major frac- tion of a mile of the total mileage of state and county highways within the town, each incorporated village shall pay for such maintenance and repair at the rate of one and one-half cents for each square yard of surface of such improved highway maintained by the state within its corporate limits ; except where a maintenance bond for a period of five years satisfactory in form and sufficiency to the commission shall have been given to the village prior to January first, nineteen hundred and sixteen, such tax herein pro- vided for shall not be levied or paid until the period covered by such main- tenance bonds shall have expired, or shall have failed in sufficiency. On or before the first day of !N^ovember in each year the commission shall transmit to the clerk of the board of supervisors of each county and to the board of trustees of each village a statement specifying the number of miles of improved state and county highways in each town, the number of square yards of surface of such improved highway as hereinbefore pro- vided in each village in such county and the amount which each of such towns and villages is required to pay into the county treasury on account of the maintenance of state and county highways and a copy of such state- ments shall be forwarded to the county treasurer. The board of supervisors of the county and the board of trustees of an incorporated village shall cause the amount to be paid by each town and incorporated village of the county, to be assessed, levied and collected therein in the same manner as other town and village charges, in the several towns and villages and such amount when collected shall be paid into the county treasury to the credit of the fund for the maintenance of state and county highways in the sev- eral towns and incorporated villages of the county.^ [Highway Law, § 172, 2. Duty of supervisors to levy tax. Upon receipt of the notices of the state com- missioner of highways transmitted pursuant to this section of the Highway Law a mandatory statutory duty, ministerial in character, devolves upon the board of supervisors, and under this duty the board is required to take such action as shall result in the levying of a tax by the towns to raise their respective proportion of the fund appliable to the maintenance of such highways. This duty is not depend- ent upon the acceptance of the highways by the proper officials. People ex rel. Carlisle v. Board of Supervisors, 317 N. Y. 424, affg. 164 App. Div. 922. 904 HIGHWAYS AND BRIDGES. Highway Law, §§ 172a, 173. as amended by L. 1912, ch. 83, L. 1916, ch. 578, and L. 1917, ch. 13-1; B. C. & G. Cons. L., p. 2272.] Saving clause; temporary provisions. — Whenever any city has deposited certain moneys with a coimty treasurer for the maintenance of streets with- in such city in accordance with the provisions of section one hundred and eeventy-two of this chapter as it existed prior to April first, nineteen hun- dred and sixteen, and there remains an imexpended balance of such moneys in the hands of the county treasurer, such unexpended balance shall, when such section as hereby amended taJjes effect, revert to such city and the county treasurer is hereby authorized, empowered and directed to return such unexpended balance to the treasurer of such city. The moneys re- turned by a county treasurer to a city in accordance with the provisions of this section shall be expended by the city in the maintenance and repair of the streets within such city which have been constructed or improved by state aid. The highway commission shall retain jurisdiction and author- ity over any city street heretofore improved as a state or county highway, until the expiration of the period of time covered by the bond guaranteeing the maintenance and repair of such street, and may take such proceedings as may be necessary to enforce the provisions of such guaranty bond and in case of the failure of the contractor or the surety company on the bond to perform such work as may be lawfully required of them, the highway, commission is authorized to perform such work in the first instance, charg- ing the expense incurred thereby to the contractor and the surety com- pany in the manner provided by the contract and bond. Upon the termina- tion of the guaranty period covered by such bond, the highway commis- sion shall notify the city clerk thereof and upon service of such notice the authority and responsibility of the state over such street shall cease and thereafter such street shall be maintained in the manner provided by law for the maintenance and repair of city streets. [Highway Law, § 172a, as added by L. 1916, ch. 578, and amended by L. 1917, ch. 261.] § 4. DISBURSEMENT OF MAINTENANCE FUNDS. The amount apportioned by the commission for the maintenance and repair of state and county highways in each county shall be expended for the repair and maintenance of such highways in such county, but the amount paid by each town or incorporated village as provided by section one hundred and seventy two shall be expended for the repair and main- tenance of such highways in such town or incorporated village. The county- treasurer shall pay out the moneys received by him as provided in this article upon the written order of the representative of the commission, who, before drawing any such orders shall give a bond in an amount to be specified by the commission, and with such sureties as shall be approved by the com- MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 905 Highway Law, g§ 174, 175, 176. mission; such bond shall be filed in the office of the state comptroller and certified copy thereof filed in the office of the state highway commission and in the office of the county treasurer. Such orders shall be issued upon vouchers duly presented to the representative of the commission in the form to be prescribed by it. The commission may adopt rules and regulations providing for the presentation and payment of accounts for maintenance and repair. [Highway Law, § 173, as amended by L. 1913, ch. 83, and L. 1916, ch. 578; B. C. & G, Cons. L., p. 2273.] § 5. REPORTS OF COUNTY TREASURERS. The county treasurer shall report to the commission annually and at such other times as required by the commission, the amount received by him on account of the maintenance and repair of improved state and county highways in the several towns and incorporated villages in his county and the expenditures made by him out of such moneys. The form and con- tents of such report shall be prescribed by the commission. [Highway Law, § 174, as amended by L. 1912, ch. 83, and L. 1916, ch. 578 ; B. C. & G. Cons. L., p. 2373.] § 6. COMPENSATION OF TOWN SUPERINTENDENTS. If a town superintendent shall be directed by the commission to per- form services in respect to the maintenance and repair of improved state and county highways within his town his compensation therefor shall be paid out of the moneys set apart as provided in this article for such maintenance and repair. Such compensation shall be fixed by the com- mission but shall in no case exceed the amount fixed by the town board as compensation for his services performed for the town under this chap- ter,3 and in rendering his monthly bill to the supervisor, and his annual bill to the town board, no charge shall be made against the town for an expense or per diem charge upon any date for which an audit shall have been allowed by the state commission. And said state commission shall make proper rules and regulations to carry into effect this provision and to furnish to the town board prior to the annual audit day due informa- tion as to the dates, compensation and expenses allowed by them to said town superintendent from the state repair fund. [Highway Law, § 175, as amended by L. 1912, ch. 83 ; B. C. & G. Cons. L., p. 2273.] § 7. LIABILITY OF STATE FOR DAMAGES. The state shall not be liable for damages suffered by any person from defects in state and county highways, except such highways as are main- 3. Compensation of town superintendent is fixed by the town board at not less than two nor more than five dollars per day. Highway Law, sec. 45, ante. SeSa HIGHWAYS AND BRIDGES. Highway Law, §§ 177, 179'. tained by the state by the patrol system, but the liability for such dam- ages shall otherwise remain as now provided by law,* notwithstanding the construction or improvement and maintenance of such highways by the state under this chapter; but nothing herein contained shall be con- structed to impose on the state any liability for defects in bridges over which the state has no control. Within the limits of incorporated vil- lages the state shall maintain a width of pavement equal to the width of pavement constructed or improved at the expense of the state, if a state highway, or of the state and coimty, if a county highway, the location of the state's portion of such roadway within said incorporated limits to be determined by the center line of the roadway as shown on the plans on file with the state highway department, and the state shall be liable for damages to persons or property only when such damages shall oocur as a result of the defective condition of the portion of improved highway as above described. [Highway Law, § 176, as amended by L. 1910, ch. 570, L. 1912, ch. 83, and L. 1916, ch. 578.] § 8. ADDITIONAI. WIDTH OR DIFFERENT TYPE OF CONSTRITC- TION UNDER REPAIR CONTRACTS. Whenever in the maintenance and repair of state and county highways the commission shall have determined upon the necessity of resurfacing such highway, the town or village wherein the highway is located may petition the commission to provide an additional width or a different type of pavement, or both, in the plans providing for such resurfacing. The additional expense of such widening or different type of construction shall be borne wholly by such town or village and the provisions of sections one hundred and thirty-seven and one hundred and thirty-eight-a shall apply to such additional width or different type of construction under such repair contract in the same manner as under a construction contract as provided in those sections. [Highway Law, § 177, as added by L. 1916, ch. 578.] § 9. SPRINKLING; REMOVAL OF FILTH AND REFUSE. IJpon petition signed by a majority of the taxpayers owning property abutting upon an improved state or county highway and filed with the town clerk, the town board may set aside any section of such highway outside of a village and contract for the sprinkling of the readbed with 4. Under Highway Law, sec. 74, ante, a town is liable for injuries sustained "by reason of any defect in its highways or bridges existing because of the neglect of any town superintendent of such town." There can be no liability imposed upon the town under this section unless it appears that the defect causing the injury was dua to the neglect of the town superintendent. MAINTENANCE OF STATE AND COUNTY HIGHWAYS. 905b Highway Law, § 180. water and also contract for the removal of filth and refuse therefrom. Xo such contract shall be entered into unless previously approved by the county superintendent. The amount of any such contract so entered into shall be assessed upon the property abutting upon such section in the proportion which the frontage of each parcel thereof bears to the length of the section exclusive of intersecting highways. Such assess- ment shall be made, levied and collected in the same general manner, and at the same time and by the same officers as the town taxes of said town are assessed, levied and collected. [Highway Law, § 179; B. C. & G. Cons. L., p. 2275.] § 10. PAYMENT BY COtTNTIES OF A PORTION OF THE COST OF CONSTRUCTION UNDER REPAIR CONTRACTS. Whenever in the maintenance and repair of state and county highways- under the provisions of article seven of this chapter, the commission shall have determined upon the necessity of resurfacing, reconstructing or re- pairing such highway, the county wherein the highway is located may by resolution provide that not to exceed thirty-five per centum of the estimated cost of such resurfacing, reconstructing or repairing shall be borne by the county. The provisions of sections one hundred and twenty-five, one hun- dred and twenty-six, one hundred and twenty-seven, one hundred and twenty-eight, one hundred and thirty, one hundred and thirty-two, one hun- dred and thirty-four, one hundred and thirty-five, one hundred and thirty- six, one hundred and thirty-seven, one hundred and thirty-nine, one hun- dred and forty-one, one hundred and forty-one-a, one hundred and forty- two, one hundred and forty-two-a, one hundred and forty-eight, one hundred and forty-nine, one hundred and forty-nine-a, one hundred and fifty, one hundred and fifty-one, one hundred and fifty-two, one hundred and fifty- three, one hundred and fifty-four, one hundred and fifty-five and one hun- dred and fifty-six of this chapter shall apply to such resurfacing, recon- structing and repairing of state and county highways in the same manner as to the original construction thereof in so far as the same may be appli- cable thereto. [Highway Law, § 180, as added by L. 1917, ch. 91.] fl06 HIGHWAYS AND BRIDGES. Explanatory note. CHAPTER XLII. LAYING OUT, ALTERING AND DISCONTINUING HIGHWAYS; PRIVATE ROADS. EXPLANANTORY NOTE. Proceedings to Lay Out, etc, Highways. A town superintendent of highways must follow the proceedine:s described in this chapter, in laying out, altering or discontinuing high- ways. These proceedings are judicial in their character, and, for the most part, involve an application to the court, the appointment of com- missioners, the taking of testimony and the assessment of damages. The superintendent and other persons interested will usually require the services of attorneys. There must be a strict compliance with the requirements of the statute, and reference must be made thereto in accomplishing the desired object. Private roads. This chapter also contains the provisions of chapter VIII of the Highway Law, relating to laying out private roads. Application for a private road must be made to the town superintendent, whose duty it is to appoint a time and place for a hearing before a jury to determine as to the necessity of such road and to assess the damages. The practice is prescribed by the statute and must be closely abserved. [High Law, art. VIII.] Section 1. Survey for the laying out of a highway. 2. Highways by dedication. 3. Application. 4. Application for condemnation commissioners. 5. Appointment of condemnation commissioners and their duties. 6. Notice of meeting. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 907 Highway Law, § 190. Section 7. Decision of condemnation commissioners in favor of appl;cation. 8. Damages in certain cases, liow estimated. 9. Decision of condemnation commissioners denying application. 10. Motion to confirm, vacate or modify. 11. Limitations upon laying out highways. 12. Laying out highways through burying-grounds. 13. Costs, by whom paid. 14. Damages assessed and costs to be audited. 15. When officers of different towns disagree about highway. 16. Difference about improvements. 17. Highway in two or more towns. 18. Laying out, dividing and maintaining highway upon town line. 19. Final determination, how carried out. 20. Highways by use. 21. Fences to be removed. 22. Private road. 23. Jury to determine necessity and assess damages. 24. Copy application and notice delivered to applicant. 25. Copy and notice to be served. 26. List of jurors. 27. Names struck off. 28. Place of meeting. 29. Jury to determine and assess damages. 30. Their verdict. 31. Value of highway discontinued. 32. Papers to be recorded in town clerk's office. 33. Damages to be paid before opening the road. 34. Fees of officers. 35. Motion to confirm, vacate or modify. 36. Costs of new hearing. 37. For what purpose private road to be used. 38. Highways or roads along division lines. 39. Adjournments. 40. Widening roads, petition. 41. Powers and duties of commissioners. 42. Notice of decision to supervisors. 43. Widening, how constructed. 44. Actions to compel widening, how affected by petition. 45. Highways abandoned. 46. Highways in lands acquired by the United States, for fortification purposes, deemed abandoned. 47. Discontinuance of highway. 48. Description to be recorded. 49." Damages caused by discontinuance. 50. Papers, where filed. 51. Costs of motion. S 1. SURVEY FOR THE LAYING OUT OF A HIGHWAY. WTienever the town superintendent shall lay out any highway, either upon application to him or otherwise, he shall notify the district or county 908 HIGHWAYS AND BRIDGES. Highway Law, § 191. superintendent, whose duty it shall be to either make a survey, or cause the same to be made, and the town superintendent shall incorporate the survey in an order to be signed by him, and to be filed and recorded in the office of the town clerk, who shall note the time of recording the same.' [Highway Law, § 190 ; B. C. & G. Cons. L., p. 3276.] § 2. HIGHWAYS BY DEDICATION. Whenever land is dedicated to a town for highway purposes therein, the town superintendent may with the consent of the town board, either with 1. Board of supervisors may require commissioners to make surveys of high- ways. County Law, sec. 71, post. Sufficiency of survey. The survey or description of the highway laid out, In- cluded in or made part of the order should be definite and certain. It should clearly specify the highway as to line and width. If there is no width ex- pressed in it, and it is wholly uncertain both as to starting point and terminui, it is insufficient. People ex rel. Waters v. Diver, 19 Hun 263. The omission to incorporate a survey in the order, or to make it a part of it, is fatal. Pratt v. People, 13 Hun 664. The survey, to be sufficient, should show distinctly the line of the proposed road so that persons through whose lands the road is to be laid out, and others interested, can determine its route; there must be no un- certainty in the description of the property to be taken; the description should be such that from it alone, without resort to other papers, the road could be laid out. Matter of De Camp, 19 App. Div. 564, 46 N. Y. Supp. 293; Pratt v. People, 13 Hun 664. The objects at each end of the line of the highway, as pointed out in the record, will direct the course of the line, despite the fact that the direction of the compass between them as given in the description, is Inaccurate. Johnson v. Loveless, 18 Wk. Dig. 49. It has been held that it is sufficient to run a single line as the center of the highway, with definite points of starting and ending, since the width being prescribed by statute the boundaries of the highway would be a matter of simple calculation. People ex rel. Hawver v. Commissioners of Highways of Redhook, 13 Wend. 310; People ex rel McFarland v. Commissioners of Highways of Salem, 1 Cow. 23; Tucker v. Rankin, 15 Barb. 471. Incorporation of survey in order. The objection to the order of the com- missioners, laying out the road, that it did not incorporate the survey, is of no force, where the survey was attached to the order. Van Bergen v. Bradley, 36 N. Y. 316. A substantial compliance with the section requiring incorporation of an order in the survey is sufficient. Tucker v. Rankin, 15 Barb. 471. Where the recital of the laying out of the highway and the survey, though dated several months before, are recorded immediately after the order in the book of town records, and the order purports to accord with a survey and both papers describe the same highway, the statute requiring the survey to be incorporated in the order is substantially complied with. McCarthy v. Whalen, 19 Hun 503; affirmed, 87 N. Y. 148. Recording order. The clerk's act In recording an order of a town superin- LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 909 Highway Law, § 191. or without a written application therefor, and without expense to the town make an order laying out such 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 tendent is ministerial. He has no discretion in its performance. He cannot refuse to file and record the order because it is improperly executed. People V. Collins, 7 Johns. 549. 2. For form of order of town superintendent laying out highway on release of land by owners, see Form No. 120, post. For form of dedication and release by owner, see Form No 121, post: Method of creating highways. Public highways may be created in four ways : (1) By proceedings under the statute; (2) by prescription or used for twenty years; (3) by dedication through offer and implied acceptance; (4) by dedica- tion through offer and actual acceptance. Cohoes v. D. & H. C. Co., 134 N. Y. 397; 31 N. E. 887, and authorities cited; Town of Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360. Dedication and acceptance. Though a highway has never been laid out or recorded as a highway, if it has been dedicated and used as such for more than twenty years and accepted and worked by the authorities it becomes a legal highway. Town of Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360; McVee v. City of Watertown, 92 Hun, 306 ; 36 N. Y. Supp. 870. Where a town for the purpose of straightening a highway shifted it to one side at the instance and expense of the owner of the abutting land, the owner will be deemed to have dedicated and the town to have accepted the additional land, al- though there was no conveyance. Huber v. Goig (1918) 181 App. Div. 369. To constitute a highway there must be not only a dedication but there must also be an acceptance by th^ public, accompanied either by an official act by the author- ities competent to accept the highway, or by common or public user; and such an acceptance is not established by a sale of lots by reference to a map on which streets are laid down; nor by the enjoyment by the purchasers of such lots of the private easements thereby created; nor by mere public travel, without action by the author- ities in repairing and maintaining or using the street; nor by the patrolling thereof by police officers. Matter of Starr Street, 73, Misc. 381. The grade of a street may be established, without a municipal ordinance, by usage, acquiesence and recognition for a, period of forty years. Hunt v. Otego, 160 App. Div. 158, 145 N. Y. Supp. 495. Dedication alone is not sufficient. There must be either an actual or implied acceptance. Streets and highways dedicated by individuals to public use, but not adopted or accepted by the local authorities, or declared to be highways .by statute, are not highways within the meaning of the Highway Law, and there 910 HIGHWAYS AND BRIDGES. Highway Law, § 191. SO laid out must not be less than two rods in width,-'' exeeiJt that where such highway is located on a sand beach separated by more than two miles of water from the main body of the town of which it forms a part and is not an extension or continuation of a public highway already in use and has erected thereon a board walk not less than one-third the width of said highway, such highway so laid out may be less than two rods in width and must not be less than ten feet in width. Section two hun- dred does not apply to a highway by dedication. Such town superin- tendent may also, upon written application and with the written consent of the town board, make an^ order laying out or altering a highway, 18 no law by which a town or its oflRcers can be compelled to keep, them in repair. City of Oswego v. Oswego Canal Co., 6 N. Y. 257 ; Bissell v. N. Y. Cent. R. Co., 23 N. Y. 61; Clements v. Village of West Troy, 16 Barb. 251. A public street or highway cannot be created by mere dedication. There must also be something amounting to an acceptance of the street as such either by the public authorities or directly by the public. People ex rel. Washburn v. Common Council, 128 App. Div. 44, 47, 112 N. Y. Supp. 387. There must be an acceptance of the dedication by one authorized to act for the town. Trustees of Jordan v. Otis, 37 Barb. 50 ; Morse v. City of Troy^ 38 Hun, 301 ; People V. Underbill, 144 N. Y. 316^ 39 N. E. 333. The use by the public of a private way does not make it a, public highway, without proof of dedication and user. Palmer v. Palmer, 150 N. Y. 139, 44 N. E. 966. But where a highway has been laid out by an order of highway commissioners duly entered, made with the full consent of the owners of the land through which it runs, and such highway was included by such commissioners in one of the road districts of the town, it must be deemed a duly dedicated public highway, although its use by the public has been limited, and its boundaries as so used had not been determined by the commissioners. Wakeman v. Wilbur, 147 N. Y. 657, 661 ; 42 N. E. 341. An acceptance may be proved by long public use or by the acts of the proper public authorities in recognizing and adopting the highway People v. Lochfelm, 102 N. Y. 1; Cook v. Harris, 61 N. Y. 448; Holdane v. Cold Spring, 21 N. Y. 474; Denning v. Roome, 6 Wend. 651 ; Hunter v. Trustees, 6 Hill, 407 ; McMannis v. Butler, 51 Barb. 436. The use must be the main use of substantially the entire highway. McCutcheon v. Terminal Station Commission, 88 Misc. 601, 151 N. Y. Supp. 451, affd. 168 App. Div. 301. Even the laying out of a highway on a map prepared by municipal authority will not suffice to constitute a lane as a highway, where it appears that the public were excluded therefrom during a portion of the time by barriers and fences. Farmers' & M. Sav. Bank v. Lockport, 89 Misc. 157, 151 N. Y. Supp. 865. See, also, as to evidence of acceptance, Matter of Beach Avenue, 70 Hun, 351, 24 N. Y. Supp. 37; Eckerson v. Haverstraw, 6 App. Div. 102, 39 N. Y. Supp. 635. Consent to close a highway must be by a majority of the town board, and the subsequent signature of one member of the board, procured after adjournment, is ineffective to make a majority. Greene v. Goodwin Rand & Gravel Co., 72 Misc. 192. Where a map was filed in 1836, laying out a, tract of land into blocks of build- ing lots bounded by streets, and subsequent conveyances of portions thereof. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. giQa Highway Law, § 191. or discontinuing a highway, which has become useless since it was laid out, upon filing and recording in the town clerk's office, with such appli- were made with reference to such map, Buch acts amounted to a dedication of the land within the lines of the streets as designated on such map for street purposes, and the subsequent adoption in 1910 by the common council of the city In which the lands lay of a resolution approving a petition of adjoining lot owners to open a portion of one of the streets was an acceptance of it and constituted the same a highway. StUlman v. City of Glean, 72 Misc. 196. Order closing highway. Where an order, made by the highway commis- sioners of a town, closing a portion of a highway. Is filed in the town clerk's office, but is not recorded by him as required by the above section, the failure to record the order does not Invalidate the proceedings of the commissioners. People ex rel. Dinsmore v. Vandewater, 83 App. Div. 60, 82 N. Y. Supp. 626. Bevocation of dedication. A dedication of a highway once made and ac- cepted cannot be revoked. Cook v. Harris, 61 N. Y. 448. But if a dedication is not accepted within a reasonable time, the owner may recall the dedication; and he may at any time recall the dedication if no adverse rights have attached prior thereto. What is reasonable time must depend upon the particular cir- cumstances of the case. Matter of Opening of Beck Street, 19 Misc. 571, 44 N. Y. Supp. 1087; Lee v. Sandy Hill, 40 N. Y. 442; Matter of Fox Street, 54 App. Dlv. 479, 67 N. Y. Supp. 57; Buffalo v. D., L. & W. R. R. Co., 68 App. Div. 488; 74 N. Y. Supp. 343. Such dedication cannot be revoked after a user of twenty years regardless of acceptance. Eckerson v. Haverstraw, 6 App. Div. 102; 39 N. Y. Supp. 635. Mere laps© of time does not effect an abandonment or revocation of dedication. of a highway. Stillman v. City of Olean, 72 Misc. 196. Where an owner of land dedicated it to the public for a highway, but died before its acceptance by the public, her death was held to be a revocation of the proposed dedication. People v. Kellogg, 67 Hun, 546; 22 N. Y. Supp. 490. Belease by owner. Where the owner of land applied for and consented to the alteration of a highway which was wholly upon his farm, and himself closed a part of the highway which was abandoned, and opened and worked the new part, the failure to record a formal release did not render the order void so as 910b HIGHWAYS AND BRIDGES. Highway Law, § 191. iv. 260, 41 N. Y. Supp. 581. Amount of costs. A proceeding under the Highway Law to lay out a highway is a special proceeding within the meaning of sec. 3334 of the Code of Civil Procedure and the costs and disbursements are to be allowed at the rate pre- scribed in sec. 3240 of the Code which provides that the costs in a special proceeding may be awarded at rates allowed for similar services in an action. Matter of Peterson, 94 App. Div. 143, 87 N. Y. Supp. 1014. See Matter of School Street, 162 App. Dlv. 158, 147 N. Y. Supp. 195. 23. Andit o£ damages. Where there is in fact no assessment of damages the supervisors have no duty to perform in relation to the alleged claim of the relator. People ex rel. Bevins v. Supervisors, 82 Hun, 298, 31 N. Y. Supp. 248. For audit of damages upon reassessment, see Clark v. Miller, 42 Barb. 255, 266. Where the supervisors have considered the bill and acted upon it their action was judicial. If they err the proper way to correct the error is by certiorari and not by mandamus. People ex rel. Bevins v. Supervisors, 82 Hun, 298, 31 N. Y. Supp. 248. A claim presented to the board of supervisors, who permit their session to expire without taking any action upon it, is to be regarded as rejected for the purpose of a mandamus to compel its allowance. People ex rel. Aspinwall v. Super- visors of Richmond Co., 20 N. Y. 252. 926 HIGHWAYS AND BRIDGES. Highway Law, § 204. city having the powers of town superintendents shall differ with the town superintendent or superintendents of any other town or with the officers of such a village or city having the powers of town superintendents 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 upon the boundary line between such towns or such town and a village or city, or when a town superintendent of a town in one county shall differ with the tovm superintendent of a town or the officers of a village or city having the powers of town superintendents in another county, relating to the laying out of a new highway, or the altering of an old highway, which shall extend into both counties, or be upon the boundary line between such counties, the town superintendents of both towns or the officers of the village or city having such powers shall meet on five days' written notice, specifying the time and place, within some one of such towns, villages or cities, given by either of such town superintendents, or officers having powers of town superintendents, to make their determination in writing, upon the subject of their differences. If they cannot agree, they or either of them may certify the fact of their disagreement to the county court of that county, if the proposed highway is all in one county, or if in different counties, or if the county judge is disqualified or unable to act, to the supreme court; such court shall thereupon appoint three commissioners, freeholders of the county, not residents of the same town, village or city, where the highway is located; or if between two counties, then freeholders of another county, who shall take the constitutional oath of office, and upon due notice to all persons interested view the proposed highway, or proposed alteration of a highway, administer all necessary oaths, and take such evidence as they deem proper, and shall decide all questions that shall arise on the hearing, as to the laying out or altering of such highway, its location, width, grade and character of roadbed, or any point that may arise relating thereto; and if they decide to open or alter any highway, 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 24. This section applies where town superintendents fail to agree in the laying out of a road on the town line hetween two towns and not extending longitudinally into either. People ex rel. Titsworth v. Nash, 38 N. Y. St. Rep. 730, 15 N. Y. Supp. 29. 85. Appointment of commissioners. Construing sections 204 and 206 and 196 of the Highway Law together, it was the evident intention of the statute to LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 927 Highway Law, § 205. may, by order, confirm, modify or set aside the report in whole or in part and may order a new appraisal by the same of by 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. This section shall not be so construed as to compel any town or towns to construct, repair or maintain a bridge upon a boundary between towns, where previous to May seventh, nineteen hundred and three, an application had been made to any court, to compel the construction, repair and maintenance of a bridge upon such a boundary line, and such applica- tion had been denied. [Highway Law, § 204; B. C. & 6. Cons. L., p. 2299.] 9 1«. DIFFERENCE ABOUT IMPROVEMENTS. When the town superintendent or the officerB of a village or city having the powers of town superintendents therein, shall desire to make a new or altered highway extending heyond the bounds of such town, village, or city, a better highway than is usually made for a common highway, with a special grade or roadbed, drainage or improved plan, and are willing to bear the whole or part of the expense thereof beyond such bounds, but cannot agree in regard to the same, upon written application of either of the superintendents or officers, and notice to all parties interested, such court shall make an equi- table adjustment of the matters, and may direct that in consideration of the payment of such portion of the additional expense by the town, village or city that desires the improved and better highway, as shall be equitable, its offi- cers, contractors, servants and agents may go into such town, village or city, and make the grade and roadbed, and do whatever may be necessary and proper for the completion of such better highway, advancing 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 pro- ceedings 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 ex- penses paid, such court shall, on notice to all parties interested, direct that the amount of damages assessed each owner or occupant, if any, and all such ex- penses be paid by each, any or all of such towns, villages or cities as shall be require a meeting of the highway commissioners of the towns in the different counties, and a certificate of their disagreement, as a condition precedent to the exercise of jurisdiction upon the part of the Supreme Court in the appoint- ment of commissioners. Matter of Barrett, 7 App. Div. 482; 40 N. Y. Supp. 266. A petition for the appointment of commissioners in proceedings to lay out a highway extending into two towns in different counties, which does not show that the town superintendents of both towns have met on five days' written notice and have been unable to agree and have duly certified thereto, confers no jurisdiction on the court to appoint such commissioners. Matter of Donley, 69 Misc. 196, 125 N. Y. Supp. 274. 928 HIGHWAYS AND BRIDGES. Highway Law, § 206. just and equitable, and the damages and expenses assessed and allowed, as in this and the last preceding sections, shall be paid and collected as if fixed by the town superintendents of the towns, or the officers of such villages or cities having the powers of such superintendents. Every com- missioner appointed as herein provided shall be paid six dollars for each day actually and necessarily employed in such service and necessary expenses. [Highway Law, § 205 ; B. C. & G. Cons. L., p. 2300.] §17. HIGHWAY IN TWO OB MORE TOWNS. When application is made to lay out, alter or discontinue a highway located in two or more towns, all notices or proceedings required to be served upon the town superintendents shall be served upon the town superintendent 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 district 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, § 206; B. C. & G. Cons. L., p. 2301.] 26. Construction of section. This section must be construed in connection with section 204 of the Highway Law, ante. In the case of Matter of Barrett, 7 App. Dlv. 482, 487; 40 N. Y. Supp. 266, the court said: "The legislature in 1890 made a thorough revision of the highway laws upon the subject of laying out, altering and discontinuing highways, and cast the primary duty upon the commissioners of highways of the towns through which the proposed highway is to pass, in case the highway passes through different towns or counties, of determining important questions preliminary to the application to the court for the appointment of commissioners. Section 94 [204] plainly re- quires the meeting of these town commissioners and their certificate of disagree- ment in cases where the proposed highway passes through diiferent towns of the same county, and also in cases where it passes through different counties. In the former case the application, as we have seen, for the appointment of commissioners must be made to the County Court; in the latter case, for obvious reasons to the Supreme Court. This makes the action of the local commissioners and their certificate of disagreement jurisdictional. The County Court in the one Instance and the Supreme Court in the other, obtains no right to appoint commissioners unless such meeting occurred and the certificate is presented. Section 96 [206] does not conflict with section 94 [204]. Its provisions are simply for the purpose of carrying out in detail and in sub- stantial manner the requirements of section 94 [204.]." Proceedings may be initiated by a person liable for highway lator in one town to lay out a highway partly in his town and partly in another town, and when he has complied with all the statutory requirements, and the towns LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 929 Highway Law, §§ 207, 208. § 18. BATING OUT, DIVIDING AND MAINTAINING HIGHWAY UPON TOWN I.INE. An application to lay out a highway upon the line between two or more towns shall be made to the town superintendents of each town, who shall act together in the matter; and, upon laying out any such highway, the expense of opening, working and keeping the same in repair shall be borne equally by such towns. The town superintendents shall cause a map and survey of the highway 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 the town superintendents and such officers may agree with the town superintendents of such towns as to division of such expense. Whenever such officers shall disagree, the question shall be submitted to the district or county superintendent or superinendents representing the county or coun- ties, district or districts in which such highway is located and their de- cision shall be final when approved by the state commission. All highways 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 reallotted, recorded and kept in repair in the manner above directed ; and all bridges upon such highways shall be built and maintained jointly by the towns whether wholly located within one of them or other- wise. [Highway Law, § 207 ; B. C. & G. Cons. L., p. 2301.] § 19. FINAX DETERMINATION, HOW CARRIED OUT. The final determination of commissioners appointed by any court, re- lating to laying out, altering or discontinuing 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 town superintendent of the town, the same as are in the same county, the County Court is authorized to appoint commissioners in the matter. People ex rel. Knapp v. Keck, 90 Hun, 497; 36 N. Y. Supp. 51. Proceedings before a special term of the supreme court where the highways lie in more than one county are to be governed by § 193, ante, and the .immediately following sections, as though the highway were entirely within one county and the proceedings were had before the county court. Matter of Taylor, 8 App. Div. 395, 40 N. Y. Supp. 839. 930 HIGHWAYS AND BRIDGES. Highway Law, §§ 209. 210. if they had made an order to that effect." The said town superin- tendent shall thereupon proceed to construct the highway so laid out, and construct any alteration so provided for, and put same in good con- dition for public travel. The expense of such construction of such new highway or alteration of an existing highway, shall be a charge upon and against the town in which such highway is constructed or any exist- ing highway is altered, and when same is completed the town board of such tovra may issue certificates of indebtedness for such expense, to draw interest at the rate of not to exceed five per centum per annimi until paid, and shall at the next annual meeting for auditing accounts, after such work is done, and after such certificates may have been issued, audit such claims against the town, including interest, if any, and in- clude same in the annua] tax budget to be collected from the taxpayers of said town to pay said indebtedness ; such money to be paid over to the supervisor of the town and by him paid and applied to the purposes aforesaid. This amendment is made subject to the provisions of section forty-eight, relating to contracts for construction. [Highway Law, § 208, as amended by L. 1913, ch. 318; B. C. & G. Cons. L., p. 2302.] § 20. HIGHWAYS BT 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 effect as if it had been duly laid out pnd recorded as a highway, and the town superintendent shall open all such highways to the width of at least two rods.^* [Highway Law, § 209; B. C. & G. Cons. L., p. 2303.] § 21. f:;>ces to be eemoveb. Whenever a highway shall have been laid out through any Inclosed^ 27. The determination as to laying out, altering or discontinuing a highway must be carried out by the town superintendent, and it is thereafter made his duty to lake general charge of the proceedings thereiinder. People ex rel. D., L. & W. R. R. Co. V. County Court, 92 Hun, 13; 37 N. Y. Supp. 869. The duty of the town superintendent to carry into effect the decision of the com- missioners is a positive one. He can exercise no discretion in the matter. If he refuses to act mandamus will lie to compel him 1o make an order laying out, alter- ing or discontinuing the highway as directed in the decision. People v. Champion, 16 Johns. 61. But where it appears that the proceedings were void because of jurisdictional defects mandamus will not lie. People ex rel. Johnson v. Whitney's Point, 32 Hun, 508 : Miller v. Brown, 56 N. Y. 383 ; People ex rel. Smith v. Allen, 37 App. Div. 248, 55 N. Y. Supp. 1057. Nor will it lie where it appears that the public will derive no benefit from the opening of the highway. People ex rel. Ashley V. Commissioners of Highways, 42 Hun, 463. And it has been held that the fact that the damages have not been released or assessed was a good defense. People ex rel. dark t. Comm'rs of Highways, 1 Thomp. & :C. 193. Construction of highway. A town superintendent is not authorized by this section to pave and macadamize a newly opened highway. A contract for such a purpose is void and cannot be ratified by the town board. Matter of Niland, 113 App. Div. 661, 99 N. Y. Supp. 914, affd. 193 N. Y. 180. 28. Use for twenty years. Premises used as highways by the public for twenty years, even without dedication, become public highways. Town of Corning v. Head, 86 Hun, 12; 33 N. Y. Supp. 360; City of Cohoes v. Railroad Co., 134 N. Y. 397; 31 N. E. 887; James v. Sammis, 132 N. Y. 239; 30 N. E. 502; Snyder v. Plass, 28 N. Y. 465; Porter v. Village of Attica, 33 Hun, 605; Galatian v. Gardner, 7 Johns. 106; Devcnpeck v. Lambert 44 Barb. 596; Chapman v. Swan. 65 Barb. 210; Matter of Shawangunk Kill Bridge, 100 N. Y. 642; 3 N. E. 679; Wiggins v. Tall- madge, 11 Barb. 457; Miller v. Garlock, 8 Barb. 153; People v. Fowler, 43 N. Y. St. Rep. 415; 17 N. Y. Supp. 744; Kelaey v. Burgess, 35 N. Y. St. Rep. 369; 12 N. Y. Supp. 169; Post v. Ry. Co., 34 N. Y. St. Rep. 487. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 931 Highway Law, § 211. -cultivated or improved lands, in conformity to the provisions of this chapter, the town superintendent 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 sixty days, the town superintendent shall cause them to be removed, and shall direct the highway to be opened and worked.^' [Highway Law, § 210; B. C. & G. Cons. L., p. 2306.] § 22. FBIVATE ROAD. An application for a private road shall be made in writing to the town superintendent 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 to be laid out.^" [Highway Law, § 211; B, C. & G. Cons. L., p. 2306.] A road or way laid out and opened by a milk company from a public highway to its plant, a distance of about thirty rods, for the accommodation of the company and its patrons and used for over twenty years, does not become a public highway by presoriptionj, without any formal dedication thereof, unless it has been accepted and adopted by the town authorities, or its repairs and maintenance' assumed by such town. Rept. of Atty. Genl. (1915), p. 136. Reduction of tridth; -when, alley laid out on map cannot be dedicated for highway purposes. Chapter 204 of th^ Laws of 1897, amending the Highway Law of 1890 by which the width of highways was reduced from three to two rods, superseded and is a substitute for chapter 198 of the Laws of 1826 under which it was lawful to lay out public roads not less than three rods in width, and an alley only eight feet wide as laid out on a map and as it existed prior to 1905 cannot be laid out or dedicated for highway purposes. The public authorities having neither adopted nor kept such strip in repair and its use not having been an uninterrupted one, it did not become a highway by prescription under this section which declares all land a highway which shall have been used by the public as such for twenty years. Farmers and Meehahics' Savings Bank v. City of Lockport (1915), 89 Misc. 157, 151 N. Y. Supp. 865. This section should be read in connection with section 2 of chapter 186 of the Laws of 1826 and effect given to both, and when so read this section sihould be con- strued to mean that land used as a, highway by the public for twenty years shall become a highway provided it complies with the law as to width. McCutcheon v. Terminal Station Commission (1915), 88 Misc. 601, 151 N. Y. Supp. 451. 29. Necessity of notice to remove. It is intended that notice to remove fences be given in all cases of highways laid out through inclosed lands, whether laid out directly or indirectly by the town superintendent. Case v. Thompson, 6 Wend, 634. If there is an appeal from the order of the town superintendent, the notice cannot be given until it is determined; and pending the appeal the fence does not become a public nuisance. Drake v. Rogers, 3 Hill 604 ; Case v. Thompson, 6 Wend. 634. In an action for obstruction of a highway the defendant, over whose land the way passes, may show failure to notify him to remove his fences, to prove that the alleged highway does not legally exist. Cooper v. Bean, 5 Lans. 318. If the town super- intendent has no right to open a road without giving notice to the party to remove his fences, then he is bound to prove that such notice has been given in order to entitle himself to the protection afforded by the section. It is not incumbent on the owner of the land to prove that such notice had not been given. Case v. Thompson, 6 Wend. 634. 30. For form of application to the town superintendent of highways for a private road, see Form No. 140, post. 932 HIGHWAYS AND BRIDGES. Highway Law, §§ 212-215. § 23. JUKY TO DETERMINE NECESSITY AND ASSESS DAMAGES. The town superintendent to whom the application shall be made shall appoint as early a day as the convenience of the parties interested will allow, when, at a place designated in the town, a jury will be selected for the purpose of determining upon the necessity of such road, and to assess the damages by reason of the opening thereof.^^ [Highway Law, § 212 ; B. C. & G. Cons. L., p. 2307.] § 24. COPY APPLICATION AND NOTICE DELIVERED TO APPLI- CANT. Such town superintendent shall deliver to the applicant a copy of the application, to which shall be added a notice of the time and place ap- pointed for the selection of the jury, addressed to the owners and occu- pants of the land. [Highway Law, § 213 ; B. C. & G. Cons. L., p. 2307.] § 25. COPY AND NOTICE TO BE SERVED. The applicant on receiving the copy and notice shall, on the same day, or the next day thereafter, excluding Sunday 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 tovrai a copy thereof, or in case of his absence, by leaving the same at his residence and upon such as reside elsewhere, by depositing in the post-office a copy thereof to each, properly enclosed in an envelope, addressed to them respectively at their postoffice address, and paying the postage thereon, or, in case of infant owners, by like service upon their parent or guardian. [Highway Law, § 214; B. C. & G. Cons. L., p. 2307.] § 26. LIST OF JURORS. 'At such time and place, on due proof of the service of the notice, the In proceedings under the statnte to lay out a private road, exact and tech- nical accuracy is not required, but simply a substantial compliance with the statute. A description in an application by reference to a private way used by permission of the owner of the land for a great number of rears, so that it has come to be called a road, is sufficiently definite. The courses need not be specified in the application by the compass in degrees and minutes ; and where the general course is given as easterly, etc., and the exact course and distance can be determined from other particulars in the application, or by natural monuments referred to therein, the statute is substantially complied with. Satterly v. Winne, 101 N. Y. 218; 4 N. E. 185 ; see, also. People v. Taylor, 34 Barb. 481. 31. Constitntional provision. Section 7, art. 1, of the Constitution provides that " private roads may be opened in the manner to be prescribed by law, but in every case the necessity of the road and the amount of all damages to be sustained by the opening thereof shall be first determined by a jury of free holders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited." The provision has been held not to apply to a way by necessity nor to a, way used by the owner for his own convenience, and which crosses land after- wards subdivided and sold. Wheeler v. Gilsey, 35 How. Pr. 139. A taking of land for a private way is the taking of private property for private use, and is unlawful without express constitutional authority. Taylor v. Porter, 4 Hill 140. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 935. Highway Law, §§ 216-219. town superintendent shall present a list of the names of thirty-six resident freeholders of the town, in no wise of kin to the applicant, owner or occupant, or either of them, and not interested in such lands. [Highway Law, § 315; B. C. & G. Cons. L., p. 3308.] § 27. NAMES STRUCK OFF. The owners or occupants of the land may strike from the list not more than twelve names, and the applicant a like number; and of the number which remains, the twelve names standing first on the list shall be the jury.'^! [Highway Law, § 316 ; B. C. & G. Cons. L., p. 3308.] § 28. PLACE OF MEETING. The town superintendent shall then appoint some convenient time and place for the jury to meet, and shall summon them accordingly.^* [High- way Law, § 317 ; B. C. & G. Cons. L., p. 3308.] § 29. JURY TO DETERMINE AND ASSESS DAMAGES. The town superintendent and all the persons named and summoned on such jury, shall meet at the time and place appointed ; but if one or more of the twelve jurors shall not appear, the town superintendent shall sum- mon so many qualified to serve as such jurors as will be sufficient to make the number present twelve to forthwith appear and act as such; and when twelve shall have so appeared, they shall constitute the jury and shall be sworn well and truly to determine as to the necessity of the road, and to assess the damages by reason of the opening thereof. [Highway Law,, § 318; B. C. & G. Cons. L., p. 2309.] § 30. THEIR VERDICT. The jury shall view the premises, bear the allegations of the parties, 32. Constitutionality. The amendments of 1904 to § 11 of the former High- way Law increased the number of the jury from six to twelve. Prior to this amendment it had been held that a jury of six drawn in the manner prescribed by this section did not comply with the constitutional requirement that the necessity of the road and the damages should be determined by a jury of freeholders. Berridge v. Shults, 32 Misc. 444, 66 N. Y. Supp. 204. 33. Summoning juries. The commissioners have no right to delegate the summoning of the jurors, but such summons will not be held invalid if the owner of the land proposed to be taken is present at the meeting of the jury and does not object to the proceeding. People v. Commissioners of Green- bush, 24 Wend. 367. 934 HIGHWAYS AND BRxDGES. Highway Law, §§ 220-224. 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 town superintendent. [Highway Law, § 219; B. C. & G. Cons. L., p. 2309.] § 31. VALVE OF HIGHWAY DISCONTINUED. If the necessity of such private road has been occasioned by the altera- tion 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 high- way so discontinued, and the benefit resulting to the person by reason of such discontinuance, and shall deduct the same from th damages assessed for the opening and laying out of such private road. [Highway Law, § 220; B. C. & G. Cons. L.,'p. 2309.J § 32. PAPERS TO BE RECORDED IN THE TOWN CLERK'S OFFICE. The town superintendent shall annex to such verdict the application, 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, § 221; B. C. & G. Cons L., p. 2309.] § 33. DAMAGES TO BE PAID BEFORE OPENING THE ROAD. The damages assessed by the jury shall be paid by the party for whose benefit the road is laid out, before the road is opened or used; but if the Jury shall certify that the necessity of such private road was occasioned by the alteration or discontinuance of a public highway, such damages shall be paid by the town and refunded to the applicant. [Highway Law, 8 222; B. C. & G. Cons. L., p. 2309.] § 34. FEES OF OFFICERS. Every juror, in proceedings for a private road, shall be entitled to receive for his service one dollar and fifty cents; and town superintendents their per diem compensation to be paid by the applicant. [Highway Law, § ?23 ; B. C. & G. Cons. L., p. 2310.] 35. MOTION TO CONFIRM, VACATE OR MODIFY. ■Within thirty days after the decision of the jury shall have been filed LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 935 Highway La,w, §§ 225, 226. in the town, clerk's office, the owner, occupant or applicant may appiy to the county court of the county wherein such private road is situated, for an order confirming, vacating or modifying their decision; and such court may confirm, vacate or modify such decision as it shall deem just and legal. If the decision is vacated, the court may order another hearing of the matter before another jury, and remit the proceedings to the town superintendent 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 final, except that a new hearing may be had, as herein pro- vided. If the final decision shall be adverse to the applicant, no other application for the same road shall be made within one year. [Highway Law, § 224, as amended by L. 1915, ch. 192 ; B. C. & G. Cons. L., p. 2310.] § 36. COSTS OF NEW HEARING. If upon a new hearing, the damages assessed are increased, the applicant shall pay the costs and expenses thereof, otherwise the owner shall pay the same. [Highway Law, § 225 ; B. C. & G. Cons. L., p. 2311.J § 37. FORWHAT PURPOSE PRIVATE ROAD MAY 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 other use or purpose than that of a road; nor shall the occupant or owner of the land through which said road shall be laid out be permitted to use the same as a road, unless he shall have signified such intention to the jury who assessed the damages for laying out such road, and before such damages were assessed.^^ [Highway Law, § 226; B. C. & G. Cons. L., p. 2311. J 34. Use of private roads. According to tlie true construction of the statute, the person on whose application a private road is laid out has the sole and exclusive right to use it, unless the occupant of the land at the time when it is laid out signified his intention to make use of it. Lambert v. Hoke, 14 Johns. 384. The penalty provided by statute for obstructing the highway is not appli- cable to a private road (Fowler v. Lansing, 9 Johns, 349), and where an obstruction is placed in such a road by the owner of the land over which it is laid out, it cannot be lawfully removed by a person having no right to use the road. Drake v. Rodgers, 3 Hill, 604. The original owner of the land should so locate his fences as not to 936 HIGHWAYS AND. BRIDGES. Highway Law, §§ 227-229. § 38. HIGHWATS OB ROADS AI.OirG DIVISION I.INES. 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 both sides is cultivated or improved, the persons owning or occupying the lands adjoining such highway or road shall be paid for building and maintaining such additional fence as they may be required to build or maintain, by reason of the laying out and opening such highway or road; whicli damages shall be ascertained and determined in the same manner that other damages are ascertained and determined in the laying out of highways or private roads. [Highway Law, § 327; B. C. & G. Cons. L., p. 2311.] § 39. ADJOURNMENTS. 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 of a private road, to be done on the day assigned, the proceedings may be adjourned to some other day, and the town superin- tendent shall publicly announce such adjournment. [Highway Law, § 228; B. C. & G. Cons. L., p. 2311.J § 40. WIDENING ROADS; PETITION. When any part of a highway in any town of this state, not in an incorporated village or city, running between two or more villages or cities, has, because of the wearing away by a river or stream or any other natural cause, become narrower than the width required by statute, and is dangerous to the users of such highway, twelve or more resident tax- payers of such town may present a petition to the county court of the county within which such town is situated. The petition shall describe the part of the highway proposed to be widened and state that such highway has become lessened in width by the action of a river or stream or other cause, that it is dangerous to the traveling public, that the widening and improvement of such highway is necessary for the public convenience and welfare, that the highway is an important leading road between two or more cities or villages, that the cost of such widening and improvement would exceed the sum of two thousand five hundred dollars and would be too burdensome on the town or towns otherwise liable therefor. Such encroach upon the width of the road, but the new owner will be deemed to have assented to such encroachment if he allows such fences to be so located without objection. Herrick v. Stover, 5 Wend. 580. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 937 Highway Law, §§ 230, 231. petition shall be verified by at least three of the petitioners. On receipt of the petition the county court shall forthwith appoint three commissioners who shall not be named by any person interested in the proceedings and who shall be taxpayers of such county, but who shall not reside in the town or towns in which the highway, proposed to be widened and im- proved, is situated. [Highway Law, § 239; B. C. & G. Cons. L., p. 2311.J § 41. POVTEBS AND DUTIES OF COMMISSIONERS. The commissioners shall take the constitutional oath of oflSee and appoint a time and place for a meeting to hear all persons interested in the proposed widening of the highway. They shall personally examine the part of the highway proposed to be widened, hear any reasons for or against such widening and ascertain the probable cost of the work. They shall have power to issue subpoenas, administer oaths and examine witnesses; they shall keep the minutes of their proceedings and reduce to writing all oral evidence given before them. They shall make duplicate certificates of their decision, filing one in the town clerk's office of the town in which the said highway is located, and the other, with such minutes and evidence, in the county clerk's office of the county where the highway is located. Such commissioners shall have the same power as to the assessment of damages caused by the widening of such highway as commissioners ap- pointed under this article for the discontinuance, alteration or laying out of a highway, and as to such assessment the same proceeding may be had for the confirmation, vacating or modifying of such decision, as pro- vided in and by this article. The commissioners shall receive a compensa- tion of five dollars for each day necessarily spent in the performance of their duties under this section, and the amount so paid to the said com- missioners shall be a charge upon the town or towns in which the highway, proposed to be widened as aforesaid, is located. [Highway Law, § 330; B. C. & G. Cons. L., p. 2313.] § 42. NOTICE OF DECISION TO SUPERVISORS. If a majority of the commissioners shall determine that the proposed widening of the highway is necessary and that the cost thereof would be too burdensome for the town, exceeding in probable cost two thousand five hundred dollars, they shall notify the board of supervisors of the county of such decision. The board of supervisors shall thereupon cause one-half of the amount of the estimated cost to be raised by the county and paid to the supervisor of the town or towns in which that part of the highway proposed to be widened as aforesaid is located, and said supervisor shall 938 HIGHWAYS AND BRIDGES. Highway Law, §§ 232-234. apply the sum so received by him towards the payment of the cost of such widening. The balance of the expense shall be raised in the manner provided by law, by the town or towns in which that part of the highway proposed to be widened as aforesaid is located. [Highway Law, § 231; B. C. & G. Cons. L., p. 2312.] § 43. WIDENING, HOW CONSTRUCTED. The town superintendent shall construct such widening of the highway according to plans and specifications adopted by the district or county superintendent and approved by the town board of his town. The bills and expenses incurred in such work shall be audited by the town board and paid by the supervisor upon written order of the town superintendent, after the same shall have been approved by the town board, out of moneys raised for such purpose as provided in the preceding section. [Highway Law, § 232 ; B. C. & G. Cons. L., p. 2313.J § 44. ACTIONS TO COMPEL WIDENING; HOW AFFECTED BY PE- TITION. In case an action might lie in any court of this state against the town superintendent of any town or towns to compel such superintendent to widen a part of a highway, the width of which has become less than that required by statute, or in case an action has been brought against such superintendent to compel him to widen a part of a highway, the width of which has become less than that required by statute, the presentation of a verified petition to the county court as provided for in section two hundred and twenty-nine shall prevent the commencing of any such action as aforesaid and cause such an action already commenced, to cease, and shall be a bar to a recovery on the part of the plaintiff of a judgment against such superintendent in any such action instituted or pros- ecuted to judgment after the passage of this chapter. [Highway Law> § 233; B. C. & G. Cons. L., p. 2313.] § 45. HIGHWAYS ABANDONED. 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 LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 939 Highway Law, § 234. used for said periods shall be deemed abandoned as a right of way .'34a The town superintendents shall file, and cause to be recorded in the town clerk's office of the town, a written description, signed by them, of each highway and public right of way so abandoned, and the same shall thereupon be discontinued.35 There may also be qualified abandonment of a highway under the following conditions and for the following purposes, to wit: Where it appears to the town superintendents, at any time, that a highway has not become wholly disused as aforesaid, but that it has not for two years next previous thereto, been usually traveled along the greater part thereof, by more than two vehicles daily, in addition to pedestrians and per- sons on horseback, they shall file and cause to be recorded in the town clerk's office a certificate containing a description of that portion of the highway partly disused as aforesaid and declaring a qualified abandonment thereof. The effect of such qualified abandonment, with respect to the portion of said highway described in the certi- ficate, shall be as follows: It shall no longer be worked at public expense; it shall not cease to be a highway for purposes of the public easement, by reason of such suspension of work thereon; no person shall impair its use as a highway nor ob- struct it, except as hereinafter provided, but no person shall be required to keep any part of it in repair; whenever an owner or lessee of adjoining lands has the right to possession of other lands wholly or partly on the directly opposite side of the highway therefrom, he may construct and maintain across said highway a fence at each end of the area of highway which adjoins both of said opposite pieces of land, provided that each said cross-fence must have a gate in the middle thereof at least ten feet in length, which gate must at times be kept unlocked and supplied with a sufficient hasp and latch for keeping the same closed; all persons owning or using opposite lands, connected by such gates and fences, may use the portion of highway thus inclosed for pasturage; any traveler or other person who intentionally, or by wilful neglect, leaves such 34a. Application of section. This section and the statute from which it is derived, and of which it is a substantial re-enactment, is not applicable where a city obtained the fee of land subject to the easement of a railroad company. New York Cent. & H. E. R. R. Co. v. City of Buffalo, 200 N. Y. 113, 119. Applies to a street of a city where only an easement has been acquired. Robins Dry Dock & Re- pair Oo. V. City of New York, 155 App. Div. 258. Tlie period of six years mentioned in the statute is a limitation upon the life of an unused easement. When an easement is acquired by purchase or otherwise, by which a street can be opened and worked across a piece of land, such land does not thereby become a street in fact for public use until it is opened, and it is such an easement, consisting of a right to open and work a highway, which is deemed abandoned if not exercised within six years. New York Cent. & H. R. R. R. Co. v. City of Buffalo, 200 N. Y. 113, 119. Beopening abandoned highways. A town superintendent, in conjunction with the town board may issue an order to reopen a highway which hog been qualifiedly abandoned. Rept. of Atty. Genl., January 14, 1913. Temporary interruption by reason of the weakness or the destruction of a bridge, though covering a considerable space of time, do not operate as an abandonment of it as a public way, since being once a highway, it does not cease to be such until discontinued by proper authority. Matter of Town of Rutland, 70 Misc. 82, 87, 128 N. Y. Supp. 94. Abandonment by nonuser. Where land acquired for the purpose of doubling the width of a highway has never been regulated as a highway and has not been used by the public, even partially, for over forty years, but has remained in private possession and occupancy, such nonuser of the land acquired establishes an " aban- donment" within the meaning of this section. Matter of City of New York (1914), 164 App. Div. 839, 150 N. Y. Supp. 256. If a highway remains closed for six years with the acquiescence of the public, there is an extinguishment of the public right, but obstructions of a highway across part of its width only, narrowing but not closing the line of travel, are not suffi- cient, however long continued, to put an end to its existence. To have that effect the obstruction must cover the entire width ; it is not, however, necessary to show an abandonment along the entire length. These rules have no application where the fee is vested in the public. Barnes v. Midland R. R. Terminal Co. (1916), 218 N. Y 91, revg. 161 App. Div. 621. 35. For form of description of highway abandoned, see Form No. 141, post. A towu superintendent of highways cannot file a certificate that a highway has been abandoned unless it has not been worked or used during six years last past. Tt pjiTilintr hp dpnlarpd ahnndnnnfl mnrnlv because bars and gates have been placed 940 HIGHWAYS AND BRIDGES. Highway Law, §§ 235, 236. gate unlatched, shall be guilty of a, misdemeanor, and the fact of leaving it unlatched shall be prima facie evidence of such intent or wilful neglect. Exepting as herein abrogated, all other general laws relating to high- ways shall apply to such partially abandoned highway. This section shall not apply to highways less than two rods in width unless it shall appear to the town superintendent at any time that such a highway has not, during the months of June to September inclusive of the two years next previous thereto, been usually traveled along the greater part there- of by more than ten pedestrians daily. [Highway Law, § 234, as amended by L. 1915, ch. 322; B. C. & G. Cons. L., p. 2313.] § 46. HIGHWAYS IN LANDS ACQUIRED BY THE UNITED STATES FOR rORTIFICATIOW PURPOSES DEEMED ABANDONED. When land sought to be acquired by the United States of America for the purpose of fortifications, includes a highway or portion thereof, the condemnation proceedings may include such highways or portion thereof, and the people of the state of New York, and municipality, county or other party claiming an interest therein may be made a party defendant in such proceeding, and the interest of the state, county, municipality or other claimant be determined, and the award made therefor. Forthwith upon the acquistion by the United States of America of land which in- cludes a highway or portion thereof, there shall be filed in the office of the town clerk of the town, and also in the office of the county clerk of the county, in which such land is located, certified copies of the record or transfer to the United States of such land, together with a map of such land, on which map such highway or portion thereof shall be indi- cated by metes and bounds, and thereupon such highway or portion there- of shall be deemed discontinued and abandoned for highway purposes, and if proceedings have been taken, pursuant to article six of this chap- ter foT the improvement of such highway by =tate aid, all such pro- ceedings, together with any appropriation made for the improvement of such highway or portion thereof, as indicated on such map, shall be deemed revoked, vacated and set aside. [Highway Law, § 235 ; B. C. & G. Cons. L., p. 2316.] § 47. DISCONTINUANCE OF HIGHW^AY. Whenever the town superintendent of any town, in which during the past ten years there has been expended the sum of three hundred thousand dollars, or more, for the purpose of macadamizing the high- across it for the accommodation of abutting owners. People ex rel. He Groat v. Marlett, 94 App. Div. 592, 88 N. Y. Supp. 379. The act of a town superintendent in fUing and causing to be recorded the description of the highway abandoned pursuant to this section, is not a judicial act involving discretion which can be reviewed only by a writ of certiorari, but may be reviewed upon an application to compel him to open suoh highway for public use. Idem. Mandamus to compel working of highway. Where a petition alleges that a filing in the town cleric's office by the superintendent of highways of a certificate of qualified abandonment of a highway pursuant to section 234 of the Highway Law is colorable only and part of a wrongful and fraudulent scheme to permanently abandon the road and deprive petitioner and the public of its benefit, relator will be granted an alternative writ of mandamus requiring the superintendent of high- ways to cancel such certificate and put the highway in a suitable condition for travel. Matter of Marvin (1915), 91 Mi.^c. 287, 155 N. Y. Supp. 28. LAYING OUT, ETC., HIGHWAYS; PRIVATE ROADS. 941 Highway Law, §§ 237-239. ways of sucli town, shall determine that any portion of any highway or street, not within the limits of an incorporated village, which is the terminus of such street or highway, is unnecessary for highway purposes, and said town superintendent may, by an order to be duly entered in the town clerk's office, direct such highway to be discontinued and abandoned for public purposes. Provided, however, that no portion of such high- way to be discontinued shall be greater than one thousand feet of the terminus thereof and that the owners of the land on both sides of such highway or street, for the distance it is proposed to discontinue the same, shall, by written petition to such town superintendent have requested the discontinuance thereof. [Highway Law, § 236 ; B. C. & Gr. Cons. L., p. 2317.] § 48. DESCRIPTION TO BE RECORDED. Immediately upon making and entering the order mentioned in sec- tion two hundred and thirty-six of this chapter, the said tovra. superin- tendent shall cause a written description of that portion of the street or highway ordered to be discontinued to be filed and recorded in the office of the town clerk of the town in which the said street or highway is located, and when the same is duly recorded the said portion of the said street or highway shall thereupon be and become duly abandoned and discontinued for highway purposes. [Highway Law, § 237; B. C. & G. Cons. L., p. 2317.] § 49. DAMAGES CAUSED BY DISCONTINUANCE. Any person or corporation interested as owner or otherwise in any lands and claiming any loss or damage, legal or equitable, by reason of the discontinuance, abandonment or closing of any street or highway, not within the limits of an incorporated village, under or pursuant to the provisions of the last two sections, may, upon ten days' written no- tice to the town superintendent of the town in which such lands are situated apply to the supreme court or to the county court of the county within which such lands are situated for the appointment of commis- sioners to estimate and determine such loss and damage, whereupon the court shall appoint three disinterested commissioners of appraisal to estimate and determine such damage, and the amount of compensation to be paid by said town therefor, who shall make their report thereupon to such court, and which report when finally confirmed shall be final and conclusive in respect thereto, and the legality and equity of any and all such claims shall be determined by such commissioners and by the court upon the hearing of their report. Any loss or damage so estimated and determined shall be paid by said town as in case of judgment. [High- way Law, § 238; B. C. & G. Cons. L., p. 2317.] § 50. PAPERS, WHERE FELED. All applications, certificates, appointments and other papers relating to the'laying out, altering or discontinuing of any highway shall be filed by the town superintendent as soon as a decision shall have been made thereon in the town clerk's office of the town. [Highway Law, § 239 ; B. 0. & G. Cons. L., p. 2318.] 542 HIGHWAYS AND BRIDGES. Highway Law, § 240. § 51. COSTS OF MOTION. Costs of a motion to confirm, vacate or modify the report of commis- sioners 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. On an uncontested motion to confirm the report of the commissioners so appointed, if said report is favorable to the applicant and confirmed by the court, costs may be allowed not exceeding fifty dollars sufficient to com- pensate the applicant's attorney for his services in the proceedings. Costs of any other motion in a proceeding in a court of record, authorized by this chapter, may be allowed in the discretion of the court not exceeding ten dollars.^' [Highway Law, § 240 ; B. C. & G. Cons. L., p. 2318.] 36. Award of costs. The provisions of this section only relate to the costs of motions made in a proceeding in respect to highways, as distinguished from the costs of the proceeding itself. Such a proceeding is a special proceeding and the court may award costs in Its discretion pursuant to § 3240 of the Code of Civil Procedure. Matter of Peterson, 94 App. Div. 143, 87 N. Y. Supp. 1014. The costs referred to in sec. 202 of the Highway Law, are costs which may be allowed to one of the parties under the provision of this section. People ex rel. Bevins v. Supervisors, 82 Hun, 298, 31 N. Y. Supp. 248 (1894). The provisions of section 3240 of the Code of Civil Procedure are applicable and authorize the court in its discretion to award costs to the prevailing party at the rates allowed for similar services in an action. Matter of Terry, 67 Misc. 514, 12 N. Y. Supp. 258. This section should be construed with sections 193 and 198 and where the commissioners determine that a proposed highway or alteration is not neces- sary, or a highway proposed to be discontinued is not useless, the costs and expenses allowed the applicant cannot exceed, in all, the sum of one hundred dollars. Matter of Terry, 67 Misc. 514, 12 N. Y. Supp. 258, BRIDGEJS. 943 Explanatory note. CHAPTER LXIIL BRIDGES. EXPLANATORY NOTE. Bridges Within the Town. The town is liable for the cost of constructing and maintaining bridges within the boundaries of the town. The town superintendent of high- ways is required to keep such bridges in repair. The estimate made by him each year to the town board, as provided in § 90 of the Highway Law, ante, must contain a statement as to the amount which should bo «xpended for such repairs, and the amount is raised and paid to the supervisor and expended on the order of the town superintendent in the same manner as money is raised and expended for town highways. If a bridge becomes unsafe for use, or is condemned by the State commission, the town superintendent must cause the same to be repaired or rebuilt, if approved by the town board, and may, subject to such approval, expend not more than $500 (without a contract. If the ex- pense is to exceed that amount written contracts must be made there- for, with the approval of the town board. No such bridge may be repaired or rebuilt, except as directed by the county or district superin- tendent, or in accordance with plans and specifications prepared by such county or district superintendent. (See Highway Law, § 93 ante, chapter LIX.) If the cost of repairing or rebuilding such bridge exceeds $1500, the •question must be submitted to a vote of the electors of the town at a special biennial town meeting, before the work is commenced. An amount in excess of such sum cannot be expended without favorable miction by such town meeting. (See Highway Law, § 94, ante). A town meeting may also vote to raise the money by the issue and sale of town bonds. (See Highway Law, .§ 95, ante.) 944 HIGHWAYS AND BRIDGES. Explanatory note. The county may aid a town in paying the cost of constructing and repairing its bridges, in an amount not exceeding $2000 in any on» year, when authorized by the board of supervisors. (See County Law, § 63, post.) Bridges over Boimdary Lines. The cost of erecting and maintaining bridges over streams forming the boundary lines of towns, are to be jointly borne by such towns, whether in the same or adjoining counties. Such expense must be equally borne by such towns, without regard to the portion of the bridge which is in each town, unless the board of supervisors takes action under § 97 of the Highway Law, ante, by apportioning such expense equitably among the towns, as it shall deem just. If the bridge is over a boundary line between two counties, each county must bear not less than one-sixth the cost of its erection and maintenance, and the board of supervisors of each county must cause the amount required for such purpose to be raised by tax upon the county. The various sections in this chapter provide for compelling the proper officers of each town, liable to constitute to the expense of erecting and maintaining a joint bridge, to take the necessary steps to rebuild and maintain such bridge. [Highway Law, art. IX.] Section 1. When town or county expense. 2. Levy of tax upon county. 3. Penalty, and notice on bridge. 4. Offense. 5. Joint liabilities of towns and their joint contracts. 6. Refusal to repair. 7. Proceedings in court. 8. Supervisor to institute proceedings. 9. Duty of superintendents. 10. Report of town superintendents, and levy of tax. 11. Appeals. 12. Power of court on appeal. 13. Refusal to repair bridges. 13a. Construction or improvement of bridge by county and town or towns. 14. Construction and maintenance of bridges over waters between towns and cities of over 1,500,000 inhabitants. 15. Resolution of board of supervisors for abolition of toll bridges. BEIDGES. 945 Highway Law, § 250. Section 16. Investigation by the state commission of highways. 17. Acquisition by attorney-general. 18. Payment of expense of acquisition. 19. Maintenance of bridge. 20. Use of toll bridge by public service corporations; conditions; powers of town board. 31. Acquisition of certain toll bridges at the expense of the state. 22. Bridges in certain counties. 5 1. WHEN TOWN OR COUNTY EXPENSE. The towns of this state, except as otherwise herein provided, shall he liable to pay the expenses for the construction 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 over streams or other waters upon their boundaries, except between the counties of Westchester and New York; and when such bridges are con- structed 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.^ Wben such bridges are constructed over streams 1. Construction of town bridges. County may aid town in construction of bridge destroyed by the elements, where the cost of such bridge would, in the opinion of the board of supervisors, be too burdensome for the town. See County Law, sec. 64, post, p. 982, and sec. 63, post, p. 983. As to bridges intersected by town or county lines, see County Law, sec. 65, post, p. 984; and as to bridges over county lines, see County Law, sec. 68, post, p. 985. This section makes absolute the liability of the town to construct and main- tain bridges over streams within its bounds. Phelps v. Hawley, 52 N. Y. 23. Prior to act of 1890, ch. 568, the burden of supporting bridges was cast upon the towns alone. Town of Wirt v. Supervisors, 90 Hun 205, 35 N. Y. Supp. 887. For common law rules and history of New York state legislation relating to liability for construction and maintenance of bridges, see People ex rel. Root V. Supervisors, 81 Hun 216, 30 N. Y. Supp. 729, affirmed 146 N. Y. 107; Bartlett v. Crozier, 17 Johns. 439, 452. Powers of superintendents. Town superintendents are charged with the duty of erecting and maintaining town bridges. Berlin Iron Bridge Co. v. Wagner, 57 Hun, 346; 10 N. Y. Supp. 840. And the power given to a commis- sioner to repair highways includes the power to build a bridge to connect two parts of a highway. Mather v. Crawford, 36 Barb. 564; Huggans v. Riley, 125 N. Y. 88; 25 N. E. 993. After a town board has given its consent to the erection or repair of a bridge which has been destroyed or damaged by the elements, its duties in respect thereto are at an end, and it cannot direct the town superintendent as to the manner of construction. People ex rel. Groton, etc.. Bridge Co. v. Town Board, 92 Hun, 585; 36 N. Y. Supp. 1062. Streams upon boundaries. Where a boundary line between towns is the bank of a stream, such stream is included within the expression, "streams or other waters upon their boundaries," as contained in this section. Town of 946 HIGHWAYS AND BRIDGES. Highway Law^ § 250. or other waters forming the boundary line between a city of the third class and a town, such city and town shall be liable each to pay its just and equitable share of the expenses for the construction, maintenance and repair of such bridges. Except as otherwise provided by law, a city of the third class shall be deemed a town for the purposes of this article. Each of the counties of this state shall also be liable to pay for the con- structure, care, maintenance, preservation and repair of public bridges lawfully constructed over streams or other waters forming its boundary line, not less than one-sixth part of the expense of construction, care, maintenance, preservation and repair,^ and, except in a county containing a portion of the Adirondack park, the whole of such expenses of public bridges lawfully constructed or to be constructed over streams, or waterways, intersecting countr roads. [Highway Law, § 250, as amended by L. 1914, chs. IS, 199, and L. 1915, ch. 589; B. C. & G. Cons. L., p. 2319.] East Fishkill, v. Town of Wappinger, 97 App. Div. 7, 89 N. Y. Supp. 599. Bridges over town boandaries. The provisions of the above section as to the construction of bridges over town lines only refer to bridges connecting with the town sought to be charged, or ending therein, and are not intended to) apply to a •bridge neither end of which is in the town sought to be charged with the cost thereof, and which is not accessible therefrom, although one of its piers, and the middle portion of it, are situated upon and over land belonging to such town. Town of Candor v. Town of Tioga, U App. Div. 502; 42 N. Y. Supp. 911. The general rule, however, is that when a bridge is built over a stream forming the boundary line of towns, the expense of its construction and maintenance is to be borne equally by the towns. People ex rel. Root v. Supervisors, 81 Hun, 216: 30 N". Y. Supp. 729, afTd. 146 N. Y. 107. Boards of supervisors may, upon the proper application of one of such towns, enact a law authorizing and compelling the erection of a bridge over a stream form- ing a boundary line between such towns, and. may impose a tax upon such towns to pay the expense thereof, although a majority of the taxpayers of one of such towns and its officers are opposed to it, however such objection may be Indicated. Town of Kirkwood v. Newbury, 122 N. Y. 571 ; 26 N. E. 10. A bridge may be constructed across a river dividing towns where the highway in each town comes to the river bank, although no such bridge has previously existed. Matter of Mohawk River Bridge, 128 App. Div. 54, 112 N. Y. Supp. 428. In order that towns may be jointly liable for the construction of a bridge over a stream forming their boundary, such bridge must connect a lawful highway in each town; but the fact that a highway has been laid out is not sufficient; there must be an existing thoroughfare suitable for travel. Beckwith v. Whalen, 70 N. Y. 4.30; People ex rel. Keene v. Supervisors, 151 N. Y. 190. The necessary approaches arc part of a free bridge, and both towns are equally and jointly liable for an approach built in either town. Edwards v. Ford, 22 App. Div. 277, 47 N. Y. Supp. 995. The consent of the town superintendent of both towns is necessary where a railroad seeks to cross a bridge constructed and maintained jointly by such to^vns Wheatfield v. Tonawanda St. R. R. Co., 92 Hun, 460 ; 36 N. Y. Supp. 744. Apportionment of expense of constmcting bridge between counties to replace old structures. When the bridge which formerly extended' from the city of Glens Falls, county of Warren, to an island in the Hudson river and the bridge extending from said island to bhe village of South Glens Falls in the adjoining county of Saratoga, were replaced by a structure extending from said city to said village situated in the said adjoining counties, the city of Glens Falls and the town of Moreau are jointly liable for the expense of constructing the new bridge, and of a bridge temporarily used, while the county of Warren is liable for not less than one- sixth part of the expense of construction, care, maintenance and repair of the new bridge The county of Warren is not exempt from sharing in the cost of the southerly portion of said' bridge extending from the island in the Hudson river to eaid village in the adjoining county. People ex rel. City of Glens Falls v. County of Warren (1915), 170 App. Div. 144, 155 N. Y. Supp. 642. 2. Liability of counties. Effect of the act of 1895 amending this section BRIDGES. 947 Highway Law, §§ 251-253. § 2. LEVY or TAX UPON COUNTY. Each supervisor shall present to the board of supervisors of his county at its annual session a statement specifying the amount paid during the preceding year ending on the thirty-first of October for the construction, care, maintenance, preservation and repair of public bridges over streams or other waters forming the boundary of such county.^ The board of super- visors shall levy upon the taxable property of the county a sum sufficient to pay its proportion of such expense, and the same when collected shall be paid to the supervisor of such town to be applied by him on the order of the town superintendent after audit as provided in this chapter, toward the payment of such expense. [Highway Law, § 351; B. C. & 6. Cons. L., p. 2322.] § 3. PENALTY, AND NOTICE ON BRIDGE. The town superintendent may fix and prescribe a penalty, not less than one or more than five dollars, for riding or 'driving faster than a walk on any bridge in his 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, § 253; B. C. & G. Cons. L., p. 3333.] § 4. OFFENSE. Whoever shall ride or drive faster than a walk over any bridge, upon one-sixth part of the expense of construction, care, maintenance and repair of the new bridge. The county of Warren is not exempt from sharing in the cost of the southerly portion of said bridge extending from the island in the Hudson river to said village in the adjoining county. People ex rel. City of Glens Falls v. County of Warren (1915), 170 App. Div. 144, 155 N. Y. Supp. 642. 2. liiability of counties. Effect of the act of 1895 amending this section was to repeal the provisions of the former act requiring contribution from the county when the expense of all the free bridges of a town exceeded a certain amount. Town of Wirt V. Supervisors, 90 Hun, 205; 35 N. Y. Supp. 887. The amendment of 1895 abrogated the effect of the decision in the case of People ex rel. Root v. Supervisors of Steuben, 146 N. Y. 107. The act of 1895 was held not to apply to bridges com- pleted prior to its taking effect. Stone v. Supervisors, 166 N. Y. 85. Duties of counties under this section may be enforced by mandamus. People v. Supervisors, 142 N. Y. 271. County aid to toirns for 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 expenses for the construction and repair of its bridges, the board may cause a sum of money, not exceeding two thousand dollars in any one year, to be raised by the county and paid to such town to aid in defraying such expenses. [County Law, § 63 ; B. C. & G. Cons. L., p. 754.] 3. For form of statement of the supervisor of the expense incurred in the construction and repair of a town bridge, see Form No. 142, post. A statement that is verified and contains a description of the bridge and the whole expense in items incurred by the town during the year preceding for con- structing and repairing the same is sufficient. People ex rel. Eoot v. Co., 81 Hun, 216, 30 N. Y. Supp. 790. 948 HIGHWAYS AND BRIDGES. Highway Law, § 254. which notice shall have been placed, and shall then be, shall forfeit for every offense, the amount fixed by such town superintendent and specified in the notice. [Highway Law, § 253; B. C. & G. Cons. L., p. 2322.] § 5. JOINT LIABILITIES OF TOWNS AND THEIR JOINT CON- TRACTS. 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, except where the board of supervisors has otherwise apportioned such expense as provided in section ninety-seven. The town superintendents of all the towns, or of one or more of such towns, the others refusing to act, may, when directed by their respective town boards, enter into a joint contract for making and repairing such bridges.* [Highway Law, § 254; B. C. & 6. Cons. L., p. 2322.] 4. Joint liabilities of towns. This section applies to towns jointly liable to maintain bridges, but does not prescribe under what circumstances the liability exists. No such joint liability exists, unless there is at the time a lawful highway in each town, which would be connected by, and of which the bridge would form a part. Beckwlth v. Whalen, 70 N. Y. 430; People ex rel. Keene V. Supervisors, 151 N. Y. 190. The mere fact that a highway has been laid out is not sufficient; there must be an existing thoroughfare, suitable for travel. Idem. Proceedings to compel the repair of a bridge can only be insti- tuted under this section where the bridge crosses a stream dividing the towns. Matter of Freeholders of Cattaraugus Co., 59 N. Y. 316; Tifft v. Alley, 3 T. & C. 784. The words " at the joint expense of such towns " means the equal expense thereof. . The expense is to be equally imposed upqn the towns without regard to the portion of the bridge located in each town or the proportion of the total cost expended In each such town. Lapham v. Rice, 55 N. Y. 472; Bryan v. Landon, 3 Hun, 500; Day v. Day, 94 N. Y. 153; Matter of Spier, 3 N. Y. Supp. 438; 20 N. Y. St. Rep. 389; affd., 115 N. Y. 665. The approaches to the bridge are a part thereof and are both to be maintained at the joint expense of the two towns. Edwards v. Ford, 22 App. Div. 277; 47 N. Y. Supp. 995; Hawxhurst V. Mayor, 43 Hun, 588. In the case of Marshall v. Hayward, 74 App. Div. 28, Woodward, J., in writing for the court, said: " The spirit of the act appears to be that the commissioners of highways for the several towns interested shall act for their towns, and that they shall, on behalf of their respective towns, enter into a joint contract for the con- struction of such bridges, each town providing for the payment of its equal portion of the cost of such bridges, without any reference to the question of what portion of any such bridge may be within the jurisdiction of any par- ticular town." BRIDGES. 949 Highway Law, § 255. § 6. REFUSAL TO REPAIR. If the town board of either of such towns, after notice in writing from the town board of any other of such towns, given by the town clerk thereof, 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 direct, by resolution, the same to be done, the town board giving such notice may direct the town superintendent to make or repair such bridge, and then maintain an action in the name of the town, against the town which neglects or refuses to join in such making or repairing, and in such action, the plaintiffs 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 interest.' [Highway Law, § 255; B. C. & 6. Cons. L., p. 2324.J Powers of town superintendents. The town must act through the town superintendents, and there is no authority for employing anybody else, except in the construction of the bridge under contract, not even counsel or represent- atives of the different towns. The town superintendents do not constitute a single body, but each, by mutual agreement, becomes a party to the contract. This section must be construed to authorize the town superintendents to acquire real estate for the approaches. Marshall v. Hayward, 74 App. Div. 27, 77 N. Y. Supp. 57. 6. For form of notice to town boards of adjoining towns to rebuild or repair bridge, see Form No. 143, post. For form of consent to rebuild or repair bridge, see Form No. 144, post. ITecegslty of notice. It is apparent from the above section that if a town board directs a superintendent to repair a bridge without giving notice to the town boards of the towns jointly liable, it cannot recover their proportion of the expense because of their failure to comply with the requirements of the statute. Flynn v. Hurd, 118 N. Y. 19, 29 N. B. 1109. The town board of one of the towns liable may waive the notice; and where, upon application of the town board of the other town, it absolutely refuses to help rebuild the bridge when it becomes necessary, the notice is thereby waived, and the latter may rebuild an'd then maintain an action against the former to recover half the expense. Day v. Day, 94 N. Y. 153; Clapp v. Town of Ellington, 87 Hun, 542; 34 N. Y. Supp. 283. Notice to repair given by the supervisor, instead of by the town clerk, as required by this section, having been received and answered without objection, is valid. Matter of Town of Rutland, 70 Misc. 82, 128 N. Y. Supp. 94. Action to recover contribution. An action is not maintainable under this section to recover the amount which the town is liable to contribute toward the construction of a joint bridge unless all the precedent conditions imposed by statute have been complied with. Flynn v. Hurd, 118 N. Y. 19. Such an action may be maintained only where the town sued is liable for a portion of the expense of constructing or maintaining the bridge. Town of Candor v. Town of Tioga, 11 App. Div. 502, 42 N. Y. Supp. 911. An action will lie under the above section where the town board of one of the towns, having met with the town boards of the other towns and agreed to join in the repair, yet have neglected to pay their share of the expense. Surdam 950 HIGHWAYS AND BRIDGES. Highway Law, § 256. § 7. PROCEEDINGS IN COURT. Whenever any adjoining towns shall be liable to make or maintain any bridge over any streams dividing such towns, whether in the same or different counties, three freeholders in either of such towns may, by petition signed by them, apply to the town board in each of such towns, to build, rebuild or repair such bridge, and if such town boards 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 supervisor 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 town boards to direct the town superintendents to build, rebuild or repair such bridge, and the court upon such motion may, in doubtful cases, refer the case to some dis- interested person to ascertain the requisite facts in relation thereto, and to report the evidence thereof to the court.'' Upon the coming in of the V. F^iUer, 31 Hun, 500. It need not be alleged In the complaint that the defendant towns had money with which to pay their, share of the Joint expense. Oakley v. Town of Mamaroneck, 39 Hun, 448. If two or three towns have paid the entire expense of the construction or repair of a bridge for which all three towns are jointly liable, the town super- intendents of each of the two towns should sue separately to recover the portion paid by each. Corey v. Rice, 4 Lans. 141. 7. For form of petition of freeholders to town boards of adjoining towns to rebuild or repair a bridge, see Form No. 145, post. For form of notice of motion for an order of the Supreme Court compelling town superintendents to rebuild or repair bridge, see Form No. 146, post. For form of affidavit to be used on such motion, see Form No. 147, post. These proceedings are limited in their operation and effect to bridges over boundary lines between towns; although by other statutes bridges not so sit- uated are maintainable at the joint expense of two or more towns, the pro- ceedings above authorized do not apply thereto. Matter of Petition of Free- holders of Cattaraugus Co., 59 N. Y. 316. The inability of superintendents of the adjoining towns to agree on the kind of material to be used in the construction of the bridge is equivalent to a refusal and justifies the application by freeholders. Matter of Towns of Mt. Morris and Castile, 41 Hun, 29. This section has no application to a bridge upon a stream intersecting the town line at right angles, and intermediate between the exterior lines of a road district. Tifft v. Alley, 3 T. & C. 784. Liability to contribute cannot be enforced under this section where the proposed bridge will not connect a lawful highway in each town. Matter of Freeholders of Montezuma, 38 N. Y. St. Rep. 970, 14 N. Y. Supp. 845, 80 Hun 581. It seems that where a highway in each town comes to the bank of a river dividing the towns, a bridge may be constructed across the river connecting BRIDGES. 951 Highway Law, §§ 257, 258. report, in case of such reference, or upon or after the hearing of the motion, in case no reference shall be ordered, the court shall make an order thereon as the justice of the case shall require.' If the motion be granted in whole or in part, whereby funds shall be needed 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, § 256; B. C. & G. Cons. L., p. 2335.] § 8. SUPERVISOR TO INSTITUTE PROCEEDINGS. The supervisor of any such town shall, when directed by the town board, institute and prosecute proceedings under this chapter, in the name of the town, to compel the town board of such adjoining town or towns to cause the town superintendents thereof to join in the building, rebuilding or repair of any such bridge, in like manner as freeholders are thereby authorized. [Highway Law, § 357; B. C. & G. Cons. L., p. 3326.] § 9. DUTY OF SUPERINTENDENTS. The order for building, rebuilding or repairing a bridge being made, and a copy thereof being served on the town superintendent of such adjoining towns respectively the town superintendents of such towns shall forthwith meet and cause such bridge to be built, rebuilt or repaired in accordance with the plans and specifications prepared or approved by the district or county superintendent, out of any funds in the hands of the supervisors of such towns applicable thereto; if an inadequate amount of such funds are on hand, the town boards of such towns shall direct the town superintendents thereof to build, rebuild or repair such bridge, and the same shall be done upon credit, or in part for cash or in part upon credit according to the exigency of the case ; and such town boards shall direct the superintendents to enter into a contract, to be approved by such town hoards, for building, rebuilding or repairing 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, § 258; B. C. & G. Cons. L., p. 2326.] such highways by proceedings pursuant to this section, although no bridge has existed there before. Matter of Mohawk River Bridge, 128 App. Div. 54, 112 N. Y. Supp. 428. 8. For form, of order of court to rebuild bridge, see Form No. 148, post. 9. Application of section. This section has been held inapplicable to the city of Auburn in an action brought by a town adjoining the city on the ground thn* 10 such power for raising funds is conferred upon that city. Matter of 953 HIGHWAYS AND BRIDGES. Highway Law, §§ 259-262. § 10. REPORT OF TOWN SUPERINTENDENTS, AND LEVY OF TAX. The town superintendent of each town shall make a full and verified report of their proceedings in the premises including an accurate account of what has been done in respect to such bridge, and shall attach thereto a copy of the order granted by the supreme court. Such report, account and order shall be certified by the town board and delivered to the supervisor and be presented by him to the board of supervisors of his county. 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 appro- priate towns when in different counties, for its share of the costs of build- ing, rebuilding and repairing such bridge, after deducting all payments actually made by the supervisor upon the written order of the town super- intendent. Such tax, including all payments, shall in no case exceed the amount specified in the order of the supreme court. [Highway Law, § 259; B. -C. & G. Cons. L., p. 3327.] § 11. APPEALS. 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 appel- late division of the supreme court for the review of the decision. The appellate division may alter, modify or reverse the order, with or without costs. [Highway Law, § 260; B. C. & G. Cons. L., p. 2327.] § 12. POWER OF COURT ON APPEAI.. 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 preceding section shall conform to the practice of the supreme court, in ease of appeal from an order of a special term to the appellate division. [Plighway Law, § 261 ; B. C. & G. Cons L., p. 2337.] § 13. REFUSAL TO REPAIR BRIDGES. 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, Certain Freeholders, 46 Hun 620. But § 250 of the present Highway Law provides for the joint liability of a town and a city of the third class to construct and maintain bridges over boundary lines, and provides that " Except as otherwise provided by law, a city of the third class shall be deemed a town for the purposes of this article." BRIDGES. 953 Highway Law, § 262a. if the town superintendent of the adjoining town or towns, after reason- able notice of such condition of the bridge, have neglected or refused, or shall neglect or refuse to repair or rebuild it, then whatever funds have been or shall be necessarily or reasonably laid out or expended in repairing such bridge or in rebuilding the same, by any person or corporation, shall be a charge on such adjoining town or towns, each being liable for its just pro- portion; and the person or corporation who has made such expenditure, or shall make such expenditures, may apply to the supreme court, at a special term, for an order requiring such towns severally to reimburse such expend- itures, which application shall be made upon papers to be served upon the town superintendents of such towns at least eight days prior thereto ; and the court may grant an order requiring each adjoining town or towns to pay its just proportion of the expenditure, specifying the same; and the town superintendent of each of such towns shall forthwith 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, § 262; B. C. & G. Cons. L., p. 2328.] § 13a. CONSTBUCTION OB IMFBOVEMENT OF BBIDGE BY COUNTY AND TOWTN OB TOWNS. The board of supervisors of a county may provide for the construction or improvement of a bridge in one or more towns of a county and at the joint expense of the county and town or towns as provided in this section. The board may by resolution direct the district or county superintendent to examine such bridge and report thereon, and if the board considers such bridge to be of sufficient importance to be constructed or improved as provided herein, it shall direct such district or county superintendent to prepare or cause to be prepared maps, plans, specifications and estimate thereon, and such district or county superintendent shall, subject to the direction and control of the board of supervisors, have the same powers and duties in respect to such bridge as are given to him with respect to state- county highways in section one hundred and twenty-five of this chapter. Upon the completion of such maps, plans, specifications and estimate, they are to be submitted to the board of supervisors for approval, and such board shall thereupon adopt a resolution providing for the construction or improvement of such bridge in accordance with such plans, maps, specifi- 953a HIGHWAYS AND BRIDGES. Highway Law, § 362a. cations and estimate, or in accordance with such maps, plans, specifications and estimate as may be approved by it. The board of supervisors shall award contracts for the construction or improvement of such bridge and the provisions of section one hundred and thirty of this chapter shall apply so far as may be to such contracts and the award, execution and fulfillment thereof. Such contract may be awarded to the town board of any town in which such bridge is located and the provisions of section one hundred and thirty-one of this chapter shall apply thereto. The board of supervisors shall determine the apportionment of the cost of the construction or improve- ment of such bridge to be borne by the county and the portion to be borne by the town or towns in which such bridge is located, or by the town or towns in which such bridge is not located but which are particularly bene- fited thereby. The amount to be borne by the county shall be levied and collected as a county charge and paid into the county treasury. The amount to be borne by a town shall be levied and collected as a town charge, and when collected shall be paid into the county treasury. If such bridge shall be located in a different position from an existing bridge, the board of supervisors shall acquire land for the requisite construction, and such board may also acquire land for the purpose of obtaining gravel, stone or other material when required for the construction or improvement of such bridge, together with a right of way to the bed, pit or quarry or other place where such gravel, stone or other material may be located; and the provisions of sections one hundred and forty-eight to one hundred and fifty-five both inclusive shall apply to the acquisition of such land as far as may be, except that the cost of such land and the expense incident to acquiring the same shall be deemed a part of the cost of the construction and improvement of such bridge under the provisions of this section. The board of supervisors may by resolution authorize the county treasurer of the county or the super- visors of the respective towns to borrow money on the faith and credit of the county and of such towns by temporary loans in anticipation of the next succeeding tax levy or an issue of bonds for such levy or by the issue and sale of bonds to pay the portion of the cost of the construction or improve- ment to be borne respectively by the county or such town or towns. Such resolution may also provide for the issue and sale of bonds and shall con- BRIDGES. 953b L. 1897, eh. 269, §§ 1-3. form as nearly as may be to the provisions of the chapter relating to a resolution authorizing a town to borrow money to pay its share of the cost of construteion or improvement of a county highway. The construction or improvement authorized by such resolution shall be done under the super- vision and direction of the district or county superintendent. Payments therefor shall be made from time to time by the county treasurer upon the certificate of the district or county superintendent indorsed by the chair- man of the board of supervisors. Such bridge when completed and accepted by the board of supervisors shall be thereafter repaired and maintained at the sole expense of the town or towns in which it is located unless the board of supervisors shall apportion a share of the expense of the repair and maintenance thereof upon the county, or upon the town or towns particularly benefited. [Highway Law, § 362a, as added by L. 1918, ch. 327.] § 14. CONSTRUCTION AND MAINTENANCE OF BRIDGES OVER WATERS BETWEEN TOWNS AND CITIES OF OVER 1,500,000 INHABITANTS. Construction of bridges. — Whenever the highway commissioners having power in the premises under this act shall decide that the public con- venience requires a bridge to be constructed over the stream or waters dividing a city from a town or any incorporated village in said town, the same shall be constructed under aud according to the provisions of the Highway Law for the construction of bridges between towns, being article five of chapter nineteen of the general laws, the common council of the city being the highway commissioners of said city, and the board of village trustees of any incorporated village in the town being the highway commis- sioners of said village. [L. 1897, ch. 269, § 1.] Purchase of land for approaches. — Any land required for the approaches to said bridges for a distance not exceeding three hundred feet from the bridge, may be bought by the commissioners of highway constructing the bridge, the approaches constructed and the cost thereof including the cost of the bridge. [Idem, § 2.] Condemnation of land.-^'Wheii an agreement cannot be made as to the price to be paid for the land for such approaches, the said land shall be condemned in the manner as provided by chapter ninety-five, laws of 954 HIGHWAYS A^'D BRIDGES. L. 1897, ch. 269, §§ 4, 5 ; Highway Law, § 363. eighteen hundred and ninety, with the acts amendatory thereof. The expenses of said condemnation proceedings shall be included in and be a part of the cost of the bridge. [Idem, § 3.] Issue and sale of bridge bonds.— In order to pay for the said bridges, the city and town shall each have the power to issue bonds, to he known as bridge bonds of the said city and town, respectively, by the officers thereof, and in the manner provided by law for the issue of other bonds of said city and of said town, to an amount necessary to pay their respective pro- portions of the said bridges, which shall be borne by said city and town in the proportion of their equalized assessed valuation of taxable property, at the time of the final resolution of said city and town, authorizing the con- struction of the said bridges. The total amount of such bonds to be issued by the city shall not exceed seventy-five thousand dollars, or by a town, twenty thousand dollars. Said bonds shall not be sold for less than the par value thereof, and accrued interest, if any shall mature and be payable at a time not over thirty years from date ; be of such denomination and bear such interest, not to exceed five per centum per annum, as the common council of the city, in case of a city ; or the town board, in ease of a town, shall determine. The proceeds of the said bonds shall be paid to the proper officer for receiving funds of each municipality, and credited to a fund which shall be known as the bridge fund, and shall only be paid out by warrants as other funds of said city or town are paid out. [Idem, § 4, as amended by L. 1898, ch. 591 ; L. 1899, ch. 233, and L 1902, ch. 301.] Application of act. — This act shall apply only to towns from which at least one-quarter of the territory thereof has heretofore been taken for park purposes, and which also adjoin a city containing at the time of the taking of the last federal census a population of one and one-half million. [Idem, § 5.] § 15. RESOLUTION OF BOARD OF SUPERVISORS FOR ABOI.ITION OF TOIiL BRIDGES. The board of supervisors of any county may, and upon the presentation of a petition signed by fifty per centum of the owners of real property and representing a majority of the assessed valuation of the town or city in which a toll bridge is wholly or partly situated must, except where such bridge extends between the state of New York and a foreign country, pass a resolution that public interest demands the ab6lition of such toll bridge situated wholly or partly within said county. In case of a toll bridge situ- ated in two counties such resolution shall be a concurrent resolution passed by the boards of supervisors of the counties wherein said bridge is situated. Within ten days after the passage of such resolution the clerk or clerks of the board or boards of supervisors shall transmit certified copies thereof to BRIDGES. 955 Highway Law, §§ 264, 265. "the state commission of highways. Before transmitting such ceitified copy or copies to the state commission of highways, the board or boards of super- visors shall investigate as to the value of such toll bridge and shall prepare an estimate of the probable cost of acquiring the same, and the clerk or clerks shall transmit such estimate, together with any data in relation to the value of such toll bridge which the board or boards of supervisors may secure, to the state commission of highways with the certified copy or copies of such resolution. [Highway Law, § 363, as added by L. 1909, €h. 146, and amended by L. 1910, ch. 569, in effect June 21, 1910.] § 16. INVESTIGATION BY THE STATE COMMISSION OF HIGH- ■WAYS. The state commission of highways shall upon the receipt of such resolu- tion or concurrent resolution, investigate and determine whether the bridge so sought to be abolished is of sufficient public importance to come within the provisions of this article, taking into account the use, location and value of such toll bridge for the purpose of common traffic and travel and shall also investigate as to the value of such toll bridge and from the estimate and data transmitted by the board or boards of supervisors, or from such other information as the commission may secure, prepare an estimate of the probable cost of acquiring such toll bridge. After such investigation such commission shall certify its approval or disapproval of such resolution. If it shall disapprove such resolution, it shall certify its reasons therefor to such board or boards of supervisors. If it shall approve such resolu- tion it shall certify its approval thereof to the attorney-general, and shall transmit to him the estimate made by the commission of the probable cost ■of acquiring such toll bridge, together with any data the commission may have in its possession in relation to the value thereof. [Highway Law, § 264, as added by L. 1909, ch. 146, and amended by L. 1910, ch. 569, in effect June 21, 1910.] ^17. ACQUISITION BY ATTORNEY-GENERAL. Upon the receipt of such certification of approval the attorney-general shall apply to the court, in the name of the people of the state, for the ap- pointment of a commission to appraise the value of said toll bridge and the franchise thereof and proceed to acquire title to said toll bridge and its franchise rights in accordance with the provisions of the code of civil pro- cedure for the condemnation of property for public purposes. When said commission shall have determined the value of such toll bridge, the attor- ney-general shall certify such determination to the comptroller and to the Ijoard or boards of supervisors of the county or counties wherein such toll 956 HIGHWAYS AND BRIDGES. Highway Law, §S 266-267. bridge is situated. After the receipt thereof, upon a majority vote" of the board or boards of supervisors, they shall adopt a resolution approv- ing the purchase of said toll bridge iinder the provisions of this article and providing for the payment of the county's share thereof and there- upon shall transmit a certified copy of such resolution to the state comp- troller. The condemnation and purchase of toll bridges under the pro- visions of this article 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 approval by the state commission of highways. [Highway Law, § 265, added by L. 1909, ch. 146 ; B. C. & G. Cons. L., p. 2329.] § 18. PAYMENT OF EXPENSE OF ACQUISITION. One-half of the expense incurred in the condemnation and acquire- ment of said toll bridge shall be paid by the state treasurer upon the warrant of the comptroller out of any specific appropriation made to carry on the provisions of this article, but no such payment shall be made until the county or counties in which said toU bridge is situate shall have complied with all the provisions hereof. One-half of the expenses thereof shall be a charge, in the first instance, upon the county or counties in which said toll bridge is situate, and the same shall be paid by the county treasurer upon the requisition of the comptroller, but the amount so paid shall be apportioned by the board of supervisors so that thirty-five per centum of such cost shall be a general county charge and fifteen per centum shall be a charge upon the town or towns or city or cities in which said toll bridge is wholly or partly located. In case a toll bridge is located in two counties the fifty per centum of the expense to be borne by the counties shall be apportioned between them on the basis of their assessed valuation and the fifteen per centum shall be apportioned by the board of supervisors upon the town or towns or city or cities in the same manner, the board of supervisors of a county, the town board of a town or the common council of a city may determine that the portion of the expense chargeable to such county, town, or city, as the case may be, shall be raised by taxation and levied and collected as other municipal taxes, or that the money therefor be raised by the issue and sale of municipal bonds. In the case of a town such bonds shall be issued and sold in the manner provided by law for the issue and sale of town bonds, under the to^vn law, to pay judarments. [Highway Law, § 266, added by L. 1909, ch. 146, and amended by L. 1914, ch. 81 ; B. C. & G. Cons. L., p. 2330.J 10. " Upon a majority Tote," as used in this statute, means the same a» though it provided that the resolution of approval may be adopted " if a majority so vote." The provision for approval is not a mandatory direction. Matter ot State of New York, 207 N. Y. 582. BRIDGES. 957 Highway Law, § 268. 5 19. MAINTEIfATfCE OF BBIDGE. When a toll bridge shall have been acquired by the state under the provisions of this article it shall be maintained as a free bridge and the expense thereof shall be a charge upon the town or tovras or city or cities within which it is situated. Upon the acquisition of any toll bridge as provided in this article, the board or boards of supervisors of the county or counties in which said toll bridge is located shall upon notice of such acquisition from the comptroller, accept and maintain the same as a part of the highway system of said county or counties and such acceptance shall be deemed to have been formally taken at the expiration of twenty days from the notice of said acquisition by the state comptroller.^^ [Highway Law, § 267, added by L. 1909, ch. 146 ; B. C. & G. Cons. L., p. 2330.] § 20. USE OF TOLL BRIDGE BY PUBLIC SERVICE CORPORATIONS; CON- DITIONS; POWERS OF TOWN BOARD. After a bridge shall be acquired by the state under the provisions of this article, the same shall not be used by any railroad, telephone, gas, electric light, heat or power company or any other public service cor- poration, for any purpose except upon such terms and the payment of such rental as shall be determined by the town board of the town or towns and the common council of the city or cities within which it is situated. The money received therefor shall be divided equally between the localities. The provisions of this section, however, shall not affect any existing contract for the use of such bridge by any other corpora- tion, except that the compensation provided for such use in such existing contract shall be paid to the localities as herein provided. [Highway Law, § 268, as added by L. 1910, ch. 569, in effect June 21, 1910.J § 21. ACQUISITION OF CERTAIN TOLI. BRIDGES AT THE EXPENSE OF THE STATE. If a toll bridge for the traffic of vehicles and foot passengers constitutes a connecting link between two state routes as described in section one hundred and twenty of this chapter, or constitutes a part of a state route and is included in the description thereof, the board of supervisors of the county in which such bridge is situated, or if situated in two counties the boards of supervisors of such counties concurrently, may, by resolution, 11. Acquisition of toll bridge; payment. — Full payment must be made to com- plete the acquisition of a toll bridge under this section. Eept. of Atty. Genl., March 88, 1911. Requisition on the county treasurer for the county's share should not be made by the comptroller, where no fimds are available to pay the state's share. Rept. of Atty. Genl., March 28, 1911. As to procedure for acquisition, see Matter of State of New York, 153 App. Div. 633, affd. 207 N. Y. 582. 957a HIGHWAYS AND BRIDGES. Highway Law, § 269. petition the state commission of highways for the acquisition of such bridge by the state pursuant to this section. Withia ten days after the passage of such resolution the clerk or clerks of the board or boards of supervisors shall transmit certified copies thereof to the state commission of highways together with an estimate of the probable cost of acquiring the same and any data in relation to the value thereof which the board or boards of supervisors may secure. The state commissioner of highways shall upon receipt of such resolution or concurrent resolution, and within three months thereafter, investigate and determine whether the public interest demands the acquisition of such bridge by the state and shaU also within said three months approve or disap- prove of such resolution and if such resolution be approved shall prepare an estimate of the probable cost of acquiring such bridge. If such resolution be disapproved the commission shall certify its reason therefor to such board or boards of supervisors. If it be approved the commission of highways is hereby authorized and empowered to agree with the corporation owning the said bridge upon the compensation which shall be made to it for the said bridge and its appurte- nances, its franchises, its rights for the maintenance and use of said bridge, and any and all damage which shall result to said corporation so owning the said bridge by reason of the taking of such structure, and such agree- ment shall be reduced to writing and executed by the commission of high- ■R'ays in the name of the people of the state of New York and by the cor- poration owning the said bridge, and filed in the office of the comptroller of the state of New York. In the event that no agreement is reached between said the commission of highways and the corporation owning the said bridge for such purchase as aforesaid, the commission shall certify its approval to the attorney-general and transmit to him the estimate made by the commission of the probable cost of acquiring such toll bridge, franchises and rights, and the amount of any and all damage incurred by such acquisition, together with all data the commission may have in its possession in relation thereto. Upon the receipt of such certificate of approval, if and when sufficient money shall have been appropriated by the state therefor, the attorney- general shall apply to the court in the name of the people of the state for the appointment of a commission, in accordance with tlie provisions of the code of civil procedure for the condemnation of property for public purposes, to appraise the value of such bridge, its franchises, rights and any and all damage which shall result to such corporation so o%vning the said bridge by reason of the taking of the structure and its rights and franchises in connection therewith. The amount agreed upon between the said commission of highways and BRIDGES. 957b Highway Law, § 269. the said corporation, pursuant to such agreement so filed as aforesaid, or if no agreement be reached, the amount so appraised and determined by such condemnation commissioners, with the expenses of such condemnation, shall be paid by the state treasurer upon the warrant of the comptroller out of the moneys appropriated for such purpose. Until payment to such corporation be made after such agreement of the amount therein agreed to be paid or upon condemnation the amount so appraised and determined in such condemnation proceedings, the corporation owning the said bridge shall be entitled to continue in possession and use thereof and of all the rights, privileges and franchises enjoyed by it in connection therewith, but upon such payment being made such bridge and all rights and franchises in con- nection therewith shaU become the property of the state of New York and shall be maintained by the state as a free bridge and as a part of the state system of highways. If such bridge be acquired by the state pursuant to this section the same shall not be used except as hereinafter provided by any railroad, telephone, gas, electric light, heat or power company or any other public service corpora- tion for any purpose except upon such reasonable terms and the payment of such reasonable rental to the state as shall be determined by the commission of highways The money received therefor shall be paid into the state treas- ury and so much thereof as may be needed appropriated for the maintenance of such bridge. The provisions of this section, however, shall not affect any existing contract for the use of such bridge by any corporation except that the compensation provided for such use in such existing contract shall be paid to the state. Notwithstanding the provisions of this section, if any such bridge be owned by a domestic corporation carrying on the business of operating a railroad and which operates cars thereover, the commission of highways in entering into such agreement or the commissioners in condemnation in making such appraisal and fixing such damages as aforesaid may take into consideration any bonds outstanding of such corporation which may have been authorized by any public service commission of this state to be issued by such corporation for the purchase of said bridge and its franchises or the stock of any corporation formerly owning the said bridge, and shall fix and determine in making such appraisal the amount of any and all damage which will result to such corporation so owning such bridge by reason of the taking of the said bridge and its rights and franchises in connection therewith, and such corporation when said bridge shall have been acquired and such compensation paid, and its successors, shall be per- mitted to continue to use said structure upon payment of such reasonable rental to the state for such use as shall be determined by the commission of highways, and further provided that if such corporation, or any successor 957c HIGHWAYS AXD BRIDGES. Highway Law, §§ 269a, 269b. thereof, should desire to use other parts or decks of such bridge or make such use thereof as would require the strengthening, reconstruction or change of the said bridge or its approaches, or the building of new ap- proaches to the said bridge, such corporation or its successors may make Buch use thereof and strengthen, reconstruct or make such changes in the said bridge or its approaches or buUd new approaches to the said bridge and use the same in such manner upon filing with the commission of high- ways detailed plans for the proposed new use thereof, or for the strengthen- ing, reconstruction of or changes in the said bridge or its approaches or for the building of new approaches to the said bridge, and upon obtaining the approval of such use and plans by the commission of highways and upon payment of such further reasonable rental to the state for any such addi- tional use of said structure or such approaches as shall be determined by the commission of highways; provided further that the entire cost of any such etrengthening, reconstruction, additions or changes of the said bridge or its approaches shall be paid exclusively by the corporation making such use of said bridge and shall be deemed to be an expenditure for capital purposes of such corporation paying the same for all purposes whatsoever. Any such corporation using such bridge at the time of the acquisition thereof by the state shall not be debarred from continuing such use by reason of such acquisition; but the failure or refusal to comply with such terms or to pay such rental shall forfeit the right of such corporation to use such bridge, and the state commission of highways is hereby authorized and empowered to close such bridge to the use of such offending corporation. Any act or failure to act on the part of the commission of highways as in this section provided shall be reviewable by the supreme court of this state by mandamus or certiorari or such other appropriate remedy as the case may require, rjjjgji^ay Law, § 269, as added by L. 1917, ch. 598.] S 22. BRIDGES IN CERTAIN COUNTIES. Application of article. — So far as this article relates to a bridge wholly within a county its application is limited to a county having a population of less than two hundred thousand, adjacent to a city of the first class having a population of over three millions. So far as it relates to a bridge crossing the boundary line of two counties, its application is limited to such county and an adjoining county. A bridge, within the meaning of this article, shall be deemed to mean a bridge having a span of more than five feet. The provisions of sections two hundred and fifty-one to two hundred and sixty -two, inclusive, of this chapter, shall not apply to a bridge described in this or the next section. [Highway Law, § 269a, as added by L. 1917, ch. 589.] Construction, maintenance and control of hridges. — Bridges in any such BRIDGES. 957(1 Highway Law, §§ 269c, 269d. county over streams or waterways intersecting or at the terminus of state highways, county highways or county roads shall be constructed, repaired and maintained by the county. Bridges connecting any such state or county highway or county road, over a stream or waterway, with a street, avenue, bridge or part of a bridge of an adjoining city of the first class or of a village or within an adjoining county, shall be constructed, repaired and maintained at the joint expense of such county and city or of such county, and village or of such adjoining counties, as the case may be. The con- struction, repair and maintenance of a bridge wholly within the county shall be under the supervision of the county engineer. The construction, repair and maintenance of a bridge between a county described in section two hundred and sixty-nine-a and an adjoining county shall be under the supervision of the county engineers of the respective counties, unless they fail to agree in any matter and the state commissioner of highways may assume jurisdiction, in which case such commissioner shall have the super- vision of such construction, repair or maintenance during such time as he shall consider advisable. The construtcion, repair and maintenance of a bridge connecting a state or county highway or county road, in any such county, with a street, avenue or bridge of an adjoining city of the first class shall be under the supervision of the county engineer of such county and the authorities of such city having control by law of its bridges, unless such authorities and county ofScer shall be unable to agree in any matter and the state commissioner of highways may assume jurisdiction, in which case such construction, repair or maintenance • shall be under his supervision. The construction, repair and maintenance of a bridge connecting a state or county highway or coimty road in any such county, with a street, avenue or bridge of an adjoining village shall be under the supervision of the county engineer of such county, and the authorities of such village having control by law of its bridges. [Highway Law, § 369b, as added by L. 1917, ch. 589.] Plans and specifications to he prepared. — Plans, specifications and esti- mates for the repair or construction of any such bridge shall be prepared by the authorities having, in the first instance, supervision of such repair or construction. All such plans, specifications and estimates shall be submitted to the state commissioner of highways for approval, and the same shall not be used imtil approved by him. [Highway Law, § 269c, as added by L. 1917, ch. 589.] . Condemnation of bridges. — The board of supervisors of such county shall cause an inspection to be made of any bridge which is reported to be unsafe for public use and travel by the county engineer or five residents of the county. If such bridge is found to be unsafe for public use and travel, said board of supervisors shall condemn such bridge and notify the county 95 7e mGH\AAYS AXD BRIUGKS. Highway Law, §§ 269e — Seffg. engineer of that fact. Such board of supervisors may direct the county engineer to prepare or cause to be prepared plans and specifications for the construction or reconstruction or repair of such bridge without delay. Upon receipt of- such plans and specifications, such board of supervisors shall, after approving the same, procure estimates for the reconstruction or repair of such bridges as herein provided. [Highway Law, § 269d, as added by L. 1917, ch. 689.] Liability of county for damages. — The county shall be liable for damages suffered by any person from defects ui any such bridge, located wholly within the county. Where such bridge is located in two counties, such coun- ties shall be jointly and severally liable for such damages. [Highway Law, § 269e, as added by L. 1917, ch. 589,] Annual estimate of amount to be raised for bridge purposes. — The county engineer of such county shall, on or before December first in each year, prepare and submit to the board of supervisors of such county a statement of the amount necessary for the construction, improvement and maintenance of such bridges or parts of such bridges within the county. The county engiueer of an adjoining couxity shall also, on or before such day in each year, prepare and submit to the board of supervisors of his county a state- ment of the amount necessary to be provided by the county for the construc- tion, improvement and maintenance of bridges crossing the boundary be- tween the latter county and the county first mentioned. Each statement provided for in this section shall show the total amount required and the location of the bridges for the repair, construction and maintenance of which such amount is necessary. [Highway Law, § 269f, as added by L. 1917, ch. 589.] Manner of providing money for bridges. — The board of supervisors of any such county shall, upon receipt of the county engineer's annual state- ment, consider the estimate made therein of moneys required for the con- struction, repair or maintenance of bridges. The board may by resolution adopted by a majority vote approve, increase or reduce the amount of any such estimate. All such estimates as finally adopted shall be signed in duplicate by the chairman and clerk of the board, and one copy thereof shall be filed with the county clerk and the other with the county treasurer. The board of supervisors shall thereupon cause the amounts of such estimates to be assessed, levied and collected in the same manner as other county charges ; or the board may borrow on the credit of the county the amount of any estimate or estimates for construction or the permanent betterment of and such bridge or bridges. For that purpose it may direct the issue of bonds of the county by the county treasurer. Such bonds shall not bear interest at a greater rate than five per centum per annum, and no such bonds shall be for a longer term than twenty years. Such bonds shall BRIDGKS. 95 7f Highway Law, §§ 269h, 269i. not be sold for less than par. Moneys derived from such taxation or real- ized from the sale of such bonds shall be used exclusively for the objects and purposes of the tax or debt as provided in this article. Nothing herein contained shall prevent the board of supervisors from adding to the esti- mates of the county engineer, as contained in his annual statement, an item or items for the construction, repair or maintenance of a bridge or bridges not provided for in such report, or a gross sum of not exceeding two thousand dollars for emergency construction of or repairs to such bridges for the ensuing year. [Highway Law, § 369g, as added by L. 1917, oh. 589.] Construction of bridges to be by contract. — Whenever a bridge is to be constructed or any improvement or repairs made thereto by a county, un- der the provisions of this article, except ordinary repairs, such work shall be done by contract where the estimated cost exceeds five hundred dollars. Contracts shall be awarded for the performance of the work in accordance with the plans and specifications thereof prepared as provided la this article. The board of supervisors shall have charge of the letting of the contract. Any such contract shall be allowed to the lowest bidder, after advertisement once a week, for three successive weeks, in a newspaper pub- lished in the county. The bids for such work shall be opened in public and shall be filed in the office of the clerk of the board of supervisors. No such contract shall be awarded until the form and sufficiency of execution thereof shall have been approved by the board of supervisors. The per- son to whom such contract is awarded shall execute a bond to the county, in a sum equal to fifty per centum of the amount of the contract, with two or more sureties to be approved by the board of supervisors, conditioned for the faithful compliance with the terms of the contract and the plans and specifications and for the payment of all damages which may accrue to the county because of a violation thereof. Not more than ninety per centum of the contract price shall be paid before the completion of the work and its acceptance by the board of supervisors. The amounts due from time to time on the contract shall be paid out of moneys available therefor under the provisions of the preceding section. Payments upon such contracts, or for any other item of construction, maintenance or repair of such bridges, shall be made by the county treasurer upon certificates or warrants issued by the county superintendent, approved by the board of supervisors and the county comptroller. [Highway Law, § 369h, as added by L. 1917, ch. 589.] Reconstruction and repairs after condemnation. — Upon receiving notice of the condemnation of a bridge wholly within the county, the chairman of the board of supervisors shall call a meeting of the board, and such board shall appropriate and make immediately available the necessary moneys for 9572- HIGHWAYS AND BRIDGES. Highway Law, § 269j. the immediate rebuilding of such bridge. If the expense thereof shall not have been included in an estimate furnished by the county engineer in his annual statement, or as adopted by the board, or if there be no moneys in the county treasury available therefor, the board may cause the county treasurer to borrow on the credit of the county the moneys necessary to repair or rebuild the part so condemned, in the manner provided in section two hundred and sixty-nine-g. As soon as moneys are available therefor, the county engineer under the direction of the board of supervisors shall proceed with the repairing or rebuilding of such condemned bridge. [High- way Law, § 269i, as added by L. 1917, ch. 589.] Bridges upon county boundaries. — If the board oi supervisors of a coimty described in section two hundred and sixty-nine-a and of an adjoin- ing county, across whose boundaries any such bridge is located, ehall by resolution concur in determining upon the construction or repair of such bridge, the respective board of supervisors of such counties may unite in a contract with a person, firm or corporation therefor. If any such bridge shall have been condemned under the provisions of this article and if such boards of supervisors shall fail to concur in ordering the necessary repairs to or rebuilding of such bridge within three months after the condemna- tion, or if withiu the same time after a demand therefor by the state com- missioner of highways the board of supervisors of either county shall fail to make available the necessary moneys therefor, or if the board of super- visors of either county shall determine that such improvements or repairs are necessary, and if both counties fail to concur therein, the board of supervisors of the county making such determination may submit the same to the state commissioner of highways. If such determination be approved by such commissioner, the board of supervisors making such determination may cause notice in writing to be served upon the chairman of the board of supervisors of the other county demanding that such county concur therein. If such concurrence be withheld or if necessary moneys be not made available for such work by the board of supervisors of the county upon which such demand is served, the board of supervisors giving such notice may provide the necessary moneys for the entire work of such im- provement or repairs. Where one county has provided all of the money for the construction or improvement of such joint bridge, it may maintain an action against the county in default and recover from the defendant one-half of the cost or expense of such work, with costs of the action and interest. It shall be necessary to a recovery for the plaintiff to prove that the repairs or improvements were reasonably necessary; but the approval of the state commissioner of highways of plaintiff's determination for such improvement or repairs shall be prima facie evidence of the reasonable necessity therefor. No such action for the expense of the construction of a BRIDGES. 95711^ Highway Law, § 269j. new bridge at a new site between counties shall be maintained unless the boards of supervisors of both counties shall have determined, by concurrent resolution, upon the construction thereof. The board of supervisors and the lawful authorities of an adjoining city of the first class or of an adjoining village may likewise concur in de- termining upon the construction, improvement or repair of a bridge be- tween such county and city and may unite in a 'contract with a person, firm or corporation therefor. [Highway Law, § 369j, as added by L. 1917, ch. 589.] .958 HIGHWAYS AND BRIDGES Highway Law, § 270. CHAPTER LXIV. FERRIES. [Highway Law, art. XL] Section 1. Licenses. 2. Undertaking. 3. Appendages for rope ferries. 4. Superintendent of public works may lease right of passage. 5. When schedules to be posted. § 1. LICENSES. 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 iive years. ^ Xo licenses shall be granted to a person, other than the owner of the land through which that part of the highway adjoining to the ferry shall run. unless the owner is not a suitable person or shall neglect to apply after being served witli eight days' written notice ^ from such person of the time and place at which he will apply for such license, or having obtained such license, shall neglect to comply with the conditions of the license or maintain the ferry. Every license shall be entered in the book of minutes of the court by the clerk; and a certified copy thereof 1. Power to regulate. The state and not the federal government has power to regulate ferries. People v. Babcock, 11 Wend. 586 (1834). The county of Niagara may grant licenses to maintain ferries to the middle of the Niagara river, as far as the Canadian line; hence one operating a ferry across that river without a license, may be prosecuted. People v. Babcock, 11 Wend. 586 (1834). 2. Written notice need be given to the owners of the land only, and not to all who claim a right to the ferry nor to those who have obtained a license from another court for a ferry at the same place. Wiswall v. Wandell, 3 Barb. ch. 312. The application cannot be granted without proof that notice has been given by the applicant to the owner of the land, at least eight days before, of his intention to make such application. Matter of Talcott, 31 Hun 464. FERRIES. 959 Highway Law, §§ 271-274. shall be delivered to the person licensed. When the waters over which any ferry niay be used shall divide two counties or cities, or a county and city, a license obtained in either of the counties or cities shall be sufficient to authorize transportation of persons, goods, wares and merchandise, to and from either side of such waters. [Highway Law, § 270; B. C. & G. Cons. L., p. 3330.] § 2. UNDERTAKING. Every person applying for such license shall, before the same is granted, execute and file with the clerk of the court 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 implements, and so many men to work the same as shall be necessary during the several hours in each day, and at such rates as the court shall direct. [Highway Law, § 271; B. C. & G. Cons. L., p. 2331.] § 3. APPENDAGES FOR ROPE FERRIES. Any person licensed to keep a ferry may, with the written consent of the town superintendent of the town where such ferry may be, erect and maintain within the limits of the highway, at such point as shall be desig- nated in such consent, a post or posts, with all necessary braces and appen- dages for a rope ferry. [Highway Law, § 273; B. C. & G. Cons. L., p. 2331.] § 4. SUPERINTENDENT OF PUBLIC WORKS MAY LEASE RIGHT OF PASSAGE. The superintendent of public works, may, where ferries are now main- tained 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 as he may deem advantageous to the state. [Highway Law, S 273; B. C. & G. Cons. L., p. 2331.] § 5. WHEN SCHEDULES TO BE POSTED. 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 adjacent to each entrance to such ferry, and in at least four accessible places, in plain view of the passengers upon each of the boats on such ferry, a schedule plainly printed in the English language 960 HIGHWAYS AND BRIDGES. Highway Law, § 274. of the rates of ferriage charges thereon, and authorized by law to be charged for ferriage over such ferry. If any such person shall fail to comply with the provisions of this section, or shall post a false schedule, he shall forfeit the sum of fifty dollars for each day's neglect or refusal to post such schedule or any of them, to be recovered by any person who shall sue there- for in any court of competent jurisdiction.^ [Highway Law, § 274; B. C. & G. Cons. L., p. 2331.1 Penalty for neglect to post schedule of ferry rates. A person, corpora- tion 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-houses, in plain view of the passengers, a schedule, plainly printed in the English language, of the rates of ferriage charged thereon and authorized by law to be charged for ferriage over such ferry, is guilty of a misdemeanor. Penal Law, § 871. MISCELLANEOUS PROVISIONS. qqi Highway Law, § 320. CHAPTEK LXV. MISCELLANEOUS PROVISIONS. [Highway Law, art. XII.] Section 1. Construction or improvement of highways by county and town. 1-a. County system of roads. 2. When commissioners do not act. 3. Intemperate drivers not to be engaged. 4. Drivers, when to be discharged. 5. Leaving horses without being tied. 6. Owners of certain carriages liable for acts of drivers. 7. Term " carriage " defined. 8. Entitled to free use of highways. 9. Depositing ashes, stones, sticks, etc., upon the highway. 10. Steam traction engines on highways. 11. Injuries to highways. 12. When town not liable for damages. 12-a. Excessive loads on unsafe bridges. 13. Law of the road. 14. Trees, to whom they belong. 15. Injuring fruit or shade trees. 16. Penalty for falling trees. 17. Fallen trees to be removed. 18. Penalties, how recovered. 19. Acquisition of plank roads. 20. Borrowing money; bonds. 81. Raising money to pay bonds and interest. 22. Roads so acquired to be part of highway system. 23. When road is in two or more counties. 24. Albany post road; railroad tracks thereon. 35. Lighting roads, highways and bridges. § 1. CONSTRUCTION OB IMPROVEMENT OF HIGHWAY BT COUNTY AND TOWN. The board of supervisors of a county may provide for the construction or improvement of a highvp^ay or section thereof in one or more towns of the county or of a highway laid out along the boundary line between a city or village and a town or towns, at the joint expense of the county and town, as provided in this section. The board may, by resolution, direct the district or county superintendent to examine such highway or sections thereof, and report thereon, and if the board considers such highway or section thereof, to be of sufficient importance to be con- 962 HIGHWAYS AND BRIDGES. Highway Law, § 320. structed or improved as provided herein, it shall direct such district or county superintendent to prepare or cause to be prepared maps, plans, specifications and estimates therefor and such district or county super- intendent shall, subject to the direction and control of the board of supervisors, have the same powers and duties with respect to such high- way or section thereof as are given the division engineer with respect to state and county highways in section one hundred and twenty-five of this chapter. Such maps, plans and specifications may provide for the change in grade of a highway already existing if thereby a lessened gradient may be obtained without decreasing the usefulness of the high- way. Upon the completion of such preliminary maps, plans, specifi- cations and estimates they shall be submitted to the board of supervisors for approval, and such board may thereupon adopt a resolution provid- ing for the construction or improvement of such highway in accordance with such maps, plans, specifications and estimates or in accordance with such maps, plans, specifications and estimates as may be approved by it. The board of supervisors shall award contracts for the construc- tion or improvement of such highway and the provisions of section one hundred and thirty of this chapter shall apply so far as may be to such contracts and the award, execution and fulfillment thereof. Such contract may be awarded to the town board of any town in which such highway or section thereof is located and the provisions of section one hundred and thirty-one of this chapter shall apply thereto so far as may be. The board of supervisors shall determine the portion of the cost of the construction or improvement of such highway to be borne by the county and the portion to be borne by the town or towns in which such highway is located. The cost of the portion constructed or improved within the boundaries of a city shall be borne by the county. The amount to be borne by the county shall be levied and collected as a county charge and paid into the comity treasury. The amount to be borne by the town or towns in which the highway is located shall be levied and collected as a town charge and when collected shall be paid into the county treasury. If such highway or section thereof deviate from the line of a highway already existing, the board of supervisors shall acquire land for the requisite right of way, and such board may also acquire lands for the purpose of obtaining gravel, stone or other material, when required for the construc- tion or improvement of such highway or section thereof, or for spoil banks, together with a right of way to such spoil banks and to any bed, pit, quarry or other place where such gravel, stone or other material may be located, and the provisions of sections one hundred and forty-eight to one hundred and fifty-five, both inclusive, shall apply to the acquisition of such lands as far as may be, except that the cost of such lands and the expenses inci- MISCE3XANE0US PROVISIONS. 963 Highway Law, § 320. dent to acquiring the same shall be deemed a part of the cost of the con- struction or improvement of such highway under the provisions of this section. If the construction or improvement of such highway involve the elimination of a grade crossing the portion of the cost of such elimination and the construction of a new crossing chargeable to the town in pursuance of law shall be deemed a part of the cost of the construction or improve- ment of such highway under the provisions of this section. The amount so paid by the town shall not be considered in determining the minimum amount to be levied aad collected in each year for the repair and improve- ment of highways as provided in section ninety-four of this chapter nor shall such amount be considered in determining the amount to be paid by the state to the town for the repair and improvement of highways therein. The board of supervisors may by resolution authorize the county treas- urer of the county or the supervisors of the respective towns to borrow money on the faith and credit of the county or of such towns by temporary loan in anticipation of the next succeeding tax levy or of an issue of bonds before such levy, or by the issue and sale of bonds, to pay the portion of the cost of such construction or improvement to be borne respectively by the county or such town or towns. Such resolution may also provide for the issue and sale of such bonds and shall conform so far as may be with the provisions of this chapter relating to a resolution authorizing a town to borrow money to pay its share of the cost of the construction or im- provement of a county highway. The construction or improvement author- ized by such resolution shaU be done under the supervision and direction of the district or county superintendent. Payments therefor shall be mad© from time to time by the county treasurer upon the certificate of the dis- trict or county superintendent indorsed by the chairman of the board of supervisors. Such highways, when completed and accepted by the board of supervisors, shall be thereafter repaired and maintained by the towns wherein such highways are located in the same manner as all other town highways; except there shall be raised annually by the county and by the town a tax of not less than one hundred dollars per mile for each mile of highways improved in a town under the provisions of this section. The amount thereof to be borne by the county or by the town shall be appor- tioned by the board of supervisors. The portion to be borne by the county shall be levied and collected in the same manner as other county taxes and shall be paid into the county treasury. The resolution providing for the collection of such taxes shall also indicate the amount which shall be paid to each town and a certified copy thereof shall be filed with the county treasurer. The amount thereof to be borne by the town shall, by 963a HIGmVAYS AND BRIDGES. Highway Law, § 320a. resolution of the town board, be paid from any funds in such town that may be legally used for highway purposes.^ [Highway Law, § 320, as amended by L. 1912, ch. 534, L. 1914, ch. 198, and L. 1917, ch. 558; B. C. & G. Cons. L., p. 2344.] § la. COUNTY SYSTEM OF ROADS. The board of supervisors of a county may aid a town or towns in the construction or improvement of a highway or highways therein, and shall designate the highway or highways which the town or towns are to con- struct or improve by the aid of the county. Such county may prepare a map of the system of highways thus to be improved in that county. The board may by resolution direct the county superintendent to super- vise the preparation of grade and culvert work of a road so designated by said map for improvement, by the town superintendent of the town in which such improvement shall be made, and upon the completion thereof by the town, and the county superintendent's certification that the road is so prepared and the town is equipped with sufficient machinery to prop- erly perform the work, such machinery to be furnished by the town and used during the road's construction, the board may, by resolution order the construction of an improved road under the direction of a committee known as the highway officials of the county as hereinafter provided. The con- struction work shall be under the charge and supervision of the town superintendent of the town in which the work is being done. If for any cause the town superintendent is incapacitated or in the opinion of the county superintendent is incompetent to properly take charge of the work, some competent person shall be designated by the county superintendent by and with the advice and consent of the town board and the compensa- tion of the town superintendent or person in charge shall be a town charge. The employment of convict labor on roads so constructed shall be author- ized and permitted, in the discretion of the superintendent of state prisons, upon the requisition of the county superintendent of highways. The board of supervisors of Erie county shall have power, if they deem it proper, to employ convicts, sentenced to be confined in a penitentiary situate within the territorial limits of such county and liable to be employed at hard labor, upon any highway or work connected therewith within such coimty, and such board of supervisors shall have power to make all neces- sary appointments, rules and regulations for such employment within such 1. This section is new in the Highway Law of 1908. It was inserted so as to permit a county to join with the towns therein, in constructing a system of highways at the joint expense of county and towns. MISCELLANEOUS PROVISIONS. 963b Highway Law, § saOa. county, including the right to fix a per diem compensation for such em- ployment at a rate not to exceed ten cents. The highway oflBcials of the county under this section shall consist of the county superintendent, three members of the board, appointed by the chairman. The supervisor of the town in which a road is being improved shall be a member of the said committee on all questions involving the work in the town of which he is the supervisor. Unless the advice and direction of the highway officials shall be fol- lowed in the prosecution of the work, no liability therefor shall accrue to the county for its share of the cost of work. Upon ordering the construction of an improved road under this section, the board of supervisors shall, by resolution, determine the proportions thereof to be borne by the county and town or towns respectively. The part, if any, to be borne by a town, as shown by such determination, may be a town charge, and the residue shall be a county charge. The amounts to be borne by the county shall be provided for by a tax, to be levied upon the taxable property of the county and collected in the same manner as for other county charges and shall be paid into the county treasury. The amount thereof to be borne by the town, by resolution of the town board, be paid from any funds in such town that may be legally used for highway purposes. The board of supervisors may, in its discretion, appropriate and make immediately available from county funds either the whole of the moneys to complete the construction of such road or the part thereof to be provided by the county. If it shall determine that sufficient moneys are not available to pay the amount appropriated, or a specified part thereof, after defraying other county expenses, it may direct the county treasurer to borrow the same, in anticipation of taxes or of the proceeds of bonds to be issued as hereinafter provided, and to pledge the faith and credit of the -county for the payment of the amount when due, with interest, and issue iemporary certificates of indebtedness therefor. The board may, by reso- lution, authorize the issuance and sale of bonds of the county for the amount appropriated or for any part thereof, which may be the whole of such additional amount needed for the completion of such improvement or the county's share thereof or a part of such share. The proceeds of such bonds shall be paid into the county treasury and applied to the cost of such improvement or to the payment and redemption of certificates of indebtedness, if any, issued as above provided. The board of supervisors on petition of the town board of a town in which any part of the improved road is located, may by resolution authorize such town to borrow money on the faith and credit of the town by temporary loan in anticipation of the 963c HIGHWAYS A^'D BEHX^ES.' Highway Law, § 320a. next succeeding tax levy to pay its share of the cost of the improvement which has been ordered by the board of supervisors. Town bonds may be issued and sold by the supervisors, in the name of the town, for the amount so authorized. The proceeds thereof shall be paid into the county treasury and be a part of a fund to be applied to the cost of such improvement within the town or to the payment and redemption of county bonds, if any, issued to pay the share of such town. County or town bonds issued under the foregoing provisions shall be payable not more than thirty years from their date and shall be sold for not less than par. The board of super- visors shall, from time to time, impose upon the taxable property of the county a tax sufficient to pay at maturity any such county bonds, and in- terest, and upon the taxable property of any town a tax sufficient to pay at maturity any such bonds of the town, and interest. Payments from time to time by the county treasurer of moneys provided for under this section shall be made for the prosecution of such work upon the certificate of the district or county superintendent countersigned by the chairman of the highway officials committee. Said orders shall be drawn to the order of the supervisors of the respective towns where roads are being constructed to be disbursed by them, upon the orders of the town superintendent or person designated in his stead, in accordance with the agreement as pro- vided by section one hundred and five of this chapter and accounted for in the supervisor's annual report as provided by section one hundred and seven of this chapter. Such highways, when completed and accepted by the board of super- visors, shall be thereafter repaired and maintained by the towns wherein such highways are located in the same manner as all other town highways ; except there shall be raised annually by the county and by the town a tax of not less than one hundred dollars per mile for each mile of highways improved in a town under the provisions of this section. The amount thereof to be borne by the county or by the town or towns shall be appor- tioned by the board of supervisors. The part, if any, to be borne by a town or towns, as shown by such apportionment, shall be a charge against the town or towns and the residue shall be a county charge. The amount to be borne by the county shall be provided for by a tax to be levied upon the taxable property of the county and collected in the same manner as for other county charges and shall be paid into the county treasury. The amount thereof to be borne by the town shall, by resolution of the town board, be paid from any funds in such town that may be legally used for highway purposes. The resolution providing for such apportionment shall also indicate the amoimt which shall be paid to each such town, and MISCELLANEOUS PROVISIONS. 963(1 Highway Law, §§ 321-324. a certified copy thereof shall be filed with the county treasurer. On receipt of such money the supervisor shall credit the amount to the town highway fund to be paid out on the written order of the town superintendent in accordance with agreement which is provided by section one hundred and five of this chapter and shall be accounted for in the supervisor's annual report as provided by section one hundred and seven of this chapter. [High- way Law, § 320a, as added by L. 1914, ch. 61, amended by L. 1915, ch. 556, L. 1916, ch. 458, L. 1917, ch. 231, and L. 1918, eh. 321.] § 2. WHEN COMMISSIONERS DO NOT ACT. When a commissioner or other officer appointed by a court under this chapter shall neglect or be prevented from serving, the court which ap- pointed him shall appoint another in his place. [Highway Law, § 321; B. C. & G. Cons. L., p. 2345.] § 3. INTEMPERATE DRIVERS NOT TO BE ENGAGED. No person owning any carriage for the conveyance of passengers, run- ning or traveling upon any highway or road, shall employ, or continue in employment, any person to drive such carriage who is addicted to drunk- enness, or to the excessive use of spirituous liquors; 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 in his employment. [Highway Law, § 322; B. C. & Gr. Cons. L., p. 2345.] § 4. DRIVERS, WHEN TO BE DISCHARGED. If any driver, while actually employed in driving any such carriage, shall be guilty of intoxication, to such a degree as to endanger the safety of the passengers in the carriage, the owner of such carriage shall, on receiving written notice of the fact, signed by any one of said passen- gers, and certified by him on oath, forthwith discharge such driver from his employment; and every such owner, who shall retain, or have in his service within six months after the receipt of such notice, any driver who shall have been so intoxicated, shall forfeit at the rate of five dollars per day, for all the time during which he shall keep any such driver in his employment after receiving such notice. [Highway Law, § 323 : B. C. & G. Cons. L., p. 2345.] § 5. liEAVING HORSES WITHOUT BEING TIED. No driver of any carriage used for the purpose of conveying passengers for hire shall leave the horses attached thereto, while passengers remain in yCJ: HIGHWAYS AND BRIDGES. Highway Law, §§ 325-327. the same, without first making such horses fast with a sufficient halter, rope, or chain, or by placmg the lines in the hands of some other person so as to prevent their running; and if any such driver shall offend against the provisions of this section, he shall forfeit the sum of twenty dollars. [High- way Law, § 324 ; B. C. & G. Cons. L., p. 2346. j § 6. OWNERS OF CERTAIN CARRIAGES LIABLE FOR ACTS OF DRIVERS. The owners of every carriage running or traveling upon any turnpike, road or highway, for the conveyance of passengers, shall be liable jointly and severally, to the party injured, for all injuries and damages done by any person in the employment of such owners, as a driver, while driving such carriage, whether the act occasioning such injury or damage be wilful or negligent, or otherwise, in the same manner as such driver would be liable.^ [Highway Law, § 325 ; B. C. & G. Cons. L., p. 2346.] § 7. TERM " CARRIAGE " DEFINED. The term " carriage " as used in this article shall be construed to include stage coaches, wagons, carts, sleighs, sleds, automobiles or motor vehicles, and every other carriage or vehicle used for the transportation of persons and goods, or either of them, and bicycles, tricycles and all other vehicles propelled by manumotive or pedomotive power, or by electricity, steam, gasoline or other source of energy.^ [Highway Law, § 326; B. C. & G. Cons. L., p. 2346.] $ 8. ENTITLED TO FREE USE OF HIGHAVAYS. The commissioners, trustees or other authorities having charge or control of any highway, public street, park, parkway, driveway, or place, shall have no power or authority to pass, enforce or maintain any ordinance, rule 2. Application of section. This section does not apply to the employes of a street railway operating its cars in the public streets and highways. Whitaker V. 8th Ave. Ry. Co., 51 N. Y. 295; Isaacs v. 3d Ave. Ry. Co., 47 N. Y. 122. At common law the owner was liable for the negligent but not wilful acts of his driver; the statute making the owner liable for wilful acts applies to owners of carriages for conveyance of passengers only. Wright v. Wilcox, 19 Wend. 343; Mali v. Lord, 39 N. Y. 381. 3. Section applied to a bicycle. Rooks v. Houston, West St. R. R. Co., 10 App, Div. 98, 41 N. Y. Supp. 824; Rogers v. City of Binghampton, 101 App. Div. 352, 92 N Y. Supp. 170; Lechner v. Village of Newark, 19 Misc. 452, 44 N. Y. Supp. 656. MISCELLANEOUS PROVISIONS. 965 Higliway Law, §§ 328, 329. or regulation by which any person using a bicycle or tricycle shall be ex- eluded or prohibited from the free use of any highway, public street, avenue, roadway, driveway, parkway, park, or place, at any time when the same is open to the free use of persons having and using other pleasure carriages, except upon such driveway, speedway, or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages. 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, parks, parkways, and places, or the regulation of the speed of carriages, vehicles or engines, in public parks and upon parkways and driveways in the city of New York, under the exclusive jurisdiction and control of the department of parks of said city, nor prevent any such commissioners, trustees or other authorities in any other city from regulating the speed of any vehicles herein described in such manner as to limit arid determine the proper rate of speed with which such vehicle may be propelled nor in such manner as to require, direct or prohibit the use of bells, lamps and other appurten- ances nor to prohibit the use of any vehicles upon that. part of the highway, street, park, or parkway, commonly known as the footpath or sidewalk. [Highway Law, § 32?; B. C. & G. Cons. L., p. 2346.] § 9. DEPOSITING ASHES, STONES, STICKS, ETC., UPON THE HIGHWAY. Any person who shall deposit or throw loose stones in the gutter or grass adjoining a highway, or shall depofiit or throw upon a highway, ashes, papers, stones, sticks, or other rubbish, shall be liable to a penalty of ten dollars to be sued for and recovered by the town superintendent. '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 othei'wise improving the highway, without the consent and under the direction of the town superintendent. [Highway Law, § 328 ; B. C. & G. Cons. L., p. 2347.] § 10. TRACTION ENGINES ON HIGHWAYS. The owner of a steam roller, steam traction engine, any other ma- chinery propelled or driven by steam, or of any gasoline driven traction engine, his servant or agent shall not allow, permit or use the same, pass over, through or U'pon any public highway or street except upon railroad tracks, unless such owner or his agents or servants shall send before the same a person of mature age, at least one-eighth of a mile in advance, who shall notify and warn persons traveling and using such highway or street with horses or other domestic animals, of the approach thereof, and at night such person shall carry a red light, except in in- corporated villages and cities.* [Highway Law, § 329, as amended by L. 1914, ch. 64: B. C. & G. Cons. L.. v. 2348.1 4. Penal provision. Section 1425 of the Penal Law contains the following subdivision. "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 high- 966 HIGHWAYS AND BRIDGES. Highway Law, § 329a. § 10a. I.IGHTS ON VEHICI.i:S. Every vehicle on wheels whether stationary or in motion, while upon any public street, avenue, highway, or bridge, shall have attached thereto a light or lights so placed as to be clearly visible from the front and from the rear from one-half hour after sunset to one-half hour before sunrise; provided, however, that this section shall not apply to a vehicle designed to be propelled by hand or to a vehicle designed principally for the trans- way, or causes or directs such animal, vehicle or engine to be so driven, led, or to be made to pass, unless a person of mature age shall precede such animal, vehicle or engine by at least one-eighth of a mile, carrying a red light, if in the night time, and giving warning to all persons whom he meets traveling such highways, of the ap- proach of such animal, vehicle or engine; Shall be deemed guilty of a misdemeanor." Purpose and eSect of section. Section is directed against traction engines, and does not include automobiles. Naaon v. West, 31 Misc. 583, 65 N. Y. Supp. 651. The mere presence and use, by a municipal corporation, on one of its public streets, of a steam roller does not render the street defective within the meaning of the statute (vide section 74 of the Highway Law). Mullen v. Village of Glens Falls, 11 App. Div. 275, 42 N. Y. Supp. 113. Necessity of warning. Where a steam roller was being used on the streets and no notice or warning of its approach was given and the horses which the plain- tiff was driving became frightened, it was held, in an action brought against the village to recover damages for personal injuries resulting from the negligence of the village, that it was proper to submit to the jury the question whether reasonable care required warning to be given of the approach of the steam roller. It was also held that upon the question whether a warning was necessary, it was proper to con- sider the fact that the above section of the Highway Law and of the Penal Law recognized the necessity of such a warning and that the failure to give it was made a misdemeanor, as indicating the view which the people of the state have taken as to the necessity of such warning. Mullen v. Village of Glens Falls, 11 App. Div. 275; 42 N. Y. Supp. 113; see, also. Rice v. Buffalo Steel House Co., 17 App. Div. 462; 45 N. Y. Supp. 277. Damages for failure to comply. Where a steam roller is used upon the high- way without sending a person ahead to warn travelers of its approach, and the plaintiff's horse is frightened thereby, a verdict for the plaintiff is warranted if there be no contributory negligence on his part. Buchanan's Sons v. Cranford Co., 112 App. Div. 278, 98 App. Div. 378. In case of failure to give warning and a, per- son operating the steam roller is injured in a collision with a trolley car, the cir- MISCELLANEOUS PROVISIONS. 967 Highway Law, § 330. portation of hay or straw while loaded with such commodities.** TJpon the written application and presentation of reasons therefor by the owner of the vehicle, the state commission of highways may in writing, and subject to such requirements as it may elect to impose, but without expense to the applicant, except said vehicle from the provisions of this section for such period of time as the commission may determine. The provisions of this section shall apply to all cities, towns, and villages of the state except the city of New York. Nothing in this section shall be construed to affect the provisions of any existing statute, rule, or regulations requiring lights on motor vehicles or affecting the obligations of operators or occupants thereof. A person violating the provisions of this section shall be guilty of a misdemeanor punishable by a fine not to exceed ten dollars. [Highway Law, § 329a, as added by L. 1914, ch. 32, amended by L. 1915, oh. 367, and L. 1918, ch. 258.] § 11. INJURIES TO HIGHWAYS. Whoever shall injure any highway or bridge maintained at the public expense, by obstructing or diverting any creek, watercourse or sluce, or by dragging logs or timber on its surface, or by drawing or propelling over the same a load of such weight as to injure or destroy the culverts or bridges along the same, or of such weight that will destroy, break or injure the oumstance may be considered in determining the amount of damages and the lia- bility therefor. Kelly v. New York State Railways, 207 N. Y. 342. 4a. Collision between automobile and unlighted wagon while passing at a turn in the road; contributory negligence; failure to have light on wagon. Where, in an action for negligence, it appears that the defendant's automobile, properly lighted, collided with decedent's horse-drawn wagon which carried no light, as required by statute, as they were passing at a turn in the road, due to the defendant's being too far toward the left side, it was error for the court to refuse to charge "that the failure to have a light on the plaintiff's vehicle is prima facie evidence of contribu- tory negligence on the part of the plaintiff." The absence of the light on the wagon 967a HIGHWAYS AXD BRIDGES. Highway Law, §§ 331, 331a. surface of any improved state, county or town highway, or by any other act, or shall injure, deface or destroy any mile-stone or guide-post erected on any highway, shall for every such offense forfeit treble damages. [High- way Law, § 330, as amended by L. 1910, ch. 568; B. C. & G. Cons. L., p. 2348.] § 12. WHEN TOWN NOT LIABLE FOB DAMAGES. N"o town shall be liable for any damages resulting to person or property by the reason of the breaking of any bridge, sluice or culvert, by transporta- tion on the same of any traction engine, portable piece of machinery, or of any vehicle or load, together weighing eight tons or over, but any owner thereof or other person engaged in transporting or directing the same shall be liable for all damages resulting therefrom.^ [Highway Law, § 331 ; B. C. & G. Cons. L., p. 3349.] §12a. EXCESSIVE LOADS ON UNSAFE BRIDGES. Whenever by order of the town board of any town in which a bridge,, sluice or culvert is located or, if a bridge, sluice or culvert connects two towns, by order of the town boards of such towns, a notice shall be erected upon each end of such bridge, sluice or culvert prohibiting the use of such bridge, sluice or culvert for loads in ezcess of ten tons, any person, firm or corporation transporting or causing to be transported over any such bridge, sluice or culvert any traction engine, tractor, portable piece of machinery or any vehicle or load weighing ten tons or over shall be guilty was under the circumstances a contributory cause, for the statute intended that such a light should be a signal to aid a person operating a motor vehicle to " turn the same to the right of the center of such highway so as to pass without interfer- ence." Martin v. Herzog (1917), 176 App. Div. 614, 163 N. Y. Supp. ISS. 5. Bridge maintained ty railroad. The provisions of the above section ex- empting a town from damages resulting from the breaking of a bridge by a, load weighing more than four tons does not apply to bridges constructed by a railroad as required by section 22 of the Railroad Law, but only to bridges of a town maintained at public expense. Bush v. D. L. & W. R. R. Co., 166 N. Y. 210; Lee v. D., L. & W. R. Co., 71 N. Y. Supp. 120. Section cited to show that a railroad company is required to construct bridges of such strength only as will support vehicles that ordinarily pass over highways. People ex rel. W. N. Y. & P. R. R. Co. V. Adams, 88 Hun, 122, 34 X. Y. Supp. 579. MISCELLANEOUS PROVISIONS. ggij-^ Highway Law, § 332. ■of a misdemeanor, and upon conviction of a first oSense shall be liable to a fine of not to exceed twenty-five dollars. A second ofEense shall be a mis- demeanor punishable by a fine or imprisonment or both, [Highvray Law, § 331a, as added by L. 1917, ch. 568.] § 13. LAW OF THE ROAD. 1. Whenever any person traveling with any carriages, or riding horses or other animals, shall meet on any turnpike road or highway, the persons so meeting shall seasonably turn their carriages, horses, or other animals to the right of the center of the road, so as to permit such carriages, horses, or other animals to pass without interference or interruption. 3. Any carriage or the rider of a horse or other animal, overtaking another shall pass on the left side of the overtaken carriage, horse or other animal. When requested to do so, the driver or person having charge of any carriage, horse or other animal, traveling, shall, as soon as practicable, turn to the right, so as to allow any overtaking carriage, horse or other animal free passage on his left. Excessive load. A verdict against a town for the death of a driver caused by the breaking of a bridge, will be reversed when it appears that the weight of the wagon and load was over four tons. Kelly v. Town of Saugerties, 110 App. Div. 561, 97 N. Y. Supp. 177. In an action against a town, for injury received by the collapse of o, bridge, it appeared that a traction engine weighing three and one-half tons was upon the bridge, that it was hauling a thresher weighing about one and one-half tons, and that at the time the accident occurred the engine alone was on the bridge; it was held that evidence may be introduced to show how much was added to the weight of the engine by reason of the effort of the engine to haul the weight of the thresher. Heib v. Town of Big Flats, 66 App. Div. 88, 73 N. Y. Supp. 86. See, also, Vandewater v. Town of Wappinger, 69 App. Div. 335, 74 N. Y. Supp. 699' (1902). Application to bridges maintained by State, see O'Brien v. State of New York (1911), 148 App. Div. 542. Section is limited to town bridges and does not apply to state bridges over the Erie Canal. Murray v. State of New York (Court of Claims, 1916), 10 State Dept. Eepts., 120. Liability of the State for death of a person while driving a traction engine over a state bridge, see O' Bryan v. State of New York, 68 Misc. 618, 125 N. Y. Supp. 489. 968 HIGHWAYS AND BRIDGES. Highway Law, § 332. 3. In turning corners to the right, carriages, horses or other animals shall keep to the right of the center of the road. In turning corners to the left, they shall pass to the right of the center of intersection of the two roads. 4. Any person neglecting to comply with, or violating any provision of this section shall be liable to a penalty of five dollars to be recovered by the party injured, in addition to all damages caused by such neglect or violation.^ [Highway Law, § 332; B. C. & G. Cons. L., p. 2349.] 6. The amendment of 1902 to the former Highway Law materially changed the former law, which merely provided that persons meeting should seasonably turn their carriages to the right of the center of the road so as to permit such carriages to pass without interference or interruption. Under that law it was held that it was extremely doubtful whether the law in regard to keeping to the right on a public highway applies to any one except the drivers of vehicles of some kind. Mooney v. Trow, etc., Co., 2 Misc. 238; 21 N. Y. Supp. 957; New- man v. Ernst, 10 N. Y. Supp. 310; 31 N. Y. St. Rep. 1; Smith v. Dygart, 12 Barb. 613. But the present law applies to any person traveling with a carriage or riding horses or other animals. For rule as to passing when going in the same direction, before the amend- m&nt of 1902, see Adolph v. Cen. Park, N. Y. & E. River R. R. Co., 76 N. Y. 530; Dudley v. BoUes, 24 Wend. 465; Savage v. Gerstner, 36 App. Div. 220. 55 N. Y. Supp. 306. Bight of the center of the highway. The rule requiring persons meeting to- keep their vehicles to the right of the center of the road, does not apply in winter when the depth of the snow renders it impossible or difficult to ascer- tain the center thereof. It is a reasonable construction of the statute to define the center of the road in such a case, as the center of the traveled track regard- less of the worked part of the road. Smith v. Dygert, 12 Barb. 613. The right of the center of the road, as used in this section, means the right of the worked part of the road and not the right of the most traveled part, although the whole of the traveled part may be on one side of the center. Earing v. Lansingh, f-^ Wend. 185. The rule with regard to keeping to the right does not apply when there are obstructions on that side of the highway. Mooney v. Trow Directory, Printing and Bookbinding Co., 2 Misc. 238, 21 N. Y. Supp. 957. The section applies to the case of vehicles passing each other on the same side of roads and streets so wide that there is no necessity for them to turn to the right of the center line of the highway in order to pass safely. Wright v. Pleischman, 41 ?Jisc. 533, 85 N. Y. Supp. 62. In approaching the intersection of roads a driver should keep to the right; if he turns to the left, and an automobile coming from behind, in attempting to pass to the left, as required in this section, strikes and injures the horse and wagon, the question as to the liability of the defendant is a question of fact for the jury. Mendleson v. Ran Rensselaer, 118 App. Div. 516, 103 N. Y. Supp. 577. " Seasonably turn," as used in this section, means that travelers shall turn to the right In such season that neither shall be retarded in his progress by the MISCELLANEOUS PROVISIONS. qqq Highway Law, § 333. § 14. TREES; TO WHOM THEY BELONG. All trees standing or lying on land witliin the bounds of any high- way, shall be for the proper use of the owner or occupant of such land, except that they may be required to repair the highway or bridges of the town.'' Where a right of way has been or shall be acquired, under the provisions of this chapter, for a state or county highway, the owner of the fee shall have and may harvest for his own use the fruit upon all fruit-bearing trees left standing from time to time within the right of way so acquired, until forbidden in writing by the governing board of the political subdivisions in which the title to such right of way vests. [Highway Law, § 333, as amended by L. 1916, ch. 14Y; B. C & G. Cons. L., p. 2352.] other occupying his half of the way, when he may have occasion to use it in passing. Spooner v. Brooklyn, etc., R. E. Co., 54 N. Y. 230. Runaway horses should be guided to the right side of the road to avoid a col- lision. But if the horses are beyond the control of the driver and he uses due diligence and the best of his ability as a skillful driver to control them the law of the road does not apply. Cadwell v. Armheim, 81 Hun, 39; 30 N. Y. Supp. 573. Rights of pedestrians. The law of the road does not apply to persons pacing each other on foot on the sidewalk. Grant v. City of Brooklyn, 41 Barb. 381 ; nor does it apply to a carriage meeting a person on foot in the highway. Savage v. Gernster, 36 App. Div. 220, 55 N. Y. Supp. 306; although there can be no question as to the right of a person to pass along a highway on foot, and he is entitled to the exercise of reasonable care on the part of persons driving along the highway. Vehi- cles and pedestrians have equal rights in the highway, and both sihould exercise the care and caution that the circumstances demand. A person on foot has a right to cross the street, not only at the crosswalk, but wherever he pleases; and one driving horses is bound to be watchful at all points so as not to injure persons crossing. Moebus v. Herrmann, 108 N. Y. 349. Footmen or vehicles have no superior right of way, the one over the other. Each has a right of passage in common, and in its use is bound to exercise reasonable care for his own safety, and to avoid injury to the other. For a person crossing a street on foot, where vehicles are numerous, to fail to look in both directions and ascertain if any vehicles are approae'.iing, their rate, of speed and distance from the crossing, is negligence. Barker v. Savage, 45 N. Y. 191. A person driving horses along the streets of a city is bound to look out for travelers on foot and must take reasonable care to avoid them. Murphy v. Orr, 96 N. Y. 14; Hyland v. Yonkers E. E. Co., 15 N. Y. St. Eep. 824, 1 N. Y. Supp. 363. Abatement of tax for shade trees transplanted by the side of a highway by the owner of the adjoining premises. See Highway Law, sec. 63, ante, p. 835. The town superintendents of highways may authorize the owners of property adjoining highways to locate and plant trees. See Highway Law, sec. 61, ante, p. 834. Shade trees. A right having once been given to the owner of lands adjoining a highway to plant and have shade trees along the highway, he is entitled to a continuance of the growth of such trees and is protected against their destruc- tion by any person, including a highway officer. See Edsall v. Howell, 86 Hun, 424; 33 N. Y. Supp. 892. Although an owner does not own the fee of the high- way in front of his lot, if he sets out shade trees along the highway in front of his premises, at his own expense and with the sanction of the municipal authorities, he is entitled to have such trees protected against negligent or wil- ful destruction at the hands of third parties and has a right in the nature of an 9?0 HIGHWAYS AND BRIDGES. Highway Law, §§ 334-336. §15. INJURING FRUIT OR SHADE TREES. It shall be unlawful for any person or persons whatsoever in this state to hitch any horse or other animal or to leave the same standing near enough to injure any fruit or forest tree growing within the bounds of the public highway, or used as a shade or ornamental tree around any school- house, church or public building, or to cut down or mutilate in any way any such ornamental or shade tree ; but the right of property owners along the highway to cultivate, train and use such shade trees shall not be impaired or abridged hereby. Any person or persons guilty of violating the pro- visions of this section shall be deemed guilty of misdemeanor, and shall be punishable by a fine of not less than five dollars, nor more than twenty- five dollars for each such offense, and in case of failure to pay any fine imposed, may be committed to jail, not exceeding one day for each dollar of such fine. Courts of special sessions having jurisdiction to try misde- meanors, as provided by section fifty-six of the code of criminal procedure, shall have exclusive jurisdiction to try offenders in all eases occurring 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 judgments, to the extent herein provided. All fines collected under the provisions of this act shall be paid when the offense is committed in a town outside of incorporated villages, to the supervisor of the town, to be used as the town board and town superintendent may direct. When the offense is committed in any village of the county, which by law is constituted a separate road district, the fine shall be paid to the treasurer of said village, to be used as the board of trustees may direct. [Highway Law, § 334; B. C. & G. Cons. L.,,p. 2353.] § 16. PENALTY FOR FALLING TREES. If any person shall cut down any tree on land not occupied by him, so that it shall fall into any highway, river or stream, unless by the order and 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, § 335 ; B. C. & G. Cons. L., p. 2353.] " § 17. FALLEN TREES TO BE REMOVED. If any tree shall fall, or be fallen by any person from any inclosed land easement for which he may recover compensation if it is taken away from him. The unlawful cutting down of shade trees in a highway is deemed in equity irre- parable injury. Lane v. Lamke, 53 App. Div. 395 ; 65 N. Y. Supp. 1090. 6a. Treble damages in action for trespass because of injury to shade trees, see Code Civil Procedure, §§ 1667, 1668. Actual damages may only be recovered where trees are within limits of highway, see Pfohl v. Rupp, 166 App. Div. 630, 152 N. Y. Siipp. 47. MISCELLANEOUS PROVISIONS. 971 Highway Law, §§ 337-340. 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, § 336; B. C. & G. Cons. L., p. 2353.] § 18. PENAI.TIES, HOW RECOVERED. All penalties or forfeitures given in this chapter, and not otherwise specially provided for, shall be recovered by the town superintendent, in the name of the town in which the oifense shall be committed; and when recovered, shall be applied by them in improving the highways and bridges in such town. [Highway Law, § 337 ; B. C. & G. Cons. L., p. 2353.] § 19. ACQUISITION OF PLAUK ROADS. Tie board of supervisors of any county, except a county wholly within the city of New York, and except the county of Erie, 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 toll or charge for walking, riding or driving over any plank road op turnpike, or a bridge within such county, erected over any unnavigable stream, or over the Hudson river above Waterford. 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.' [Highway Law, § 338, as amended by L. 1914,. ch. 200 ; B. C. & G. Cons. L., p. 2354.] § 20. BORROWING MONET; BONDS. 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. [High- way Law, § 339 ; B. C. & G. Cons. L., p. 2354.] I 21. RAISING MONE¥ TO PAY BONDS AND INTEREST. Except in the counties of Rensselaer, Onondaga, Albany and Columbia,, the amount of such bonds in whole or in part together with the interest 7. See Matter of Saratoga Lake Bridge Co. v. Walbridge, 140 App. Dir. 718,. 821, 126 N. Y. Supp. 468. 972 HIGHWAYS AND BRIDGES. Highway Law, §§ 341-342. thereon may be apportioned by the board of supervisors upon the towns, cities and villages constituting separate highway districts, in which such plankroad, turnpike or bridge is located, in such proportions as the boards 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. In the counties of Eensselaer and Columbia, the boards of supervisors, in making up the annual tax budget of the counties, shall each year levy and assess upon and against the taxable property in said counties, in addition to the amounts levied and assessed for other county charges, an amount sufficient to pay the interest falling due and payable on the said bonds during such year, and also an amount sufficient to pay the proportion of the years fixed at the time during which said bonds shall run from their issue to maturity. The amount raised by tax in each year for the payment of the principal of said bonds shall be preserved intact by the county treasurers of said counties until said bonds mature airi are' payable, and upon the maturity of said bonds, said county treas- urer shall pay the same in full out of the moneys so raised by annual tax therefor and shall thereupon take back said bonds with receipts for the payment thereof and deliver them to the boards of supervisors of said counties for cancellation. Said county treasurer shall deposit at interest the said moneys yearly raised by tax for payment of the principal of said bonds in such bank or depository as shall be designated by the boards of supervisors of said counties, and the amount realized from the interest thereon shall be used for the purposes of the said counties under the direction of the said boards of supervisors. [Highway Law, § 340; B. C. & G. Cons. L., p. 2354.J § 22. ROADS SO ACQUIRED TO BE PART OF HIGHWAY SYSTEM. A plankroad, turnpike or bridge acquired pursuant to this article shall become a part of a highway system of such county and of the towns, cities and villages in which the same is located, and shall thereafter bo repaired and maintained in the same manner as the other highways or bridges therein. [Highway Law, § 341; B. C. & G. Cons. L., p. 2355.] § 23. WHEN ROAD IS IN T^VO OR MORE COUNTIES. When a plankroad, turnpike, toll road or bridge is partly in one county and partly in another, the boards of supervisors of the said counties shall act together in the manner prescribed above, and determine the amount to be paid to said plankroad, turnpike, toll road or bridge company, by each county, and such amount against each county, after such determina- MISCELLANEOUS PROVISIONS. 973 Highway Law, §§ 343, 344. "tion, shall be paid by each county. [Highway Law, § 343; B. C. & G. Cons. L., p. 2355.] § 24. ALBANY POST ROAD; RAILROAD TRACKS THEREON. The old established road along the valley of the Hudson river from the city of New York to the city of Albany, known as the Albany post road, shall be a public highway for the use of the traveling public forever. The said highway shall be kept open and free to all travelers, and shall not be obstructed in any way by any obstacle to free travel. No trustees of any village or corporation of any city upon its route, or town superintendents of highways of towns, or any other person or board whatever, shall have any power or authority to authorize or license the laying of any railroad track upon said highway, except to cross the same, and any such action shall be void and of no effect. This section shall not apply to any portion of said road within the city of New York or the city of Yonkers, south of Main street, nor shall it apply to the road of the president, directors and company of the Eensselaer and Columbia turnpike nor to the town of Cortland or the village of Sing Sing, in Westchester county. [High- way Law, § 343, asamended by L. 1910, ch. 658; B. C. & G. Cons. L., p. 2355.] § 25. LIGHTING ROADS, HIGHWAYS AND BRIDGES. The town board of any town, subject to the approval of the commissioner of highways, may from time to time provide for lighting dangerous por- tions of any road or highway defined by section three of this chapter or constructed or improved under the provisions of section three hundred and twenty of this chapter, and of bridges located thereon. The initial action of the board shall be in the form of a proposal for submission to the com- missioner. The roads and portions thereof to be lighted, and the manner of lighting, shall be set forth in such proposal. Such proposal shall be embodied in a resolution. The lighting of one or more such roads, high- ways or bridges, or either, may be proposed in a single resolution. The board may provide for such lighting, if its proposal is so approved, or, if modifications are suggested by the commissioner, may adopt such modifica- tions and provide for such lighting in conformity therewith. The expense of installing, madntainiug and caring for such lights shall be a town charge, and the moneys therefor shall be provided and appropriated in the same manner as for other town expenses. The furnishing of light under this section may be provided for by contract or otherwise; but nothing herein contained shall be deemed to authorize the town board to acquire, construct or establish a gas or electric lighting plant for the above purposes. The installation of lights, fixtures and connection shall be done under the super- vision of the county superintendent of highways. The town board may provide for the care of such lights in such manner as it may deem proper. The board may, in its discretion, at any time discontinue the lighting of any road, highway or bridge, or portion thereof, provided for under thia section. [Highway Law, § 344, as added by L. 1917, ch. 367.] 974 HIGHWAYS AND BRIDGES. Highway Law. §§ 350. 351 CHAPTER LXVI. SAVING CLAUSES; LAWS REPEALED; WHEN TO TAKE EFFECT. [Highway Law, art XIII.] Section 1. Transfer of powers and duties of State engineer. 2. Transfer of records; eligibility of present employees. 3. County engineers and superintendents of highways to be continued in office. 4. Pending actions or proceedings. 5. Saving clause. 6. County highway maps preserved. 7. Construction. 8. When to take effect. 9. Laws repealed. § 1. TRANSFER OF POWERS AND DUTIES OF STATE ENGINGEER. On and after the taking effect of this chapter, and the appointment and qualification of the state commission as herein authorized, all the powers and duties of the state engineer in respect to highways and bridges, con- ferred and imposed by any statute of this state, shall be transferred to the department of highways to be exercised and performed by the state com- mission of highways as provided herein. [Highway Law, § 350; B. C. & G. Cons. L., p. 2356.] § 2. TRANSFER OF RECORDS; ELIGIBILITY OF PRESENT EM- PLOYEES. The state engineer shall transfer and deliver to the state commission of highways all contracts, books, maps, plans, papers and records of what- ever description, in his possession when such commission is appointed and have qualified, pertaining to the construction, improvement, maintenance and supervision of highways and bridges and such commission is authorized at such time to take possession of all such contracts, books, maps, plans, papers and records. The commission may also retain in its employment resident and other engineers, levelers, rodmen, clerks and employees en- gaged or connected with the department of highways in the office of th& LAWS REPEALED; WHEN TO TAKE EFFECT. 975 Highway Law, §§ 352-354. state engineer, or employed by him in connection with the powers and duties exercised and performed by him in respect to highways and bridges, and all such engineers, clerks and employees shall be eligible to transfer and appointment to positions under the commission. [Highway Law, § 351; B. C. & G. Cons. L., p. 2356.] § 3. COUNTY ENGINEERS AND SUPERINTENDENTS OF HIGHWAYS TO BE CONTINUED IN OmCE. County engineers and superintendents of highways in office when this chapter takes effect shall be continued in office during their present term of office and until the district or county superintendents shall have been appointed and have qualified as provided in this chapter. Such county engineers and superintendents of highways shall exercise the powers and perform the duties hereby conferred and imposed upon district or county superintendents until the appointment and qualification of a district or county superintendent as above provided. Upon the appointment and qualification of a district or county superintendent for the county for which such county engineer or superintendent of highways is appointed all con- tracts, books, maps, plans, papers, and records pertaining to the construc- tion, improvement, maintenance and supervision of highways in such county shall be transferred to such district or county superintendent. [Highway Law, § 353 ; B. C. & G. Cons. L., p. 3357.] § 4. PENDING ACTIONS OR PROCEEDINGS. This chapter shall not affect pending actions or proceedings, civil or criminal, pertaining to the construction, improvement^ maintenance, super- vision or control of highways and bridges, brought by or against the state engineer, or county engineer or a county superintendent of highways, or a commissioner of highways, under the provisions of any statute hereby repealed, but the same may be prosecuted or defended in the same manner by the commission or by the officer having jurisdiction in respect there- to. Any investigation, examination or proceeding undertaken, com- menced or instituted by the state engineer, county engineer or highway commissioner or either of them relating to highways or bridges may be conducted or continued to a final determination by the proper officer hereunder, in the same manner, and under the same terms and conditions, and with the same effect as though this chapter had not been passed. [Highway Law, § 353; B. C. & G. Cons. L., p. 3357.] § 5. SAVING CLAUSE. The repeal of a law, or any part of it specified in the annexed schedule 976 HIGHWAYS AND BRIDGES. Highway Law, § 355. shall not affect or impair any contract, or any act done, or right accruing, accrued or acquired or any penalty, forfeiture or punishment incurred prior to the time when this chapter or any section thereof takes effect, under or by virtue of the laws so repealed, but the same may be asserted, enforced, prosecuted, or inflicted, as fully and to the same extent, as if such laws had not been repealed. The provisions of this chapter shall not affect or im- pair any act done or right accruing accrued or acquired under or in pursu- ance of any resolution adopted by the board of supervisors of a county, on or before the thirty-first day of December, nineteen hundred and eight, re- questing the construction or improvement of a highway therein, as pro- vided in chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight, and the acts amendatory thereof, or under or in pursu- ance of any resolution adopted on or before such date by a board of super- visors, under such act and the acts amendatory thereof, providing for the construction or improvement of a highway in a county in accordance with maps, plans and specifications submitted to such board by the state en- gineer, or under or in pursuance of any contract for the construction or improvement of a highway, awarded as provided in such chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight and the acts amendatory thereof. All further proceedings in respect to such highway shall be taken in accordance with the provisions of this chapter. [Highway Law, § 354; B. C. & G. Cons. L., p. 2357.] § 6. COUNTY HIGHWAY MAPS PRESEEVED. The county highways to be selected by the commission for construction or improvement, as provided in this chapter, shall be the highways in the respective counties designated upon the map of the highv^ays of the state, prepared by the state engineer as provided by \a.vf, and approved by the legislature by chapter seven hundred and fifteen of the laws of nineteen hundred and seven ; except the highways on such map which have been designated and described as state highways by section one hundred and twenty of this chapter. Such map shall remain in full force and effect notwithstanding the repeal of such chapter seven hundred and fifteen of the laws of nineteen hundred and seven by this chapter; except that the board of supervisors of any county is hereby authorized to modify the designation of county highways on such map by resolution duly adopted by a majority vote of the members of such board provided the total mileage as originally designated upon the coimty map in such county is not thereby materially increased.' A certified copy of such resolution shall be transmitted to the commission or to the state engineer if the same be adopted prior to the appointment and qualifications of the commission. [Highway Law, § .S55 ; B. C. & G-. Cons. L., p. 2358.] 1. Section does not apply to state highways specified in 5 120 of the Highway Law. The map only relates to highways not desisfna-ted and described as state high- v.ays. People ex rel. Wauful v. Repl, 1S7 App. Div. 12a. LAWS REPEALED; WHEN TO TAKE EFFECT. 977 Highway Law, §§ 356, 357. I 7. CONSTRUCTION. Wherever the term " state engineer " shall occur in any law, contract or document such term shall he deemed to refer to the state commission of highways as established by this chapter so far as such law, contract or docu- ment pertains to matters which are within the jurisdiction of such com- mission of highways. Wherever the term " county engineer " or " county superintendent of highways " is used in any such law, contract or document such term shall be deemed to refer to and include the county or district superintendent having jurisdiction of the matter contained in such law, contract or document. The provisions of this chapter so far as they are substantially the same as those existing at the time they shall take effect, shall be construed as a continuation of such laws, modified or amended, according to the language employed in this chapter, and not as new enactments. Eeferences in laws not repealed to provisions of law incorporated in this chapter and repealed, shall be construed as applying to the provisions so incorporated. [Highway Law, § 356; B. C. & G. Cons. L., p. 2358.] § 8. VTHEN TO TAKE EFFECT. This chapter shall take effect the first day of January, nineteen hundred and nine, except as to the provisions specified as follows : 1. The provisions of section forty -three, ninety, ninety-one, ninety-four, ninety-five, ninety-nine, and one hundred, relating to highway commis- sioners, estimates of expenditures, duties of town board in respect thereto, levy of taxes, the limitation of amounts to be raised, submission of prop- ositions at town meetings, assessments of village property and statements by the clerk of the board of supervisors to the comptroller, shall take effect immediately. 2. The provisions of sections one hundred and thirty and one hundred and thirty-one of this chapter, pertaining to the award of contracts for the construction of county highways shall take effect immediately and shall apply to contracts to be awarded under chapter one hundred and fifteen of the laws of eighteen hundred and ninety-eight and the acts amendatory thereof, prior to January first, nineteen hundred and nine; and until the commission shall have been appointed and have duly qualified, the state engineer and surveyor shall exercise the powers and perform the duties conferred upon the said commission by the foregoing sections. 3. The provisions of section one hundred and seventy-nine, relating to the sprinkling of state and county highways and the removal of refuse therefrom; the provisions of section three hundred and twenty, relating to the construction or improvement of highways, at the joint expense of a county and town, and the provisions of section three hundred and fifty-five S78 HIGHWAYS AND BRIDGES. Highway Law, § 357. relating to the modification of maps by boards of supervisors and the pro- visions of this section shall take effect immediately. [Highway Law, § 357 ; B. C. & G. Cons. L., p. 2359.] § 9. I.AWS REPEALED. Of the laws enumerated by the schedule hereto annexed that portion specified in the last column is hereby repealed. Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby repealed. [The schedule of laws re- pealed is omitted.] DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 979 County Law, § 61. CHAPTER LXVII. DUTIES OP BOARDS OP SUPERVISORS AS TO HIGHWAYS AND BRIDGES. Section 1. When board of supervisors may lay out, open, alter or discontinue county highways or construct bridges. 2. Boards of supervisors may authorize the change of location or con- struction of bridges. 3. Board of supervisors may provide for construction of bridges de- stroyed by the elements, in certain cases. 4. Board of supervisors may aid towns in the construction and repair of bridges. 5. Apportionment of expenses when a bridge is intersected by town or county lines. 6. County's share of expenses to be raised and paid to the commis- sioners of highways of the towns. 7. Board of supervisors may authorize a town to construct a bridge out- side of a boundary line. 8. Maintenance of bridges over county lines. 9. Boards of supervisors may map out streets and avenues in towns outside of city limits. 10. Board of supervisors may authorize commissioners of highways to cause survey of highways to be made. 11. poard of supervisors may regulate toll rates. 12. Powers of boards of supervisors as to highways in counties of more than 300,000 acres of unimproved land. 13. Appropriation of certain nonresident highway taxes. 14. Balance of state appropriations. 15. Alteration of state roads. 16. Purther powers of board of supervisors as to highways. 17. Board of supervisors may pass laws as to use of wide tire on highways. 18. Use of abandoned turnpike, plank or macadamized roads. 19. Definition of " upon its borders." f 1. WHEN BOARD OF SUPERVISORS MAY LAY OUT, OPEN, AtTER OR DISCONTINUE COUNTY HIGHWAYS OR CONSTRUCT BRIDGES. A board of supervisors shall, on the application of twenty-iive resident 980 HIGHWAYS AND BRIDGES. County Law, § 61. taxpayers when satisfied that it is for the interest of the county, lay out, open, alter or discontinue a coimty highway therein, or cause the same to be done, and construct, repair or abandon a county bridge therein, or cause the same to be done, when the board shall deem the authority con- ferred on commissioners of highways insufficient for that purpose, or that the interests of the county will be promoted thereby.^ All expenses so incurred shall be a county charge. Such powers shall not be exer- cised unless the applicants therefor shall prove to the board the service of a written notice, personally or by mail, on a commissioner of high- ways of each town in the county, at least twelve days prior to the presentation of such application, specifying therein the object thereof; 1. County road system. Boards of supervisors are authorized to adopt by a resolution the county road system, and may thereupon designate certain lead- ing market roads in the county to be constructed and maintained at a county expense. Highway Law, sec. 320, ante, p. 961. Where a county road has been constructed by a county, without the aid of the state, the state is liable to pay a part ot the cost of maintenance. Highway Law, § 178, ante, p. 904. Where a road in a county has been designated and constructed by the county, it may be altered, or discontinued in the manner provided in the above section. Such section would also seem to authorize a board of supervisors to lay out and open a new highway. Power and liability of county as to highways and bridges. At common law the duty of repairing and constructing bridges rested upon the county, because of the fact that bridges were regarded as for the common good of the whole county. But the rule of the common law has never been in force in this state. As early as 1784 the care and reparation of highways, including bridges, were committed to town officers. Hill v. Board of Supervisors, 12 N. Y. 52. In this case Johnson, J., said: "It must, I think, be considered as settled, that the common law responsibilities of counties for the repair of bridges never prevailed in this state. Our statutory system introduced the primary responsibility of the towns in respect to the maintenance of highways and bridges; and in many cases where the burden was greater than could con- veniently be borne by the towns, particular acts of the legislature have pro- vided for the means and method of erecting and keeping in repair the public bridges." County Is not liable for failure of supervisors to maintain bridges in a safe condition. Ahern v. County of Kings, 89 Hun 148, 34 N. Y. Supp. 1023; Godfrey v. County of Queens, 89 Hun 18, 34 N. Y. Supp. 1052. Streets and highways. Board cannot rescind a resolution to close a high- way except on petition of property owners or certificate of the town officers as to its necessity. Schafhaus v. City of N. Y., 28 App. Div. 475, 51 N. Y. Supp. Ill, affd. 159 N. Y. 557. The legislature may delegate to the board of supervisors power to lay out streets and to levy and collect assessments therefor; and the board may by resolution appoint grading commissioners; nor is such resolution within the inhibition of the Constitution, Article 3, § 16, which applies only to acts of the legislature. Robert v. Supervisors of Kings, 3 App. Div. 366, 38 N. Y. Supp. 521, affd. 158 N. Y. 673. The board may authorize improvement of highways in a town even though it contain a village, the highways in the village being under their control; DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. ggl County Law, § 62. 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. Whenever the board of supervisors of a county shall determine to construct a bridge in accordance with the foregoing pro- visions of this section, such board, on behalf of the county, and the town board of a town or in case of a city the board of aldermen or any similar board exer- cising the functions of aldermen, on behalf of such town or city, may enter into- an agreement with the county, to the effect that such town or city will operate and maintain such bridge, in case the bridge is located wholly in a town or city. In case the bridge is constructed over a stream forming the boundary line between two towns or two cities or between a town and city, then they may agree with the county to operate and maintain such bridge jointly, in proportion to the assessed valuation of such town or city. The sum which the town or towns, city or cities are obliged to pay under such an agreement is a charge upon such towns or cities and shall be paid as other town or city charges are paid. [County Law, § 61, as amended by L. 1909, ch. 240, and L. 1914, ch. 233; B. C. & G. Cons. L., p. 752.] § 8. BOARDS OF SUPEKTIS0E8 MAY AUTHORIZE THE CHANGE OF LOCATION OB CONSTRUCTION OF BRIDGES. The board may authorize the location, change of location and construc- tion 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 cor- poration or individual for private purposes ;3 and if a public bridge, erected certiorari Is the proper writ to pass on such an action of the board. Trustees of Jamaica v. Supervisors, 42 St. Rep. 22, 16 N. Y. Supp. 705. Bridges. In the absence of action by the supervisors the highway commis- sioner of a town is empowered to erect a bridge and make valid contracts therefor. Berlin Iron Bridge Co. v. Wagner, 32 N. Y. St. Rep. 407, 10 N. Y. Supp. 840. But see Birge v. Berlin Iron Bridge Co., 133 N. Y. 477, s. c. 45 N. Y. St. Rep. 874. 2. For form of application of taxpayers to board of supervisors, see Form No. 149, post; for form of notice to highway commissioners, see Form No. 150, post; for form of proof of service of notice, see Form No. 151, post; and for form of order and resolution adopved by board of supervisors, see Form No. 152, post. 3. Location of bridge; powers of board. The power to locate a bridge over a stream, where a highway on both sides thereof has been laid out and the town has voted to construct such bridge, is not exclusively vested in the board of supervisors. Huggans v. Riley, 125 N. Y. 88; 25 N. E. 993. In this case It was held In effect that the provisions of the act of 1875, ch. 482, sec. 1, sub. 3, from which the above section was derived, did not take away the power vested In the commissioners of highways as to the care and superin- tendence of the highways; and that under the power given to those officers to repair highways, the highway commissioner of a town may build a new bridge when necessary to connect the two portions of a highway interrupted by an intersecting stream. Boards of supervisors have been granted power to authorize the construction or location of a bridge, or to permit a change of location thereof by any town or towns in the county, or by an individual or corporation residing therein. But, as was said by Gray, J., in the case last cited : " The town has voted for a bridge in a certain locality and has assumed and provided for the expense of its location. For the court to hold that because the precise location had not been made and would not be made by the county- 983 fflGHWAYS AND BEIDGES. County Law, § 64. other than by a municipal corporation, establish the rates of toll for cross- ing such bridge;* but if such bridge is to cross a navigable stream, provi- sion shall be made in the resolution or permission authorizing the same, for the erection and maintenance of a suitable draw, to prevent any obstruc- tion of the navigation of such stream; and if a private bridge, provision shall be made that the draw shall be kept open as may be required to per- mit all vessels to pass without loss of 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 permitted. If such bridge is to cross a stream which is navigable in fact, it, including its abutements, and piers, if any, shall be located and constructed in accord- ance with maps, plans and specifications to be approved by the state en- gineer and surveyor and by the superintendent of public works, and not otherwise, and copies of such maps, plans and specifications showing the location, character, design and dimensions of such bridge, and the fact of such approval, shall be filed in the oflBces of the state engineer and sur- veyor and of the superintendent of public works. [County Law, § 63, as amended by L. 1918, ch. 283; B. C. & G. Cons. L., p. 753.] § 3. BOARS OF SUPERVISORS MAY PROVIDE FOR CONSTRUCTION OF BRIDGES DESTROYED BY THE ELEMENTS, IN CERTAIN CASES. If any bridge within a county, or intersected by any boundary line of a county, shall be destroyed by the elements, and the board of supervisors of the county shall deem that the expenses of the construction of a new supervisors, no bridge can be constructed at all, would, in my opinion, be a view of the statutory regulations on that subject, which is quite unwarrantable. I do not think the legislature meant any such thing, and its acts are not susceptible of a construction which lodges such exclusive power in the county board of supervisors." Construction by private individual. Any person owning lands on both sides of a stream may, without legislative authority and even in defiance of legislative prohibition, maintain a ferry or bridge for his own use, pro- viding he does not interfere with the public easement. Such owner cannot, however, without legislative authority maintain a bridge or ferry for public use. Chenango Bridge Co. v. Paige, 83 N. Y. 178. And in the case of People ox rel. Howell v. Jessup, 160 N. Y. 249; 54 N. B. 682, it was held that the town of Southampton had, in the month of June, 1888, sovereign power as to lands under water in Great South Bay, and could give authority to an owner on the main land to construct a bridge to the sand bar on the opposite side of the bay, also owned by him, where such bridge was not an unreasonable obstruction to navigation. 4. Bates of toll. Boards of supervisors may regulate rates of toll. See County Law, sec. 72, post, p. 988; Transportation Corporations Law, sec. 136. DUTIES OP SUPERVISORS AS TO HIGHWAYS AND BRIDGES, ggj. County Law, § 63. bridge at or near the site of the bridge so destroyed would be too burden- some 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 construction and completion of a bridge and all necessary approaches thereto, at or near the site of the bridge so destroyed. If the bridge so destroyed shall have been constructed by a corporation created under a general law, and the site thereof, and the approaches thereto, or either, shall be the property of such corporation, such board of supervisors may purchase the interest of such corporation, or any other person, 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 title to premises on either side of such site, and provide for the construction of a bridge and approaches thereto, at such place, at the expense of the county, or of the two counties jointly, as the case may be, provided such bridge shall be so located as not to increase the distance to be traveled upon the highway to reach each end of such bridge more than five rods. Any board of supervisors providing for the construction 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, § 64; B. C. & G. Cons. L., p. 755.] § 4. BOARD OF SUPERVISORS MAY AID TOWNS IN THE CON- STRUCTION 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 expenses for the construction and repair of its bridges, the board may cause a sum of money, not exceed- ing two thousand dollars in any one year, to be raised by the county and paid to such town to aid in defraying such expenses.' [County Law, § 63 ; B. C. & G. Cons. L., p. 754.] 5. Unreasonable burden. Since 1801 statutes have existed relieving towns from unreasonable burdens in the construction of bridges. People ex rel. Root V. Supervisors of Steuben Co., 81 Hun 216, 30 N. Y. Supp. 729, affd. in 146 N. Y. 107; as to liability of county to contribute. See Hill v. Supervisors of Livingston, 12 N. Y. 52; People v. Supervisors of Dutchess, 1 Hill 50; Phelps V. Hawley, 52 N. Y. 27. Aid of county. The board of supervisors may appropriate county moneys for the aid of a town which is unreasonably burdened by the construction of bridges, although the town has already bonded itself for such purpose. The money so appropriated may be expended for the payment of bonds. Knowles v. Board of Supervisors of Chemung Co., 112 App. Div. 138, 97 N. Y. Supp. nil. 984 HIGHWAYS AND BRIDGES. County Law, §§ 65-67. § 5. APPORTIONMENT OF EXPENSES WHEN A BRIDGE IS INTER. SECTED BY TOWN OR COUNTY LINES. If any public free bridge, intersected by the boundary line of a county shall also be intersected by the boundary line of two or more towns in such county, the board of supervisors of such county shall apportion as it shall deem equitable, between such towns, their respective shares of the expenses of the construction, maintenance and repair of such bridge, and the amount to be received by each town of- the money raised by the county to be paid toward defraying the expenses of constructing and repairing such bridge." The provisions of chapter four hundred and thirty-nine of the laws of eighteen hundred and eighty-one shall apply and continue in force so far as relates to or affects any bridges constructed thereunder before the sixth day of May, eighteen hundred and ninety. [County Law, § 65; B. C. & G. Cons. L., p. 755.] § 6. COUNTY'S SHARE OF EXPENSES TO BE RAISED AND PAID TO THE COMMISSIONERS OF HIGHWAYS OF THE TOWNS. The board of supervisors shall cause to be raised and collected the amount to be paid by the county to any town toward the expenses of a bridge and when collected the same shall be paid to the commissioners of highways of the town, to be applied by them toward the payment of such expenses. [County Law, § 66; B. C. & G. Cons. L., p. 756.] § 7. BOARD OF SUPERVISORS MAY AUTHORIZE A TOWN TO CON- STRUCT A BRIDGE OUTSIDE OF A BOUNDARY I.INE. The board of supervisors of any county may authorize any town, on a 6. Bridges over county boundaries are to be erected, maintained, and repaired by the towns, and the county is liable to pay not less than one-sixth of the expense of such erection, maintenance and repair. See Highway Law, sec. 130, ante, p. 945. Apportionment of expense. Supervisors may apportion expense on their own motion. People ex rel. Morrill v. Supervisors of Queens, 112 N. Y. 585. The power of apportioning vested in the supervisors is ' permissive only. Surdam V. Fuller, 31 Hun 500. But see People ex rel. Root v. Supervisors of Steuben Co., 81 Hun 216, 30 g. Y. Supp. 729; People ex rel. Otsego Co. Bank v. Super- Tisors, 51 N. Y. 401. Board of supervisors may compel erection of a bridge between towns and impose tax on such towns to pay cost thereof, notwithstanding one of the towns be opposed thereto. Town of Kirkwood v. Newbury, 122 N. Y. 571, affg. 45 Ftun 323. DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 985 County Law, § 68. vote of a majority of the electors thereof voting at a regular town meeting, to appropriate a sum, or pledge its credit, partly 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, § 67; B. C. & G. Cons. L., p 756.] ^ 8. MAINTENANCE OF BRIDGES OVER COUNTY LINES. The board shall provide for the care, maintenance, preservation and repair of any draw or other bridge intersecting the boundary line of counties or towns, 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 appor- tion, as it may deem equitable, the expenses thereof on the towns respec- tively 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 respective counties, or upon any or either of such towns and cities, as in their judgment may seem proper; and if there be in either of said counties, a city, the boundaries of which are the same as the bound- aries 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 super- visors; but no town or city not immediately adjacent to such waters, at the points spanned by said bridge shall be liable for a larger proportion of •such expense than the taxable property of such town or city bears to the whole amount of taxable property of such county.' The board of super- As to power of legislature to impose tax, see People ex rel. Kilmer v. McDonald, 69 N. Y. 362; People ex rel. McLean v. Flagg, 46 N. Y. 401. 7. Liability of counties; defective bridge. Whether the maintenance of highways and bridges is devolved as a duty upon the towns or upon the counties of the state, it must be regarded as a duty, in its nature, public and governmental; and this is especially so in respect to the duty imposed by the above section upon counties of maintaining a bridge which spans navigable waters of the state, forming a boundary line between two counties. Markey ■v. County of Queens, 154 N. Y. 675; 49 N. E. 71. In this case Gray, J., said: " The conclusion I have reached, after a careful consideration of the subject, is that, in the work of constructing the bridge in question, the board of super- visors were executing a certain public duty, imposed upon them as the proper 986 HIGHWAYS AND BRIDGES. County Law, § 70. visors of such counties or in any city embracing the entire county, and having no board of supervisors, the common council shall have full con- trol of such bridges. No such bridge shall be constructed unless the board of supervisors in each of such counties, and the common council of the city whose boundaries are the same as the boundary of the other county adjacent to such waters, shall first by resolution determine that such bridge is necessary for public convenience, in which case such common 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 con- demned by the United States authorities as an obstruction to navigation, and shall be ordered removed, the county and city authorities having charge of such bridge, if they shall determine that such bridge shall be rebuilt, shall, as soon as practicable after such determination, cause plans to be prepared for the erection of the new bridge and the removal of any bridge so con- demned as foresaid, and within a reasonable time after the approval of any such plans by the United States authorities, the proper officers shall proceed with the construction of said new bridge. In case of any unreasonable delay on the part of the officer or officers charged with the duty of construction of such new bridge, such duty may be enforced by mandamus upon the application of any citizen interested in its performance. [County Law, § 68; B. C. & G. Cons. L., p. 756.] § 9. BOARDS OF SUPERVISORS MAY MAP OTTT STREETS ANI> AVENUES IN TOWNS OUTSIDE OF CITY LIMITS. When any territory in a county containing an incorporated city of one hundred thousand inhabitants or upward, lying outside the limits of such public agents in that particular civil division of the state, and that the county could not be subjected to a private action for injuries occurring in, or by reason of, the performance of the work." The liability only exists where there is a lawful highway which would be connected by a bridge over navigable waters dividing the counties. Beckwith V. Whalen, 70 N. Y. 430; People ex rel. Keene v. Supervisors, 151 N. Y. 190; 45 N. E. 453. In this case it appeared that a turnpike had been abandoned, and that its road had been carried over a navigable tidal stream forming the bound- ary between two counties by a bridge which had existed from 1836 to 1878; it was held that the turnpike upon its abandonment became a public highway, and that the statutory duty of rebuilding the bridge rests upon the boards of supervisors of the two counties. DUTIES OF SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 987 County Law, § 70. city, 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; the alteration of such plan of grades, or of any plan, thereof that shall have been established by law; the laying out, opening, grading, constructing, closing and change of line or width, 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; the laying out of new or additional streets and avenues upon the established map or plan thereof, the acceptance by town officers of conveyances of lands, for public highways, the naming and changing of names of streets and avenues laid down on said map or plan, and the numbering or renumbering of houses and building lots fronting on such streets and avenues. But such last named power in regard to the alteration of said map or plan, laying out, opening, grading, constructing, closing and change of line, of such streets or avenues, or the numbering or naming thereof, 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, and by conspicuously posting in six public places in each of 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 con- structed, upon or across any lands acquired by the right of eminent domain, and held in fee for depot purposes by any railroad corporation, or upon or across any lands now held by a corporation formed for the purpose of im- proving the breed of horses, without the consent of such corporations.* ISTo town officer shall charge anything for his services under this section. 8. Under the Constitution, Article 3, § 27, the legislature is empowered to grant the powers herein provided. A resolution is not objectionable which embraces more than one street, under Article 3, § 16, of the Constitution, the Constitutional inhibition applying only to acts of the legislature. Robert v. Supervisors of Kings, 3 App. Div. 366, 38 N. Y. Supp. 521. 988 HIGHWAYS AND BRIDGES. County Law, §§ 71, 72. 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, § 70; B. C. & G. Cons. L., p. 758.] § 10. BOARD OF SUPERVISORS MAY AUTHORIZE COMMISIONERS OF HIGHWAYS TO CAUSE SURVEY 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, of 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 to correct and verify the same by new surveys and to establish the location of highways by suitable monuments. Such records so made, or revised, 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 affect rights pending in any judicial proceeding com- menced before the deposit of such revised records with the town clerk. [County Law, § 71; B. C. & G. Cons. L., p. 760.] § 11. BOARD OF SUPERVISORS MAY REGULATE TOLL RATES. Such boards shall have power, by a vote of two-thirds of all the members elected to authorize an alteration, reduction or change of the rates of toll charged or received by any turnpike, plank or gravel road, or other toll road within such county, or by any bridge company or ferry within such 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 news- papers published in such county, once in each week for six successive weeks next before the annual election of supervisors in such county; and any alteration in rates of toll authorized by any board of supervisors may he 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, § 72 ; B. C. & G. Cons. L., p. 760.] 9. Tolls of plank road, turnpike and bridge corporations are also to be regu- lated and controlled under Transportation Corporations Law, sec. 136. Rates of ferriage to be posted. Highway Law, sec. 274, ante, p. 959. DUTIES OP SUPERVISORS AS TO HIGHWAYS AND BRIDGES. 939 County Law, §§ 73-76. § 12. POWERS OF BOARDS OF SUPERVISORS AS TO HIGHWAYS IN COUNTIES OF MORE THAN 300,000 ACRES OF UNIM- PROVED LAND. The board, may establish separate highway districts in counties con- taining more than three hundred thousand acres of unimproved unoc- cupied 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 or more towns; and they may be changed, altered or abolished at any time by the board. Such board may appoint one or more eommisioners to lay out and construct such highways in any such district, and prescribe 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 apart and appropriate the highway taxes upon such lands, for a period not exceeding ten years from the time of making such loan. [County Law, § 73 ; B. C. & G. Cons. L., p. 760.] § 13. APPROPRIATION OF CERTAIN NONRESIDENT HIGHWAY TAXES. The board may, upon the application of the owners representing a ma- jority 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 Laws, § 74; B. C. & G. Cons. L., p. 761.] § 14. 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 nonresident lands are situated, when the official life of commissioners appointed to receive and expend such taxes has expired. [County Law, § 75; B. C. & G. Cons. L., p. 761.] § 15. ALTERATION OF STATE ROADS. The board may authorize the commissioners of highways of any town in 990 HIGHWAYS AND BRIDGES. County Law, §§ 77-80. 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, § 76 ; B. C. & G. Cons. L., p. 761.] ^16. FUBTHEB POWERS OF BOARS OF SUPERVISORS AS TO HIGHAVATS. 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 apportionment of highway labor or taxes therefor, not in- consistent with law, as it may deem necessary and proper, when the pur- poses of such laws and regulations cannot be accomplished under the fore- going provisions or the general laws of the state. [County Law, § 77; B. C. & G. Cons. L., p. 761.J § 17. BOARD OF SUPERVISORS MAY PASS I^AWS AS TO USE OF W^IDE TIRE ON HIGHW^AYS. The board of supervisors may enact local and private laws regulating the width of tires used on vehicles built to carry a weight of fifteen hundred pounds or upwards, and may provide penalties for the violation thereof. [County Law, § 78; B. C. & G. Cons. L., p. 762.J § 18. USE OF ABANDONED TURNPIKE, PLANK OR MACADAMIZED ROADS. Boards of supervisors shall have power to provide for the use of aban- doned 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 members elected to such board, to be determined by yeas and nays, which shall be entered on its minutes. [County Law^ § 79 ; B. C. & G. Cons. L., p. 7G'2.] § 19. DEFINITION OF " UPON ITS BORDERS." Whenever the words " upon its borders " are used in this article in reference to the boundary line between two towns, the same are and were intended and shall be construed to mean " upon," " along," and " across its borders." [County Law, § .80; B. C. & G. Cons. L., p. 762. J RAILROADS CROSSING HIGHWAYS. 991 Railroad Law, § 89. CHAPTER LXVIII. RAILROADS CROSSING HIGHWAYS. Section 1. Steam surface railroads not to cross highways at grade; public service commission to determine manner of crossing. 2. Laying out new streets or highways over railroads; notice to railroad company; manner of crossing. 3. Changes in existing crossings; application to public service com- mission; notice; decision; appeal. 4. Acquisition of land right, or easement in crossing. 5. Repair of bridges and subways at crossing. 6. Payment of cost of construction. 7. Proceedings of public service commission for alteration of grade crossings. 8. Proceedings to compel compliance with recommendations of board of public service commission. 9. Town, village or city may borrow money and issue bonds. f 1. STEAM SURFACE RAILROADS NOT TO CROSS HIGHWAYS AT GRADE; PUBLIC SERVICE COMMISSION TO DETERMINE MANNER OF CROSSING. All steam surface railroads built after the first day of July, eighteen tundred and ninety-seven, except additional switches and sidings, must be so constructed as to avoid all public crossings at grade, whenever j)racticable so to do. Whenever application is made to the public service commission under section nine of this chapter there shall be filed with the commission a map showing the streets, avenues, highways and roads proposed to be crossed by the new construction, and the commission flhall determine whether such crossings shall be under or over the pro- posed railroad, except where the commission shall determine such method of crossing to be impracticable. Whenever an application is made under this section to determine the manner of crossing, the com- mission shall designate a time and place when and where a hearing will be given to such railroad company, and shall notify the municipal cor- poration having jurisdiction over the streets, avenues, highways or roads proposed to be crossed by the new railroad. The commission shall also ^ive public notice of such hearing in at least two newspapers, published 993 HIGHWAYS AND BRIDGES. Railroad Law, § 90. in the locality affected by the application, and all persons owning land in the vicinity of the proposed crossing shall have the right to be heard. Upon such a notice and after a hearing, the public service commission may determine that alterations or changes may be made in any existing highway, at or in the vicinity of a proposed crossing for the purpose of avoiding a crossing at grade. The decision of the commission rendered in any proceedings under this section shall be communicated, within twenty days after final hear- ing, to all parties to whom notice of the hearing in said proceeding* was given, or who appeared at said hearing by counsel or in person. [Railroad Law, (L. 1910, ch. 481), § 89, as amended by L. 1913, chs. 425, 744, and L. 1914, ch. 378.] § 2. LAYING OUT NEW STREETS OB HIGHWAYS OYER RAILROADS? NOTICE TO RAILROAD COMPANY; MANNER OF CROSSING. When a new street, avenue, highway or road or new portion or ad- ditional width of a street, avenue, highway or road, or a state or county highway or county road deviating from the line of an existing highway or road, shall hereafter be constructed across a steam surface railroad, other than pursuant to the provisions of section ninety-one of this chapter, such street, avenue, highway or road or portion of such street, avenue, highway or road, shall pass over or under such railroad or at grade, as the public service commission shall direct. Notice of intention to lay out such street, avenue, highway, or road, or new portion of a street, avenue, highway or road, across a steam surface railroad shall be given to such railroad company by the municipal corporation at least fifteen days prior to the making of the order laying out such street^ avenue, highway or road by service personally on the president or vice- president of the railroad corporation, or any general officer thereof. In case of the construction of a state or county highway which deviates from the line of an existing highway across a steam surface railroad, a like notice shall be given to such railroad company by the state com- mission of highways at least fifteen days prior to the adoption of the maps, plans and specifications for such state or county highway by such commission. Such notice shall designate the time when and place where a hearing will be given to such railroad company, and such railroad company shall have the right to be heard before the authorities of such municipal corporation upon the question of the necessity of such street, 1. Necessity of notice. Notice must be given to the railroad company over ■whose tracks it is proposed to lay out a highway, although proceedings to lay out such highway were instituted prior to the Grade Crossing Act of 1897, which added the above section to the Railroad Law. Matter of Ludlow Street, 59 App. Div. 180; OS N. Y. Supp. 1046; see, also, Matter of Village of Waverly, 35 App. Div. 38; 54 N. Y. Supp. 368. RAILROADS CROSSING HIGHWAYS. 993 Railroad Law, § 90. avenue, highway or road or new portion or additional width of such street, avenue, highway or road, or before the state commission of high- ways in case of a state or coimty highway, on the question of the location of such highway. If the municipal corporation determines such street, avenue, highway or road or new portion or additional width of such street, avenue, highway or road to be necessary, or if the state commis- ' sion of highways determines that such state or county highway which deviates from the line of an existing highway shall be constructed across such railroad at the place indicated in the maps, plans and specifications therefor, such Hiunicipal corporation or commission of highways shall then apply to the public service commission before any further proceed- ings are taken, to determine whether such street, avenue, highway or road or new portion or additional width of such street, avenue, highway or road shall pass over or under such railroad or at grade. The public service commission shall thereupon appoint a time and place for hearing such application, and shall give such notice thereof as it shall judge reasonable, not however less than ten days, to the railroad company whose railroad is to be crossed by such new street, avenue, highway or road, or new portion or additional width of a street, avenue, highway or road, to the state commissioner of highways, or in the case of a state or county highway which deviates from the line of an existing highway, to the municipal corporation and to the owners of land adjoining the railroad and that part of the street, avenue, highway or road to be opened, extended or constructed. The public service commission shall determine whether such street, avenue, highway or road, or new portion or additional width of a street, avenue, highway or road, or state or county highway shall be constructed over or under such railroad or at grade. If said commission shall determine that such street, avenue, highway or road or new portion or additional width of such street, avenue, highway or road shall be carried across such railroad above grade, then said commission shall determine the height, the length and the material of the bridge or structure by means of which such street, avenue, highway or road or new portion or additional width of such street, avenue, highway or road shall be carried across such railroad, and the length, character and grades of the approaches thereto. If said commission shall determine that such street, avenue, highway or road shall be constructed or extended below the grade, said commission shall determine the manner and method in which the same shall be so carried under, and the grade or grades thereof, and if said commission shall determine that said street, avenue, highway or road or new portion or additional width of such street, avenue, highway or road shall be 994 HIGHWAYS AND BRIDGES. Railroad Law, i 91. constructed or extended at grade, said conunission shall determine the manner and method in which the same shall be carried over said rail- road at grade and what safeguards shall be maintained. The decision of the commission as to the manner and method of carrying such new street, avenue, highway or road, or new portion or additional width of a street, avenue, highway or road, or state or county highway which deviates from the line of an existing highway, across such railroad shall be final, subject however to the right of appeal hereinafter given. The decision of said commission rendered in any proceeding under this section shall be communicated within twenty days after final hearing to all parties to whom notice of the hearing of such proceedings was given, or who appeared at such hearing by counsel or in person.^^ [Rail- road Law (L. 1910, ch. 481), § 90, as amended by L. 1913, ch. 744, and L. 1914, ch. 378.] § 3. CHANGES IN EXISTING CB0SSING8; APPLICATION TO PUBLIC SERVICE COMMISSION; NOTICE; DECISION; APPEAL. The mayor and common council of any city, the president and trus- tees of any village, the town board of any town, the board of supervisors of any county within which a street, avenue, highway or road or new portion or additional width of a street, avenue, highway or road crosses or is crossed by a steam surface railroad at grade, below or above grade by structures heretofore constructed, or any steam surface railroad company, whose road crosses or is crossed by a street, avenue, highway or road or new portion or additional width of such street, avenue, high- la. Application mast be made to public service commission to determine frhether street crossing shall be under or oyer railroad tracks, or at grade, before proceeding to acquire railroad lands by condemnation. Matter of City of New York, 204 N. Y. 465, revg. 143 App. Div. 258, 128 N. Y. Supp. 589. Matters of pnblie conTenience always yield to matters of public safety. Even though a proposed highway duly laid out by a town board must cross railroad tracks at grade in order to serve the convenience of the public desiring access to a neighboring cold storage plant which is the chief purpose of the highway, the Public Service Commission may, nevertheless, require that the highway be taken across the railroad tracks on a viaduct if a crossing at grade will be dangerous. Matter of Town Board of Royalton, 138 App. Div. 412, 122 N. Y. Supp. 844. Lands may be used for railroad purposes and for a highway crossing at the same time. When lands in use as a railroad right of way are taken by con- demnation for the purpose of opening a street across such right of way, the municipality ordinarily obtains a common right with the railroad company for the use of the land condemned and the railroad company continues to use its right of way for its corporate purposes not inconsistent with its use as a street crossing. After the fee of land over which a highway is to be opened JB obtained, if the municipality decides that the public interest does not re- quire that the lands be immediately opened as a public highway, and it conse- quently delays opening the same, it does not thereby either lose the title to RAILROADS CROSSING HIGHWAYS. 993 Railroad Law, § 91. way or road at grade, below or above grade, may bring their petition in writing to the public service commission, therein alleging that public safety requires an alteration in the manner of such crossing, its ap- proaches, the method of crossing, the location of the crossing, a change in the existing structure by which such crossing is made, the closing and discontinuance of a crossing and the diversion of the travel thereon to another street, avenue, highway, road or crossing, or if not practicable to change such crossing from grade, below or above grade or to close or discontinue the same, the opening of an additional crossing for the partial diversion of travel from the grade below or above grade crossing, and praying that the same may be ordered. Where a street, avenue, highway or road or new portion or additional width of a street, avenue, highway or road in a city, village, town or county, which crosses or is crossed by a steam surface railroad at grade, below or above grade, is a part of a highway which the state commission of highways shall have determined to construct or improve as a state or county highway, as provided in article six of the highway law, such commission of high- ways may bring a petition containing any of the allegations above speci- fied and praying for a like order. Upon any such petition being brought the public service commission shall appoint a time and place for hearing the petition, and shall give such personal notice thereof as it shall judge reasonable, of not less than ten days, however, to such petitioner, the railroad company, the municipality in which such crossing is situated, and if such crossing is in whole or part in an incorporated village having not to exceed twelve hundred inhabitants, also to the supervisor or supervisors of the town or towns in which such crossing is situated; and in all cases to the owners of the lands adjoining such crossing and adjoining that part of the street, avenue, highway or road or new por- tion or additional width of such street, avenue, highway or road to be changed in grade or location, or the land to be opened for a new crossing, and to the state commission of highways in case of a state or county highway. The public service commission shall cause notice of said hearing to be advertised in at least two newspapers published in the locality affected by the applicaction. Upon such notice and after a kearing the public service cominission shall determine what alterations the land or its rigiht to open the same to public use. New York Cent. & H. R. R. R- Co. V. City of Buffalo, 200 N. Y. 113. Am appeal from an order of tie Public Service CommisBion providing that a proposed highway shall cross railroad tracks on an elevated viaduct of certain clearance, does not lie if the commission reserved its decision as to the length, char- acter and grades of the approaches to the viaduct — matters which the statute re- quires it to determine. Matter of Town Board of Royalton, 138 App. Div. 412, 122 N. Y. Supp. 844. 996 HIGHWAYS AXD BRIDGES. Railroad Law, § 91. or changes, if any, shall be made.^ If the application be made by the state commission of highways in respect to a street, avenue, highway or road or new portion or additional width of a street, avenue, highway or road proposed to be constructed or improved as a part of a state high- way, the decision shall state whether such highway shall cross such rail- road above or below the grade of the highway ; in case of a county high- way, such decision shall state whether such highway shall cross such railroad at grade, or above or below the grade of the highway. The decision of said public service commission rendered in any proceeding under this section shall be communicated within twenty days after final hearing to all parties to whom notice of the hearing in said proceeding was given, or who appeared* at said hearing by counsel or in person. Any person aggrieved by such decision, or by a decision made pursuant to sections eighty-nine and ninety hereof, and who was a party to said proceeding, may within sixty days appeal therefrom to the appellate division of the supreme court in the department in which such grade crossing is situated, and to the court of appeals, in the same manner and with like effect as is provided in the case of appeals from an order of the supreme court. [Railroad Law (L. 1910, ch. 481), § 91, as amended by L. 1911, ch, 141, L. 1913, chs. 354, 744, and L. 1914, ch. 378.] Extension of street across u. railroad by an overhead bridge; easements of abutting lando^rner; injunction requiring elimination of crossing in event of non-payment of damages. Where a street, which did not tliereto- fore cross a railroad, was extended and carried over the railroad tracks by an over- head bridge, the opening of the street across the railroad was the opening of a new street, or new portion of a street, within the statute, and tbe erection of the bridge and its approaches without the consent of the public service commission was an unlawful obstruction of the highway, and an owner of abutting land, whose ease- ments of light, air and access to the street were injuriously affected by such bridge and approaches, has a right of action on account of the resulting injury. He is not entitled, however, to an absolute judgment requiring the elimination of the over- head crossing in the event of the non-payment of his damages, but only for its elimination if it is not now or hereafter made satisfactory to the public service commission. The judgment should be modified so as to enjoin the railroad company from maintaining the bridge across its railroad unless and until the said bridge and its approaches shall receive the sanction of the public service commission under section 90 of the Railroad Law. Brush v. New York, New Haven & Hartford R. R. Co. (1916), 218 N. Y. 264, modfg. 162 App. Div. 731. 2. The words " street, avenue or highway " import ways of a public char- acter and no other ways whatsoever. This section has no application to private rights of way and does not authorize the elimination of such rights. Hence, no party RAILROAD CROSSING HIGHWAYS. qqq^ Railroad Law, § 92. § 4. ACQUISITION OF LAND, RIGHT OB EASEMENT IN CROSSING. The municipal corporation having jurisdiction over the street, avenue, Mghway or road and in which the highway crossing is located, or the state commission of highways in case of a street, avenue or highway or road to he constructed or improved as a part of a state or county high- way, may with the approval of the railroad company acquire by purchase any lands, rights or easements necessary or required for the purpose of carrying out the provisions of sections eighty-nine, ninety and ninety-one of this chapter, but if unable to do so shall acquire such lands, rights or easements by condemnation either under the condemnation law or under the provisions of the charter of such municipal corporation. The rail- road company shall have notice of any such proceedings and the right to be heard therein.'^ [Railroad Law (L. 1910, ch. 481), § 92, as amended by L. 1913, ch. 744.J can be chargeable thereunder with any portion of the expense of closing ways ■which are wholly private. Matter of New York Cent. & H. R. R. R. Co., 200 N. Y. 121. Power of Public Service Commision. The Public Service Commission, under this section, has power to make an order directing a railroad company to close a highway or divert travel to another highway in order to eliminate a railroad cross- ing, by removing a bridge in a street and building an embankment across the street; and the work done by the railroad company in obedience to such an order cannot be regarded either as an unlawful obstruction of the street or an actionable nuisance'. Banner v. N. Y. & Harlem R. Co., 73 Misc. 113, aflf'd. 213 N. Y. 117. The Railroad Law prescribes the method of defraying the expense of altering old crossings and contsructing new ones, and the Public Service Commission cannot go beyond its provisions. Matter of New York Cent. & H. E. R. R. Co., 200 N. Y. 121. The State Highway Commission, with the consent of a railroad company, has power to enter into negotiations for the purchase of such lands and easements as may be necessary to eliminate a grade crossing, and by and with the consent of the railroad, may agree upon the value thereof, and if said values cannot be agreed upon, as above stated, then it becomes necessary to institute condemnation proceedings through the attorney-geneal's office. Rept. of Atty.-Genl., March 23, 1911. Objections first raised on appeal. The objection that a petition filed by the town board of the town of Schaghticoke, for the abolition of a railroad crossing at Melrose, N. Y., is insufficient in that it does not allege that Melrose is in the town of Schaghticoke, and the further objection, interposed by a party represented at the hearing, that proper notice was not given of the hearing before the railroad commis- sioners, cannot be raised for the first time on an appeal from the order granting the prayer of the petition. Matter of Town Board v. Fitchburg R. R. Co., 53 App Div. 16, 65 N. Y. Supp. 498. 2a. The words " municipal corporation in which the highway crossing is located " are broad enough to include a county, and the board of supervisors may apply for the appointment of commisioners to condemn lands necessary to change a grade crossing. County of Nassau v. Luessen, 69 Misc. 184, 125 N. Y. Supp. 206. Damages for closing highway. While this section covers the right of access, an owner of lands adjacent to a street is not entitled to damages for closing the street where he is given an improved street in its place, and his street facilities are better and safer, although he is further removed from the street. City of Corning v. O'Neill (1917) 180 App. Div. 454. Mandamus should not be issued to compel institution of condemnation proceed- ings until every reasonable effort has been made to acquire the lands by purchase. People ex rel. Mott Wheel Works v. Hayes (1917), 178 App. Div. 301. 1)9 Ob HIGHWAYS AND BRIDGES. Eailroad Law, §§ 93, 94. § 5. REPAIR OF BRIDGES AND SUBWAYS AT CROSSINGS. When a highway crosses a railroad by an overhead bridge, the frame- work of the bridge and its abutments shall be maintained and kept in re- pair by the railroad company, and the roadway thereover and the ap- proaches thereto shall be maintained and kept in repair by the munici- pality having jurisdiction over and in which the same are situated ; ex^ cept that in the case of any overhead bridge constructed prior to the first day of July, eighteen hundred and ninety-seven, the roadway over and the approaches to which the railroad company was under obligation to maintain and repair, such obligation shall continue, provided the rail- road company shall have at least ten days' notice of any defect in the roadway thereover and the approaches thereto, which notice must be given in writing by the town superintendent of highways or other duly constituted authority, and the railroad company shall not be liable by reason of any such defect unless it shall have failed to make repairs within ten days after the service of such notice upon it. When a high- way passes under a railroad, the bridge and its abutments shall be main- tained and kept in repair by the railroad compaay, and the subway and its approaches shall be maintained and kept in repair by the municipal- ity having jurisdiction over and in which the same are situated. In case such highway is a part of a state or county highway constructed or im- proved as provided in article six of the highway law, the roadway over such railroad or the subway underneath the same, and the approaches thereto, shall be maintained and kept in repair under the supervision and control of the state commission of highways in the manner provided by the highway law for the maintenance and repair of state and county highways where such roadway, subway or approaches, or any of them, have been constructed or improved as a part of a state or a county high- way." [Railroad Law (L. 1910, ch. 481), § 93, as amended by L. 1913, ch. 744, and L. 1916, ch. 484.] § 6. EXPENSE OF CONSTRUCTING NEW CROSSINGS. 1. Whenever under the provisions of section eighty-nine of this chap- ter, a new railroad is constructed across an existing highway, the ex- 3. Application. This section is not limited in its application to railroads con- structed subsequent to its enactment or to bridges over crossings thereafter con- structed, but applies to all bridges constituting the highway at railroad crossings, whether constructed before or after the law went into effect. City of Yonkcrs v N. Y. C. & H. R. R. R. Co., 165 N. Y. 142. Maintenance and repair of bridge and abutments is at the expense of the railroad company, but the approaches must be maintained at the expense of the state, where RAILROAD CROSSING HIGHWAYS. 997 Railroad Law, § 94 . pense of crossing above or below the grade of the highway including any expense incurred in altering or changing the highway under a determina- tion of the public service commission shall be paid entirely by the railroad corporation. 2. Whenever under the provisions of section ninety of this chapter a new street, avenue, highway or road or new portion or additional width of such street, avenue, highway or road is constructed across an existing railroad, the railroad corporation shall pay one-half and the municipal corporation having jurisdiction over such street, avenue, highway or road or new por- tion or additional width of such street, avenue, highway or road shall pay the remaining one-half of the expense of making such crossing above or below the grade of the railroad. 3. Whenever a change is made as to an existing crossing or structure in accordance with the provisions of section ninety-one of this chapter, fifty per centum of the expense thereof shall be borne by the railroad cor- poration, twenty-five per centum by the municipal corporation and twenty- five per centum by the state; except that whenever an existing crossing, in which a change is made under the provisions of section ninety-one, is located wholly or partly within an incorporated village having not to exceed twelve hundred inhabitants, the portion of expense herein required to be borne by the municipal corporation shall be borne by the town or towns in which such crossing is situated.* 4. Whenever under the provisions of sections ninety and ninety-one of this chapter a highway is constructed across an existing' railroad and is a part of a state or county highway constructed or improved as provided in the highway law, one-half of the expense of making such crossing above or below grade or changing or rebuilding the existing structure by which such crossing is made, shall be paid by the railroad corporation, and the remain- ing one-half of such expense shall be paid by the state in the case of a state highway, and jointly by the state, county and town in the case of a county highway, in the same proportion and in the same manner as the cost of construction or improvement of such state or county highway is paid. 5. Whenever in carrying out the provisions of sections ninety or ninety- one of this chapter two or more lines of steam surface railroad, owned and operated by different corporations, cross a highway at a point where a change in grade is made, each corporation shall pay such proportion of fifty a state highway, and the state, county and town, where a county highway. Opinion Pub. Serv. Con. (1916) 6 State Dept. Repts, 468. Mandamus will lie to compel a railroad company to repair or replace a bridge. Opinion of Pub. Serv. Com. (1917) 13 State Dept. Repts., 116. 4. Where grade crossing is eliminated on petition of a town, the expense thereof so far as chargeable to the locality must be borne by the town in which the grade crossing is situated although the approach to the bridge is partly in another town. People ex rel. Town of Scarsdale v. Public Service Commision (1917) 220 N. Y. 1, rev'g. 173 App. Div. 164. 998 HIGHWAYS AND BRIDGES. Railroad Law, § 94. per centum of the expense thereof as shall be determined by the public service commission. 6. In carrying out the provisions of sections eighty-nine, ninety and ninety-one of this chapter the work shall be done by the railroad corpora- tion or corporations affected thereby, subject to the supervision and ap- proval of the public service commission; and in all cases, except where the entire expense is paid by the railroad corporation, the expense of con- struction shall be paid primarily by the railroad company, and the expense of acquiring additional lands, rights or easements shall be paid primarily by the municipal corporation having jurisdiction over the street, avenue,, highway or road or new portion or additional width of such street, avenue, highway or road or, in case of a state or county highway, upon the order of the state commission of highways out of moneys available therefor. Plans and specifications of all changes proposed under sections ninety and ninety-one of this chapter and an estimate of the expense thereof shall be submitted to the public service commission for its approval before the letting of any contract. If such changes are proposed in a highway which is to be constructed or improved as a state or county highway, such plans and specifications shall also be submitted to the state commission of highways for its approval before the letting of any contract. In case the work is done by contract the proposals of contractors shall be submitted to the public service commission, and if the commission shall determine that the bids are excessive it shall have the power to require the submission of new proposals. The commission may employ temporarily such experts and engineers as may be necessary properly to supervise any work that may be undertaken under sections eighty-nine, ninety and ninety-one of this chapter, the ex- pense thereof to be paid by the comptroller upon the requisition and cer- tificate of the commission and included in the cost of the particular change in grade or in the structure above or below grade on account of which it is incurred and finally apportioned in the manner provided in this section. 7. Upon the completion of the work and its approval by the public serv- ice commission an accounting^ shall be had between the railroad corpora- tion and the municipal corporation or the state commission of highways of the amounts expended by each with interest, and if it shall appear that the railroad corporation or the municipal corporation or the state com- mission of highways has expended more than its proportion of the expense of the crossing as herein provided a settlement shall be forthwith made in accordance with the provisions of this section. At 5. Interest on claim against state. Although the statute makes no provision for interest where the state fails to pay its proportion of the cost of construction, it contemplates the payment of interest up to the time when the accounting is made, where the railroad company has acted in good faith. The interest is a part of the cost or expense of the work and where the accounting is delayed by reason of a mutual mistake, there is no reason why it should not be allowed. Matter of State Commission of Highways (1918) 183 App. Div. 108. RAILROAD CROSSING HIGHWAYS. 999 Railroad Law, § 94. any time after the work of elimination of a crossing has been commenced the public service commission may, upon its own motion or upon the petition of the railroad company or of any municipality interested or of the state commission of highways, make an order for an intermediate settlement and direct payments to be made in connection therewith as in this section provided for a final accounting. All items of expendi- ture shall be verified under oath, and in case of a dispute between the railroad corporation and the municipal corporation or the state commis- sion of highways as to the amount expended, any judge of the supreme court in the judicial district in which the municipality or the state or county highway is situated may appoint a referee to take testimony as to the amount expended, and the confirmation of the report of the referee shall be final. In the event of the failure or refusal of the rail- road corporation to pay its proportion of the expense, the same with interest from the date of such accounting may be levied and assessed upon the railroad corporation and collected in the same manner that taxes and assessments are now collected by the municipal corporation within which the work is done ; and in the event of the failure or refusal of the municipal corporation to pay its proportion of the expense an action may be maintained by the railroad corporation for the collection of the same with interest from the date of such accounting, or the rail- road corporation may offset such amount with interest against any taxes levied or assessed against it or its property by such municipal corporation. 8. In the event of the appropriation made by the state in any one year being insufficient to pay the state's proportion of the expense of any change that may be ordered the first payment from the appropria- tion of the succeeding year shall be on account of said change, and no payment shall be made on account of any subsequent change that may be ordered, nor shall any subsequent change be ordered, until the obli- gation of the state on account of the first named change in grade has been fully discharged, unless the same shall be provided for by an addi- tional appropriation to be made by the legislature. The state's pro- j^OOO HIGHWAYS AND BRIDGES. Railroad Law, §§ 94, 95. portion of the expense of changing any existing grade crossing or the structure of any existing crossing above or below grade shall be paid by the state treasurer on the warrant of the comptroller, to which shall be appended the certificate of the public service commission to the effect that the work has been properly performed and a statement showing the situation of the crossing or structure that has been changed, the total cost and the proportionate expense thereof ; and the money shall be paid in whole or in part to the railroad corporation or to the municipal cor- poration as the public service commission may direct, subject, however, to the rights of the respective parties as they appear from the accounting or intermediate accounting to be had as hereinbefore provided for. 9. No claim for damages to property on account of the change or elimination of any crossing or change in structure under the provisions of this article shall be allowed unless notice of such claim is filed with the public service commission within six months after completion of the work necessary for such change or elimination. [Railroad Law (L. 1910, ch. 481), § 94, as amended by L. 1911, ch. 141, L. 1913, chs. 354, 425, 744, L. 1914, ch. 378, and L. 1915, ch. 240.] § 7. PROCEEDINGS BY PTJBLIC SERVICE COMMISSION FOR ALTER- ATION OF GRADE CROSSINGS. The public service commission may, in the absence of any application therefor, when in its opinion public safety requires an alteration in an existing grade crossing or a change in any existing structure above or below grade, institute proceedings on its own motion for an alteration in such grade crossing, or structure, upon such notice as it shall deem rea- sonable, of not less than ten days however, to the railroad company, the municipal corporation and the person or persons interested, and pro- ceedings shall be conducted as provided in section ninety-one of this chapter. The changes in existing grade crossings or structures author- ized or required by the commission in any one year shall be so distributed and apportioned over and among the railroads and the municipalities of the state as to produce such equality of burden upon them for their pro- portionate part of the expenses as herein provided for as the nature and RAILROAD CROSSING HIGHWAYS. 1000a Railroad Law, §§ 96, 97. circumstances of the cases before it will permit. | Kailroad Law (L. 1910, ctu 481), § 95, as amended by L. 1913, eh. 354.J § 8. PROCEEDINGS TO COMPEL COMPLIANCE VTITH BECOMMEN- DATIONS OF PUBLIC SEBVICE COMMISSION. It stall be the duty of the corporation, municipality or person or per- sons to whom the decisions or orders of the public service commission are directed, as provided in sections eighty-nine, ninety, ninety-one and ninety-five of this chapter, to comply with such decisions and orders, and in case of their failure so to do the commission shall thereupon take pro- ceedings to compel obedience to the decisions and orders of the commis- sion. The supreme court at a special term shall have the power in all cases of such decisions and orders by the public service commission to compel compliance therewith by mandamus, or under the provisions of the public service commissions law, subject to appeal to the appellate di- vision of the supreme court and the court of appeals in the same manner with like effect as is provided in case of appeals from an order of the supreme court. [Railroad Law (L. 1910, ch. 481), § 96. J § 9. TOWN, VILLAGE OB CITY MAY BOBBOW MONEY AND ISSUE BONDS. Whenever in carrying out any of the provisions of sections eighty-nine to ninety-six inclusive of this chapter any municipality shall incur any expense or become liable for the payment of any moneys, it shall be law- ful for such municipality temporarily to borrow such money on the notes or certificates of such municipality, and to include the amount of out- standing notes or certificates, or any part thereof, in its next annual tax levy for municipal purposes, or in the discretion of the common council in case of a city, the board of trustees in case of a village, the town board in case of a town, or the board of supervisors in the case of a county, to borrow the same, or any part thereof, on the credit of the municipality, and to issue bonds therefor, which bonds shall be signed by the mayor and clerk in case of a city, the president and clerk in case of a village, the town board in case of a town and the board of supervisors in the case of a county, and shall be in such form and for such sums and be payable at such times and places with interest not exceeding five per 1000b HIGHWAYS AND BRIDGES. Railroad Law, § 97. centum per annum, as the common council in case of a city, the board of trustees in case of a village, the town board in case of a town and the board of supervisors in the case of a county, shall direct. [Eailroad Law (L. 1910, cL 481), § 97, as amended by L. 1913, ch. Y44, and L. 1914, eh, 498.] PART IX. SCHOOLS; DUTIES OF TOWN" AND COUNTY OFFICERS. CHAPTER LXIX. SCHOOLS AND SCHOOL MONEYS, DUTIES OF TOWN AND COUNTY OFFICERS IN RESPECT THERETO. Section 1. State school moneys, ■when and how apportioned. 2. Apportionment of moneys appropriated for the support of the common schools. 3. Conditions under which cities and districts are entitled to an ai)- portionment from the appropriation for the support of common schools. 4. Apportionment of moneys appropriated to cities, academies, aca- demic departments and school libraries. 5. Manner of certifying and paying apportionment provided for in preceding section. 6. County treasurers to render annual report. 7. Certificate of apportionment by commissioner of education. 8. Moneys apportioned, when payable. 9. Apportionment of school moneys by school commissioners. 10. Duty of and payment to supervisor. 11. Power of comptroller to withhold payment of school moneys. 12. Union free school district and city, a school district. 13. Supervisor to give bond before receiving school moneys; refusal to give bond a misdemeanor. 14. Report by supervisors to county treasurer. 15. Grant, bequest or devise of property to towns for beneft of schools. 16. Supervisor to report to superintendent amount of gospel school funds in his hands. 17. 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. 18. Supervisor to annually return to county treasurer amount of school moneys remaining in his hands. 19. Disbursement of school moneys; payment of moneys to district collector or treai;urer; library moneys; accounts of school moneys; payment of moneys by predecessor. 1001 1002 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS. Education Law, §§ 490, 491. Section 20. Alterations of school districts; refusal of trustees to consent; supervisors of towns to be associated with commissioner to hear objections and determine. 21. Duties of supervisor as to the property and effects of dissolved school districts. 22. Districts in two or more towns; equalization of assessment by supervisors. 23. District superintendent of schools; powers and duties of boards of supervisors as to supervisory districts. 24. School directors; election of district superintendents; vacancies. 25. Salary and expenses of district superintendent. 26. Duties of town clerks in respect to the common schools; compen- sation and expenses a town charge. 27. Unpaid school taxes, collector to return account of to trustees; trustees to transmit account, with certificate to county treasurer. 28. County treasurer to pay to collector of school district amount of unpaid taxes returned. 29. County treasurer to lay account of unpaid school taxes before board of supervisors; action of board thereon; collection of such taxes. 30. Special provisions of the consolidated school law applicable to town officers. § 1. STATE SCHOOL MONEYS, WHEN APPORTIONED AND HOW APPLIED. The amount annually appropriated by the legislature for the support of common schools shall be apportioned by the commissioner of education on or before the twentieth day of January in each year as hereinafter pro- vided; and all moneys so apportioned shall be applied exclusively to the- payment of teachers' salaries. [Education Law (L. 1910, ch. 140) § 490.J § 2. APPORTIONMENT OF MONEYS APPROPRIATED FOR THE SUPPORT or COMMON SCHOOLS. After setting apart therefrom for a contingent fund not more than ten thousand dollars, the commissioner of education shall apportion the money appropriated for the support of common schools : 1. To each city and to each union school district which has a population of five thousand and which employs a superintendent of schools, eight hundred dollars. This shall be known as a supervision quota. 2. To each district having an assessed valuation of twenty thousand dollars or less, two hundred dollars. 3. To each district having an assessed valuation of forty thousand dol- lars or less, but exceeding twenty thousand dollars, one hundred and seventy-five dollars. 4. To each district having an assessed valuation of sixty thousand dol- SCHOOLS AND SCHOOL MONEYS, 1003 Education Law, § 492. lars or less, but exceeding forty thousand dollars, and to each Indian reser- vation for each teacher employed therein for a period of one hundred and eighty days or more, one hundred fifty dollars. [Subd. amended by L. 1917, ch. 74.] 5. To each of the orphan asylums which meet the conditions mentioned in article thirty-five of this chapter, one hundred and tvsrenty-five dollars. 6. To each of the remaining districts and to each of the cities in the state one hundred twenty-five dollars. The apportionment provided for by subdivisions two, three, four, five and six shall be known as district quotas. 7. To each such districts, city and orphan asylum for each additional qualified teacher and his successors by whom the common schools have been taught during the period of time required by law, one hundred dollars. The apportionment provided for by this subdivision shall be known as the teachers' quota. 8. To a school district or a city which has failed to maintain school for one hundred eighty days or which has employed an extra teacher for a shorter period than one hundred eighty days such part of a district or teacher's quota as seems to him equitable when the reason for such failure is in his judgment sufficient to warrant such action; but in case such failure to maintain a school in such district or city for a period of one hundred eighty days was caused by the prevalence of an infectious or con- tagious disease in the community, the commissioner may in his discretion apportion to such district or city full district and teachers' quotas. [Subd. amended by L. 1917, ch. 74.] 9. To each separate neighbourhood such sum as in his opinion it is equitably entitled to receive upon the basis of distribution established by this article. 10. All errors or omissions in the apportionment whether made by the commissioner of education or by the school commissioner shall be cor- rected by the commissioner of education. Whenever a school district has been apportioned less money than that to which it is entitled the commis- sioner of education may allot to such district the balance to which it is in his judgment entitled and the same shall be paid from the contingent fund. Whenever a school district has been apportioned more money than that to which it is entitled the commissioner of education may, by an order under his hand, direct such moneys to be paid back into the hands of the county treasurer by him to be credited to the school fund, or he may deduct such amount from the next apportionment to be made to said district. 11. The commissioner of education may also in his discretion excuse the default of a trustee or a board of education in employing a teacher not legally qualified, legalize the time so taught and authorize the payment of the salary of such teacher. [Education Law (L. 1910, ch. 140) § 491.] § 3, CONDITIONS TINDER -WHICH CITIES AND DISTRICTS ARE EN- TITLED TO AN APPORTIONMENT FROM THE APPROPRIA- TION FOR THE SUPPORT OF COMMON SCHOOLS. 1. The commissioner of education shall make no allotment of a super- 1004 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS. Education Law, § 493. Tision quota to any city or district unless satisfied that such city or dis- trict employs a competent superintendent whose time is exclusively de- voted to the supervision of the public schools of such city or district; nor shall he make any allotment to any district in the first instance without first causing an enumeration of the inhabitants to be made which shall show the population thereof to be at least five thousand, the expense of such eniimeration, as certified by said commissioner, shall be paid by the district in whose interest it is made. The population shown by the last state or federal census or village enumeration may be accepted by said commissioner whenever the village and school district boundaries coincide. 2. No district shall be entitled to any portion of such school moneys on such apportionment unless the report of the trustee for the pre- ceding school year shall show that a common school was supported in the district and taught by a qualified teacher or by successive qualified teachers for at least one hundred and eighty days, inclusive of legal holidays that may have occurred during the term of said school and exclusive of Satur- days. [Subd. amended by L. 1913, ch. 511.] 3. No Saturday shall be counted as part of said one hundred and «ighty days of school and no school shall be in session on a legal holiday, except general election day, Washington's birthday and Lincoln's birth- day. A deficiency not exceeding six -days during any school year caused by a teacher's attendance upon teachers' conferences held by district su- perintendents of schools within a county, shall be excused by the com- missioner of education. In common school districts the term of school shall begin each year on the first Tuesday of September. [Subd. amended by L. 1913, ch. 511, Education Law (L. 1910, ch. 140), § 492.] § 4. APPORTIONMENT OF MONEYS APPEOPBIATED TO CITIES, ACAD- EMIES, ACADEMIC DEPARTMENTS AND SCHOOL LIBRARIES. The commissioner of education shall apportion the money annually appropriated for the support of cities, academies, academic departments and school libraries in accordance with regulations establisihed or to be established by him as follows : 1. To each city,. union school district and nonsectarian academy main- taining an academic department, a quota of one hundred dollars for eadi such academic department maintained therein. This apportionment shall be known as the academic quota. 2. To each nonsectarian private academy an allowance equal to the amount raised from local sources but not to exceed two hundred fifty dol- lars annually for approved books, reproductions of standard works of art and apparatus. [Subd. amended by L. 1914, ch. 216.] 3. To each city an allowance equal to the amount raised from local sources but not to exceed eighteen dollars and two dollars additional for tach duly licensed teacher employed therein for the legal term, and two hundred fifty dollars for each academic department maintained by it for SCHOOLS AND SCHOOL MONEYS. 1005 Kducation Law, 9 493. approved books, reproductions of standard works of art and apparatus. [Subd. amended by L. 1914, ch. 216.] 4. To each xmion free school district maintaining an academic depart- ment an allowance equal to the amount raised from local sources, but not to exceed two hundred sixty-eight dollars annually and two dollars addi- tional for each teacher employed in said district for the legal term for ap- proved books, reproductions of standard works of art and apparatus. [Subd. amended by L. 1914, ch, 216,] 5. To all other school districts an allowance equal to the amount raised from local sources but not to exceed eighteen dollars annually and two dollars additional for each duly licensed teacher employed in said dis- trict for the legal term for approved books, reproductions of standard works of art, geographical maps, a globe and school apparatus. [Subd. amended by L. 1914, ch. 216.] 6. To each city and union school district maintaining an academic de- partment, twenty dollars per year for at least thirty-two weeks' instruc- tion or a proportionate amount if for eight weeks or more for each non- resident pupil attending the academic department of such school from districts not maintaining such academic departments and who shall be admitted to such academic department without other expense for tuition than that provided herein. But pupils residing in districts not maintain- ing a four-year curriculum may be included in this apportionment after having completed the course of study prescribed for the school in the dis- trict in which they reside. In the apportionment to cities and union school districts, whose customary charge for nonresident pupils is greater than the sum provided by this subdivision, the commissioner of educa- tion may permit the sum so apportioned to be applied upon such custo- mary charge for such non-resident pupils, provided the balance of such customary charge shall be assumed by the school district in which such non-resident pupil is resident, and the payment thereof shall have been provided for at a school district meeting held in such district or the said balance shall have been paid by the parents or guardians of such pupils to the proper officer of the city or district maintaining the high school or academic department attended by such pupils. [Subd. amended by L. 1912, ch, 276, L. 1913, ch. 399, and L. 1915, ch. 214.J 7. After the payment of the allowances herein provided for the bal- ance shall be divided among the several cities, school districts and acade- mies maintaining academic departments on the basis of aggregate days' attendance of academic pupils therein. 8. The commissioner shall set aside at the beginning of the fiscal year a sum which in his opinion will be sufficient to pay the allowances for books and apparatus herein provided before making the other apportion- ments as directed by this article. The allowance for books and appa- ratus shall be apportioned and paid as often during each year as the commissioner may determine. All other apportionments above provided for shall be made so far as possible during the month of October each year on the basis of the reports of the previous year. 1006 SCHOOLS; DUTIES OF TOWN AXD COl'XTY OFFICERS. Education Law, §§ 494, 495. 9. To entitle a city, academy, academic department or school library to an apportionment from this fund the school authorities having control must render a satisfactory report for the -preceding year to the commis- sioner of education before the twentieth day of September in each year unless such neglect is excused by the commissioner for sufficient reason. They must also have complied with all regents' laws and ordinances dur- ing the preceding academic year. [Education Law (L. 1910, ch. 140), § 493.J § 5. MANNER OF CERTIFYING AND PAYING APPORTIONMENT PROVIDED FOR IN PRECEDING SECTION. Payment from this fund shall be made to the county treasurer of each county for all schools located in such county, by the state treasurer on the warrant of the comptroller or the certificate of the commissioner of education. The commissioner of education immediately after making an apportion- ment shall certify or cause to be certified to the county treasurer of every county included in such apportionment, excepting those counties in- clude^ within the territory of the city of New York, with respect to his county,, the name of each academy, the number of each school district and the town in which it is situated and the name of each city to which money has been allotted and the amount allotted to each. The county treasurer shall, upon the receipt of such certificate and payment from the state treasurer, pay to the treasurer, if there be one, otherwise to the disbursing officer or collector of each school district, academy and city named in the certificate of the commissioner of education, the amount to which said district, academy or city is entitled as shown by such certifi- cate. Any apportionment which shall be made to the city of New York shall be certified and paid to the chamberlain of the city of New York, and any apportionment which shall be made to any private academy situated within the territory of the city of New York, shall be certified and paid directly to the disbursing officer of the academy to which the apportion- ment is made. [Education Law (L. 1910, ch. 140), § 494, as amended by L. 1912, ch. 77.] § 6. COUNTY TREASURERS TO RENDER ANNUAIi REPORT. The county treasurers of the state shall, upon the first day of October of each year and at such other times as the commissioner of education may re- quire, make a report for the preceding year to the commissioner of educa- tion, showing the amount of money received by them from this fund and the school districts, cities or academies to which such money has been paid and the amount paid to each, and the amount, if any, remaining in their hands unclaimed by any school district, city or academy together with any other fact relative to the disbursement of this fund which said commis- sioner may require. [Education Law (L. 1910, ch. 140) § 495.] SCHOOLS AND SCHOOL MONEYS. 1007 Education Law, §§ 496-498. I 7. CERTIFICATE OF APPOKTIONMENT BT COMMISSIONER OF EDUCA- TION. As soon as possible after the making of any annual or general appor- tionment, the commissioner of education shall certify it, or cause it to be certiiied, to the county clerk, county treasurer, district superintendents, and city treasurer or chamberlain, in every county in the state ; and if it be a supplemental apportionment, then to the county clerk, county treas- urer and district superintendents of the county in which the school-house of the district concerned is situated. [Education Law (L. 1910, ch. 14:0), § 496, as amended by L. 1912, ch. 77.] § S. MONEYS APPROPRIATED, WHEN AND HOW PAYABLE. At least one-half of the moneys so annually apportioned by the com- missioner of education shall be payable on or before the first day of March and the remaining part of such moneys on or before the fifteenth day of May, in each year, next after such apportionment, to the treasui^ ers of the several counties and the chamberlain of the city of New York, respectively ; and the said treasurers and the chamberlain shall apply for and receive the same as soon as payable. The county treasurer shall pay to the city treasurer of each city and the treasurer of each union free school district having a population of five thousand or more inhabitants and in which a superintendent of schools has been appointed, situated within his county, all school moneys apportioned to such city or district as provided by sections four hundred and ninety-one, four hundred and ninety-two and six hundred and four of this chapter. [Education Law (L. 1910, ch. 140), § 497, as amended by L. 1914, ch. 5^.] § 9. APPORTIONMENT OF SCHOOL MONEYS BY DISTRICT SUPERIN- TENDENTS. The district superintendent of schools shall, on or before the fifteenth day of February in each year, apportion the supervision, district and teachers' quotas to the several districts entitled thereto, within his super- visory district, as shown by the certificate of the commissioner of educa- tion to the said district superintendent. He shall procure from the su- pervisors of the towns in his district a transcript showing the unexpended moneys in their hands applicable to the payment of teachers' salaries. The amounts in each supervisor's hands shall be charged as a partial payment of the sums apportioned to the town teachers' salaries. He 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 penal- ties, or accruing from any other source, for the benefit of schools and of the towns or districts for whose benefit the same were received. Such of said moneys as belong to a particular district, he shall set apart and credit to it ; and such as belong to the schools of a town he 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 county as hereinafter provided for the payment of teachers' salaries. 1008 SCHOOLS; DUTIES OF TOWN AND COUXTY OFFICERS. Education Law, §§ 499-501, 363. He shall sign, in duplicate, a certificate, showing the amounts appor- tioned and set apart to each school district and part of a district, and the towns in which they were situated, and shall forthwith deliver one of said duplicates to the treasurer of the county and transmit the other to the oommissioher of education. He shall certify to the supervisor of each town, in his supervisory dis- trict the amount of school moneys apportioned to each district or part of a district of his town for teachers' wages. [Edxication Law (L. 1910, ch. 140), § 498, as amended hy L. 1913, ch. 130.] § 10. DUTT OF AND PAYMENT TO SUPERVISOR. On receiving the certificate of the school commissioners, each super- visor shall forthwith make a copy thereof for his own use, and deposit the original in the office of the clerk of his town ; and the moneys so apportioned to his town shall be paid to him immediately on his compliance with the re- quirements of section three hundred and sixty-three of this chapter. [Edu- cation Law, (L. 1910, ch. 140), § 499.] § 11. POWER OF COMPTROLLER TO WITHHOLD PAYMENT OF SCHOOL MONEYS. The comptroller may withhold the payment of any moneys to which any county may be entitled from the appropriation of the incomes of the school fund and the United States deposit fund for the support of common schools, until satisfactory evidence shall be furnished to him that all moneys required by law to be raised by taxation upon such county, for the support of schools throughout the state, have been collected and paid or accounted for to the state treasurer. [Education Law, (L. 1910, ch. 140), § 500.] § 12. UNION FREE SCHOOL DISTRICT AND CITY, A SCHOOL DIS- TRICT, Every union free school district and every city having an organized city system of schools shall, for all the purposes of the apportionment, distribution, pajrment and withholding of school moneys, be regarded and recognized as a school district. [Education Law, (L. 1910, ch. 140) 501.] 501.] § 13. SUPERVISOR TO GIVE BOND BEFORE RECEIVING SCHOOL MONEYS; REFUSAL TO GIVE BOND A MISDEMEANOR. 1. Immediately on receiving the school commissioners' certificates 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 sufficient sureties, approved by the treasurer, in the SCHOOLS AND SCHOOL MONEYS. lOOS- Education Law, § 364. penalty of at least double the amount of the school moneys set apart or apportioned to the town, and of any such moneys unaccounted for by his. predecessors, conditioned for the faithful disbursement, safe-keeping and accounting for such moneys, and of all other school moneys that may come into his hands from any other source.^ 2. 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.^ 3. Whenever the of&ce of a supervisor shall become vacant, 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 treas- urer, in the penalty of at least double the sum of the school moneys re- maining in the hands of the old supervisor, when the office became vacant^ conditioned for the faithful disbursement and safe-keeping of and account- ing for such moneys. But the execution of this bond shall not relieve the supervisor from the duty of executing the bond first above mentioned. [Education Law (L. 1910, ch. 140) § 363.] 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 some other officer or person to be designated by the county Judge, under such 1. For form of bond of supervisor on account of school moneys and tha approval of the county treasurer, see Form No. 153, post. Undertaking of supervisor. Each supervisor is required to make and deliver to the town clerk of the town his undertaking, with such sureties as the town board shall prescribe, conditioned for the faithful keeping and ac- counting for all moneys and property, including the local school fund, be- longing to his town and coming into his hands as such supervisor. See Town Law, sec. 100, ante, p. 304. The undertaking required by the above section is in addition to his regular official undertaking and runs to the county treasurer rather than to the town. The form of an official undertaking of a town officer, and the liability of sureties thereon are prescribed by section 13 of the Town Law, ante, p. 311. As to general provisions respecting official undertakings, see Public Officers Law, sees. 10-13, ante, p. 312. 2. Liability on bond. The fact that the supervisor of a town in good faith deposited as a general deposit the school moneys received by him with a reputable firm of Individual bankers, believed to be solvent, and that there- after such firm failed and such moneys were lost, is not a defense to an action brought upon the bond of such supervisor given pursuant to the provisions of the above section. Tilllnghast v. Merrill, 77 Hun, 481; 28 N. Y. Supp.. 1089. 1010 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS. Education Law, §§ 365, 520. regulations and with such safeguards as he may prescribe, and the rea- sonable conipensa,tion of such officer or person, to be adjusted by the board ^f supervisors, shall be a town charge.* [Education Law (L. 1910, ch. 140), §364.] ^ 14. KEPOET BY SUPERTISOBS TO DISTRICT SUPEEIlVTEJfDEIfTS. On the first Tuesday of February in each year, each supervisor shall make a return in writing to the district S'uperintendent of schools of the supervisory district in which the town is situated, showing the amounts of ?cho()'l moneys in his hands not paid on the orders of trustees for teachers' salaries, and the districts to which they stajid accredited, and if such moneys remain in his hands, he shall report that fact; and there- after he shall not pay out any of said moneys until he shall hare received the certificate of the next apportionment; and the moneys so returned bv him shall be reapportioned as directed in article eighteen of this chap- ter. [Education Law (L. 1910, ch. 140), § 365, as amended by L. 1913, «h. 130.] § 15. GRANT, BEQUEST OR DEVISE Or PROPERTY TO TOWNS FOR BENKFIT OF SCHOOLS. Eeal and personal estate may be granted, conveyed, devised, bequeathed and given in trust and in perpetuity or otherwise, to the state, or to the re- gents or to the commissioner of education for the support or benefit of the common schools, within the state, or within any part or portion of it, or of any particular common schools within it; and to any county, or the school comissioners of any county, or to any city or any board of officers thereof, or to any school commissioner district or its commissioner, or to any towii, or supervisor of a town, or to any school district or its 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 por- tion thereof respectively, or for the support and benefit of any particular common 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 incompetent one is named, the title -and trust shall vest in the people of the state, ^subject to its acceptance by i:lie legislature, but such acceptance shall be presumed. [Education Law (L. 1910, ch. 140) § 520.] 3. Refusal to give bond. It is provided by section 1820 of the Penal Law that a person who executes any functions of a public oflSce Without having executed and duly filed the required security is guilty of a misdemeanor. But the acts of the supervisor are not invalidated because of his failure to execute the bond. See Penal Law, § 1821. SCHOOLS AND SCHOOL MONEYS. IQII Education Law, §§ 521-523, 850. The legislature may control and regulate the execution of all such trusts;, and the commissioner of education 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 forms, and with such authentications, as he shall, from time to time, prescribe. [Education Law (L. 1910, ch. 140) § 521.J The common council of every city, the board of supervisors of every county, the trustees of every village, the supervisor of every town, the trustees of every school district, and every other officer or person who shall be thereto required by the commissioner of education, shall report to him whether any and if any, what trusts are held by them respectively, or by any other body, officer or person to their information or belief for school purposes, and shall transmit, therewith, an authenticated copy of every will, conveyance, instrument or paper embodying or creating the trust; and shall, in like manner, forthwith report to him the creation and terms of every such trust subsequently created. [Education Law (L. 1910, eh. 140) § 523.J § 17. SUPERVISOR TO REPORT TO SUPERINTENDENT AMOUNT OF GOSFEI. SCHOOIi FUNDS IN HIS HANDS. Every supervisor of a town shall report to the commissioner of education 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 tovni holds or is entitled to any land, moneys or securities arising from any sale of such gospel or school lot, and the invest- ment 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.* [Education Law (L. 1910, eh. 140) § 523.] § 17. DISPOSITION OF FINES AND PENALTIES FOR THE BENEFIT OF THE COMMON SCHOOLS; DISTRICT ATTORNEY TO RE- PORT 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 4. Gospel and school lots. As to powers and duties of supervisor in regarct to gospel and school lots) see post, p. 1026. 1012 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS. Education Law, §§ 851-853. school district, it shall be taken to be for the benefit of the common schools of the county within which the conviction is had ; and the fine or penalty, when paid or collected, shall be paid forthwith into the county treasury, and the treasurer shall credit the same as school moneys of the county, unless the county comprise a city having a special school act, in which case he shall report it to the commissioner of education, who shall appor- tion 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. [Education Law (L. 1910, ch. 140) § 850.] 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 sheriff, 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." [Education Law (L. 1910, ch. 140) § 851.] 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 receiving the same shall forthwith pay the same to the county treasurer of the county in which the school house is located, who shall credit the same to the town or district for whose benefit it is collected. If the fine or penalty be inflicted or imposed for the benefit of the common schools of a city having a special school act, or of any part or district of a city, it shall be paid into the city treasury. [Education Law (L. 1910, ch. 140) § 853.] Whenever 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 the use or benefit of the common schools of the town or of the county, and such school district lies in two or more towns or 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 violation, act or omission. [Education Law (L. 1910, ch. 140) § 853.] 5. Money received by district attorney for penalties. The district attorney is required to pay all money received for a penalty or forfeiture belonging to the county to the county treasurer, and must render an account to the first term of the County Court of his county held in each calendar year of all money collected by him from any person belonging to the county or to the atate. See County Law, § 201. SCHOOLS AND SCHOOL MONEYS. JQIS Education Law, § 365. S 18. SUPERTISOE TO ANNUAILT BETUKN TO DISTEICT SUPEKI]^. TEIfDENT AMOUNT OE SCHOOL MONEYS KEMAINING IN HiS HANDS. On the first Tuesday of February in each year, each supe-rvisor shall make a return in writing to the district superintendent of schools of the supervisory district in which the town is situated, showing the amounta of school moneys in his hands not paid on the orders of trustees for teach- ers' salaries, and the districts to which they stand accredited, and if such moneys 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 certificate of the next apportionment ; and the moneys so returned by him shall be reapportioned as directed in article eighteen of this chapter/ [Education Law (L. 1910, ch. 140), § 365, as amended by L. 1913, ch. 130.] § 19. DISBURSEMENT OF SCHOOL MONEYS; PAYMENT OF MONEYS TO DISTRICT COLLECTOR OR TREASURER; LIBRARY MONEYS; ACCOUNTS OF SCHOOL MONEYS; PAYMENT OF MONEYS BY PREDECESSOR. It is the duty of every supervisor: 1. To disburse the school moneys in his hands applicable to the payment of teachers' wages, upon and only upon 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 office as disbursing agent, as re- quired by section two hundred and fifty-three or whenever any school district shall elect a treasurer as provided in this chapter, the said super- visor shall, upon the receipt by him of a copy of the bond executed by said ■collector or treasurer as herein required, certified by the trustees, pay over "to such collector or treasurer, all moneys in his hands applicable to the pay- ment of teachers' wages in such district, and the said collector or treasurer shall disburse such moneys so received by him upon such orders as are specified herein to the teachers entitled to the same. 2. To pay over all the school money apportioned to a union free school district, to the treasurer of such district, upon the order of its board of education. 3. 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 town board or board of town auditors at each annual meeting thereof.' 6. For form of report of supervisor of school moneys in his hands, see Form No. 154, post. 7. Audit of accounts by town board. The town officers are required to 1014: SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS. Education Law, § 360. 4. To provide 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. 5. To make out a just and true account of all school moneys received by him and of all disbursements thereof, within fifteen days after the termi- nation of his office and to deliver the same to the town clerk, to be filed and recorded, and to notify his successor in office that such account has been made and filed. 6. To deliver to his predecessor the county treasurer's certificate show- ing that he has given to such treasurer the bond requirec. by section three hundred and sixty-three of this chapter and that such bond has been ap- proved by such treasurer, and to procure from the town clerk a copy of his predecessor's account, and to demand and receive from him all school moneys remaining in his hands. 7. To pay to his successor upon receipt of such certificate all school moneys remaining in his hands, and to forthwith file the certificate in the town clerk's office.* 8. To sue for and recover, in his name of office, when the duty is not elsewhere imposed by law, all penalties and forfeitures imposed by this chapter, and for any default or omission of any town officer or school dis- trict board or officer under this chapter; and after deducting his costs and expenses to report the balances to the school commissioner. 9. To act, when legally required, in the erection or alteration of a school district, as provided in article five of this chapter, and to perform any other duty which may be devolved upon him by this chapter, or any other act relating to common schools. [Education Law (L. 1910, ch. 140) § 360, subds. 1-9.] account to the town board or board of town auditors for all moneys re- ceived and disbursed by them at the meeting of such board held on the Tues- day preceding the biennial meeting and on the corresponding date in each alternate year, or in towns holding town meetings at the same time with the general election, on the third Tuesday of December in each year. See Town Law, sec. 132, ante, p. 376, and the notes thereunder relating to accountings by town officers to the town board. 8. Payments to successor. It is provided in section 91 of the Town Law (see ante, p. 356), that every supervisor going out of office, when so required, shall deliver upon oath to his successor all the records, boohs and papers in his possession or under his control belonging to the office held by him, and shall at the same time pay over to his successor the moneys belonging to the town re- maining in his hands. If a supervisor shall refuse to deliver books and papers SCHOOLS AND SCHOOL MONEYS. 1015 Education Law, § 123; Idem, §§ 124, 140. § aO. ALTEBATI05S OF SCHOOL BISTBICTS; REFUSAL OF TRUSTEES TO CONSENT; 8UPEKV1S0ES OF TOWNS TO BE ASSOCIATED WITH DISTRICT SUPERINTENDENT TO HEAR OBJECTIONS AND DETERMINE. 1. With the written consent of the trustees of all the districts to be affected thereby, the district superintendent may make an order alter- ing the boundaries of any school district within his jurisdiction, and fix in such order a day when the alteration shall take effect. 2. With the written consent of the board of education of a imion free school district having a population of five thousand or more, and em- ploying a superintendent of schools, and the written consent of the board of education or trustees of a district in a supervisory district adjoining such union free school district, the district superintendent having juris- diction may make an order altering the boundaries of such districts, and fix in such order a day when the alteration shall take effect. [Edu- cation Law (L. 1910, ch. 140), § 12-3, as amended by L. 1914, ch. 154.] If the trustees of any district affected thereby refuse to consent, the school commissioner may make and file with the town clerk his order making the alteration, but reciting the refusal, and directing that the or- der shall not take effect until a day therein to be named, and not less than three months after the date of such order. [Idem, § 124.] 1. Within ten days after making and filing such order the school com- missioner shall give at least a week's notice in writing to the trustees of all districts affected by the proposed alterations, that at a specified time, and at a named place within the town in which one of the districts to ba affected lies, he will hear the objections to the alteration.' 2. The trustees of any district to be affected by such order may re- quest the supervisor and town clerk of each of the towns, within which such districts shall wholly or partly lie, to be associated with the school commissioner. 3. At the time and place mentioned in the notice, such commissioner, with the supervisors and town clerks, if they shall attend and act, shall hear and decide the matter, and the decision shall be final unless duly appealed from. Such deeision must either affirm or vacate such order, and must be filed with and recorded by the town clerk of the town in which the district to be affected shall lie, and a tie vote shall be regarded a decision fo^r the purposes of an appeal on the merits. Upon such pertaining to his office, to his successor, proceedings may be instituted to compel such delivery, pursuant to section 80 of the Public Officer's Law. 9. Necessity of notice. An order altering or dividing a school district, where the trustees of the district object, cannot be made without giving to such trustees at least a week's notice in writing that at a time and place specified by the school commissioner he will hear their objections to the pro- posed alteration. Neither the superintendent of public instruction nor the school commissioner can deprive the trustees of this statutory right. People ex rel. Board of Education v. Hooper, 13 Hun, 639. It is also held in this case that the provisions of the title of the Consolidated School Law relating to the alteration of school districts, from which the above section was derived, applied with equal force and effect to a union free school district. lUlG SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS. Education Law, §§ 138, 139. appeal the commissioner of education may affirm, modify or vacate the order of the school commissioner or the action of the local board. The supervisor and town clerk shall be entitled each, to one dollar and fifty cents a day, for each day's service in any proceeding under section 125 of this article, to be levied and paid as a charge upon their town.'' [Idem, • § 140.] § 21. DUTIES OF STJFERVISOR AS TO THE FBOPERTY AND EF- FECTS OF DISSOLVED SCHOOL DISTRICTS. 1. When a district is divided into portions, which are annexed to other districts, its property shall be sold by the supervisor of the town, within which its school-house is situated, at public auction, after at least five days' notice. 3. Such notice shall be given by posting the same in three or more public places of the town in which the school-house is situated and in one conspicious place in the district so dissolved. 3. The supervisor, after deducting the expenses of the sale, shall apply its proceeds to the payment 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 assess- ment-roll of the towns, and pay it over accordingly. [Education Law (L. 1910, ch. 140) § 138.] The supervisor of the town within which the school-house of the dis- solved district was situated may demand, sue for and collect, in his name of office, any money of the district outstanding in the hands of any of its former officers, or any other person ; and, after deducting his costs and ex- penses, shall report the balance to the school commissioner who shall appor- tion the same equitably among the districts to which the parts of the dis- solved district were annexed, to be by them applied as their district meeting shall determine. [Education Law (L. 1910, ch. 140), § 139.] { 22. DISTRICTS IN TWO OR MORE TOWNS; EQUALIZATION OF ASSESSMENT BT SUPERVISORS. When a district embraces parts of two or more towns, the supervisors 10. The compensation of supervisor and town clerk for services per- formed in proceedings relating to the alteration of school districts as pre- scribed in the above section is exclusive of any further compensation, and the provisions of section 85 of the Town Law fixing the compensation of town SCHOOLS AND SCHOOL MONEYS. 1017 Education Law, § 380. of such towns shall, upon receiving a written notice from the trustees of such district, or from three or more persons liable to pay taxes upon real es- tate therein, meet at a time and place to be named in such notice, which time shall not be less than five or more than ten days from the service there- of, and a place within the bounds of the towns so in part embraced, and pro- ceed to inquire and determine whether the valuation of real property upon the several assessment-rolls of said towns is substantially just as compared with each other. 2. If it is ascertained that such assessments are not relatively equal such supervisor shall determine the relative proportion of taxes that ought to be assessed upon the real property of the parts of such district lying in different towns, and the trustees of such district shall thereupon assess the proportion of any tax thereafter to be raised, according to the deter- mination of such supervisors, until new assessment-rolls of the town shall be perfected and filed, using the assessment-rolls of the several towns to distribute the said proportion among the persons liable to be assessed for the same. 3. If such supervisors shall be unable to agree, they shall summon a supervisor from some adjoining town who shall meet with them and unite in such inquiry and the finding of a majority shall be the determination of such meeting. 4. Such supervisors shall receive for their services three dollars per day for each day actually employed which shall be a town charge upon their respective towns. [Education Law (L. 1910, ch. 140) § 414.] § 23. DISTRICT SUPEBIlVTEIfDEJfTS OF SCHOOLS; POWERS AJfD DUTIES OF BOARDS OF SUPERVISORS AS TO SUPERVISORY DISTRICTS. Office of district superintendent of schools created. — The office of dis^ trict superintendent of schools is hereby created to begin on the first day of January, nineteen hundred and twelve. [Education Law, § 380, as amended by L. 1910, ch. 607, in effect January 1, 1912.] Supervisory districts. — 1. The territory embraced in the school com- missioner districts of the state outside of cities and of school districts of five thoi;sand population or more, which employ a superintendent of schools, shall be organized and divided into supervisory districts. In the formation or division of such territory into such districts no town shall be divided. The territory of such districts must be contiguous and compact and towns shall be arranged in districts so that there shall be as equal a division of the territory and number of school districts as may be practicable. 2. In a county entitled to two or more supervisory districts the school 1018 SCHOOLS; DUTIES OF TOWN AXD COUNTY OFFICERS. Education Law, § 381. commissioner of each school commissioner district in such county and the supervisor of each town in such county shall meet at the county seat of such county on the third Tuesday in April, nineteen hundred and eleven, at ten o'clock in the forenoon and divide such county into the number of supervisory districts to which it is entitled. 3. The county clerk of such county shall give ten days' notice, in writing, of such meeting, to each of such school commissioners and supervisors. The county clerk shall also call such meeting to order at the proper hour and the school commissioners and supervisors present shall elect from their number a chairman and a clerk. 4. A copy of the proceedings of such meeting showing the super- visory districts formed and naming the towns composing each of such districts, certified by the chairman and clerk, shall be deposited by the <3lerk of such meeting in the office of the clerk of the county immedi- ately after the close of the meeting. The county clerk on receipt of the same shall forward a certified copy thereof to the commissioner of edu- cation. 5. The number of supervisory districts into which each county shall be organized or divided is as follows : a. Hamilton, Putnam, Rockland, Schenectady, each one; b. Chemung, Fulton, Genesee, Montgomery, Nassau, Schuyler, Seneca, Yates, each two ; c. Albany, Clinton, Columbia, Cortland, Essex, Greene, Livingston, Niagara, Orange, Orleans, Ttensselaer, Schoharie, Suffolk, Sullivan, Tioga, Tompkins, Warren, Wyoming, each three ; d. Broome, Dutchess, Eranklin, Herkimer, Lewis, Madison, Monroe, Ontario, Sai-atoga, Ulster, Washington, Wayne, Westchester, each four ; e. Allegheny, Cattaraugus, Cayuga, Chenango, Erie, Onondaga, Oswego, each five; f. Chautauqua, Delaware, Jefferson, Otsego, each six; g. Oneida, Steuben, each seven; h. Saint Lawrence, eight districts. [Education Law, § 381, as amended by L. 1910, ch. 607, in effect July 1, 1910.] 6. The district superintendents of two or more supervisory districts in a county may unite in a petition to the board of supervisors of the county for a change in the boundaries of such districts by including or excluding one or more towns, stating the reasons for such change, and if such change conforms to the territorial requirements of subdivision one of this section, the board of supervisors may, by resolution, change such districts in accordance with such petition. A copy of such reso- lution, certified by the chairman and clerk of the board of supervisors, shall be deposited by the clerk in the office of the clerk of the county. The county clerk on receipt of the same shall forward a certified copy thereof to the commissioner of education. [Subd. added by L. 1916, oh. 238.] SCHOOLS AND SCHOOL MONEYS. 1019 Education Law, § 382. § 24. SCHOOL DIRECTORS; ELECTION OF DISTRICT SUPERIN- TENDENTS; VACACIES. School directors. 1. Two school directors shall be elected for each town at the general election held in the jear nineteen hundred and ten. One of such directors shall be elected to serve until January one, nine- teen hundred and thirteen, and the other shall be elected to serve until January one, nineteen hundred and sixteen. A director shall be elected at the general election in nineteen hundred and twelve and every fifth year thereafter and one shall be elected in nineteen hundred and fifteen and every fifth year thereafter. The term of office of the directors elected in nineteen hundred and twelve, and thereafter shall commence on the first day of January following their election and continue for five years. In towns, except those towns situated in the counties of Nassau and Suffolk, where biennial town meetings are held at a time other than the general election, directors shall be elected at the biennial town meet- ing held immediately prior to the expiration of the term of their prede- cessors. Such directors shall be elected in the same manner that town officers are elected at town meetings held at the time of a general elec- tion, and the provisions of the election law relating to the nomination and election of such town officers shall apply to the nomination and elec-- tion of such directors. 2. A school director shall vacate his office by removal from the town or by filing a written resignation with the towu clerk. A vacancy in the office of school director shall be filled by the town board of the town in which such vacancy exists, for the remainder of the unexpired term. If the town fails to elect a director a vacancy shall be deemed to exist in such office. 3'. A school director before entering upon the discharge of the duties of his office, and not later than thirty days after the date on which he was elected to office, shall take the oath of office prescribed by the con- stitution. Such oath may be taken before a justice of the peace or a, notary, public, and must be filed in the offiice of the clerk of the town. 4. A school director shall receive two dollars per day for each day's service and his necessary traveling expenses, and the town board of the town for which such director is chosen shall audit and allow the same.^°* [Education Law, § 383, as amended by L, 1910, ch. 607, and L. 1916, ch. 168, in effect April 7, 1916.] Election of district superintendent. 1. The school directors of the several towns composing a supervisory district shall meet for organiza- tion at eleven o'clock in the forenoon on the third Tuesday in May fol- lOa. School director is not entitled to traveling expenses incurred in going to and "from the town for which he was elected. He is only entitled to traveling expenses where he attends meetings of the board outside of the town. Rept. of Atty. Genl., May 25, 1911. Women are not eligible to the office of school director, since it is a town office. Rept. of Atty. Genl., Mch. 6, 1911. 1020 SCHOOLS; DUTIES OF TOWN AND COUNTY. OFFICERS. Education Law, § 3388. lowing their election. Such meeting shall be held at a place in the super- visory district, designated by the county clerk, at least ten days previous to the date thereof. At the time the county clerk designates such plaw' of meeting he shall also mail a notice of the time and place of such meet- ing to each school director of the district. The school directors present at such meeting shall organize by electing from their number, a chair- man, a clerk and two inspectors of election. The school directors at such meeting shall designate a place for holding future meetings. 2. The school directors of the several towns composing a supervisory district shall be a board of school directors, and such board of directors shall meet at eleven o'clock in the forenoon on the third Tuesday in August, nineteen hundred and eleven, and on the third Tuesday in June every fifth year thereafter, and elect a district superintendent of schools. The clerk of such board shall give each director at least ten days' notice in writing of the hour, date and place of such meeting. 3. If such directors fail to elect a district superintendent of schools before the first day of January following the date of such meeting, and a vacancy exists in such office, the county judge shall appoint such super- intendent who shall serve until the board of directors shall fill such vacancy. 4. In the election of such district superintendent the vote shall be by ballot and the person receiving a majority of all votes cast shall be elected. Each school director shall be entitled to one vote in such elec- tion. 5. The clerk of such board shall file a copy of the proceedings of each meeting and each election, certified by himself and the chairman, in the office of the clerk of the county in which such meeting or election is held within three days after the close thereof. 6. The county clerk on receipt of notice of the election of a district superintendent of schools in any supervisory district of his county shall deliver to the person elected a certificate of such election attested by his signature with the seal of the county and shall also transmit to the com- missioner of education a duplicate of such certificate of election. 7. When a district superintendent enters the military or naval service of the United States during the continuance of the present war, the board of school directors of the supervisory district of such district superintendent shall designate a person to act as the deputy of such district superintendent. This deputy shall during the absence of said district superintendent per- form all the duties and possess the power and authority conferred by law on a district superintendent. Such person shall also possess qualifications approved by the commissioner of education. [Education Law, § 383, as amended by L. 1910, ch. 607; subd. 7 added by L. 1918, ch. 107.] Filling vacancy in the office of district superintendent. — Whenever a vacancy occurs it shall be filled for the remainder of the unexpired term by the board of school directors. Upon direction of the commissioner of education the clerk of the board in which the supervisory district having such vacancy is located shall immediately call a special meeting of such SCHOOLS AND SCHOOL MONEYS. loai Education Law, §§ 389, 390. board for the purpose of electing a district superintendent. The pro- visions of this title relative to the election generally of a district super- intendent of schools, including notices, filing of the proceedings and all other matters relatin'g to such an election, shall apply to a special election to fill a vacancy in such ofBce. [Education Law, § 388, as amended by L. 1910, ch. 607, in effect January 1, 1913.] § 25. SAXABY AND EXPENSES OF DISTRICT SUPERINTENDENT. Salary of district superintendent. 1. Each district superintendent shall receive an annual salary from the state of fifteen hundred dollars, payable monthly by the commissioner of education from moneys appropriated there- for. [Subd. amended by L. 1917, ch. 794.] 2. The supervisors of the towns composing any supervisory district may by adopting a resolution by a majority vote increase the salary to be paid by suoh district to its district superintemdent. Such supervisors must thereupon file with the clerk of the board of supervisors a certifi- cate showing the amount of such increase. The board of supervisors of each county shall levy such amount annually by tax on the towns com- posing such supervisory district within the county. [Education Law, § 389, as amended by L. 1910, ch. 607, in effect January 1, 1912.] Expense of district superintendents. The commissioner of education shall quarterly audit and allow the actual sworn expense incurred by each district superintendent of schools in the performance of his oflScial duties, but the amount of such expense allowed shall not exceed in any year three hundred dollars. Such expenses shall be paid by the commis- sioner of education from moneys appropriated therefor. [Education Law, § 390, as amended by L. 1910, ch. 607, in effect January 1, 1912.] § 26. DUTIES OF TOWN CLERKS IN RESPECT TO THE COMMON SCHOOLS; COMPENSATION AND EXPENSES A TOWN CHARGE. It shall be the duty of the town clerk of each town : 1. To keep all books, maps, papers, and records of his office touching common schools, and forthwith to report to the school commissioner any loss or injury to the same. 2. To receive from the supervisors the certificates of apportionment of school moneys to the town, and to record them in a book to be kept for that purpose. 3. To notify forthwith 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 prescribed by law, and to deliver them to the school commissioner on demand. 5. To furnish 'the school commissioner of the school commissioner dis- trict in which his town is situated the names and post-office addresses of the school district officers reported to him by the district clerks. 6. To distribute to the 'trustees of the school districts all books, blanks and circulars which shall be delivered or forwarded to him by the com- missioner of education or school commissioner for that purpose. 1022 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS, Education Law, § 340; Idem, § 341. 7. 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 commissioner of education whenever required by him, and to file and preserve the vouchers accompanying the account. 8. To receive and to record, in the same book, the supervisor's final ac- count of the school moneys received and disbursed by him, and deliver a copy thereof to such supervisor's successor in ofiice. . 9. 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. 10. 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 chapter. 11. To act, when thereto legally required, in the erection or alteration of a school district, as in article five of this chapter provided. 12. To receive and preserve the books, papers and records of any dis- solved school district, which shall he ordered, as hereinafter provided, to be deposited in his ofiice, 13. To perform any other duty which may be devolved upon him by this chapter, or by any other act touching common schools. [Education Law (L. 1910, ch. 140) § 340.] Expenses and disbursements a town charge. — The necessary expenses and disbursements of the town clerk in the performance of his said duties, are a town charge, and shall be audited and paid as such. [Idem, § 341.] § 27. 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 nonresident stockholders in banking associ- ations organized under the laws of congress," shall be unpaid at the time 12. Bank sharss, now taxed. Under section 24 of the Tax Law, ante, p. 520, the rate of tax upon the shares of stock of banks and banking asso- ciations is one por centum upon the value thereof. Such tax is in lieu of all other taxes including those for school purposes. Under such section the board of supervisors is required to ascertain the tax rate of each of the several towns, village, city, school and other tax districts in the county for the SCHOOLS AND SCHOOL MONEYS. 1033 Education Law, §§ 433, 434, 435. the collector is required by law to return his warrant, he shall deliver to the trustees of the district an account of the taxes remaining due, contain- ing 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 a court of record, notary public or any other officer authorized to ad- minister oaths, that the taxes mentioned in any such account remain un- paid, and that, after diligent efforts, he has been unable to collect the same, he shall be credited by said trustees with the amount thereof, [Education Law (L. 1910, ch. 140) § 433.] 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 tran- script, they shall add to such account their certificate, to the effect that they have compared it with the original tax list and found it to be correct, and shall immediately transmit the account, affidavit and certificate to the treasurer of the county. [Idem, § 434.] § as. COUNTY TREASURER TO PAY TO COIitECTOR OF SCHOOI. DISTRICT AMOUNT OF UNPAID TAXES RETURNED. Out of any moneys in the county treasury, raised for contingent ex- penses,'^ or for the purpose of paying the amount of the taxes so returned year for which the tax is imposed and the proportion of the tax on bank stock to which each of such districts shall be respectively entitled. This proportion is to be ascertained by taking such proportion of the tax upon the shares of stock as the tax rate of the school district shall bear to the aggregate tax rate of all the tax districts in which such shares of stock shall be taxable. The evident meaning of this provision is that if the tax rate of a town it five mills, that of a village is five mills, and that of a school district is five mills, that the school district will be entitled to one-third of the tax paid upon the stock of the bank located in the tax district. The board of supervisors is required by such section of the Tax Law to issue its warrant to the county treasurer directing him to pay to the collector or treasurer of the school district the proportion of such tax ascertained by it to belong to such school district. 13. Duty of county treasurer. Under the provisions of the above section, which require the treasurer of a county to pay to the trustees of a school district, out of any moneys in the county treasury raised for contingent ex- penses, the amount of taxes upon lands of non-residents returned by such trustees as unpaid, the authority of the county treasurer is limited to. the particular fund specified; and if no such fund has been raised, or if it has been exhausted, he has no authority, and consequently no duty is imposed upon him to pay. It is provided by section 242 of the County Law, ante, p. 50, that: "In order to enable the county treasurer to pay such expenses as may become i(j-^i SCHOOLS; DUTIES UF TOWN AXD COUNTY OFFICERS. Education Law, JS 4:!6-438. unpaid, the treasurer shall pay to the district treasurer, if there be such an officer, otherwise to the collector, the amount of the taxes so returned as unpaid, and if there are no moneys in the treasury applicable to such purpose, the board of supervisors, at the time of levying said unpaid taxes, as prorided in the next section, shall pay to the district treasurer, if there be such an officer, otherwise to the collector of the school district the amount thereof which has been relevied, by voucher or draft on the county treasurer, in the same manner as other county charges are paid, and the collector shall be charged by the trustees with the amount so relevied, [Idem, § 435, as amended by L. 1910, oh. 284, and L. 1915, ch. 136, in effect Sept 1, 1915.] § 29. COUNTY TREASURES TO LAY ACCOUNT OF UNPAID SCHOOX. 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 on which the same were imposed; and if imposed upon the lands of any in- corporated company, then upon such company; and when collected the same shall be returned to the county treasurer to reimburse the amount so ad- vanced, with the expenses of collection. [Education Law, (L. 1910, ch. 140) § 436.] 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. [Idem, § 437.] 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 a similar account, as in the case of county taxes of the arrears thereof uncollected, being transmitted by the county treas- urer to the comptroller, the same shall be paid on his warrant to the treas- urer 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-residents ; or if any part of the amount so assumed consisted of a tax upon any incorporated payable from time to time, the board of supervisors shall annually cause Buch sum to be raised in advance in their county, as they may deem necessary for such purpose." SCHOOLS AND SCHOOL MONEYS. 1035 Education Law, §§ 855-857. company, the same proceedings may also be had for the collection thereof as provided by law in respect to the county taxes assessed upon such com- pany. [Idem. § 438.] S 30. SFECIAI. PROVISIONS OF THi: EDUCATION I.AAV AFFLI- CABIiE TO TOIVN OFFICERS. Liability of officers for loss of school moneys. — ^Whenever the share of school moneys or any portion thereof, apportioned to any town or school district, or any money to which a town or school district would have been entitled, shall be lost, in consequence of any wilful neglect of ofiScial duty by any school commissioner, town clerk, trustees or clerks of school districts, the officer guilty of such neglect shall forfeit to the town, or school district so losing the same, the full amount of such loss with intere''t thereon. [Education Law (L. 1910, ch. 140) § 855.] 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 llie schools of any school district, town, school commissioner district or county, shall be incurred, and the officer, whose duty it is by law to sue for the same, shall wilfully and unreasonably refuse or neglect to sue for the same, such officer shall forfeit the amount of such penalty to the same use, and it shall be the duty of his successor in office to sue for the same. [Idem, § 856.] Actions against school officers, including supervisors. — 1. In any action against school officers, including supervisors of towns, in respect to theii 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 perform any duty enjoined by law, and which might have been the subject of an appeal to the commissioner of education; no costs shall be allowed to the plaintiff, in cases where the court shall certify that it appeared on the trial that the defendants acted in good faith. 2. The provision of subdivision one of this section shall not extend to suits for penalties, nor to suits or proceedings to enforce the decisions of the commissioner of education. [Idem, § 857.] 1025a SCHOOLS; DT'TIES OF TOWN AND COUNTY OFFICERS. Education Law, §§ 610, 611. CHAPTER LXIX-A FAEM SCHOOLS IN COUNTIES. Section 1. Establishment of farm schools. 2. Acquisition of lands and erection of buildings. 3. Board of managers. 4. Powers and duties of board. 5. Powers of superintendent; discipline of school. 6. Course of instruction. 7. State aid. 8. Children admitted to such school. 9. Agreements with parents and guardians to pay expense of maintenance ; compulsory support. 10. Maintenance by county. 11. Reports to board of supervisors; inspection. 12. Powers of commissioner of education and state department of education. § 1. ESTABLISHMENT OF FARM SCHOOI.S. The board of supervisors of any county outside of the city of New York may adopt a resolution by a majority vote of the members of the l)oard establishing a farm school for the purpose of giving instruction in the trades and in industrial, agricultural and homemaking subjects to children of the county not more than eighteen nor less than eight years of age who may be admitted thereto as provided by law. [Edu- cation Law, § 610, as added by L. 1915, ch. 307.J § 2. ACQTJISITIOir OF LANDS AND ERECTION OF BUILDINGS. Upon the adoption of the resolution as provided in the foregoing sec- tion the board of supervisors shall purchase land in some conveniently accessible place in the county to be used for the purpose of such school. They may acquire such land by gift, purchase or condemnation. The land when so acquired shall be held in the name of the county for the benefit of such school. Upon the acquisition of such land the board of supervisors shall erect the necessary buildings and suitably equip them for use. Such board may also provide for the improvement of existing buildings and make such repairs and alterations on the buildings upon the land used for the purpose of the school as may be necessary for the maintenance and operation thereof. [Education Law, § 611, as added by L. 1915, ch. 307.] FARM SCHOOLS IN COUNTIES. 1025b Education Law, §§ 612, 613. § 3. BOARD OF MANAGERS. The board of managers of such school shall consist of not less than five members and shall be composed of all the city, village and district superintendents of schools of the county in which it is located, in addi- tion to such other members as may be necessary to make a total mem- bership of such board of not less than five. Such additional members of the board shall be appointed by the board of supervisors from the resident taxpayers of the county, who shall serve for terms of four years commencing on the first day of January succeeding their appointment. Slich terms shall be so arranged that the terms of no two of the mem- bers so appointed shall expire in the same year, and for this purpose the terms of the members first appointed hereunder shall be as follows: In case one member shall be appointed, the term shall be four years, in case two members shall be appointed, the terms shall be four and two years, respectively, in case three members shall be appointed, the terms shall be four, three and two years, and in case four members shall be appointed, the terms shall be four, three, two and one year, respectively, which terms shall commence on the first day of January succeeding their appointment, and their successors shall be appointed for full terms of four years as above provided. Appointments to fill vacancies shall be for the unexpired portion of the terms. The members of the board shall serve vdthout compensation. They shall receive their necessary expenses incurred in the performance of their duties. The amount of such expenses shall be charged against the county and shall be paid in the same manner as other county charges. The board shall organize by the election of one of its members as chairman and another as secretary. [Education Law, § 612, as added by L. 1915, ch. 307.] § 4. POWERS AND DUTIES OF BOARD. The board of managers of such school shall be responsible for the operation and maintenance of the school ; employ a superintendent and such teachers and assistants as may be required for the operation and maintenance of the school when authorized so to do by the board of 10250 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS. Education Law, §§ 614, 615. supervisors of the county; fix the compensation of such superintendent, teachers and assistants within the amount made available therefor by the said board of supervisors; prescribe rules and regulations for the management of the school and for the purpose of carrying into effect the object thereof; provide for the detention, maintenance and instruc- tion of all children who are admitted to the school. [Education Law, § 613, as added by L. 1915, ch. 307.] § 5. POWERS OF SUPERINTENDENT; DISCIPI.INE OF SCHOOL. The superintendent of the school shall, subject to the regulations of the board of managers : 1. Have the general management of the school and the land, buildings and equipment thereof, and devote his entire time to its affairs ; 2. Be responsible for the welfare of pupils of the school and see that the regulations and directions of the board of managers are carried into effect ; 3. Supervise and direct the methods of instruction and the perform- ance of duties by the teachers, assistants and employees of such school ; 4. Prescribe rules for the government and discipline of the pupils of the school and cause such rules to be enforced ; 5. Protect and care for the property of the school ; 6. Give special attention to the proper instruction, detention, re- straint, discipline, comfort and physical and moral welfare of the pupils of the school, and perform such other duties as may be required of him by the board of managers, with a view of carrying out the purposes of this article. [Education Law, § 614, as added by L. 1915, ch. 307.] § 6. COURSE OF INSTRUCTION. The board of managers shall prescribe the courses of instruction to be followed in such school, subject to the approval of the commissioner of education. Such instruction shall include instruction in agriculture, mechanic arts, trades and homemaking. The provisions of this chapter and of the regulations of the education department relating to voca- tional instruction in the public schools shall apply to such school so far FARM SCHOOLS IN COUNTIES. 1025d Education Law, §§ 616, 617^ 618. as they do not conflict with the provisions of this article and may be made applicable thereto. [Education Law, § 615, as added by L. 1916, eh. 307.] § 7. STATE AID. There shall be annually apportioned to such school from the moneys appropriated by the state legislature for the support of the public schools of the state the sum of one thousand dollars and an additional sum of two hundred dollars for each teacher employed therein for a period of thirty-six weeks during each school year, whose entire time is given to the instruction of pupils in such school. ISTo such apportion- ment shall be made unless there are at least fifteen pupils enrolled and actually in attendance at such school during such period of thirty-six weeks, and unless such school maintains an organization and a course of study and is conducted in a manner approved by the commissioner of education. [Education Law, § 616, as added by L. 1915, ch. 307.] § 8. CHILDKEN ADMITTED TO SUCH SCHOOI.. Children not more than eighteen nor less than eight years of age may be admitted to or received in such school, either (1) upon the applica- tion of the parents or guardians having the legal custody or control of such children, accompanied by the written consent of such parents or guardians, or (2) upon commitment thereto as truants or incorrigible pupils as provided in section six hundred and thirty-five of this chapter, or (3) upon commitment thereto as juvenile delinquents as provided by law, provided that children convicted of crime shall not be committed to such school. Children who have no homes or who are without proper parental control or who are under improper guardianship may be sent to and received in such school, in the same manner and under the same authority as in case of other children who are improperly provided for at home. [Education Law, § 617, as added by L. 1915, ch. 307.] § 9. AGREEMENTS WITH PARENTS AND GtTARDIANS TO FAY EX- PENSE OF MAINTENANCE; COMPULSORY SUPPORT. The board of managers may make an agreement with the parents or guardian of a child in such school for the payment of an amount therein 1025e SCHOOLS; DUTIES OF TOWN AXD COUNTY OFFICERS. Education Law, §§ 619, 619-a. specified for the instruction and maintenance of such pupil. An appli- cation for the admission of a child with the consent of the parents or guardian shall not be granted unless suitable provision be made for the clothing for such child. The amount agreed to be paid for instruction, maintenance and clothing shall be secured to the satisfaction of the board of managers. Such board shall ascertain by investigation the financial ability of parents, guardians, and other persons legally liable for the support of pupils admitted to such school upon commitment, and may demand of such parents, guardians or persons the payment of an amount reasonably sufiicient to pay all or a portion of the cost of the instruction, maintenance and clothing of such pupils. The board may proceed against such parents, guardians or persons, by proper suit or proceeding in a court of competent jurisdiction for the recovery of the amount agreed or required to be paid, as herein provided. The amount so recovered, after the payment of the necessary costs and expenses of such suit or proceeding, shall be paid into the treasury of the county, and shall be applied to the payment of the cost of the instruction, main- tenance and clothing of such pupils. [Education Law, § 618, as added by L. 1915, ch. 307.] § 10, MAINTENANCE BY COUNTY. The board of supervisors shall provide for the maintenance of such school, the repair and improvement of the lands and buildings used or occupied thereby, and the equipment thereof with necessary machinery, tools, apparatus and supplier. The cost thereof, and the expense^ in- curred for such purposes, shall be charges against the county and shall be audited and paid in the same manner as other charges against the county. The maintenance herein provided for shall include the sup- port, instruction, care, board and clothing of pupils and such other expenses as are necessarily incurred in the operation of the school. [Education Law, § 619, as added by L. 1915, ch. 307.] § 11. REPORTS TO BOARD OF SUPERVISORS; INSPECTION. The board of managers of such school shall report in writing to the board of supervisors of the county when called upon to do so, and shall FARM SCHOOLS IN COUNTIES. 1025f Education Law, § 619-b. transmit to the clerk of the board, annually, on or before the thirtieth day of June. Such annual report shall state such facts in respect to the school as the board of managers may deem advisable and as the board of supervisors may require. The board of supervisors may, by a committee or any of its members or appointees, inspect such school, and for such purpose may enter upon the land and into the buildings of such school at all reasonable times. [Education Law, § 619a, as added by L. 1915, ch. 307.] g 12. POWERS OF COMMISSIONER OF EDUCATION AND STATE DE- PARTMENT OF EDUCATION. A school established as provided herein shall be deemed a part of the public school system of the state, and shall be subject to the super- vision and control of the commissioner of education and the state de- partment of education in the same manner as other public schools, arid shall not be subject to any of the lav^s of the state relating to charitable or penal institutions. [Education Law, § 619b, as added by L. 1915, ch. 307.] 1036 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS. Bducatioa Law, S 360. CHAPTER LXX. GOSPEL AND SCHOOL LOTS. Smoaotf 1. Dutlees of supervisors as to gospel and school lots. 2. Sale of gospel or school lots on division of town. 8. Payment of proceeds of sale of gospel or school lots. 4. Apportionment of gospel and school lot funds among school districts. § 1. DUTIES OF STTFEBVISOBS AS TO GOSPEI, AND SCHOOL LOTS. The supervisors shall have power, and it shall be their duty, 1. To take and hold possession of the gospel and school lots of their respective towns. 2. To lease the same for such time not exceeding twenty-one years, and upon such conditions as they shall deem expedient. 3. To sell the s^me with the advice and consent of the inhabitants of the town, in town-meeting assembled, for such price and upon such terms of credit as shall appear to them most advantageous. 4. To invest the proceeds of such sales in Joans, secured by bond and mortgage upon unincumbered real property of the value of double the amount loaned. 5. To purchase the property so mortgaged upon a foreclosure, and to hold and convey the property so purchased whenever it shall become necessary. 6. To re-loan the amount of such loans repaid to them, upon the like security. 7. To apply the rents and profits of such lots, and the interest of the money arising from the sale thereof, to the support of schools, as may be provided by law, in such manner as shall be thus provided. 8. To render a just and true account of the proceeds of the sales and the interest on the loans thereof, and of the rents and profits of such gospel and school lots, and of the expenditure and appropriation thereof, on the last Tuesday next preceding the annual town-meeting in each year, to the town board. 9. To deliver over to his successor in office, all books, papers and securities relating to the same, at the expiration of their respective offices. GOSPEL AND SCHOOL LOTS. 1037 Education Law, §§ 361, 363, 524, 525. 10. To take therefor a receipt, which shall be filed in the clerk's office of the town ; and, 11. To commence and prosecute in and by the name and style of the supervisor of the town any suits against any of his predecessors in office or against any other person to recover any debt, dues or demands in any wise arising from such public lot; and no such suit shall abate by the death, resignation or removal from office of the said supervisor but the same shall and may be prosecuted to judgment and execution by his successor in office. [Education Law (L. 1910, ch. 140), § 360, subd.10-20.] § 2. SAI.E OF GOSPEL OB SCHOOL LOTS ON DIVISION OF TOWN. Whenever a town having lands assigned to it for the support of the gospel or of schools, shall be divided into two or more towns, or shall be altered in its limits by the annexing of a part of its territory to other tovras, such lands shall be sold by the supervisor of the town, in which such lands were included immediately before such division or alteration; and the proceeds thereof shall be apportioned between the towns interested therein, in the same manner as the other public moneys of towns, so divided or altered, are apportioned. [Education Law, (L. 1910, ch. 140), § 361.J § 3. PAYMENT OF PROCEEDS OF SALE OF GOSPEL OK SCHOOL LOTS. The shares of such moneys, to which the towns shall be respectively entitled, shall be paid to the supervisors of the respective towns, and shall thereafter be subject to the provisions of this article. [Education Law, (L. 1910, ch. 140) § 362.] § 4. APPORTIONMENT OF GOSPEL AND SCHOOL LOT FUNDS AMONG SCHOOL DISTRICTS. It shall be lawful for the supervisor of any to\^Ti having money arising from the sale of gospel lands, and known as gospel funds, to apportion such funds among the several school districts of his respective town as hereinafter provided. [Education Law, (L. 1910, ch. 140) § 524.] Authorization of apportionment of gospel funds. — 1. The town board of any tovm having a gospel fund of five hundred dollars or less may authorize the supervisor of the town to apportion such fund among the several school districts of the town. 2. The voters of any tovm having a gospel fund of more than five hundred dollars may at any regular or special town meeting authorize the supervisor of the town to apportion such fund among the several school ■districts of the town. [Idem, § 525.] 1028 SCHOOLS; DUTIES OF TOWN AND COUNTY OFFICERS. Education Law, §§ 526-528. Payment of apportionment of gospel fundsj — When such apportion- ment is authorized the supervisor shall pay to the collector, or if the district has a treasurer to the treasurer, of the several school districts of his town its pro rata share according to the aggregate school attendance of each school district in the preceding year. [Idem, § 526.] Bond required of collector or treasurer. — The collector or the treasurer if the district has a treasurer, of each of such school districts shall execute and file with the supervisor of such town a bond of twice the amount of such apportionment with sufficient sureties, to be approved by such supervisor. [Idem, § 527.] Application of moneys. — Such moneys shall be held by such collector or treasurer and paid upon the written order of the trustee of the district for such purposes as the annual or a special meeting of the district shall direct [Idem, § 528.] PART X. JURORS. CHAPTER LXXI. SRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. Section 1. Preparation of grand jury lists by board of supervisors; persons to be placed on lists. 2. Increase in number of jurors; duties of supervisors. 3. Inserting new names in box when list is nearly exhausted. 4. Supervisor, town clerk and assessors to make lists of trial jurors; names to be taken from assessment-roll. 5. Qualifications of trial jurors. 6. Who are disqualified to serve as trial jurors. 7. Who are entitled to be exempted from jury service. 8. Duplicate jury lists to be made and filed. 9. Proceedings where county clerk does not receive lists. 10. Jurors so returned to serve for three years. 11. Commissioner of jurors; office established; appointment. 12. Term of office; salary; rooms and accommodations. 13. Assistants and clerks. 14. Selection of trial jurors; aid of tax officers. 15. Preparation of list of trial jurors; notice to jurors. 16. Lists to be filed. 17. List of grand jurors. 18. Drawing jurors; ballots. 19. Removal of commissioner. 20. Application of act. 21. Fees of trial jurors. 22. Supervisors may make allowance to grand and trial jurors. 23. Extra allowance to trial jurors. § 1. PREPARATION OF GRAND JTTRY LISTS BT BOARD OF SUP£R. VISORS; PERSONS TO BE PLACED ON LISTS. Unless otherwise specially provided bj' law, the supervisors of the ■everal counties of this state, except the county of New York, at their 1029 1030 JURORS. Code Criminal Procedure, §§ 229-b-229-d. annual meetings in each year, shall prepare a list of the names of three hundred persons, to serve as grand jurors at the terms of the supreme court and county courts, to be held in their respective counties during the then ensuing year and until new lists shall be returned [Code Crim. Pro., § 229-a.J In preparing such lists the said boards of supervisors shall select such persons only, whose names appear upon the last assessment roll of the town or ward, as they know, or have good reason to believe, are possessed of the qualifications by law required of persons to serve as jurors for the trial of issues of fact, and are of approved integrity, fair character, sound judg- ment and well informed. [Idem, § 329-b.J Persons exempt by law from serving as jurors for the trial of issues of fact, shall not be placed on any list of grand jurors, required by the preceding provisions.^ [Idem, § 229-c.] The lists so made out by the said boards of supervisors shall contain 1. Duties of supervisors as to grand jitror lists. This section of the Criminal Code makes it the duty of boards of supervisors to prepare a grand jury list for the county at each annual session of the hoard. The number of grand jurors, unless increased as hereinafter provided, is limited to three hundred. The board should, by a committee appointed for that purpose, apportion the grand jurors among the several towns and the wards of the several cities according to the population thereof, or by some other just and equitable method of apportionment. The apportionment having been made, it is the usual practice for the supervisor of each town and ward to present to the board a list of the persons who, in his judgment, are qualified to serve as grand jurors. These lists are usually accepted by the board, although the primary duty of making the selection rests with the board itself. Notwithstanding the practice of each supervisor preparing the list from his own town or ward, selection of the jurors and the adoption and preparation of the list is the act of the board and this should plainly appear upon the record, and in the public proceedings of the board. There is usually in each board a committee on grand juries. The lists presented to the board by the individual supervisors should be submitted to this committee, and the committee should carefully consider the qualifications of .the persons included in each list, and thereupon consolidate the lists and make a report to the board. Upon the adoption of the report by the board tlie lists as so consolidated and prepared will become the grand jury list for the county. Such list should then be certified by the clerk of the board of super- visors and filed in the office of the clerk of the county on or before the 10th day of December in each year. The above statute as to the preparation of grand jury lists by boards of super- visors does not apply where the office of commissioner of jurors has been established, under L. 1899, ch. 441. See post, p. 1036. 2. As to exemptions from serving as jurors for the trial of issues of fact, see Judiciary Law, § 546, post, p. 1032. GRAND AND TRIAL JURORS; COMMISSIONERS OP JURORS, 1031 Code Criminal Procedure, §§ 229-f, 229-g, 229-r. the christian and surnames, at length, of the persons named therein, their respective places of residence, and their several occupations; it shall be certified by the clerk of the board of supervisors and shall be filed in the office of the clerk of the county on or before the tenth day of December in each year.^ [Idem, § 229-d.] § 2. INCREASE IN NUMBER OF JURORS; DUTIES OF SUPERVI- SORS. If the county judge of any county of this state, except the county of New York, shall at any time be of opinion that a greater number of persons than that herein required, should be returned to serve as grand jurors in their county, he may, by an order under his hand, direct such number to be increased; but such increase shall not exceed one-half the number herein required to be selected for such county. [Idem, § 229-f.] Upon any order which is authorized by the two last sections, being served upon the board of supervisors, they shall at their next annual meeting, increase the number of persons returned by them to serve as giand jurors, pursuant to such order. [Idem, § 229-g.] § 3. INSERTING NETV NAMES IN BOX WTHEN LIST IS NEARLY EX- HAUSTED. When it shall appear upon the representation of a county clerk, that there are less than fifty names remaining in the box containing the names of persons returned to serve as grand jurors, the judge of the county court may select from the citizens of the county qualified to serve as grand jurors, and who shall not have served during the preceding twelve months, the names of fifty persons, to serve &s grand jurors. Such names shall, be certified to the county clerk, who shall file such certificate in his office, and shall cause such names to be written on distinct pieces of paper, and deposited in the box containing any undrawn names of persons returned to serve as grand jurors, or if there be none, then in a proper box; and from such box, in either case, the clerk shall draw a grand jury to serve for any court to be held immediately after such drawing. 3. Defective list. Where it appears that a few persons named in a grand jury list are not possessed of the qualifications required by law, the whole list is not therefore to be declared irregular and null and void, especially when it appears that the names were so added without fraud or design, but by accident or oversight. Dolan v. People, 64 N. Y. 485. 4. The power formerly conferred upon the judges of common pleas of the several counties is now imposed upon the county judge of the county. 1032 JURORS. Judiciary Law, §§ 500-502. Such drawing shall be made at the time, and in the same manner, in all respects, as herein provided in respect to persons returned by the supervisors, and the persons drawn shall be summoned in like manner, and subject to the same penalties for neglect. [Idem, § 229-r.] § 4. SUPERVISOR, TOWN CLERK AND ASSESSORS TO MAKE I.ISTS OF TRIAL JURORS; NAMES TO BE TAKEN FROM ASSESS- MENT-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 oflBce, by the town clerk ; for the purpose of making a list of persons to serve as trial jurors for the then ensuing three years. If they fail to meet on the day specified in this section, they must meet as soon thereafter as practicable." [Judiciary Law, § 500; B. C. & G. Cons. L., p. 2829.] At the meeting specified in the last section, the oificers 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 this article. [Judiciary Law, § 501; B. C. & G. Cons. L., p. 2829.] § S. 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 a resident of the county. 2. Not less than twenty-one, nor more than seventy years of age. 3. Assessed, for personal property, belonging to him, in his own right, to the amount of two hundred and fifty dollars; or the owner of a free- hold 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 hus- band of a woman who is the owner of a like freehold estate, belonging to her, in her own right,* except that in the counties of Queens and Rich- 6. Mere irregularities by public officers in making a list, of persons to serve as trial jurors which cannot in any way effect the rights of the parties may be disregarded. Ferris v. People, 35 N. Y. 125. The statutes as to selecting, draw- ing and summoning jurors are merely directory. Friery v. People, 2 Abb. Ct. App. Dec. 215. 6. The property qualification must appear on and be evidenced by the assess- ment rolls. Armsby v. People, 2 T. & C. 157. It was held in accordance with GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. 1033 Judiciary Law, § 503. mond a person, to be qualified to serve as such trial juror, shall possess the property qualifications specified in subdivision three of section six hundred eighty-six of this chapter. [Subd. amended by L. 1910, eh. 96.] 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. 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 improvements, owned by him, have been made to the value of one hundred and fifty dollars, is qualified to serve as a trial juror, although he does not possess either of the qualifications, specified in subdivision third of this section, if he is qualified in every other respect. [Judiciary Law, § 502; B. C. & G. Cons. L., p. 2829.] § 6. 'WHO ABE DISQUAUFIED TO SERVE AS TBIAI. JURORS. Each of the following officers is disqualified to serve as a trial juror : 1. The governor; the lieutenant-governor; the governor's private secre- tary. 2. The secretary of state; the comptroller; the state treasurer; the at- torney-general; the state engineer and surveyor; a canal commissioner; an inspector of state prisons ; a canal appraiser ; the commissioner of education ; the superintendent of banks; the superintendent of insurance; and tlie- deputy of each ofiicer, specified, in this subdivision. 3. A member of the legislature, during the session of the house, of which he is a member. 4. A judge of a court of record, or a surrogate. 5. A sheriff, under sheriff, or deputy sheriff. 6. The clerk or deputy clerk of a court of record. [Judiciary Law, § 503"; B. C. & G. Cons. L. p. 2830.] § 7. 'WHO ARE ENTITLED TO BE EXEMPTED FROM JURY SER- VICE. Each of the following persons, although qualified, is entitled to exemp- this proposition that where, upon challenge of the juror, it appeared that when he was placed on the jury list he was the owner of a farm for which he was assessed, but was not assessed for personal property, and before the trial he sold his farm, taking back a mortgage, that he was not eligible and that the challenge was properly sustained. Kelly y. People, 55 N. Y. 565. Mere pos- session of the amount of property is not enough. It must be assessed to him upon the town assessment-roll. 'Valton v. Nat. L. F. Ass. Soc, 17 Abb. 268. 1034 JURORS. Judiciary Law, § 546. tion from service as a trial juror, upon his claiming exemption there- from: 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 per- son actually employed in a state asylum for lunatics, idiots or habitual drunkards. 3. The agent or warden of the state prison, the keeper of a county jail, or a person actually employed in a state prison or county jail, and the keeper of every alms-house. 4. A practicing physician or surgeon, having patients requiring his daily professional attention, a licensed pharmacist actually engaged in his profession as a means of livelihood, a duly registered veterinary surgeon actually engaged in his profession as a means of livelihood, and a duly licensed embalmer actually engaged in his profession as a menas of liveli- hood. 5. An attorney or counselor at law regularly engaged in the practice of the law as a means of livelihood. 6. A professor or teacher, in a college or academy, or an editor, editorial writer, artist or reporter of a daily newspaper or press association regu- larly employed as such and not following any other vocation. 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 constructed and navigated. 9. A master, engineer, assistant engineer or fireman, actually employed upon a steam vessel, making regular trips. 10. A superintendent, conductor, or engineer, employed by a railroad company, other than a street railroad company; or an operator or an assist- ant operator, employed by a press association or a telegraph company, who is actually doing duty in an office, or along the railroad or telegraph line of the company or association, by which he is employed. 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 discharged from the national guard, after five years' service in either capacity. 13, A person who has been honorably discharged from the military forces of the state, after seven years' faithful service therein. But in order to en- title a person to exemption, 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 or staff officer, or as an officer, non-commis- sioned officer, musician or private in a uniformed battalion, company or troop of the militia of the state, and armed, uniformed and equipped ac- GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. 1035, Judiciary Law, §§ 505, 509-512. cording to law; or a portion thereof, during that period and in that ca- pacity, 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 ac- cording to the laws of the state and performing his duties therein; or a person who, after faithfully serving five successive years in such a fire com- pany 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. [Judiciary Law, § 546 ; B. C. & G. Cons. L. p. 2840.] § 8. DUPLICATE JURY LISTS TO BE MADE AND FILED. Duplicate lists of the names of the persons selected as prescribed in sec- tion five hundred and one, showing the place of residence, and other proper additions, of each of them, as far as those particulars can be conveniently ascertained, must be made out and signed by the officers, or a majority of them. Within ten days after the meeting, one of the lists must be trans- mitted by those officers to the county clerk, and filed by him ; and the other must be filed with the town clerk. [Judiciary Law, §^ 505, B. C. & G. Cons. L., p. 2831.J § 9. 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. [Judi- ciary Law, § 509 ; B. C. & G. Cons. L., p. 2832.] 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. [Judiciary Law, § 510; B. C. & G. Cons. L., p. 2832.] If, after the list from a town 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, certified by him to be correct, must be transmitted to the county clerk as soon thereafter as practicable. [Judiciary Law, § 511; B. C. & G. Cons. L., p. 2832.] If the duplicate list, placed on file in the town clerk's office, is also lost or destroyed, or can not be found, a new list, to be made forthwith, as pre- scribed for making the original list, must be transmitted to the county clerk 1036 JURORS. Judiciary Law, § 506; L. 1899, ch. 441, § 1. as soon thereafter 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. [Judi- ciary Law, § 512; B. C. & G. Cons. L., p. 2832.] § lO. JURORS SO RETURNED TO SERVE FOR THREE TEARS. Each person, whose name is contained in a list, so transmitted, must, unless ha is excused or discharged, serve, as a trial juror, for three years from the first Monday of August of that year, and thereafter until another list from his town is received and filed. [Judiciary Law, § 506 ; B. C. & G. Cons L., p. 2831.] S 11. COMMISSIONER OF JURORS; OFFICE ESTABLISHED; AP- POINTMENT. Office established. — The office of commissioner of jurora \& hereby es- tablished in and for each of the counties of Schenectady, Saratoga, Rich- mond, Queens, Oneida, Herkimer, Nassau and Niagara, 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 commissioner of jurors in such county. A copy of such reso- lution certified by the clerk of such board of supervosors, 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, as amended by L. 1903, ch. 201, L. 1905, chs. 102, 510, L. 1906, ch. 221, and L. 1911, di. 705,] 7. Commissioners of jnrors 1b other conntieg. As to the appointment of a commissioner of jurors in the counties of New York and Kings, and the drawing of special juries therein, see L. 1901, ch. 602, as amended by L. 1904, ch. 458, and L. 1906, ch. 499. As to the office of commissioner of jurors in the county of Erie, see L. 1895, ch. 369, as amended by L. 1896, ch. 97; L. 1897, ch. 21, and L. 1901, ch. 230, L. 1905, ch. 31, L. 1911, ch. 690, and L. 1912, ch. 147. As to the office of commissioner of jurors in the county of Monroe, see L. 1897, ch. 346, as amended by L. 1900, ch. 565, L. 1901, ch. 377, and L. 1902, ch. 408. As to the office of commissioner of jurors in the county of Oneida, see L 1906 ch. 484, as amended by L. 1908, ch. 179. As to office of commissioner of jurors in Westchester county and the regu- lation of his powers and duties, see L. 1892, ch. 491, as amended by L 1893 ■ch. 269, and L. 1904, ch. 232, as amended by L. 1907, ch. 240. As to the office of commissioner of jurors in Rensselaer county, see L. 1913, ch. 653, which confers upon the county clerk the duties of this office as it was established by L. 1894, ch. 557, as amended by L. 1896, ch. 679. The act of 1894 originally applied -to both Albany and Rensselaer counties, but by L. 1900, ch. 320, § 2, it is provided -that ch. 557 of L. 1894 shall not hereafter apply to the county of Albany, but such GRAND AND TRIAL JURORS; COMMISSIONERS OP JURORS. 103? Idem, § 2; L. 1899, ch. 441, § 3. Appointment. — In any county in which the office of commissioner of jurors is established as provided in the preceding section, and in the county of Albany, such commissioner and his successor shall be appointed in the following manner : 1. If only one justice of the Supreme Court resides in such county, he and the county judge and the county clerk shall make the appointment. 2. If two or more justices of the Supreme Court resid3 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 appointment. The first appointment shall be made in the counties of Saratoga and Schenectady within thirty days from the date- this act shall take effect, and in the other counties to which this act applies within thirty days after the adoption of the resolution to establish the office. The officers herein authorized to appoint a commissioner of jurors in a. county shall constitute a board for that purpose and an 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. [Idem, § 2, as amended by L. 1900, ch. 320, L. 1903, ch. 201, and L. 1905, ch. 102.] § 12. TERM OF OFFICE; SAIiAKY; ROOMS AND ACCOMMODATIONS. Term of office; undertaking. — A commissioner of jurors first appointed under this act shall take office immediately, and shall hold office for a term which shall expire five years from the first day of January next suceeding his appointment, and each commissioner thereafter appointed under this act, except to fill a vacancy, shall hold his office for a term of five years, from the expiration of the term of his predecessor in office. 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 sura to be fixed and approved by the appointing authority, not less than two thousand dollars, nor more than five thousand dollars, conditioned that he will faithfully perform the duties of his office, and account for and pay over all moneys which come into his hands by virtue thereof, which shall be county shall be subject to the provisions of oh. 441 of L. 1899, which is the- general act applying to all counties where the board of supervisors have adopted, a resolution as provided in the above section. 1038 JURORS. L. 1899, eh. 441, SS 4-7. filed in the office of tiie county clerk. [L. 1899, ch. 441, § 3, as amended by L. 1900, ch. 320.] Salary. — 'A commissioner of jurors shall be entitled to receive an an- nual salary payable monthly by the county treasurer. 1. In counties having a population of one hundred thousand and not more than one hundred and fifty thousand, fifteen hundred dollars. 2. In counties having a population of more than one hundred and fifty thousand and not more than three hundred thousand, not exceeding three thousand dollars to be fixed by the resolution creating the ofiice. 3. In counties having a population less than one hundred thousand a sum to be fixed by the resolution creating the office, except in the coun- ties of Nassau, Niagara, Saratoga, Herkimer and Schenectady, where it shall be fixed by the boaird which makes the appointment, not exceed- ing twenty-five hundred dollars. [Idem, § 4, as amended by L. 1903, ch. 201, L. 190.5, ch. 102, L. 1'906, ch. 221, L. 1911, ch. 705, and L. 1914, ch. 37.'^."l Rooms and accommodations^ — In the city of New York, the munici- pal assembly shall provide suitable rooms and accommodations for the com- missioner of jurors in each county within such city, and shall also make provision for necessary printing and advertising, and for supplying him Tvith 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 provision has been made a commissioner of jurors shall use the county clerk's office of his county to transact the neces- sary duties of his office and shall be supplied by the county clerk with neces- sary books and other articles, which shall be a county charge. [Idem, § 5.] § 13. ASSISTANTS AND CLERKS. A commissioner of jurors in a county of more than sixty-five thousand population according to the last preceding state or federal census may ap- point one assistant commissioner of jurors whose compensation shall be fixed by the board appointing the commissioner, and one clerk whose compensa- tion shall be fixed in the same manner; such compensation shall be paid by the county in equal monthly installments and an assistant commissioner of jurors may be designated by the commissioner appointing him to per- form any of the duties of a commissioner of jurors in his absence. A com- missioner of jurors, or an assistant whom he designates for the purpose by a certificate filed in the office of the county clerk, may administer an oath or affirmation in relation to any matter embraced within the provisions of this act. [L. 1899, ch. 441, § 6, as amended by L. 1906, ch. 322.] % 14. SELECTION OF TRIAI. JITKORS; AID OF TAX OFFICERS. Trial jurors must be selected by the commissioner of jurors, who must GRAND AND TRIAL JURORS; COMMISSIONERS OF JURORS. 1039 L. 1899, ch. 441, §§ 8-10. 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 there- in. He must keep a record of all proceedings before him, or in his office. [L. 1899, ch. 441, § 7.] Tax officers to give aid. — The president and commissioners of the depart- ment of taxes and assessments in the city of New York must render to the commissioner of jurors of each of the counties of Richmond and Queens all t:he assistance in their power to enable him to procure the names of persons liable to serve as trial jurors, and in the other counties of this state in which €ommissioners of jurors shall be appointed ,in pursuance of this act, the supervisors, town clerk and assessors of each town must furnish like assis- tance. The officers herein mentioned shall forthwith upon the request of the commissioner of jurors of any county furnish him a jury list made by se- lecting and entering thereon from the last revised assessment-roll in their possession the names of all persons whom they believe possess the qualifica- tions for trial jurors aS prescribed by law; such a list must show fhe places of residence and other proper additions of each person so selected, so far as these particulars can be conveniently ascertained, and must be certified by the officers making the same. [Idem, § 8.] S 15. PEEPAEATION OF LIST OF TRIAL JUKOES; NOTICE TO JUSOBS. 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 per- :sons liable to serve as trial jurors must be entered in suitable books alphabeti- cally with the occupation, places of business and residence of each .as far as those particulars can be conveniently 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. In the county of Queens the hearing of claims for exemption shall in the first Instance be had in at least two convenient places within the ward in which the persons named in said list reside, and the commissioner shall hold a sufficient number of evening sessions from seven o'clock to ten o'clock to permit such persons to appear and be heard. Any person who, after having been notified to attend, shall fail to appear at such hearing held within the ward in which he resides shall be heard at the office of the commissioner. [L. 1899, ch 441 § 9 as amended by L. 1913, ch. 438.] 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 his 1040 JURORS. L. 1899, ch. 441, §§ 11-13. own liability, or the liability of any other person to serve as a juror. A person so notified must attend and testify accordingly. If he fails to at- tend, as specified in the notice, for any cause, except physical inability, or if he refuses to be sworn or to answer any legal and pertinent question put to him by the commissioner, he forfeits fifty dollars for each failure or refusal. One or more successive notices may be served upon the same per- son, where he fails to attend, as required by a former notice, and he is lia- ble 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 testi- fies in his stead; and where a person has so attended twice they cannot be required to attend again in the same jury year. [Idem, § 10.] § 16. riSTS TO BE FIIiED. 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. Before filing such certified lists, however, he must select therefrom and strike off therefrom, two hundred persons for each district of the Municipal Court of the city of New York in his county, if he be commissioner for a county in the city of New York, and he must on or before the first day of December in each year file with the re- spective justices of said Municipal Court, in his county, certified lists of the persons so selected and struck off by him — the persons so selected to be res- idents of the Municipal Court district for which they are selected. The list so filed shall constitute the jury lists for trials in the respective districts where they are filed until a new list shall be filed in accordance with the provisions of this act. He may from time to time thereafter strike from the list kept by him the name of a person who is found by him to be exempt or disqualified, in that case he must record the reason why the name is struck off as exempt or disqualified. [L. 1899, ch. 441, § 11, as amended by L. 1901, ch. 172.] In a county which has a commissioner of jurors, other than a county included in the city of New York, the commissioner shall, on or before the fifteenth day of December, in each year, file with each town and city clerk in such county a list of the names of the residents of such town or city which have been placed by him on the trial jury list for such county. [Idem, § 12-] § 17. riST OF GRAND JURORS. In a county which has a commissioner of jurors such commissioner and GRAND AND TRIAL JURORS; COMMISSIONERS OP JURORS. 1041 L. 1899, ch. 441, §§ 14-17; Code Civ. Proc, § 3313. the board appointing him shall prepare in the month of December of each year from the trial jury list filed as herein provided a list of the names of three hundred persons to serve as grand jurors in said county during the next ensuing jury year, and until a new list shall be returned. The list shall contain the christian names and surnames at length of persons named therein, their respective places of residence, and their several occupations. It shall be certified by said board and filed in the oflSce of the county clerk within ten days thereafter. [Idem, § 13.] § 18. DRAWING JURORS; BAX.LOTS. 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 name 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 transmitted. [L. 1899, ch. 441, § 14.] Drawing jurors. — The grand and trial jurors shall be drawn as now pro- vided by law by the county clerk in the presence of the county judge, the sheriff and the commissioner of jurors, or a majority of them. [Idem, § 15.] § 19. REMOVAL OF COMMISSIONER. Any commissioner of jurors appointed pursuant to the provisions of this act may be removed for cause by the board by whom the appointment was made. He may also be renioved upon order of the appellate division of the Supreme Court of the department embracing the county in which he resides. The commissioner is entitled to notice of application to the appellate divi- sion for his removal. [L. 1899, ch. 441, § 16.] § 20. APPLICATION OF ACT, This act shall not apply to the counties of New York, Kings, Erie, Mon- roe, Onondaga, Westchester or Eensselaer. [L. 1899, ch. 441, § 17, as amended by L. 1900, ch. 320.] § 21. FEES OF TRIAL JURORS. A trial juror, in an action or a specal proceeding, in a court of record, i043 JURORS. Code Civ. Proc, §§ 3314, 3315. is entitled, except as otherwise specially prescribed by statute in a particular court, or a particular county, to the following fees: twenty-five cents for each cause in which he is empanelled, to be paid by the party noticing the cause for trial ; or, if it is noticed by more than one party, by. the party whom the court directs to pay it. [Code Civ. Proc, § 3313. J § 22. SUPERVISORS MAY MAKI! ALLOWANCE TO GRAND AND TRIAL JURORS. 1. In the counties within the city of New York the board of aldermen and in any other eoimty the board of supervisors, may direct that a sum, not exceeding four dollars in addition to the fees prescribed in the last section, or in any other statutory provision, be allowed to each grand juror, and each trial juror for each day's attendance at a term of a court of record, of civil or criminal jurisdiction, held within the county, and in any county wherein the court holds evening or night sessions, or in any county in which the grand jury holds evening or night sessions, the board of supervisors may direct that a sum, not exceeding one dollar and fifty cents in addition to the fees prescribed in this section or the last section, or in any other statutory provision, be allowed to each grand juror and to each trial juror for each evening or night's attendance at a term of a court of record of civil or criminal jurisdiction held within their county. If a different rate is not otherwise established as herein provided, each juror is entitled to five cents for each mile necessarily traveled by him in going to and returning from the term; but such board of aldermen or board of super- visors may establish a lower rate. 2. A juror is entitled to mileage for actual travel once in each calendar week during the term, except that in the counties of Queens, Rockland and Orange grand and trial jurors may be paid four cents a mile for each mile necessarily traveled in going to and returning for each day of actual travel during the term in lieu of any other mileage. The sum so established or allowed must be paid by the county treasurer upon the certificate of the clerk of the court, stating the number of days that the juror actually attended, and the number of miles traveled by him in order to attend. If a juror in attendance at a term of a court of record cannot reach his home upon the day he is excused from attendance, he shall be entitled to compensation for an additional day, and the clerk shall certify accordingly upon satisfactory proof of such fact by affidavit. The amount so paid must be raised in the same manner as other county charges are raised. [Code Civ. Pro., § 3314, as amended by L. 1913, ch. 257, and L. 1917, ch. 209, and L. 1918, eh. 638.] § 23. EXTRA AIXOIVANCE TO TRIAL JURORS. WTiere the trial, by a jury, of an issue of fact, in either a civil or a criminal action or special proceeding, in a court of record, occupies more than thirty days, the court, by an order entered in the minutes, may fix and allow, to each juror, such an extra compensation as it deems reason- able for his services thereupon ; the amount of which compensation, to- gether with the expenses actually and necessarily incurred, for food for the jurors during the trial, is a county charge. [Code Civ. Pro., § 3315.] PART XI, PROVISIONS RELATING TO COUNTIES AND TOWNS. CHAPTER LXXII. ACTIONS BY AND AGAINST TOWN AND COUNTY OFFICERS. Section 1. Investigation by Supreme Court into the expenditure of town moneys by town officers. 2. Actions against town and county oflScers to prevent Illegal acts; bonds; order restraining improper audit or fraudulent judg- ments; books, papers, etc., open to inspection. 3. Actions against municipal officers to prevent waste, etc. 4. Actions by and against certain town officers in their official capaci- ties. 5. Officer, how described in summons. 6. Successor, when to be substituted. 7. When execution upon judgment cannot be issued against officer personally. § 1. INVESTIGATION BT SUPREME COURT INTO THE EXFENDI- TURE OF TOWN MONEYS BY TOWN OFFICERS. If twenty-five freeholders in any town or village shall present to a jus- tice of the Supreme Court of the judicial district in which such town or village is situated, an affidavit, stating that they are freeholders and have paid taxes on real property within such town or village within one year, that they have reason to believe that the moneys of such town or village are being unlawfully or corruptly expended, and the grounds of their belief, such 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 finan- cial 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 1043 1044 PROVISIONS RELATING TO COUNTIES AND TOWNS. General Municipal Law, § 4. <:ause 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, under his order, by the officers whose expenditures are in- vestigated, if the facts in such affidavit be substantially proved, and other- wise, by the freeholders making such affidavit. If such justice shall be sat- isfied that any of the moneys of such town or village are being unlawfully 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 ex- penditure, or such other improper use of such moneys.^ [General Muni- cipal Law, § 4; B. C. & G. Cons. L., p. 2108.] 1. Taxpayer's action to restrain the unlawful expenditure of town and county money by public officers. See General Municipal Law, § 51, and Code Civ. Proc, sec. 1925. 2. Object and nature of proceedings. The above section provides for a judicial investigation of the financial affairs of a town or village, and is a remedial statute. It is designed to: (1) Prevent the present or future illegal appropriation of public moneys; and (2) determine the financial condition of the town and prevent future illegal appropriations of public moneys by point- ing out what proper and what improper charges may have been allowed by a former town board. Thus, while the proceeding must be based upon present acts which contemplate the unlawful expenditure of money already on hand, or which may thereafter be produced from the sources of revenue of the town, the experts in their investigation are not limited to the particular year in which the illegal appropriation sought to be restrained is made. Matter of Town of Hempstead, 36 App. Div. 320; 55 N. Y. Supp. 345; affd., 160 N. Y. 685. A justice has no power to investigate or correct evils resulting from mere error in judgment upon the part of the town officers; it is only unlawful or corrupt expenditures of public moneys which come within the terms of the statute. See Matter of East Syracuse, 20 Abb. N. C. 131. The proceeding should not be instituted unless it can be shown that the officer acted illegally and without statutory authority; the proceeding will not be sustained in case it be shown that the officer acted in good faith and without intent to defraud the tax- payers. See N. Y. C. & H. R. R. R. Co. v. Maine, 54 N. Y. St. Rep. 384; 24 N. Y. Supp. 962. Appeal. An order made by a justice of the Supreme Court, and affirmed by the Appellate Division, determining the result of a summary investigation into the financial affairs of a town or village, instituted by taxpayers and free- holders under the above section, is reviewable by the Court of Appeals as a final order in a special proceeding. Matter of Taxpayers of Plattsburg, 157 N. Y. 78; 51 N. B. 512, revg. 27 App. Div. 353, 50 N. Y. Supp. 356. A proceeding under the above section is a special proceeding within the definition contained in sections 3333 and 3334 of the code, and the decision of the justices therein is not, under section 2121 of the code, reviewable by a writ of certiorari. People ex rel. Guibord v. Kellogg, 22 App. Div. 177; 47 N. Y. Supp. 1023; see, also. Mat- ter of Town of Hempstead, 32 App. Div. 6; 52 N. Y. Supp. 618, in which case It ACTIONS BY AND AGAINST OFFICERS. 1045 General Municipal Law, § 51. § 2. ACTIONS AGAINST TOWN AND COUNTY OFFICERS TO PRE- VENT ILIiEGAI. ACTS; BONDS; ORDER RESTRAINING IM- PROPER AUDIT OR FRAUDULENT JUDGMENTS; BOOKS, PAPERS, ETC., OPEN TO INSPECTION. All officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corpora- tion in this state, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal ofBeial 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 corporation by any per- son or corporation whose assessment, or by any number of persons or cor- porations, jointly, the sum of whose assessments shall amount to one thou- sand dollars, and who shall be liable to pay taxes on such assessment in the county, town, village or municipal corporation to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upon any assessment of the above-named amount within one jear previous to the commencement of any such action. Such person or corporation 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 pen- alty 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 plain- tiffs, if there be more than one party plaintiff, providing said two parties plaintiff shall severally justify in the sum of five thousand dollars. Said Tjond shall be approved by said justice or judge and be conditioned to pay all costs that may be awarded the defendant in such action if the court shall finally determine the same in favor of the defendant. The court was held that the proper way to review the order of a justice in such proceed- ings was by an appeal. Costs. Since the proceeding under the above section is a special proceeding the costs are to be awarded in the discretion of the court at the rates allowed for similar services in an action brought in the same court; in the absence of a stipulation stenographers' fees cannot be taxed as costs in such a proceeding; "but the fees of the experts employed therein are to be treated as similar to those of a referee, and are, therefore, properly taxable. The costs of such an investigation cannot be taxed against the officers of the town, who were not made parties to the proceeding, although their bills may have been found to be irregular. Matter of Town of Hempstead, 36 App. Div. 321; 55 N. Y. Supp. 345. The costs of an investigation, if any are awarded, must be restricted by force of § 3240 of the Code of Civil Procedure to those allowed for similar services in an action. Matter of taxpayers of Plattsburgh, 157 N. Y. 78, revg. 27 App. Div. 353, 50 N. Y. Supp. 356, on other points. lOiG PROVISIONS RELATIXG TO COUNTIES AND TOWNS. General Municipal Law, § 51. shall require, when the plaintiffs shall not justify as above mentioned, and in any case may require two more sufficient sureties to execute the bond above provided for. Such bond shall be filed in the office of the county clerk of the county in which the action is brought, and a copy shall be served with the sum- mons in such action. If an injunction is obtained as herein provided for, the same bond may also provide for the payment of the damages arising therefrom to the party entitled to the money, the auditing, allowing or paying of which was enjoined, if the court shall finally determine that the plaintiff is not en- titled to such injunction. In case the waste or injury complained of consists in any board, officer or agent in any county, town, village or municipal corpora- tion, by collusion or otherwise, contracting, auditing, allowing or paying, or conniving at the contracting, audit, allowance or 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 municipal corporation, or by permitting a judgment to be recovered against such county, town, village or municipal 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 discretion, prohibit the payment or col- lection of any such claims, demands, expenses or judgments, in whole or in part, and shall enforce the restitution and recovery thsreof, if heretofore or hereafter paid, collected or retained by the person or party heretofore or here- after receiving or retaining the same, and also may, in its discretion, adjudge and declare the colluding or defrauding official personally responsible there- for, and out of his property, and that of his bondsmen, if any, provide for the collection or repayment thereof, 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 discretion, vacate, set aside and open said judgment, with leave and direction for the defendant therein to interpose and enforce any existing legal or equitable defense therein, under the direction of such person as the court may, in its judgment or order, desig- nate and appoint. All books of minutes, entry or account, and the books, bills,, vouchers, checks, contracts or other papers connected with or used or filed in the office of, or with any officer, board or commission acting for or on behalf of any county, town, village or municipal corporation in this state are hereby declared to be public records, and shall be open, subject to reasonable regula- tions to be prescribed by the officer having the custody thereof, to the inspection of any taxpayer.^a xhis section shall not be so construed as to take away any right of action from any county, town, village or municipal corporation, or from 2a. Tie right to inspect books and papers filed with an officer, board or com- missioner acting on behalf of a county, town or other municipality, which is given by this section, is as broad as the language used to bestow it ajid there is no limitation thereof save that found in the provision itself. Matter of Egau (1912), 205 N. Y. 147. ACTIONS BY AND AGAINST OFFICERS. 1047 General Municipal Law, § 51. any public ofiBcer, but any right of action now existing, or which may here- after exist in favor of any county, town, village or municipal corporation, or in favor of any officer thereof, may be enforced by action or otherwise by the persons hereinbefore authorized to prosecute and maintain actions; and whenever by the provisions of this section an action may be prosecuted or maintained against any officer or other person, his bondsmen, if any, may be joined in such action or proceeding and their liabilities as such enforced by the proper judgment or direction of the court; but any recovery under the provisions of this article shall be for the benefit of and shall be paid to the officer entitled by law to hold and disburse the public moneys of such county, town, village or municipal corporation, and shall, to the amount thereof, be credited the defendant in determining his liability in the action by the county, town, village or municipal corporation or public ofBcer. The provisions of this article shall apply as well to those cases in which the body, board, officer, agent, commissioner or other person above named has not, as to those in which it or he has jurisdiction over the subject-matter of its action.' [General Municipal Law, § 51; B. C. & G. Cons. L., p. 2122.J 3. The object of the act is to secure the protection of public property, and to subordinate the acts of officials in its disposition or appropriation to the re- straint of the law. It must be liberally construed and applied to carry this object into effect. Starin v. Mayor, 42 Hun, 549; 4 N. Y. St. Rep. 588; revd. on other grounds, 112 N. Y. 206. In the case of People v. N. Y. & M. B. Ry. Co., 84 N. Y. 565, it was held that the act of 1875, similar in many respects to the above act, was for the main purpose of authorizing the pursuit of the funds wrongfully abstracted from municipal treasuries into the hands of officials or other persons who wrongfully obtained or received them. Such statutes are intended to provide ample remedy and protection to taxpayers against all wrongful acts to their prejudice of the officers and agents of a municipal cor- poration, affecting not only its property rights but its credit; and every process or means by which the corporation can be charged pecuniarily, or the taxable property within its limits be burdened, are embraced within their provisions. Ayers v. Lawrence, 59 N. Y. 192. In speaking of the above act Judge O'Brien says, in the case of Talcott v. City of Buffalo, 125 N. Y. 280; 26 N. E. 263: "In a single section, authority- was given to any person residing in the county, town or municipal corporation, assessed for and liable to pay taxes therein, or who had paid taxes therein within one year previous to maintain an action against all officers, agents, com- missioners and other persons acting for or in behalf of such county, town or municipal corporation, to prevent waste or injury to any property, funds or estate of such county, town or municipal corporation. That this legislation was aimed at ' frauds, embezzlements, and wrongful acts of public officers and agents,' as indicated by the title, is also clear when the causes that moved the legislature to its enactment and which are matters of public history are considered. The origin of the statute is to be found in certain well known fraudulent and corrupt acts on the part of officers and commissioners in the 1048 PROVISIONS RELATING TO COUNTIES AND TOWNS. Code Civ. Proc, § 1925. § 3. ACTIONS AGAINST MUNICIPAL OFFICERS TO PREVENT W^ASTE, ETC. An action to obtain a judgment, preventing waste of, or injury to, the city and county of New York, whereby public funds were abstracted from the ireasury mainly by the audit and allowance of fictitious claims and corrupt contracts, and the proceeds converted to the individual benefit and use of these officers and agents. The terms ' waste ' and ' injury ' used in this statute comprehend only illegal, wrongful or dishonest official acts, and were not In- tended to subject the official action of boards, officers or municipal bodies acting within the limits of their jurisdiction and discretion, but which some tax- payer might conceive to be unwise, and improvident or based on errors of judgment, to the supervision of the judicial tribunals. It is believed that no action was ever maintained under this statute with the sanction of this court, without some proof or allegation that the official act or proceeding complained of was without power or was tainted by corruption or fraud." This section should be construed with section 1925 of the Code of Civil Pro- cedure, which is contained in the section immediately following. The equitable remedy of an injunction under the General Municipal Law is to be granted or withheld in accordance with the general principles which govern the exercise of equitable jurisdiction. Mere inaction by a public officer will not justify the intervention of a court of equity where the legal remedy by mandamus is avail- able and adequate. Southern Leasing Co. v. Ludwig (1916), 217 N. Y. 100, revg. 168 App. Div. 233, 153 N. Y. Supp. 545. Neither the above a<;t nor section 1925 of the code were intended as a mode ot putting an incapable or a confiding official under the protecting guardianship of the court, and of making him a ward in chancery to be shielded from the effects of his own folly, nor to enable a taxpayer to try a question of fraud be- tween the officer and those who are dealing with him. If the officer is honest and faithful no suit against him is needed. The taxpayer may explain to him the facts and discover to him the fraud and the courts are open for his pro- tection and the means of redress are at hand. It is only when, in the face of explanation and knowledge, he still refuses to act and persists in carrying out the wasteful contract that the action against him is needed ; and then it rests iipon his misconduct, upon his collusion and fraud, which must be alleged and proved. The legislature could not have intended that the courts should supply intelligence and prudence to incapable officials at the demand of a taxpayer, but manifestly did intend to give the latter protection against the dishonesty or fraud of the municipal agents. Finch, J., in Ziegler v. Chapin, 126 N. Y. 342, 348; 27 N. E. 471. The only acts which can be complained of and against which the above statute may be invoked are those performed by municipal officers in the exercise of their official duties. See Potter v. Collis, 19 App. Div. 392; 46 N. Y. Supp. 471; affd., 156 N. Y. 16; Sheehy v. INIcMillan, 26 App. Div. 140; 49 N. Y. Supp. 1088; Paul V. City of New York, 46 App. Div. 69 ; 61 N. Y. Supp. 570. The word " other-wise " in the phrase " by collusion or otherwise, contracting, auditing, etc.," is to be interpreted according to the rule of pjusdem generis. It does not mean any auditing, but an audit due to some sinister or improper motive and in violation of a public trust. The allegation that a member of a board of super- visors consisting of three members, presented his own fraudulent bills to the board ACTIONS BY AND AGAINST OFFICERS. ^049 Code Civ. Proc, § 1925. estate, funds or other property of a county, town, city or Incorporated for auditj is not a sufficient declaration as against the two members not presenting claims, to hold them liable for the amount of the claims presented. Wallace v. Jones, 83 App. Div. 152, 82 N. Y. Supp. 449. Who may bring tie action. The action can only be brought by one who is a, taxpayer, acting in good faith to protect his interests. Hull v. Ely, 2 Abb. N. C. 440. The object oi the action' being to prevent waste or injury to the property, funds or estate of a municipal corporation, it is the duty of the court to see to it that he who undertakes to champion the public cause is actuated by public motives, and that he is not making use of the power of the court to accom- plish some private end. Kimball v. Hewitt, 17 N. Y. St. Rep. 743; 2 N. Y. Supp. 697; affd. 15 Daly, 124. In a taxpayer's action under this act the plaintiff is not bound to show that he will suflFer peculiar injury; he is appearing in behalf of himself and all other tax- payers, and it is enough for him to show that he has the status of a taxpayer which the statute prescribes, and that the act of the defendant is one which the law for- 'bids. Rogers v. Board lof Supervisors, 77 App. Ddv. 501, 78 N. Y. Supp. 1081. Motive of plaintiff is immaterial. Kingsley v. Bowman, 33 App. Div. 1, 53 N. Y. Supp. 426 (1898). And injury to him as an individual need not be shown. Warrin v. Baldwin, 105 N. Y. 534, revg. 35 Hun, 334; Gerlach v. Brandrebh, 34 App. Div. 197, 54 N. Y. Supp. 479. The legal capacity of a plaintiff to maintain such an action is not affected by the mere fact that he is a tenant in common of the lands assessed on which he has paid the taoces, and that they are listed on the assessment rolls in the name of the estate of plaintiff's ancestor. Smith v. Hedges (1915), 169 App, Div. 115, 154 N. Y. Supp. 867. Bond to be furnished by plaintiff. The bond given by the plaintiff in bring- ing an action under the above act must be in the form prescribed by the act or it will not be sufficient to comply with the provisions of sections 620 and 621 of the Code of Civil Procedure as to bonds in injunction proceedings. Tappen v. Crissey, 64 How. Pr. 496. When action may be maintained. The taxpayer's action was not intended as a substitute for the action to restrain public nuisances, brought by public authorities, nor as a substitute for an action maintainable by an individual who ihas suffered, or Is likely to suffer special injury therefrom. Gallagher v. Keating, 40 App. Div. 81 ; 57 N. Y. Supp. 632. In this case a taxpayer, who did not claim to be the owner of property abutting on an avenue upon which it was proposed to ereot an elevated railroad, sought to restrain the erection of suoh railroad and to enjoin the city from authorizing the construction thereof, and it was held that such an action would not lie under this statute, especially since it appeared that the proper city officers had issued a permit for the construction of such railroad more that a week before the commencement of the suit. The statute giving a taxpayer a right of action was not intended to subject the official acts of boards, officers or municipal bodies acting within their jurisdiction and discretion to the supervision of the courts, simply because some taxpayer might conceive the same to be unwise, improvident or based on errors of judgment. McBride v. Ashley (1915), 91 Misc. 585, 154 N. Y. Supp. 1010. To justify an injunction it is not necessary that both illegal acts and waste or injury are threatened. Either is sufficient. Bull v. Miller, 140 App. Div. 602, 125 N. Y. Supp. 865. But relief by injunction should not be granted against mere 1050 PROVISIONS RELATING TO COUNTIES AND TOWNS. Code Civ. Proc., § 1925. village of the state, may be maintained against any ofBcer thereof, or any irregularities of taxation, without fraud, eorrouption or waste amounting to bad faith. Falhys & Co. v. Vaughn, 68 Misc. 541, 125 N. Y. Supp. 280. A taxpayer may maintain an action under this section to enjoin either an illegal act by municipal officers, or a waste of or injury to public property or funds. Brill V. Miller, 140 App. Div. 602, 125 N. Y. Supp. 865. Bad faith and breach of official duty is sufficient under the above act to enable a, taxpayer to maintain an action against municipal authorities. Adamson v. Union R. R. Co., 74 Hun, 3; 56 N. Y. St. Rep. 214; 26 N. Y. Supp. 136. An action pursuant to this section is maintainable only when the official act complained of is illegal or wrongful; tihus, the mere disregard by a common coun- cil of a city of legal formalities or orderly mode of procedure prescribed by its charter will not necessarily render a resolution " illegal " within the meaning of this section. Faley v. City of Lockport, 61 Misc. 417; 113 N. Y. Supp. 702. Action will only lie where the acts complained of are without power or where corruption, fraud or bad faith amounting to fraud is charged. It will not lie to restrain a board of town highway commissioners from granting a franchise to a lighting company without compensation. Craft v. Lent, 53 Misc. 484; 103 N. Y. Supp. 366. A taxpayer's action may be maintained to restrain the collection of rents by the comptroller of the city of New York under leases of certain lands of a defunct town to whose rights the city has succeeded, which were invalid for collusion of the former town officers. In such an action the proper parties defendant are the comptroller as the acting fiscal official, the city of New York, and the lessees and otlier successors in interest. The officers of the former town are neither necessary nor proper parties. Any resident taxpayer of the city of New York, who is assessed the required amount, may maintain the action. Wenk v. City of New York, 171 N. Y. 607, reversing 69 App. Div. 621, 75 N. Y. Supp. 1135, 36 Misc. 496, 73 N. Y. Supp. 1003. In the case of Kittenger v. Buflfalo Traction Co., 160 N. Y. 377; 54 N. B. 1081, it was held that a taxpayer was not entitled to maintain an action under the above act to procure a judgment declaring a consent already obtained by a traction company for the construction and maintenance of a street .=urface railroad, to be Illegal and void, and to enjoin in such an action the building of the road. In the ca'se of Ziegler v. Chapin, 126 N. Y. 342 ; 27 N. E. 471, it was said that an action ought not to be maintained by a taxpayer to restrain the purchase of prop- erty by municipal trustees merely on the ground that the proposed price is an extravagant one, and that the proceedings of the municipal officers show a want of prudence and good judgment. The action can only be sustained upon allegations of fraud, collusion, or bad faith. And facts must be alleged showing that the officer ■acted fraudulently, collusive'.y, and in bad faith; it will not be sufficient to allege, as a mere conclusion, that he so acted. Wallace v. Jones, 82 N. Y. Supp. 449 (App. Div., 2d Dept., May 28, 1903). Where public officials are in good faith insisting upon a right of property in the municipality against a person, although they may be wrong in their legal position, the act does not authorize another taxpayer to interfere to restrain them, nor can the person against whom the right is asserted interfere in his right as a taxpayer merely. Rogers v. O'Brien, 1 App. Div. 397; 37 N. Y. Supp. 353. The authority conferred by the act extends only to official acts which, if performed, would produce a public injury, and the remedy for which by injunction wajs pre- ACTIONS BY AND AGAINST OFFICERS. iQSl Code Civ. Proc, § 1925. agent, commissioner, or other person, acting in its behalf, either by a viously availa.'ble to the attorney-general or some body or officer acting on behalf of the public. Rogers v. O'Brien, 153 N. Y. 357 ; 47 N. Y. Supp. 456. A taxpayer's action cannot be maintained under the above act to set aside grants of franchises by municipal authorities to street railway companies because they were made for a less sum in return to the municipality than might, by the exercise of due diligence, have been obtained, and because of fraud, there being no charge of corruption and the proceedings being regular. Adamson v. Nassau Elec- tric R. Co., 89 Hun, 261 ; 34 N. Y. Supp. 1073. Where a bid of a corporation for street lighting was the lowest and was made in good faith, it was held that a taxpayer's action to restrain the municipality from entering into the contract could not be maintained, on the ground that the corporation had no right to erect its poles in the streets, and that hence the contract would be illegal. The corporation would be bound on entering into the contract to obtain the necessary rights to enable it to perform. Boyle v. Grant, 12 N. Y. Supp. 801 ; 36 N. Y. St. Rep. 207. Although a mere error in judgment as to price on a proposed purchase by a, municipality may not suffice to sustain a taxpayer's action, yet an excessive valua- tion so large as to indicate that the officers acting are not exercising the same fidelity, care, and caution as would be expected of an individual purchasing for himself with his own money, will sustain an action to enjoin the purchase. Winklen v. Summers, 22 Abb. N. C. 80; 5 N. Y. Supp. 723. In the case of Warrin v. Baldwin, 105 N. Y. 534; 12 N. E. 49, it appeared that a county treasurer had been in the habit of paying himself the fees allowed by law upon the isale of lands for unpaid taxes out of the trust funds belonging to the town chargeable with such fees which were in his possession, without previous audit by the board of supervisors. It was held that an action wajs maintainable under the Taxpayers' Act of 1881, by a taxpayer of the town to restrain such illegal payment. A taxpayer may maintain an action to annul a contract made by a town board which creates a monopoly of lighting the town for the specified period as an act tending to injure the taxpayers, though the direct effect Is not a, loss or a waste of public property. Parfitt v. Ferguson, 3 App. Div. 176; 38 N. Y. Supp. 463; aiTd. 159 N. Y. 111. Individual taxpayers cannot maintain an action against the school commissioner of a school district in which they live and certain villages which had been created as separate school districts therein to restrain the defendant school commissioner from declaring the villages to be separate districts, or from taking any other proceedings in that respect, on a complaint alleging that the villages had been created in pursuance of a fraudulent scheme on the part of their residents to avoid their due share of taxation for school purposes. Such a writ is not within the scope of this section. Prankard v. Cooley, 147 App. Div. 145. An action to restrain the nomination and election of delegates to a constitutional convention cannot be maintained under this section. Schieffelin v. Komfort (1914), 212 N. Y. 520. A taxpayer's action may be brought to restrain a county clerk from appointing deputies and assistants in contravention of the civil service law. Olmstead v. Meahl (1916) 219 N. Y. 270. Taxpayers' action may be brought to compel restoration of town funds paid tipon purchase price of steam roller under conditional contract of sale, void under the Highway Law. Shoemaker v. Buffalo Steam Roller Co. (1915), 165 App. Div. 836, 151 N. Y. Supp. 207. Wliere a taxpayer's action brought under this section, proceeds upon tlie assump- tion that the scheme of assessment adopted by the board of estimate and appor- 1052 PROVISIONS RELATING TO COUNTIES AND TOWNS. Code Civ. Proc, § 1925. citizen, resident therein, or by a corporation, who is assessed for and is tionment of the city of New York for raising money to defray the cost of extending Seventh avenue and widening Varick street is illegal, but there is no evidence that such scheme is unfair, that the percentage assessed by way of special benefit is greater than should justly be borne by the property within the special assessment district, or that the percentage of the cost assessed on each three boroughs is in fact excessive or unequal, the complaint should be dismissed upon the merits. Goodale v. City of New lork (1914), 85 Misc. 603; 148 N. Y. Supp. 1076. The' term " waste or injury " as used in this section includes only illegal, wrongful or dishonest acts. Daly v. Haight (1915), 170 App. Div. 459; 156 N. Y. Supp. 538. The mere illegality of an official act in and of itself does not justify injunctive relief in the actions authorized to be brought by a taxpayer under this section, but when waste or injury is not involved, it must appear that in addition to being an illegal official act the threatened act is such as to imperil the public interests or calculated to work public injury or produce some public mischief. Altsehul V. Ludiwig (1916), 216 N. Y. 459; affg. 170 App. Div.; 155 N. Y. Supp. 1091. A taxpayer's action is maintainable either to prevent an illegal act against, or waste or injury to, the property of a municipality. Carpenter v. Wise (1915), 92 Misc. 246; 155 N. Y. Supp. 996. A taxpayer may by action under this section prevent any illegal official act or waste or injury and may compel the restoration of all property and funds. But it is only when the waste or injury is by collusion or otherwise or by default in permitting a. wrongful judgment or by retaining or failing to pay over any public funds or property that the court will enforce the restitution and recovery, and also in its discretion declare the official responsible, financially, therefor. Daly V. Haight (1915), 170 App. Div. 469; 156 N. Y. Supp. 538. Action against state o£Scers. This section authorizes actions only against municipal corporations and their officers, not against state officers. Hence, an action to restrain the expenditure of state monejis on highways can onlj' be l)rought by the people of the state. County of Albany v. Hooker, 204 N. Y. 1. Action to restrain execution of illegal contracts. A taxpayer may bring an action under the above act to enjoin the execution by public officials of an illegal contract. Armstrong v. Grant, 56 Hun, 226 ; 9 N. Y. Supp. 388. A city council will be enjoined at the suit of taxpayers from making a contract for paving streets with a specified material, which is the subject of a monopoly, although two-thirds of the abutting property owners petitioned for the use of such material, and the city charter provides that, in such case, the council has no power to contract for a different kind of pavement. Boon v. City of Utica, 26 N. Y. Supp. 932; 5 Misc. 391. A taxpayer may, under the above statute, maintain an action to enjoin a municipality from paying for the services of an officer appointed in violation of the Civil Service Law. Rogers v. Common Council of Buffalo, 22 Abb. N. C. 144 ; 2 N. Y. Supp. 326; Chittenden v. Wurster, 152 N. Y. 345, 368. In the case of Peck V. Belknap, 130 N. Y. 394; 29 N. E. 977, it was held that such an action could be maintained against city officials to restrain them from entering into a contract of employment, in a position where a civil service examination i!= required, with one who has not passed the examination, or to restrain the payment of the salary of such an employee out of the funds of the city. It is not a defense ACTIONS BY AND AGAINST OFFICERS. ][053 Cod« Civ. Proc, § 1925. liable to pay, or, within one year before the commencement of the to such, an action that the employment by the city of some person for the purpose specified Is proper and lawful, and that the compensation agreed to be paid was not extravagant. Action to restrain letting of contract. Where it appears that a contract was let to a person bidding a number of thousand dollars lower than his nearest competitor, an action will not lie agaiiist the officers authorized to award the contract because of a failure to comply with certain technicalities not involving the merits of the transaction. So an action cannot be maintained by a taxpayer to set aside a contract awarded to a bidder because of the fact that the bid was not deposited in the proper box, or because it was not opened immediately, as required by the rules and regulations of the board awarding the contract. McCord V. Lauterbach, 91 App. Div. 315; 86 N. Y. Supp. 503. Where a statute under which a, county or town officer or board acts requires a contract to be let to the lowest responsible bidder, an action under the above act will lie to restrain the awarding of such a contract to a person who does not appear to be the lowest bidder. As, for instance, a board of supervisors had four bids for work on a county building, but refused to award the contract to the lowest bidder because of his refusal to contract to employ only union labor, the grounds of such action being a resolution of the board that only union labor should be employed, and that, if non-union men were employed, the work might be delayed by strikes. It was held that a, taxpayer's action would lie to prevent waste of the county funds and to restrain the awarding of the contract to a higher bidder, which contract contained the clause s\,s to the employment of union labor objected to by the lowest bidder. Davenport v. Walker, 57 App. Div. 221 ; 68 N. Y. Supp. 161. See, also, Lamed v. City of Syracuse, 17 App. Div. 19; 44 JN. Y. Supp. 857. But the determination of the question as to what constitutes the lowest bid is quasi judicial and will not be reviewed by the courts in a taxpayer's action. Moran v. Trustees of White Plains, 12 N. Y. Supp. 61 ; 35 N. Y. St. Rep. 335; affd. 128 N. Y. 578. Action to enjoin purchase of site and erection of scbool building. An action will not lie on behalf of a taxpayer to enjoin a board of education from purchasing a site and erecting a school building thereon, where it appears that the application is based solely upon the objection that the board of education had not strictly complied with all the required technical and legal formalities, if there has been a substantial compliance with the law, and the facts show that public necessity requires the construction of the school building, and that there is no bad faith upon the part of the board. Lawson v. LinoolUj 86 App. Div. 217, 83 N. Y. Supp. 667; aflfd. 178 N. Y. 636. Action restraining payment or audit of claim. Where expenses are not a proper charge against a town, or are unauthorized, their audit is illegal, and payment of such expenses may be enjoined at the suit of a taxpayer Rockefeller V. Taylor, 69 App. Div. 176; 74 N. Y. Supp. 812. A preliminary injunction will be granted in taxpayer's action to restrain payment of unauthorized claim for compensation. Beresford v. Donaldson, 54 Misc. 138; 103 N. Y. Supp. 600. A board of supervisors in auditing claims against a county exercise a judicial function; and if they act within their jurisdiction they cannot be held personally responsible for their audits. Wallace v. Jones, 122 App. Div. 497, 499; 107 N. Y. Supp. 288. 1054 PROVISIONS RELATING TO COUNTIES AND TOWNS. Code Civ. Proc, § 1925. action, has paid, a tax therein.* This section does not affect any right Under the act of 1872, similar in some respects to the above act, it was held that a taxpayer might properly maintain an action to vacate an audit by a town board of a claim which the board had no authority to allow, or where the audit was fraudulent and collusive. Osterhoudt v. Eigney, 98 N. Y. 222. But it was also held in the same case that the statute did not abrogate the rule that the acts of a board of audit within its jurisdiction, in the absence of fraud or col- lusion, are final and conclusive and cannot be questioned in a collateral pro- ceeding. An excessive allowance or an erroneous conclusion by the board upon the facta, does not constitute waste or injury to the property of the town within the meaning of the act. A complaint in a taxpayer's action brought against the supervisor, auditors and clerk of a town, which in substance merely alleges that during a certain year the supervisor unlawfully paid the town clerk a, certain sum of money and that the town auditors unlawfully audited the claim, fails to state a cause of action. It is necessary to set out facts showing the illegality or fraudulent character of the claim. A taxpayer in order to maintain an action against the supervisor and auditors of a, town must specifically allege facts which entitle him to maintain the action under the provisions of the Taxpayers' Acts. Persons to whom payments have been made by the supervisor of a town upon an alleged illegal audit by the board of auditors are necessary parties to a taxpayer's action brought against the super- visor and board of auditors. Daly v. Haight (1914), 163 App. Div. 234; 148 N. Y. Supp. 42. In an action brought by a taxpayer against a town supervisor and the superin- tendent of highways to compel them to restore moneys to the town, the town itself is not a necessary party. It seems, however, that the town may voluntarily come in and make itself a party. Neither need the persons to whom the illegal payments are alleged to have been made be necessarily joined as defendants, for the action is not to cancel a contract or to annul their personal rights. An alle- gation that the moneys were misapplied and illegally paid with knowledge that it was without warrant of law is sufficient, and it need not be averred in the word« of the Code that the misappropriations were " waste or injury to " the funds of the town, for that would be a mere conclusion of law. Hicks v. Cocks (1915), 167 App. Div. 862; 153 N. Y. Supp. 776. A member of the board of supervi?ors cannot act as attorney for the board. See Penal Law, § 1868. In the case of Beebe v. Supervisors of Sullivan County, 64 Hun, 377; 19 N. Y. Supp. 629; affd., 142 N. Y. 631, it appeared that a board of supervisors, desiring to take proceedings against a county treasurer to recover money not accounted for by him, employed one of its members^ an attorney, to bring the action. The attorney subsequently presented a bill for his services which was audited by the board. The attorney did not vote upon his own appointment, nor upon the audit of his account. It was held that an action might be maintained by a taxpayer to restrain the payment of such claim, and that the contract between such board and one of its members, involving the services of a member and the payment by the county therefor, was against public policy and was void. Where mandamus to compel payment by a town of notes made by its super- visor eleven years before had been denied, and the order of denial affirmed on the ground that the claim was unauthorized in its origin, was barred by the ACTIONS BY AND AGAINST OFFICERS. 1056 Code Civ. Proc, § 1925. of action in favor of a county, city, town or incorporated village, or any public offieer.5 [Code Civ. Pro., § 1925.] statute of limitations, and questionable on its merits, and where pending an appeal from such order to the Court of Appeals the board of town auditors allowed the claim on an oral assurance that the appeal would be withdrawn, two of them having an interest in the transaction, it was held that an action would lie at the suit of a taxpayer to restrain a payment of the order for the amount of the claim. Webb v. Bell, 22 App. Div. 314; 47 N. Y. Supp. 989. An action may be brought by a taxpayer to set aside iaudits made by the board of supervisors and to recover on behalf of the county moneys alleged to have been allowed to a supervisor for services in preparing the tax rolls of the town, where certain items for which payment had been made were not properly chargeable to the county under section 23 of the County Law. Smith v. Hedges (1915), 169 App. Div. 115; 154 N. Y. Supp. 867; reversed on other grounds, 223 N. Y. 176, in which it was held that the court has no power in a taxpayer's action to re-audit a claim except on findings of fact showing that the audit was illegal either for fraud or collusion or for lack of jurisdiction, thus precluding on honest mistakes on the facts merely, as a basis of the audit. Where in a taxpayer's action against a supervisor and a person employed pur- suant to a resolution of the town board to recover town moneys paid by the former to the latter for services rendered the court finds that there was no intentional wrongdoing by either of the defendants; that all the moneys were paid before the commencement of the action, and that the supervisor did not receive any of them, it was error to give judgment for the plaintiff. Daly v. Eaight ( 1915), 170 App. Div. 469; 156 N. Y. Supp. 538. Action to prevent payment of salaries to public officers. A taxpayer's action cannot be brought under the above act to restrain the payment of salaries to public officers holding presumptively valid appointments m the civil service, upon the ground that although the appointments are valid in form, they are invalid in fact. When the question of title to the office is not collateral or incidental, but is the central and pivotal question, the proper remedy is a pro- ceeding by quo warranto. Greene v. Knox, 175 N. Y. 432; affirming 76 App. Div. 405, 78 N. Y. Supp. 779. Action in relation to to-tvn bonds. A taxpayer may maintain an action under the above act to restrain the payment of town bonds, illegally issued; such an action is not subject to the objections which would defeat an action dependent upon the general equity power of the court, nor is it barred by any of the statutes of limitation. Strang v. Cook, 47 Hun, 46. But such an action will not lie to restrain a town supervisor from paying over the interest on town bonds, from moneys in his hands levied and collected for that purpose, where the bonds are apparently valid and have been so treated by the town and its taxpayers, and where no fraud is imputed. Calhoun v. Millard, 121 N. Y. 69 ; 24 N. E. 27. Any taxpayer residing in any municipality which has, in compliance with the Railroad Bonding Act of 1869, ch. 907, as amended, issued its bonds to aid in the construction of a railroad, may, by petition, institute proceedings to compel the county treasurer to observe the duties imposed upon him by such statute requiring him to use and invest the moneys paid to him, derived from taxes upon the railroads aided in their construction to the redemption of the bonds. Spaulding v. Arnold, 24 N. Y. St. Rep. 897 ; 6 N. Y. Supp. 336. As to pleadings and practice in actions brought under the above section, see cases cited under section 1925 of the Code of Civil Procedure in Gilbert's Code (1910). 4. The above section is evidently supplemental to § 51 of the General Mu- 1056 PEOVISIOXS RELATING TO COUNTIES AND TOWNS. Code Civ. Proc, §§ 1926, 1927. § 4, ACTIONS BY AND AGAINST CERTAIN TOWN OFFICERS IN THEIR OFFICIAIi CAPACITIES. All action or special proceeding may be maintained, by the trustee or trustees of a school district; the overseer or overseers of the poor of a village or city; the county superintendent or superintendents of the poor; or the supervisors of a county, upon a contract, lawfully made with those officers or their predecessors, in their official capacity; to enforce a liability created, or a duty enjoined, by law, upon those offi- cers, or the body represented by them; to recover a penalty or a forfeit- ure, given to those officers, or a 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., § 1926.] An action or special proceeding may be maintained, against any of nicipal Law relating^ to actions to restrain unlawful acts by municipal officers. The cases already cited under such act are in a measure applicable to proceedings instituted under the above section of the code. Boundary lines. It was held in the case of Govers v. Supervisors of West- chester County, 171 N. Y. 40, that the authorized action of a board of super- visors in ascertaining and locating a boundary line established and settled by statute between towns within the counity by reference to ancient maps, cannot in the absence of fraud, collusion or bad faith on the part of the board, be attacked in an action brought under section 1925 of the codte since the words " waste and injury " used in that section include only illegal, wrongful or dis- honest action. 5. For construction of code provisions' see Gilbert's Code (1910). Action nnder § 1925 of Code of Civil Procednre. A taxpayer's action to restrain waste or injurj- to the property or funds of a municipality, or to pre- vent any illegal official act on the part of the officers of such municipality, will, in a proper case, lie under the provisions of section 1925 of the Code of Civil Pro- cedure, or section 51 of the General Municipal Law. The provisions of section 51 of the General Municipal Law are somewhat broader in their scope, and provide somewhat more specifically for an action to prevent illegal official acts, and, in a proper case, restitution; but the principles governing an action brought under either of the aforesaid provisions are substantially the same. McBride v. Ashley (1915), 91 Misc. 585, 154 X, Y. Supp. 1010. 6. Application of section. In respect to an action brought by a supervisor it was held, prior to the amendment of 1897, that the section merely prescribes the mode of enforcing such rights and claims as belong to the supervisor of the town without defending them or declaring their nature or extent. Bidelman V. State, 110 N. Y. 232; 18 N. E. 115. The section does not create new causes of action, but confers upon the officers named the right to maintain actions in their own name upon existing causes of action in favor of the bodies represented by them, or of predecessors, or upon a contract made by them. Chrigstrom v. McGregor, 74 Hun, 343; 26 N. Y. Supp. 517. ACTIONS BY AND AGAINST COUNTY OFFICERS. 1056a Code Civ. Proc, §§ 1928-1930. the officers specified in the last section, upon any cause of action, which accrues against them or has accrued against their predecessors, or upon a contract made by their predecessors in their official capacity and within the scope of their authority. [Idem, § 1927.] The last two sections do not apply to a case, where it is specially pre- scribed by law, that an action may be maintained, by or against the body, represented by an officer designated in those sections ; but, in such a case, the prosecution or defence of the action, as the case may be, must be conducted by the persons then in office, who represent that body. [Idem, § 1928.] § 5. OFFICER, HOVT DESCRIBED IN SUMMONS. 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 subsequent proceedings therein, by his individual name, with the addition of his official title. An objec- tion 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 SUBSTITUTED. In such an action or special proceeding, the court must, in a proper case, substitute a successor in office, in place of a person made a party Section 11 of the Town Law, ante, p. 393, provides that an action on a con- tract made with any of the officers hy whom a town is represented to enforce the liability of the town thereon, shall be in the name of the town. This section of the Town Law requires that an action on a contract of a town overseer of the poor shall be against the tovpn and not against such officer although there is no express repeal of the above section of the code in the Town Law. This is so since section 1928 of the code provides that sections 1926 and 1927 do not apply to a case where it is especially provided by statute that an action may be main- tained by or against the body represented by the officers designated in suoh sections. Miller v. Bush, 87 Hun, 507; 34 N. Y. Supp. 286. The effect of such section of the Town Law would seem to supersede as to all officers named in the above section of the code the power of town officers of maintaining actions on contracts in their own names. 7. Actions against county. In a suit against a county, the board of super- visors should be named as defendants and the individual members of the board should not be named. Hill v. Supervisors of Livingston County, 12 N. Y. 52; see, also, Wilde v. Supervisors of Columbia County, 9 How. Pr. 315. 1056b PROVISIONS RKLATING TO COUNTIES AND TOWNS. Code Civ. Proc, § 1931. in his oificial 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 substitu- tion, has been personally served upon him. [Code Civ. Pro., § 1930.] § 7. WHEN EXECTTTION 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 capacity, pursuant to this article, except where it is rendered against the trustee or trustees of a school district, or the commissioner 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 spe- cially prescribed by law. [Code Civ. Pro., § 1931.] TOWN AND COUNTY FINANCES AND PROPERTY. 1057 CHAPTER LXXIII. TOWN AND COUNTY FINANCES AND PROPERTY. tSEcnoN 1. Temporary loans, when to be made. 2. Funded debt not to be contracted except for specific object 3. Municipal bonds, how paid. 4. Retirement of bonds by new issue; sale of new bonds; certificate of amount of existing bonds; town meeting may authorize issue of bonds. 5. Municipal bonds, how issued. €. 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 more tha/ one hundred thousand inhabitants. 11. Constitutional provisions as to loan of credit or gifts by ^«ns, cities and counties; limitation of indebtedness. 12. Resolutions of boards of supervisors authorizing issue of obligations by town or county officers. 13. Actions by bond holders and municipal corporations against officers for misfeasance, malfeasance or negligence of officers in relation to the issue of municipal bonds. 14. Board of supervisors may abolish office of railroad commissioner. 15. County judge to appoint commissioners; term of office; compensation. 16. Oath and undertaking of commissioners. 17. When railroad stock and bonds may be sold or exchanged; dis- position of proceeds of sale. 18. Annual report of railroad commissioners and payment of railroad bonds. 19. Accounts and loans by railroad commissioner. 20. Re-issue of lost or destroyed bonds. 21. Payment of judgments against town or county. 22. Liability for damages by mobs and riots. 23. Condemnation of real property. 24. Insurance of town or county property. 25. Supervisor to report to board of supervisors amount of town bonds outstanding; form of report; publication. 1058 PROVISIONS EELATIXG TO COUXTIES AXD TOWNS. General Municipal Law, § 5. Section 26. Duplicate report to be presented to town meeting and filed in the office of town clerk. 27. Town board to cancel bonds and coupons which have been paid. 28. Limitation of indebtedness. 29. Legalizing bonds of municipalities; procedure. 30. Minimum rate of interest on municipal bonds. 31. Separate specifications for certain contract work. § 1. TEMPORARY LOANS, -KTHEN TO BE MADE. Moneys shall not be borrowed by a municipal corporation on tempo- rary loan, except in anticipation 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 be payable out of the taxes on account of which such loans are made, and in no case shall interest run on any such loan after such taxes are paid into the treasury 1. Power to borrow money. According to a large number of decided cases In this and other states, the power to borrow money, if not expressly granted by charter or by statute, does not exist by implication in a municipal corpora- tion. See Mayor of Nashville v. Ray, 19 Wall. (U. S.) 468; Police Jury v. Brltton, 15 Wall. (U. S.) 566; Wells v. Supervisors, 102 U. S. 625; Mlnot v. West Roxbury, 112 Mass. i; 17 Am. St. Rep. 52; Hawkins v. Carroll County, 50 Miss. 762; Hackettstown v. Swackhamer, 37 N. J. L. 191; Wells v. Town of Sallna, 119 N. Y. 280; 23 N. E. 870. The case of Wells v. Town of Sallna, supra, is the leading New York case upon this subject. In this case Judge Earl says: "It is the policy of the laws that town charges shall be met by annual recurring taxation, and thus extravagance and improvidence are in some degree checked, as those who create town charges or are the taxpayers when they arise, must bear the burden of taxation to meet them. It Is quite easy for the taxpayers of to-day to create a debt which they are not to feel and which the taxpayers of the future are to discharge. The system of laws relating to towns requires that all bills for moneys expended or materials furnished, or services ren- dered to the town shall be verified and presented to the board of town auditors and audited by them, and then enforced by warrants of the board of supervisors against the taxpayers of the town. This whole system would be subverted If towns could borrow money upon credit to meet town charges. Then the money would have to be repaid whether the town had had the bene- fit thereof or not, and the wise provisions of the statutes to secure economy and safety by the audit of accounts would be entirely frustrated." In the case of Starin v. Town of Genoa, 23 N. Y. 439, Lott, J., said: " The towns of this state have not the general power to borrow money, nor are their oflBcers, in the exercise of their ordinary duties, authorized to issue bonds or any other evidence of indebtedness in the name of the towns represented by them, for loans or other debts contracted or Incurred on their behalf." And in the case of Parker v. Supervisors of Saratoga County, 106 N. Y. 392; 13 N. E. 308, Andrews, J., said: "The contention that boards of super- visors have no inherent power to borrow money or to issue negotiable paper, accords with the general understanding and with the tenor of the adjudged cases and the course of legislation which pre-supposes the necessity of ex- press legislative sanction In order to justify the exercise of this authority. In this state the powers of board.3 of supervisors are not only the subject TOWN AND COUNTY FINANCES AND PROPERTY. 1059 General ilunicipal Law, § 6. of the corporation. [General Municipal Law, § 5, as amended by L. 1916, ch. 166; B. C. & G. Cons. L., p. 2109.] § 2. FUNDED DEBT NOT TO BE CONTRACTED EXCEPT FOR SPECI- FIC OBJECT. A funded debt^ shall not be contracted by a municipal corporation, ex- cept for a specific object, expressly stated in the ordinance or resolution pro- posing it ; nor unless such ordinance or resolution shall be passed by a two- thirds vote of all the members elected to the board or council adopting it, or submitted to, and approved by the electors of the town or county, or tax- payers of the village or city when required by law; provided, however, that a funded debt contracted by a city of the second class for the building of a school building or for the construction or reconstruction of a school building shall require for its passage only a majority vote of all the members elected to the common council adopting it. Such ordinance or resolution shall provide for raising annually, by tax, a sum sufficient to pay the interest and the principal, as the same shall become due. Whenever bonds have been issued and sold, prior to January first, nineteen hundred and eighteen, pursuant to this section, by a city of the second class, located in a county having a population of not less than two hundred thousand nor more than two hundred and fifty thousand, the proceeds or any part thereof may be used for any purpose for which bonds may be issued if authorized by a two-thirds vote of all the members elected to the common council and such action of the common council is ratified by a two-thirds vote of the members of the board of estimate and apportionment of such city.* [General Municipal Law, § 6, as amended by L. 1910, ch. 677, and L. 1918, ch. 210; B. C. & G. Cons. L., p. 3110.] of express affirmative definition, but for the purpose of confining the action of these bodies to the exercise of enumerated powers, it is declared that ' no county shall possess or exercise any corporate powers, except such as are enumerated or shall be specially given by law, or shall be necesary to the exercise of the powers so enumerated or given.' The power of borrowing money is incident to the powers of a business corporation, unless excluded by its charter. Boards of supervisors have the recourse of taxation for the rais- ing of money for county purposes. The power to borrow money is not neces- sary to the execution of powers expressly given. But the denial of this power to those quasi public corporations also stands strongly upon considerations of public policy, and the doctrine that they have no implied power to borrow money is an Important safeguard to the protection of political communities against the creation of ruinous liabilities through the action of incapable, negligent or unfaithful public agents. We concur, therefore, with the proposi- tion that the power of the board of supervisors to extend the original debt by means of new loans, or by renewals of prior obligations, if it existed, must be found in the statute, given either expressly or by implication." The above section of the General Municipal Law expressly limits the power of municipal corporations to borrow money upon a temporary loan except where taxes have been levied for the current fiscal year, and then only can money be borrowed for the purposes for which such taxes were expressly levied. The object and intent of the statute was to limit the power of municipal corpora- tions to borrow money to those cases where the obligation of the municipality had been recognized and steps had been taken for the raising of money by taxation to meet such obligation. By subdivision 6 of section 12 of the County Law, ante, p. 55, boards of super- visors are authorized to borrow money for certain specified purposes and to issue county obligations therefor, and may authorize a town to borrow money and issue its obligations for town uses and purposes. 1060 PROVISIONS DELATING TO COUNTIES AND TOWNS. General Municipal Law, § 7. § 3. MUMTCIPAI, 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 cor- 2. Funded debt. The words " funded debt," as used in the above section include all municipal Indebtedness embraced within or evidenced by a bond, tTie principal of which is payable at a time beyond the current fiscal year of its issue, with periodical terms for the payment of interest^ and where provision is made for payment by the raising of the necessary funds by future taxation and the quasi pledging, in advance, of the municipal revenue. People ex rel. Peene V. Carpenter, 31 App. Div. 603; 52 N. Y. Supp. 781. Where a proposition to establish village water works and issue bonds to be refunded by an annual tax upon property within the village is submitted to voters at a special election, the bonds when issued become " a funded debt." Gould v. Village of Seneca Falls, 137 App. Div. 417, 121 N. Y. Supp. 723, aflfd. 200 N. Y. 523. A fnnd raised by u, Are district under a duly adopted resolution is a funded debt within the meaning of this section. American Metal Ceiling Co. v. New Hyde Park Fre District (1915), 91 Misc. 236, 154 N. Y. Supp. 661. 3. For form of resolntion providing for the issue of town and county bonds adopted by a board of supervisors, see Form No. 115, post. Each such resolu- tion must contain a provision for raising annually by taxation a sum sufficient to pay the interest and the principal as the same shall become due. Without such provision the bonds Issued pursuant to the resolution would be of doubtful validity. Application. This section does not apply to a proposition submitted to tax- payers to acquire property at a maximum figure, since the extent of the liability therefor cannot be ascertained at the time of the passage of the resolution. Village of Waverly v. Waverly Water Co., 127 App. Div. 440, 444, 112 N. Y. Supp. 1149. When municipal improvements are voted with the provision that 90 per cent, of their cost shall be borne by abutting property owners and 10 per cent, by the village at large, bonds for the whole cost are not authorized by such vote; but where legislative authority is subsequently given for an issue of bonds tor the whole amount of certain of the improvements, and bonds for the full amount of the remainder of the improvements are expressly authorized by a subse- quent vote of the electors, they may constitute valid obligations of the munici- pality. Matter of Village of Kenmore, 59 Misc. 388, 110 N. Y. Supp. 1008. This section does not require the resolution to specify the sum which shall be raised. Thus, a bonding proposition submitted to the taxpayers of a village which provides for " a sum to be raised annually by levying a tax on all taxable property in said village sufficient to pay the interest and principal of all said bonds as the same become due, complies with this section. Village of Branx- ville V, Seymour, 122 App. Div. 377, 106 N. Y. Supp. 834. Where a resolution proposing an issue of bonds does not comply with the provisions of the above section to the effect that such resolution shall provide for raising annually by a tax a sum sufficient to pay the interest and the princi- pal of such bonds as the same shall become due It Is fatally defective. A state- ment in a resolution " that a sum sufficient to pay the interest and principal of said bonds as the same shall become due, be raised by an annual tax, as other taxes for general purposes in said village are raised," is not suffiVipnt It should state the Installments in which the bonds were to be made payable and the number which were to be met In each year. Village of Canandaieua v Kflves. 90 Aop. Div. 336. 85 N. Y. Supp. 488. See Lyon v. Blnghamton 160 Ann' Div. 222, 145 N. Y. Supp. 424. ■ ^P^' TOWN AND COUNTY FINANCES AND PROPERTY. 1061 General Municipal Law, § 8. poration, and shall be levied and assessed, collected and paid the same ns other debts and charges. When for any reason any portion of the principal or interest due upon such bonds shall not have been paid, the same shall be assessed, levied and collected at the first assessment and collection of taxes by such corporation after such omission.* [General Municipal Law, § 7; B. C. & G. Cons. L., p. 2110.] § 4. RETIREMENT OF BONDS BY NEW ISS1TE; SALE OF NEW BONDS; CERTIFICATE OF AMOUNT OF EXISTING BONDS; TOWN MEETING MAY AUTHORIZE ISSUE OF BONDS. The bonded indebtedness of a municipal corporation, including interest due or unpaid, or any part thereof, may be paid up or retired by the issue of the new substituted bonds for like amounts by the board of supervisors or supervisor, board, council or officers having in charge the payment of such bonds. Such new bonds shall only be issued when the existing bonds can be retired by the substitution of the new bonds therefor, or can be paid up by money realized by the sale of such new bonds. Where such bonded indebtedness 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 frorri 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 may be payable each year after the issue thereof. Such new bonds shall, be sold and negotiated at the best price obtainable, not less than their par value ; shall be valid and binding on the municipal corporation issuing them. 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 4. Payment of town bonds. It is the duty of a town to provide means for the payment of its bonds lawfully issued. In case of failure to perform its duty, the holder of the bonds may maintain an action against the town thereon, and this, although by the act under which they were issued, it is made the duty of the board of supervisors of the county to Impose and levy a tax to pay the bonds. Such settled and admitted obligations of the town need not be audited and allowed by the board of town auditors. Marsh v. Town of Little Valley, 64 N. Y. 112; see, also, Horn v. Town of New Lots, 83 N. Y. 100. 1062 PROVISIONS RELATING TO COUNTIES AND TOWNS. General Municipal Law, § 9. the amount of existing bonds, and of the new bonds so issued, which shall be forthwith filed in the ofBce of the county clerk. Except as provided in this section, new bonds shall not be issued in pursuance thereof, for bonds of a municipal corporation adjudged invalid by the final judgment of a competent court. A majority of the taxpayers of a town, voting at a general town meeting, or special town meeting duly called, may authorize the issue in 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 muni- cipal corporation shall not be deemed an admission of the validity or a recognition of any part of the bonded indebtedness of such municipal corpo- ration not paid, adjusted or compromised.^ All bonds of a mimicipal corporation, until payable, shall be exempt from taxation for town, county, municipal or state purposes. [General Municipal Law, § 8; B. C. & G. Cons. L., p. 2111.] § 5. MUNICIPAL BONDS, HOW ISSUED. Each bond issued by a municipal corporation shall be signed by each officer issuing the same, with the designation of his office ; and the interest coupons attached thereto, if any, shall be signed by one of their number. Each such bond shall state the place of payment and, if no coupons are attached thereto, the name of the payee shall be inserted therein and registered with the treasurer, chamberlain, comptroller, supervisor, clerk or other designated official of such municipal corporation before any interest shall be paid thereon All bonds hereafter issued by any municipal corporation, or by any school district or civil division of the state, shall be sold, in the case of a city of the first class as required by its charter or by any special act under which such bonds are issued, in the case of a city of the second class as required by section sixty-one of the second class cities law, and in all other cases at public sale not less than five or more than thirty days after a notice of such sale, stating the amount, date, maturity and rate of interest, has been published at least once in the official paper or papers, if any, of any such municipality, provided that if there is no official paper, then such notice of sale shall be published in a newspaper published in the county in which such bonds are to be issued, or a copy thereof shall be sent to and published in a financial newspaper published and circulating in New 5. Issue of new bonds for existing bonds. The law, as it existed prior to the amendment of 1897 to the section of the former law, did not expressly permit the issue of new bonds by a municipal corporation to take the place of bonds which had been declared invalid. But under the law prior to such amendment it was' held that where bonds were issued in exchange for others, which were con- tested, and the validity of which was in dispute, the town will be deemed to; have elected to compromise by the issue of the new bonds, and cannot thereafter contest the validity of such new bonds on the ground of the illegality of those which had been retired. Hills v. Peekskill Sav. Bank, 101 N. Y. 490; 5 N. E. 327. Wherever under the present law it is sought to cure the defects in existing bonds by the issue of new bonds the provisions of the above section relating thereto must be complied with. TOWN AND COUNTY FINANCES AND PROPERTY. 1063 General Municipal Law, § 10. York city.® [General Municipal Law, § 9, as amended by L. 1917, eh. 534; B. C. & G. Cons. L., p. 3112.] § 6. MUNICIPAL BONDS MAY BE BEGISTERED; FEES FOB BEG- ISTBY; EFFECT OF BEGISTBY. Each municipal corporation shall keep in the office of its clerk suitable books, in which shall be entered a full description of the amount, rate of interest, class, number, date of issue, pursuant to what law and maturity of all bonds issued by any of its officers and, if such statement is not already 6. Compliance with statute. The rule is settled in this state, that to entitle a party to recover in an action upon bonds issued by a municipality there must be affirmative and extrinsic proof that all the preliminary conditions required to authorize the issue of such bonds have been complied with. Dodge v. County of Platte, 83 N. Y. 218; Town of Venice v. Woodruff, 63 N. Y. 465; People v. Mead, 24 N. Y. 114; Starin v. Town of Genoa, 23 N. Y. 439. -Although where towns are authorized to issue bonds under special statutes to pay the expenses of improvements, the holder of the bonds must show that the requirements of the law have been complied with, yet where the plaintiff shows the taking of the oath by the commissioners appointed to carry out the im- provement, that they entered upon the discharge of their duties, that the im- provement was made by them, and that the bonds were issued by the town on the requisition from the commissioners for such improvement, and the defend- ants admit that the bonds set forth in the complaint were made, signed and countersigned as therein mentioned, a prima facie case of the due and proper issue of the bonds is established. Manhattan Sav. Inst. v. Town of East Chester, 44 Hun, 537. The fact that the names of the commissioners authorized to issue the bonds were lithographed on the coupons of such bonds was held not to make them invalid, as the commissioners adopted and delivered as their own the signatures in that form. Beattys v. Town of Solon, 64 Hun, 120; 19 N. Y. Supp. 37. Execution by two of three commissioners. "Where town bonds are executed by two only of three commissioners authorized to issue such bonds, it will be pre- sumed, in absence of any proof to the contrary that the third commissioner had notice of the meeting when the bonds were issued, and consulted with those who acted; and the absence of his signature will not, therefore, invalidate the bonds. Hills V. Peekskill Sav. Bank, 46 Hun, 180. Becital in bonds. The recital contained in a municipal bond should show the authority under which the ofiScer acted who executed the bond. It was held in the case of Dodge v. Piatt, 82 N. Y. 218, 230, that since the recital in the bonds did not show or tend to establish any power or authority to issue the same, that the plaintiff could not be regarded as a bona fide holder of the coupons for value without notice; for no presumption is to be indulged in favor of the validity of bonds issued under statutory authority where the recital is such as to put the holder upon inquiry. A recital that all necessary legal steps and pro- ceedings have been taken to comply with the laws under which the bonds were issued, does not estop the town board from disputing their validity, even in the hands of a bona fide holder. Starin v. Town of Genoa, 23 N. Y. 439; Craig v. Town of Andes, 93 N. Y. 405. Services in sale of bonds. An express power in a board of water commission- ers to sell water bonds carries with it the implied power to employ such reason- able or proper assistance as may be requisite to bring about an advantageous sale; and this power is not limited to the employment of a broker to sell the bonds. Armstrong v. Village of Ft. Edward, 159 N. Y. 315; 53 N. E. 1116, revg. .84 Hun. 261, 32 N. Y. Supp. 433. 1064 PROVISIONS RELATING TO COUNTIES AND TOWNS. General Municipal Law, § 11. 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 ofiBce of such clerk, and a certificate of such regis- try shall be indorsed upon the bond by such clerk, and attested by his seal, if he has one. The clerk shall be entitled to a fee of twenty-five cents for each bond so registered. The principal and interest of a registered municipal bond shall be payable only to the payee, his legal representatives, successors or as- signs, and shall be transferable only upon presentation to such clerk, with a written assignment duly acknowledged or approved. The name of the assignee shall be entered upon such bond so transferred and the books so kept in the office of the clerk. It shall be the duty of the clerk or other officer having charge of the office where such registry is kept, to transmit a statement pf 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. Except that in cities of the second class, the books of the municipal corporation in which there shall be entered a description of the amount, rate of interest, class, number, date of issue, pursuant to what law, and the maturity of all bonds issued by any of its officers, and of all bonds converted from coupon into regis- tered bonds, as above provided, shall be kept in the office of the comptroller of saiid city instead of in the office of the city clerk, and all the duties to be performed by the clerk of the municipal corporation, as hereinbefore provided, shall, in cities of the second class, be performed by the comptroller of said city instead of by the clerk; and' all m.umcipal bonds in cities of the se>con ss.: A. B., being duly sworn, deposes and says that he is the district attorney of the county of and that the foregoing report is a true account of all moneys received hy him hy virtue of his office during the year ending with the day of , 19. . A. B. Subscribed and sworn to before me, this day of 19.. C. D., Notary Public. FORMS. 1119 FORM No. 10. Galendab of Pbisonebs Confined in County Jaii» (County Law, § 97, ante, p. 182.) NAMES OF PRISONERS When committed. By what precept. Cause of de- tention. By whom committed; (if disorderly person). FORM No. 11. FoBU OF Application and Notice fob Altebation op Boundaeies ob Ebectton" OF Towns by Boabds of Supeevisobs. (County Law, § 35, 37, ante, p. 235.) To the Board of Supervisors of the County of ; Application is hereby made by the undersigned, freeholders of the towns of for the division of (or the alteration of) the boundaries of the towns of (If the alteration of town boundary lines is desired, state as follows:) The undersigned hereby respectfully request that the board of supervisors of such county alter the northern boundary line of the town of so that such line shall be established and defined as follows: (Specify by suflaciently definite metes and bounds the location of the pro- posed new boundary line.) And that the southern boundary line of the town of shall be established and defined as follows: (State specifically by sufficiently definite metes and bounds the proposed boundary line of such town.) (If it is proposed to divide a town and to erect therefrom a new town, the application should state as follows:) The undersigned applicants respect- fully request that the board of supervisors of such town shall divide and alter the bounds of the town of in the county of so that the boundaries of such town shall be as follows: (Specify in detail with sufficiently definite metes and bounds the propos'-^l new boundary lines of the town to be divided.) That a new town be erected to consist of that part of the former town of 1120 FORMS. lying northerly of (specify generally a division), and that the boundaries of such new town shall be as follows: (Specify in detail and with sufficiently definite metes and bounds the boun- dary lines of the proposed new town.) The said applicants also respectfully request the said Doard or supervisors that the name of the new town so erected shall be A map and survey showing the alteration of the boundaries of the said towns of (or showing the alteration of the boundaries of the town of , and the boundaries of the proposed new town of ) , is attached hereto and made a part of this application. Dated this day of , 19 . . (Signed by at least twelve freeholders residing in each of the towns whose boundaries are to be changed.) Notice or Application. To whom it may concern: Take notice that the above application for the alteration of the boundary lines of the towns of (or for the division of the town ot and the erection therefrom of a new town to be known as the town of ) , will be made to the board of supervisors of the county of at the meeting of such board of supervisors at its. annual session, beginning on the day of , 19. .. FORM No. 12. Resolution of Boabd or Supervisors Dividing a Town and Erecting Therefrom A New Town. (County Law, § 35, ante. p. 235.) AN ACT and resolution to divide and alter the bounds of the town of More- house, in the county of Hamilton, state of New York, and to erect a new town therein, to be known and named " Inlet." Passed by the board of supervisors of the county of Hamilton, pursuant to section 35 of the County Law, on the 27th day of November, 1901, all the members elected thereto voting in favor thereof. The board of supervisors of the county of Hamilton does enact as follows: Section 1. From and after the passage of this act and resolution, the bounds of the town of Morehouse, in the county of Hamilton and state of New York, shall be as follows: Commencing at a point where the boundary line between the counties of Herkimer and Hamilton intersects the middle of the south branch of the Moose river, and running thence easterly along the middle of the south branch of the Moose river to the boundary line between the towns of Morehouse and Arietta, as heretofore established; thence starting southerly and continuing along the said line between the said towns of More- house and Arietta to the line between the counties of Herkimer and Hamilton; thence northwesterly along the line between the town of Morehouse in the FORMS. 1121 county of Hamilton, and the towns of Salisbury and Ohio, in the county of Herkimer, to the easterly boundary of the town of Wilmurt, in the county of Herkimer; thence northeasterly along the boundary line between the said town of Wilmurt and the said town of Morehouse, as previously established, to the northeasterly boundary line of Nobleboro Patent and Arthurboro Patent; thence northerly along the boundary line between said town of Wilmurt and the town of Morehouse, as previously established, to the place of beginning. § 2. From and after the passage of this act and resolution a new town is erected to consist of that part of the former town of Morehouse lying north- erly of the middle of the south branch of the Moose river, and the bounds of said town shall be as follows: Commencing at a point where the middle of the south branch of the Moose river intersects the boundary line between the counties of Hamilton and Herkimer and running thence northerly along said boundary line to a point where it intersects the southwesterly boundary of Township 41, Totten & Crossfield's Purchase; thence southeasterly along the southwesterly line of said Township 41 to the southerly corner thereof; thence northeasterly along the southeasterly boundary of said Township 41 to the easterly corner thereof; thence southeasterly on the boundary line between Township 46, Totten & Crossfield's Purchase, and Township 5, John Brown's Tract, to the old or former town line of the towns of Arietta and Morehouse as the same existed previous to an act of the legislature of this state, laws of 1860, chapter 200, passed April 7, 1860; thence southerly along the boundary line between the towns of Morehouse and Arietta, as existing prior to the passage thereof, to a point in the middle of the south branch of the Moose river; thence westerly along the middle of the south branch of the Moose river to the place of beginning. § 3. The name of the town erected by the last preceding section shall b^ "Inlet." § 4. This act and resolution shall take effect immediately. In witness whereof, I ha,ve hereunto subscribed my name and affixed [seal.] my official seal this 28th day of December, A. D., 1901. THOS. J. HANDLEY, Clerk of the Board of Supervisors of the county of Hamilton, State of New York. FORM No. 13. Act op Boabd op Supekvisoes Peoviding for Ai-tebing the Boiunbaeies of a Town. (County Law, §§ 35-37, ante, p. 235.) AN ACT to alter the boundary lines of the towns of Brandon and Saata Clara, in Franklin county. (By authority of sections 35-37 of the County Law.) 11,^2 FORMS. Passed November 23, 1896, two-thirds of all the members of said board and the supervisors of Brandon and Santa Clara being present and voting in favor thereof. The number of votes given for the act were 17, the number of votes given against the act were none. Upon the application of at least twelve freeholders of the towns of Bran- don and Santa Clara, respectively, the board of supervisors of the county of Franklin do enact as follows: Section 1. That the division lines between the towns of Brandon and Santa Clara be and hereby are changed and altered as follows: By including within the town of Brandon the whole of Township 8, Great Tract No. 1, of Macomb's Purchase, and that the town of Brandon consist of Township 8, Great Tract No. 1, of Macomb's Purchase. That the town of Santa Clara consist of and that there be included within such town of Santa Clara the following described lands : Beginning at the southwest corner of Township No. 8, Great Tract No. 1, of Macomb's Purchase, and running thence southerly along the west line of Town- ships Nob. 11, 14, 17, 18 and 23, to the northwest corner of the town of Harriets- town; thence easterly along and upon the north line of said town of Harriets- town to the east line of Township No. 23; thence northerly to the northeast corner of Township No. 20; thence westerly to the southeast corner of Township No. 17; thence northerly along the. east line of Townships Nos. 17, 14 and 11 to the southeast corner of Township No. 8; thence westerly along the south bounds of Township No. 8 to the place of beginning, containing all the land within said bounds. And that such towns of Brandon and Santa Clara be and hereby are respectively erected accordingly to so exist, be and be treated from and after the time this act shall take effect. § 2. This act shall take effect on the 15th day of February, 1897. The foregoing has been compared with the original act passed by the board of supervisors of Franklin county on the 23d day of November, 1896, and is a correct copy of the same. In testimony whereof, we have hereto set our hands and seal this 25th. day of November, 1896. ALFRED C. MORSE. [l. s.] Chairman, M. W. HUTCHINS, Clerk. I, Herbert J. Wilson, clerk of the board of supervisors of the county of Frank- lin, do hereby certify that I have compared the foregoing with the journal ot proceedings of said board for the year 1896, and that the same is a correct trans- cript of a part of said journal of proceedings. [SEAL.] HERBERT J. WILSON, Clerk of the Board of Supervisors of Franklin county, New York. FORI.::::. Il2:i FORM No. 14. Application for Special Town Meeting. (Town Law, § 46, ante, p. 253.) To G. D., Town Clerk of the town of in the county of The undersigned, taxpayers of said town, whose names appear on the last assessment-roll of said town (or supervisor, town superintendent of highways, etc., as the case may be), hereby make application and require of you to call a special town meeting, pursuant to section 46 of the Town Law, for the purpose of (here state the purpose for which the special town meeting is to be called). Dated this day of , 19. . (Signed by at least twenty-five taxpayers or by proper town oflScers.) FORM No. 15. Notice or Special Town Meeting. (Town Law, § 47, ante, p. 255.) Notice Is hereby given that, pursuant to an application made therefor as prescribed by statute, a special town meeting of the electors of the town of county of , will be held at , in the village of on the day of 19. ., at o'clock in the noon, for the purpose of voting upon the follow- ing questions or propositons (stating them as contained in Town Law, § 46, ante), and for the transaction of such other business as shall be lawfully brought before such meeting. Dated ,19.. A. B., Town Clerk. FORM No. 16. AppucATiojf FOB Submission of Proposition to be Voted Upon by Ballot at' Town Meeting. (Town Law, § 48, ante, p. 256.) To 0. D., Town Clerk of the town of •. . . , county of : The undersigned, taxpayers of the town of (or supervisor, commissoner of highways, or overseer of the poor of the town of ) , 1124 FORMS. hereby make application pursuant to the provisions of section 4S of the Town Law, for the submission of a proposition to be voted upon by ballot at tne biennial town meeting (or a special town meeting duly called therefor), to De held in the town of on the day of 19... for the following purposes and in the following form, to wit; (Here state plainly the question desired to be voted upon.) And such applicants hereby request that a vote be taken upon such proposi- tion at such town meeting. Dated this day of 19. . (Signed by the proper town officers or taxpayers entitled to demand a vote upon the proposition at a town meeting.) FORM No. 17. Notice of Submission of Pboposition to Town Meeting. (Town Law, § 48, ante, p. 256.) Notice is hereby given that, pursuant to an application made therefor as pre- scribed by section 48 of the Town Law, which application was filed in the office of the town clerk of the town of , on the day of , 19. ., the following proposition will be submitted to be voted upon by ballot at the biennial town meeting (or at a special town meeting duly called therefor), to be held in the town of , on the day of 19.., to wit: (state the question to be submitted to the electors at the town meeting.) Dated this day of 19. . C. D.. Town Clerk. FORM No. 18. Application for Holmno Town Meetings in Election Districts. (Town Law, § 65, ante, p. 267.) To A. B., Town Clerk of the town of : We, the undersigned, duly and legally qualified electors of the town of , county of do hereby respectfully ask that at the town meeting to be held on the day of , 19... the question be submitted pursuant to law, as to whether, on and after FORMS, 1125 such town meeting, the town meetings of the town of be held in election districts (or [if it is desired to return to the former system of holding but one poll] that on and after such town meeting, the town meetings of such town be held at one place as under the former system), such election districts to be the same as the several election districts of such town at general elections (or in two [or more] joint election districts constituted by the town board as provided by law). Dated 19.. (Signed by at least twenty-five electors.) FORM No. 19. Cgbtificate of Election of Jitstices. (Town Law, § 94, ante, p. 288.) County of STATE OF NEW YORK .} To F. O., 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 , 19 . ., G. H. was iduly elected justice of the peace for a full term. Dated this day of 19.. C. D., Town Clerk. FORM No. 20. Bond or TJndebtaking of Supeevisoe, Genebal. (Town Law, § 100, ante, p. 304.) Whereas, A. B., of the town of , in the county of was on the day of 19., 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 100 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 IV>A'< FORMS. 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 , 19. . A. B., Supervisor. C. D., Surety. E. P., Surety. STATE OP NEW YORK, ) County OP j On the day of in the year 19. ., before me, the sub- scriber, personally came A. B., C. D. and E. P., to me known to be the persons described in and who executed the within instrument, and severally acknowl- edged to me that they executed the said instrument. G. H., (Official title.) State of New Yokk, I County of i C. D. and E. P., being severally and duly sworn, each for himself deposes and says: C. D., That he is one of the sureties named in the foregoing undertaking; 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. P., that he is one ot 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. C. D., B. P., Sureties. Subscribed and sworn to before me, this day of ,19.. J. K. (Official title.) We, the undersigned, members of the town board of the town of , do hereby approve of the foregoing undertaking as to its form, manner of execution and sufficiency of the sureties thereon. Dated ,19.. (Signed by members of town board.) (If the approval is by resolution, as prescribed by Public Officers Law, § 11, unte, a certified copy of the resolution should be annexed to the undertaking.) FORMS. ii2r FORM No. 21. Justice's Undektaking. (Town Law, § 106, ante, p. 305.) Whereas, A. B., of the town of county of was on the '. . day of , 19. ., duly elected (or appointed) justice of the peace of the town of in such county. Now, therefore, we, the said A. B., as principal, and C. D., residing at and E. F., residing at , do hereby, pursuant to section 106 of the Town Law, and other statutes made and provided, undertake and acknowledge ourselves, our heirs, administrators and executors, jointly and severally, firmly bound to and with the said town of , in the sum of dollars, that the said A. B. will pay over on demand, to the ofiSoer, person or persons entitled to the same, all moneys received by him by virtue of his ofilce; 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 19. . A. B., Justice of the Peace. C. D., E. F., Sureties. (Acknowledgment, justification and approval as in supervisor's undertaking [Form No. 20, antel, except that the approval is by the supervisor, or town clerk, when the justice is a supervisor.) FORM No. 22. Undertaking of Town Superintendent of Hiohwats. (Town Law, § 111, ante, p. 307.) Whereas, A. B., of the town of county of was on the day of 19.., duly elected (or appointed) town superintendent 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 sect'ion 111 of the Town Law, and other statutes made and provided, undertake and acknowl- edge ourselves, our heirs, administrators and executors, jointly and severally, firmly hound to and with the said town of in the sum of 1128 FORMS. dollars; that the said A. B. will faithfully discharge his duties as such town superintendent of highways, and within ten days after the expira- tion of his term of office, pay over to his successor all moneys remaining in his hands as such superintendent, and render to such successor a true account of all moneys received and paid out by him as such superintendent, in accordance with law, or in default thereof, and that we will pay all damages, costs and ex- penses resulting from such default, not exceeding the sum specified in this undertaking. Dated this day of 19 . . A. B., Town Superintendent of Highways. C. D., E. F., Sureties. (Acknowledgment, justification and approval as in supervisor's undertaking [Form No. 20, antel, except that the approval is by the supervisor.) FORM No. 23. Undebtakinq of Overseer of the Poob. (Town Law, § 113, ante, p. 307.) Whereas, B. F., of the town of , in the county of was on the day of 19. ., duly elected overseer of the poor of said town; Now, therefore, we, the said B. F., principal, and N. O., of the town of his surety, do hereby, pursuant to section 113 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 shall come into his hands as such overseer, or in default thereof that we will pay all damages, costs and expenses resulting from such default. Dated this day of 19. . B. F., Overseer of the Poor. N. 0. (Acknowledgment, justification and approval as in supervisor's undertaking [Form No. 20, ante], except that the undertaking is to be approved by the supervisor.) FORMS. 1129 FORM No. 24. Town Collectok's Undektaking, (Town Law, § 114, ante, p. 307.) Whereas, N. 0., of the town of in the county of , was on the day of , 19. ., duly elected (or appointed) collector of said town and has received (or will receive) the assessment-roll of said town for the year 19. ., calling for the collection of ddllars. Now, therefore, we, the said N. O., principal, and R. S. and T. W., of the town of his sureties, do hereby, pursuant to section 114 of the Town Law, jointly and severally undertake and acknowledge ourselves firmly bound unto the said town of pursuant to law, in the sum of dollars, that the said N. O. will well and faithfully execute his duties as collector, and pay over all moneys received by him as such col- lector to the olHcer or person entitled thereto, and account in the manner and within the time provided by law for all taxes upon the assessment-roll of his town, delivered to him for the ensuing year, or in default thereof, that we, the undersigned, will pay all damages, costs and expenses result- ing from such default. Dated this day of , 19.. N. 0. R. S. T. W. (Acknowledgment, justification and approval as contained in supervisor's undertaking [Form No. 20, ante], except that approval is by supervisor.) FORM No. 25 Constable's Undebtaking. (Town Law, § 116, a^.te, p. 310.) Whereas, D. B., of the town of in the county of was on the day of 19.., duly elected (or appointed) constable of said town; Now, therefore, we, the said D. B., principal, and N. 0. and R. S., of the town of his sureties, do hereby, pursuant to section 116 of the Town Law, jointly and severally undertake that said D. E. will pay to each 1130 FORMS. and every person who may be entitled thereto, all such sums of money as lie may become liable to pay on account of any execution -which shall be delivered to him for collection; and also pay each and every person for any damages which he may sustain from or by any act or thing done by said D. E. as such constable, by virtue of his office. Dated this day of , 19.. D. E. N. O. R. S. (Acknowledge, justify and approve as in form for supervisor's undertak- ing [Form No. 20, ante}, except that the approval is by the supervisor or town clerk.) FORM No. 26. Resignation of Town Officebs. (Town Law, § 84, ante, p. 316.) To A. B., Town Cleric (or C. D.. E. F., G. H. and J. K., Justices of the Peace) of the town of ; I, M. O., of the town of county of having been duly elected (or appointed) to the office of in and for the said town of on the day of 19 . . , and having duly qualified as such officer, do hereby resign such office, to take effect upon the delivery of this resignation. Dated 19. . M. O. FORM No. 27. Appointment to Fill Vacanct in Town Office. (Town Law, § 130, ante, p. 318.) Whereas, a vacancy exists in the office of in the town of county of because of the (resignation, or as the case may be) of M. N., who was elected to such office on the day of , 19 . . ; for a term of two years from the day of 18..; FORMS. 1131 Now, therefore, in pursuance of the power vested in us by section 130 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 thereof, we have hereunto set our hands and seals, at , in said town, on the day of , 19 . . B. F., Supervisor. [l. s.] (Add other signatures of members of the town board, with designation of office, and seals.) * If town meetings are held at time of general election, the vacancy should be filled to the first day of January following the election. FORM No. 28. Notice of Appointment to Town Oitioe. (Town Law, | 130, ante, p. 318.) To N. O.: 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 (resignation or as the case may be) of M. N., the former incumbent of such office; such office is to be held by you until the next biennial town meeting of such town ([or] until and including the 31st day of December succeeding the next biennial town meeting). Suoh appointment was duly executed by the mem- bers of said town board and filed in my office on the day of , 19. ., as provided by law. Dated , 19.. C. Z., Town Clerk. FORM No. 29. Oath of Supervisor, Town Clerk, Superintendent op Highways and Overseeb 9F THE Poor, Going out of Office, on Delivery of Books, Records, etc. (Town Law, § 91, ante, p. 356.) COUNTY OP 1 Town op ) T, M. N., of the town of being duly sworn, deposes and say 1132 FORMS. that the records, books and papers herewith delivered, upon the demand of O. P., to him, as my successor in office as of said town of are all the records, books and papers in my possession, or under my control, belonging to the said office of of said town, office is to be held by you until the next biennial town meeting of such delivery, to wit, the sum of dollars and cents, is all the money belonging to said town remaining in my bands. M.N. Subscribed and sworn to before me, this .... day of 19.. R. S., (Title of office.) FORM No. 30. Notice of Appeal to Boabd of Supervisoes fbom Audit of Accotthts of Justices AND Constables. (Town Law, § 177, ante, p. 382.) To 0. D., Town Clerk of the town of in the 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 177 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 justice of the peace (or constable) of said town, for fees (or from the rejection and disallowance by the town board of said town, of any claim for fees) in criminal proceedings, as follows: (Here state the claim allowed or disallowed.) Dated this day of 19.. W. S. FORM No. 31. Justice's Account Against Town in Criminal Matter. (Town Law, § 107, ante, p. 383.) The town of to E. F., Justice of the Peace, residing at in said town, Dr. The People v. O. 0. January 10, 19.. Name of complainant, P. P., who resides at .. in said town. Offense charged was grand larceny. FORMS. 1133 Upon information taken and filed I issued a warrant for the arrest of •defendant. Warrant was delivered to N. N., constable of said town. January 12, 19 . . Defendant was arrested and brought before me. Defendant demanded an examination (or as the case may be), which was bad, 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). Administering oath to complainant ^ 10 cents. -Drawing information 25 cents. (In same manner make itemized account of fees.) E. P. Justice of the Peace. STATE OF NEW YORK, County or >■ ss.: E. F., being duly sworn, says he is the claimant named in the foregoing claim; that the items of such account as above set forth are correct, and that the services charged therein have been in fact made or rendered, and that no part thereof has been presented to any preceding board of audit, for audit and allowance and that no part thereot has been paid or satisfied. G. F. Subscribed and sworn to before me, this day of 19. . G.H. Justice of the Peace. FORM No. 32. Accounts of Town OFFiCBats. (Town Law, § 175, ante, p. 386.) John Dooley, supervisor, (overseer of the poor) of the town of In account with said town. 1910. Receipts. Jan. 28. Received of A. B., town collector, for general town purposes. $275 oO Mar. 5. Received of J. K for (state purpose and for what) 125 nO 1910. Expenditures. June 4. Paid to L. M. for (state definitely purpose for which expenditure was made) *25 00 1134 FORMS. VEBinCATIOlf. STATE OP NEW YORK, ■» County of f **"' John Dooley, being duly sworn, deposes and says that he Is the person mentioned as presenting the foregoing account; that the items of such account are correct; that the amounts stated therein to have been received by him as supervisor (or other officer) of the town of are all that he has received as such officer; that the expenditures stated therein have, in fact, been made for the purposes specified; that all of such expenditures were necessary and were made in good faith and for value received; and that the balance of dollars is all the money in my hands belonging to said town. JOHN DOOLEY. Subscribed and sworn to before me, this day of 19., L. M., Justice of the Peace. FORM No. 33. Cbbufioatb or Examination of Town Officebs' Aoooimis. (Town Law, § 155, ante, p. 386.) We, the undersigned, members of the town board of the town of county of do hereby certify, pursuant to section 132 of the Town Law, that we have examined the annexed account of John Dooley, overseer of the poor (or other officer) of such town, and that the same is just, true and correct, and that the balance now in the hands of such overseer of the poor (or other officer) according to such account is dollars. Dated 19.. R. B., Supervisor. J. M., Justice of the Peace. D. O., P. R., P. G., Towi Clerk. FORMS. ii;i5 FORM No. 34. Atfidavit to be Annexed to Account Pkesented to Town Boabd fob Audit. (Town Law, § 175, ante, p. 386.) (Attach this affidavit to itemized account) STATE OF NEW YORK, ) County of >■ ss.: 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. Subscribed and sworn to before me, thia .... day of , 19. . J. N., Justice of the Peace. A. B. FORM No. 35. Abstract op Names of Persons Who Have Presented Accounts k)b Audit. (Town Law, § 155, ante, p. 390.) To the Board of Supervisors of the county of .• We, the undersigned, town board of the town of pursuant to section 155 of the Town Law, do hereby certify that the following is a cor- rect abstract of the names of all persons who have presented to said board accounts to be audited, the amounts claimed by each of said persons, and the amounts audited by them respectively: NAMES. Amount audited. Dated this day of , 19 . . (Signed A. B., Supervisor, and other members of town board.) 1136 FORMS. FORM No. 36. Appointment or Board of Auditors by Town Boabd, (Town Law, § 152, ante, p. 391.) We, the undersigned, members of the town board of the town of county of having duly met at on the day of , 19 . . , at M., do hereby appoint pursuant to a vote of the electors of such town at a town meeting held therein on the day of 19.., and section 152 of the Town Law, the following named persons, to wit, A. B., C. D. and E. F., to be town auditors of such town until the next biennial town meeting held in such town. In witness whereof, we have set our hands and seals hereto on this day of ,19.. (Signed A. B., Supervisor, and by other members of town board.) FORM No. 37. FosH OF Application for Exemption of Pension. (Tax Law, § 4, sub. 5, ante, p. 477.) To the Assessors of the town of ; The undersigned applicant, a resident of the town of , and the owner of real property situated in such town as hereinafter described, hereby makes this application to you, and respectfully states as follows: 1. That such property is situated in town of and is described as follows: (Describe generally the real property sought to be exempted, by street and number or otherwise.) 2. That the assessed valuation of such property is dollars. 3. That a pension was secured by the applicant (or by the applicant's hus- band, naming him) for military (or naval) services rendered the United States, and that, of the proceeds of such pension, the sum of dollars was used in the purchase of such real property. Wherefore, he requests that such property be exempted from taxation for state, county and general municipal taxation, as provided by subdivision 5 of section 4 of the Tax Law. (Signature.) > ss.: STATE OF NEW YORK, County of being duly sworn, deposes and says that he is the applicant FORMS. UST' for the above specified exemption; that he has read the foregoing applica- tion and knows the contents thereof; that the facts stated therein are true to his own knowledge, except as to the matters therein stated on information: and belief and as to those matter he believes it to be true. (Signature.) Subscribed and sworn to before me, this day of , 19 . . (Signature of officer.) FORM No. 38. Hefobt of Bank to Local Assessors. (Tax Law, § 23, ante, p. 519.) To the Assessors of the town of .• I, A. B., cashier (or other chief .fiscal ofiicer) of the Bank, having its principal office located in the of county of , N. Y., in pursuance of section 23 of the Tax Law, do hereby make the following statement of the condition of such bank on the first day of June, 19 . . : 1. The amount of the authorized capital stock of such bank is thousand dollars, divided into shares of the par value of hundred dollars each. 2. The total amount of the stock of such bank which has been paid in is dollars. 3. The amount of the surplus of such bank is dollars; and the amount of its undivided profits is dollars. The following is a complete list of the names and residences of the stock- holders of such bank, and the number of shares held by each : Name of stockholder. Residence. No. of shares. Dated this day of 19. . A. B., Cashier (or other chief fiscal officer) of hank. Veeification. STATE OP NEW YORK, ) County of J A. B., being duly sworn, says that he Is the cashier of the Bank; that he subscribed the foregoing statement as such cashier and has; read the same and knows the contents thereof, and that such statement is. in all respects true. Signed A. B. Subscribed and sworn to before me, this day of 19.. C. D., Notary Puhlic county. 1138 FORMS. FORM No. 39. Statement of Levy of Tax by Board of Stjpebvisoes upon Bank Stock. (Tax Law, § 24, ante, p. 520.) To A. B., Cashier of the Bank, located in the village of county 0/ , N. Y.: The board of supervisors of the county of from an Inspection of the assessment-roll of the town of have ascertained the facts contained in the following statement which is hereby submitted to you pursuant to the provisions of section 24 of the Tax Law: 1. The amount of the capital stock of the Bank, located in the of is thousand dollars. 2. The surplus of such bank is thousand dollars; and the undivided profits thereof amount to thousand dollars. 3. The number of outstanding shares of such stock are and the value of each share of such stock, as ascertained in the manner pro- vided by section 24 of the Tax Law, is dollars. 4. The aggregate amount of tax to be paid by the Bank is dollars, and such amount has been levied upon such bank pursuant to the authority conferred by section 24 of the Tax Law. The foregoing statement is made to you in compliance with the provisions of section 24 of the Tax Law in pursuance of an order of the board of supervisors of the county of Dated this day of 19. . Signed D. E., Clerk of Board of Supervisors of county. FORM No. 40. Wabbant oe Obdeb to County Tbeasuker for Collecting Bank Tax. (Tax Law, § 24, ante, p. 520.) To the County Treasurer of county; Pursuant to the authority conferred by section 24 of the Tax Law, the board of supervisors of the county of hereby orders and directs that there be collected by you of the banks and banking associations located in the several towns, villages and cities in the county of the amount of tax levied by this board upon such banks and banking associations, and that such sums when so collected be paid by you, less your commission of one per centum to be deducted for collecting and paying out such moneys, to the proper officers in the several tax districts of the county of The number of shares of bank stock assessable in each town, city, village FORMS. 113^ and school district, the assessable value of such shares, the amount of taxes levied upon each bank and banking association therein the tax rate of each of such tax districts for the year and the proportion of the tax to which each of such tax districts is entitled under the provisions of such section 24 of the Tax Law, will appear from the following statement- Town of No. of Assessable Amount ^^°^- shares. value. of tax. Wilbur National Bank 3,000 f 450,000 $4,500 Tax rate for town of 005 Tax rate for village of 01 Tax rate for school district No , town of 005 Total tax rate 02 There shall be paid to the town of $1,125 to the village of 2,250 to school district No. 11 of the town of 1,125 (Insert other towns in same manner.) For the payment of the above sums to the proper oflftcers of such tar districts this shall be your sufficient warrant. Signed Board of Supervisors of county. D. E., Chairman, E. F., Clerk. FORM No. 41. Statement of Individual Bankeb to Assgssobs. (Tax Law, § 25, ante, p. 524.) To the Assessors of the town of .• I, L. M., individual banker doing business under the laws of this state, as an Individual banker, having my principal place of business in the of county of N. Y., do hereby report, pursuant to the provisions of section 25 of the Tax Law; that the amount of capital invested by me in such business as an individual banker in the town of on the first day of June, 19. ., is dollars. Dated this '.. day of , 19.. Signed L. M., Individual Banker. (Verification as in Form No. 38.) lliO FORMS. FORM No. 42. Notice to Bank of Assessment, (Tax Law, § 26, ante, p. 524.) To the Bank: You are hereby notified, pursuant to section 26 of the Tax Law, that the shareholders of the Bank are assessed as such shareholders, for the sums set opposite their names in the following list: John Doe $2,000 Richard Roe 5,000 Dated this day of 19 . . A. B., C. D., E. F., Assessors of the town of FORM No. 43. Statement of Corporations to Assessoks. (Tax Law, § 27, ante, p. 525.) I, A. B„ president (or other proper oflBcer) of the (name of corporation) hereby report, in pursuance of section 27, as follows: 1. The real property owned by such corporation consists of (describe same),. situated in the town of , at (or in the ward of the city of , at ), for which the corpora- tion paid the sum of dollars. 2. The capital stock of such corporation actually paid in is dollars ; the sum of dollars has been paid by such corporation for real property, and dollars of the capital stock is helri. by the Susquehanna Valley Home for Orphans, leaving a balance subject to . taxation of dollars. 3. The principal oflfice of such corporation is situated in the town ot Dated this day of 19. . A. B. FORMS. 1141 Vkbificatiow. STATE OF NEW YORK, 1 County of > ss.: A. B., being duly sworn, says that he is the president at the (name of corporation); that he subscribed the foregoing report as such officer, and has read the same and knows the contents thereof, and that such report is in all respects just and true. Subscribed and sworn to before me, this day of , 19.. •C. D., Notary Public, A. B. county. FORM No. 44. Statement or County Clerk as to Corpobatwns. (Tax Law, § 29, ante, p. 526.) To J. B., Town Clerk, Town of I. A. B., county clerk of the county of hereby certify, pursuant to the provisions of section 29 of the Tax Law, that the records in the office of the county clerk of the said county of show that the following named corporations have filed certificates of incorporation in such office whose principal business offices or chief places of business are deseignated therein as being in the town of and that names and addresses of the directors are as follows: Name of Cokporation. Place of Business. Date of Filing. Names and addresses of Directors. The Smith Manu- facturing Company. Smithville. Aug. 1, 1910. Paul Smith, Smithville. John Smith, Smithville. Laura Smith, Smithville. Dated, Norwich. N. Y.. June 10, 1910. (Signed.) A. B. County Clerk. 1142 FORMS. FORM No. 45. Statement of Agent. (Tax Law, § 35, ante, p. 535.) To the County Treasurer of the county of .• I, A. B., residing in the county of , agent of 7r. ...., a nonresident creditor, having debts owing to him therein, hereby transmit a statement of such debts owing on May 1, 19.., in pursuance of section 35 of the Tax Law, as follows: Name op Debtor. Residence. Amount. John Doe Town of Afton $ 945 75 Henry Smitli City of Bingliamton, tenth ward 1,210 15 Dated this day of 19.. A. B. STATE OP NEW YORK, County of ss.: A. B., being duly sworn, deposes and says that he is the agent within the •county of of ; that said is a non- resident of such county, and has debts owing to him therein; that he has read the foregoing statement of such debts subscribed by him and knows the contents thereof, and that the same is a true and accurate statement of such debts. A.B. Subscribed and sworn to before me, this day of 19 . . Notary Public. FORM No. 46. Notice of Completion of Assessment-roll. (Tax Law, § 36, ante, p. 535.) Notice is hereby given that the assessors of the town of (or, of ward of the city of ) , have completed their assessment-roll for the current year; that a copy thereof has been FORMS. m^ 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 until the third Tuesday of August next, and that on such day, at o'clock in the noon, said assessors will meet at , in the said town (or ward), to hear and examine all complaints in relation to such assessments, on the application of any person conceiving himself aggrieved thereby. Datea this day of 19.. A. B., C. D., E. F., Assessors. FORM No. 47. AmDAViT ON Application to Coekect Assessment. (Tax Law, § 37, ante, p. 537.) STATE OF NEW YORK, County or > ss.: A. B., being duly sworn, says that he is assessed on the assessment-roll of the town of for the year 19.., for dollars; that such assessment is incorrect and excessive for the reason that just ■debts owing by him have not been deducted; that the amount of such debts is dollars, and that there is not included in such amount any debts contracted or incurred in the purchase of non-taxable property or securities owned by him or held for his benefit, nor for or on account of any indirect liability as surety, guarantor, indorser, or otherwise, nor for the purpose of evading taxation (or state specifically the respect in which the assessment complained of is incorrect). A. B. Subscribed and sworn to before me, this .... day of , 19 . . C. B., Notary Public. FORM No. 48. Notice of Filing Completed Assessment-roll With Clerk. (Tax Law, § 39, ante, p. 543.) 'Notice is hereby given that the assessment-roll (or assessment-rolls), for the town (or city) of , in the county of , for the 1144 FORMS. year 19.., has been finally completed by the undersigned assessors, and a cer- tified copy thereof was filed in the office of the town (or city) clerk, at the of where the same will remain open to public inspection for fifteen days. Dated this day of , 19. . A. B., C. D., E. F., Assessors of the tovm of FORM No. 49. Appobtionment of Valuation or Railboad &c. Companies Between Schooi. Districts. (Tax Law, § 40, ante, p. 544.) STATE OF NEW YORK, •> County of J We, A. B., C. D., and E. F., the assessors of the town of county of , pursuant to the authority conferred upon us by § 40 of the Tax Law, do hereby apportion the assessed valuation of the property of each of the following named corporations among the several school districts in such town, in which such property is situated, as follows: Name of Company. Assessed Valiuition. Valuation in each School District. Tlie New York Central Railroad Company New York Telephone Co.. $150,000 7,500 School Dist.No. 1, " " 7, 9, School Dist. No. 1. " " 3, " " .5, 50,000 60,000 40,000 3,500 3.000 3,000 Dated, this day of 19 . (Signed) A. B., C. D., E. F., Assessors, Town of Note. — This statement must be filed with the town clerk, and he must furnish the trustees of the several school dlBtricts with a statement of such valuations. FORMS. 11^5 FORM No. 50. Cebtificate of Neglect ok Omission of Duty of One of the Assessors. (Tax Law, § 41, ante, p. 545.) STATE OF NEW YORK, "» County of f **•' We, A. B., and C. D., two of the assessors of the town of in the county of , do hereby certify to the board of super- visors of such county, in pursuance of section 41 of the Tax Law, that B. F., the other assessor of such town, has neglected (or omitted) to verify the foregoing assessment-roll, or (state other omission), the cause of such neglect (or omission) being (state the same). Dated this day of , 19. . A. B. CD. FORM No. 51. PETmoN OF Town Assessors to Board of Supervisors foe Correction op Assessment-roll. (Tax Law, § 56, ante, p. 562.) To the HonoraMe Board of Supervisors of county: Your petitioners, A. B., C. D. and E. F., assessors of the town of pursuant to the authority conferred by section 56 of the Tax Law, do re- spectfully show to your board that, I. In the assessment-roll delivered to L. M., supervisor of the town of , as provided by law, for the year a mistake was made in transcribing so that the property therein assessed to D. F. was valued at dollars; the actual value of such property as appears upon the original roll signed by the assessors for that year was dollars. II. In the assessment-roll for the year delivered to such super- visor as provided by law, taxable property owned by J. D. has been omitted therefrom. The description and the valuation of such property for the preceding year is as follows: (describe property, giving name of owner, num- ber of acres, valuation, etc.) III. Taxable property owned by A. L., consisting of (describe property) has been omitted from the assessment-roll as prepared by your petitioners for the current year; that the value of such property is dollars. 1 14G FORMS. Wherefore, your petitioners respectfully pray that the value of the prop- erty assessed to D. F. In the assessment-roll for the year be changed irom dollars to dollars. That the taxable property omitted from the assessment-roll of the year belonging to the said J. D. be included in the assessment-roii for the current year as described and for the valuation fixed as above. That there be placed upon the assessment-roll for the current year the taxable property omitted therefrom belonging to A. L., at a valuation of dollars. Signed A. B., C. D., E. F., Assessors for the town of Vebification. STATE OF NEW YORK, ) County of f *'•" The undersigned, assessors for the town of , do severally depose and swear that they and each of them have read the foregoing petition and know the contents thereof; that the same is true to the knowledge of the deponents except as to the matters therein stated to be alleged on information and belief, and that as to those matters they believe it to be true. A. B. CD. E. F. Subscribed and sworn to before me, this day of 19 . . N. O., Notary Public of the county of Notice of Presentation of Petition. To J. D. ana A. L.: Take notice. The petition hereto annexed will be presented by the under- signed, assessors of the town of , to the board of supervisors of the county of , at its annual meeting to be held in the village of , county of , on the day of 19.. A. B., C. D., E. F., Assessors. Affidavit of Service. STATE OF NEW YORK, } A. B., being duly sworn, says that he is of the age of more than twenty- County of ^ FORMS. 1147 one years, that on the day of , 19... at , he personally served the Within petition and notice upon J. D. and A. L. by delivering to and leaving with them true copies of the same. He further says that he knew the persons so served as aforesaid to be the same persons mentioned and described in the petition hereto annexed. A. B. Subscribed and sworn to before me, this day of 19.. N. O., Notary Public of county. FORM No. 52. C!ollector's Wabeant. (Tax Law, § 59, ante, p. 568.) STATE OF NEW YORK. } COUNTT OF. r ■■ The People of the State of 'New 7ork to B. Gf., Collector of the touon of , of the county of , greeting; You are hereby commanded to receive and collect from the several persons^ named In the assessment-roll hereunto annexed, the several sums named in the last column thereof opposite their respective names, on or before the 1st day of. February, 19..; and on all taxes paid within thirty days after giving" notice of the reception of this tax-roll and warrant, as required by section 69 of the Tax Law, you are hereby directed to receive and collect, in addition to the taxes raised in said assessment-roll, one cent on every dollar or sum less than a dollar of taxes, as your fee for collecting the same. (If the aggregate amount shall not exceed two thousand dollars, two cents on every dollar or sum less than a dollar of taxes as your fee for collecting the same.) On all taxes remaining unpaid after the expiration of said thirty days, you are entitled to receive and collect, in addition to such taxes remaining un- paid, five cents on every dollar as your fees for collecting the same. You are hereby directed, out of the money so collected, to pay over on the first day of next: 1. To the supervisor of said town, the sum of , assessed and levied for the support of highways and bridges therein, pursuant to the provis- ions of article V of the Highway Law. 2. To the overseer of the poor of said town, the sum of assessed and levied for the support of the poor therein. 3. To the supervisors of said town, the sum of , for the town expenses and charges assessed and levied on such town. 1148 FORMS. 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 ,19.. M. F., Chairman. R. S., Clerk. FORM No. 53. Statement of Taxes Upon Cebtain Cobporations. (Tax Law, § 60, ante, p. 570.) To. A. B., Treasurer of the county of .• I, C. D., clerk of the board of supervisors of the county of in pursuance of section 57 of the Tax Law, do hereby transmit the following statement: Name of Cokporation. "Western Union Telegraph Co. . . do do Ontario and Western Railroad Co do Districts in which assessed Town of City of third ward Town of Town of City of , first ward Valuation Amount of property. of tax. 88,000 00 $ 65 16 7,000 00 55 16 5,000 00 40 09 6,000 00 290 00 8,000 00 275 00 Dated this day of ., 19.. C. D., Clerk of Board of Supervisors. FORMS. 114!i FORM No. 54. Abstract of Tax-rolls. (Tax Law, § 62, ante, p. 571.) To A. B., Treasurer of the county of .• I, C. D., clerk of the board of supervisors of the county of ^ in pursuance of section 62 of the Tax Law, hereby transmit an abstract of the- tax-rolls of such county as follows: Name op collectok. John Smith . . , Michael Flood. Town of District. Town of Amount to be collected. $ 9,000 00 17,000 00 Purpose of Taxes. Highways and bridges. $1,000 Support of poor. . . . 3,000 Town charges 4,000 State tax 1,000 Highways and bridges, b 3,000 &c. &c. &c. To whom to be paid. John Brown Abram Moore &c. When to be paid. Feb. 1,19.. FORM No. 55. Notice by Collector of Receipt of Assessment-boll and Wabraht. (Tax Law, § 69, ante, p. 583.) 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, tor the purpose of receiving the taxes- assessed upon such roll. Dated this day of 19.. JOHN BROWN, Collector. 1150 FORMS. FORM No. 56. NbncE OF Tax Sale by Coixectob. (Tax Law, § 71, ante, p. 585.) By virtue of the warrant delivered to me, as collector of the town of I have levied upon and taken possession of the following goods and chattels of R. S. (or in the possession of R. S.), (describe in detail property seized) and I shall sell the same at public auction at In the town of , on the day of next, at o'clock in the noon on that day. Dated this day of , 19. . F. M. A., Collector. FORM No. 57. Affidavit to be Attached to Collectob's Retubn op Unpaid Taxes. (Tax Law, § 82, ante, p. 601.) STATE OF NEJW YORK, } County or j A. B., being duly sworn, deposes and says that he is the collector of taxes for the , In the county of ; that the annexed is a true account of the taxes remaining unpaid upon the assessment-roll of said town for the year 19 . . ; that the sums mentioned therein remain unpaid, and that he has not, upon diligent inquiry, been able to discover any personal property, out of which the same might be collected by levy and sale. (If such tax is uncollected upon lands assessed to nonresidents, also state the reason why the same was not collected.) A. B.. Subscribed and sworn to before me. Collector. this day of ,19.. (Signature of Notary.) (Annex statement.) The form of the return is to be prescribed by the state board of tax eommissioners. FOKMS,, 1151 FORM No. 58. Application of Supebvisob fob Kxteksion of Time fob Collection of Taxes. (Tax Law, § 85, ante, p. 605.) To the County Treasurer of the county of ; Application is hereby made, in pursuance of section 85 of the Tax Law, for an extension of time until March 1, 19. ., for the collection of taxes in the town of , for the reason that (state reason for delay). Dated this day of , 19. . A. B., Supervisor of the town of FORM No. 59. Obdeb of Tebasueeb Gbantino Extension. (Tax Law, § 85, ante, p. 605.) Upon application made to me, in pursuance to section 85 of the Tax Law, by A. B., supervisor of the town of for an extension of time for the collection of taxes in such town, and the reason stated in such application appearing to me sufficient, and proof having been made to m6 that J. F., the collector ot such town, has paid over all moneys heretofore collected by him and has made a return of nonresident taxes remaining unpaid, and renewed his bond In a penalty twice the amount of the taxes remaining uncollected, a certi- fied 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, 19 . . Dated this day of , 19 . . E. D., County Treasurer of the county of FORM No. 60. Decision op Fence Viewees When Teansfee of Title has Been Made. (Town Law, § 362, ante, p. 639. > ss. : COUNTY OF Town op Whereas, a dispute has arisen between D. B. and T. W., adjoining owners of lands in the town of in regard to the division fence between said 1152 FORMS. lands, caused by a transfer of title of a portion of the adjoining lands owned by D. B. (or as the case may be); Now, therefore, we, the undersigned fence viewers of said town, having been duly chosen by the said owners to hear and determine the matter, pursuant to sections 362 and 363 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 $ In witness whereof, we have hereto set our hands on this day of ,19... N. O., P. R., Fence Viewers. FORM No. 61. Notice to Choose Fence Viewer. (Town Law, § 363, ante, p. 639.) T. D. B., Esq.: Pursuant to section 363 of the Town Law, you are hereby required to choose, 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 so to do, I shall choose both of said fence viewers, as authorized by law. Dated this day of , 19. . T. W. FORM No. 62. Ceetificate or Appobtionmext of Division Pence. (Town Law, § 363, ante, p. 639.) COUNTY OF ) Town of S 'Whereas, a dispute has arisen between D. B. and T. W., adjoining owners FORMS. 1153 of land in said town, concerning tlie apportionment of the expenses of main- taining (or erecting) tlie division fence between said lands; yow, therefore, we, the undersigned fence viewers of said town, duly chosen to hear and determine the dispute, pursuant to section 363 of the Town Law, after giving due notice to said owners pf the time and place of this meeting, and having viewed the premises, heard the parties and the evidence produced, do hereby determine that the said D. B. shall erect, maintain and keep in repair all that portion of the fence (here describe it), and that T. W. shall erect, main- tain 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 ,19.. N. 0., R. S., Fence Viewers. FORM No. 63. Subpoena by Fence Viewer. (Town Law, § 364, ante, p. 640.) STATE OF NEW YORK, -\ County op V ss.: Town of ) The People of the State of New York to L. L. and 0. O.r 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 the day of 19.., at ....o'clock in the M., to be examined as a witness in regard to the matter in difference between D.' B. and T. W. as 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 , 19 • ■ N. 0., R. S., Fence Viewers. 1154 FORMS. FORM No. 64. Appjiaisement of Damages by Fence Viewees poe Neqiect to Build ob Rbfaib Division Fence. (Town Law, § 365, ante, p. 640.) STATE OF NEW YORK, \ County of s. ss.: Town 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 19. ., 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 place of this meeting having been given, and after viewing the premises and hearing the parties and evidence produced, do, pursuant to section 365 (or 368) 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 portion of said division fence, at $ , to be paid by D. B. with the costs and expenses of this proceeding, which are | . . . . In witness whereof, we have hereunto set our hands on this day of ,19.. N. O., R. S., Fence Viewers. FORM No. 65. NoTifcE TO Build or Repaib' Division Fenor (Town Law, § 365, ante, p. 640.) To D. B., Esq.: You are hereby notified and required, pursuant to section 365 of the Town Law, to build and maintain (or repair) your portion of the division fence be- tween your lands and the lands of the undersigned, beginning (state where fence is to be built or repaired), within one month 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 , 19. . T. W. FORMS. 1155 FOBM No. 66. Notice to Build Fence Desiboted by AooHMEin;. (Town Law, § 366, ante, p. 641.) To D. B., Esq.: You are hereby notified and required, pursuant to section 366 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 , 19. . T. W. POEM No. 67. Notice op Stbats to be Filed in Office of Town Clerk. (Town Law, § 381, ante, p. 645.) To all Person Whom it may Coneern: You are hereby notified, pursuant to section 381 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 belonging 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 main- tain a division fence as required by law; and that he claims a lien on such horse (or other animal) for his damages, charges and costs occasioned thereby Dated this day of , 19. . D. B. 1156 FORMS. FORM No. 68. Notice to Owners of Stbats. (Town Law, § 383, ante, p. 646.) To T. W., Esq.: You are hereby notiiSed, pursuant to section 383 of the Town Law, that the undersigned, a resident of the town of , In the county of , has in his possession upon his inclosed lands (or in pound, as 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 , 19. . D. B. FORM No. 69. Notice of Sale of Stray Animals by Pence Viewebs. (Town Law, § 387, ante, p. 647.) Whereas, a notice of Hen was duly delivered to the town clerk of the town of , on the day of' , 19.., by J. F., the 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 lands (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 section 386 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 section 387 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 , 19 . . , at noon. Dated this . . day of , 19. . L. M., Fence Viewer. FORMS. 11^57 FORM No. 70. Notice to Owners of Fence Viewers' Meeting. (Town Law, § 389, ante, p. 648.) To T. W., Esq.: You are hereby notified, pursuant to section 389 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 19.., 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 , 19. . D. S. FORM No. 71. Determination by Pence Viewers as to Damages by Stbay Animals. (Town Law, § 390, ante, p. 648.) ] STATE OF NEW YORK, ' ■County op Town of Whereas, on the day of , 19.., there strayed (or "was found doing damage) on the inclosed lands of D. B., in said town, the following animals (here describe them), which said beasts belong to T. W., (or, and the owner of said animals is unknown). Now, therefore, we, the undersigned fence viewers of said town, duly chosen to determine the matter submitted to us, after proof of due service of a notice of the time and place of this meeting on the owner of the animals (or on proof that the owner of said beasts is unknown), and after viewing the premises and hearing the parties (or after hearing the claimant) and all witnesses produced, ■do hereby, pursuant to section 390 of the Town Law, determine that the said ani- mals entered on the inclosed lands of B. D.. from the premises of T. W., over that portion of the division fence which belongs to T. W., to maintain and keep in repair; and that the damages sustained by D. B. are % and that the charges for keeping said beasts are $ and the costs and expenses of this proceeding are $ (or that the claimant's lien is not enforceable by reason of; state the reasons). Dated this day of ^.....,19.. N. C. R. S., Fence Viewers. 1158 FORMS. FORM No. 72. Application to Pence Viewers as to Shekf Khxed ob Iitjubed by Dqos. (County Law, § 118. ante, p. 655.) To A. B. and C. D., Fence Viewers of the toion (village or city) of Whereas, on the day of , 19 . . , sheep and Iambs owned by me were attacked by dogs, and killed and injured. I hereby mp.ke application to you to inquire into the matter, and issue a certificate of the damage I have sustained thereby, in pursuance to section 118 of the County Law. Dated this day of , 19. , A. B. FORM No. 73. Cektificate as to Damages. (County Law, § 118, ante, p. 655.) COUNTY OP ) ?• ss ' Town of ) We, the undersigned, fence viewers of the town of , upon the application of A. B., residing in such town, to inquire Into the killing and 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 Iambs 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 19.. 0. D., E. P., Fence Viewers. FORM No. 74. Order of the Ovebseers of a Town to Remove a Poor P>ebson to the County Poor House. (Poor Law, § 20, ante, p. 714.) County of , ss.: A. B., having applied for relief to the overseers of the poor of the town of FORMS. JlSi? who having inquired into the state and circumstances of the: applicant, and it appearing that he (or she) is in such circumstances as to re- ; |§ af I ''i O -I pq g^ tosl-l - O ■so< is g5 a o •a St GJ ''^ «k.d .iS .S ■♦J Q 'O P, V rvc 9-0 SI o ■ OH 9 » FORMS. 1163 FORM No. 81. AOCWUNTS OF OVEBBEEBS OF THE POOR TO BE ReNDEBED TO ToWN BOABDS OK Common Council. (Poor Law, § 26, ante, p. 720.) To the Town Board of the town of : Account of , overseer of the town of Afton, for amounts received and expended for the support and relief of the poor during the year ending 19.. Receipts. June 10. From county treasurer $10 00 Sept 15. From George L. Church, for sale of property of John Smith, who had absconded 12 50 Expenditures. June 15. To Richard Brown, for groceries $10 00 Sept. 16. To county treasurer, pursuant to Poor Law, § 139 12 50 Chenango County, ss.: overseer of the poor of the town of Afton, being duly sworn, deposes and says that the foregoing account is just and true; that the amount stated therein to have been received for the support and relief of the poor is all that has been received by him during the year ending 19. ., and that the amount stated to have been expended were actually and necessarily expended by him for the purposes specified, during such time. Overseer of the Poor. Subscribed and sworn to before me, this day of , 91. . Notary Public. FORM No. 82. Repobt of Overseers oi the Poob. (Poor Law, § 27, ante, p. 722.) (NoonE. — The report is to contain the account prescribed in Form No. 81, 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 116 i FORMS. meeting of the board of supervisors; to such account should be added the follow- ing 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 tem- porary and out-door relief and support of the poor of the town of , for the year beginning 19 . . Such estimate is based upon the following facts. (Here state items for which it will be necessary to raise money.) Dated , 19 . . C. D., Overseer of the Poor. We hereby approve the foregoing account and estimate of the sum required for the support and relief of the poor of the town of for the year beginning , 19 . . Dated , 19.. D. E., Supervisor. P. G., Justice of the Peace. H. I., " L. M., „ „ „ N. O., Tovm Clerk. FORM No. 83. Repobt of Supebvisok of Town to Clerk of Board of Supervisors in Town» Where all the Poor are not a Codntt Charge. (Poor Law, § 141, ante, p. 724.) The supervisor of the town of , in the county of reports to the clerk of the board of supervisors, pursuant to section 141 of the Poor Law, as follows: The number of paupers relieved or supported in said town during the year preceding the day of , 19 ... as appears from the accounts of the overseers of the poor, was Of the persons thus relieved the number of county paupers was The number of town paupers The whole expense of such support was " Allowance to overseers for support of county paupers Allowance to overseers for support of town paupers Allowance to overseers for their services Allowance to overseers for transportation of paupers Allowance made to justices Allowance to physicians, for medicine and attendance FORMS. 1165 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 for the year ending the day of , as the same have been settled by the board of town auditors. Dated this day of , 19. . A. B., Supervisor. FORM No. 84. "Notice from One Town to Another (in a County Where the Towns are LiABtE to Support their Own Poor), Requiring the Overseers of ths Town in Which the Poor Person Has a Residence to Provide for His Support. (Poor Law, § 42, ante, p. 732.) County of ss.: To the Overseers of the Poor of the town of in said county: You are hereby notified that A. B., a poor person, who has gained a settlement in your town, to which he belongs, is in the town of , in said county, and is supported at the expense of the said town of , for which the undersigned are overseers. You are, therefore, required to pro- vide for the relief and support of the said poor person. Given under our hands at , this day of 19, . E. F., C. D., Overseers of the Poor of the town of (This notice should be served on one of the overseers of the poor of the town where the poor person belongs.) FORM No. 85. Notice of Overseers of the Poor to Appear Before Superintendent op the Poor and Contest Alleged Settlement of a Poor Person. (Poor Law, § 43, ante, p. 734.) County of ss.: To the Overseers of the Poor of the town of in said county: Please take notice that the undersigned, overseers of the poor of the town of 1166 FORMS. , in said county, will appear before the superintendents of the poor of said county, at the poor house (or, other place, as may be designated), on the day of at ten o'clock in the forenoon, to con- test the alleged settlement of A. B., a poor person, as set forth in your notice of the ,19.. Dated , 19.. J. H., I. J., Overseers of the Poor of the toion of FOBM No. 86. Subpoena in Case of Dispute Concebnino Settlement of Poob Pebsons. (Poor Law, § 44, ante, p. 734.) County of ss.: The People of the State of New York to C. D., greeting: You are hereby required, personally, to appear before the undersigned, superintendents of the poor of the said county, at the poor house (or, such other place as is designated in the notice), on the day of 19.., at ten o'clock in the forenoon, to testify in behalf of the overseers of the poor of the town of , in said county, concerning the alleged settlement of A. B., a poor person. Dated at this day of , 19. , Superintendents of the Foot. FORM No. 87. Decision of Superintendents Concerning the Settlement of Poob PEBSoms. (Poor Law, § 44, ante, p. 734.) 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 FORMS. 1167 controversy which had arisen between the said overseers and the overseers of the town of in said county, concerning the settlement of A. B., a poor person; and upon such hearing of the facts, the undersigned hereby decide that the legal settlement of the said A. B. as such poor person, is (or, is not) in the said town of And the undersigned hereby award to the overseers of the poor of the town of , the prevailing party, the sum of dollars, costs of said proceeding, by them expended. Given under our hands and seals at , this day of .19.. [1. s.] Ii. 8.] [L. e.] Superintendents •/ the P&vr. FORM No. 88. StrPEBINTENDENTS' NOTICE THAT POOE PeBSON WIIX Bb SuPPOBTED AT THE BXI>BRSE or A Town in a County Where the Towns Suppobt Theib Own Boob. (Poor Law, § 46, ante, p. 736.) County of ss.: To the Overseers o/ the Poor of the town of in said county : A. B., a poor person, having been sent to the poor house as a county poor person, and the undersigned, superintendents of the poor of said county, having inquired into the fact, and being of the opinion that the said poor person has a legal settlement in the town of , in said county, pursuant to the provisions of section 46 of the Poor Law, yon 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 19. . A. B., C. D., B. F., Swperintendenis . 1168 FORMS. FORM No. 89. Decision or Sufbbintendents After Re-Bxamining Settlement of Poob Person, ON Application of Ovekseers. (Poor Law, § 46, ante, p. 736.) County of ss.: The undersigned, superintendentB of the poor of the said county having on application of the overseers of the poor of the town of on whom the notice of which the annexed is a copy was served, re-examined the subject-matter of the said notice and taken testimony in relation thereto, do hereby decide that the poor person, A. B., therein mentioned, has a legal settlement in the town of to which, as such poor person, he belongs (or, has not a legal settlement in said town of ). Given under our hands, at , this day of 19.. A. B., C. D., E. P., Superintendents of the Poor. FORM No. 90. Notice of Decision op Superintendents as to Settlement of Poor Persons. (Poor Law, § 49, ante, p. 737.) To , Overseer of the Poor of the town of .• Take notice, that a decision of the superintendent as to the legal settlement of A. B., a poor person, of which the annexed is a true copy, was on the day of made and a duplicate thereof filed in the oflBce of the county clerk of county, on the day of , 19 . . C. D., Superintendent {or. Overseer, as the case may he). (There is no express requirement that a notice of the decision of the super- intendent should be served on the defeated parties; but section 49 of the Poor Law (ante. p. 737), authorizes an appeal within thirty days after the service of a notice of the decision. The service of a notice similar to the above form is, therefore, required to limit the time of appeal.) FORMS. llGa FORM No. 91. KoTiCE OP Appeal to Coumtt Cotjet pbom Decision of Supebintendents of tbu: POOB. (Poor Law, § 49, ante, p. 737.) COUNTY COURT— CotTNTY of In the Matter of the Settlement A. B., a Poor Person. :i Take notice that the undersigned,. E. P., overseer of the poor of the town of appeals to the County Court of county from the decision of C. D., superintendent of the poor of such county, made as to the legal settlement of A. B., a poor person, on the day of 19 . . , and demands a new trial of the matters in dispute as to such settlement in the said County Court, without a jury. Dated 19.. E. F., Overseer of the Poor of the town of To O. H., Overseer of the Poor of the town of {or other party interested therein). FORM No. 92. Notice of Impbopeb Removal of Poob Person fkom a Town, Citt ob County. (Poor Law, § 51, ante, p. 738.) County of ss.: To , Superintendent of the Poor of the county of {or Overseer of the Poor of the town of ) .' You are hereby notified that A. B., a poor and indigent person, has been improperly sent (or, carried, transported, brought or removed, or enticed to remove, as the case may be) from the said county (town or city) of to the county (town or city) of without legal authority,. and there left, with intent to make the said county (town or city) of to which the said removal was made, chargeable with the support of the said poor person. You are, therefore, pursuant to the 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 19.. Superintendents of the Poor of the county of (or, Overseers of the Poor of the town of ) . lirO FORMS. FORM No. 93. Notice of Denial of Removal of Poor Persons. (Poor Law, § 52, ante, p. 740.) County of ss.: To the Superintendents of the Poor of county: You are hereby notified that the undersigned, superintendents of the poor of the county of deny the allegation contained in your notice, of the supposed Improper removal of A. B., as mentioned in your notice to the undersigned, in the manner and with the intent in said notice alleged. Given under our hands, at this day of , 19 . . Superintendents of the Poor of the county of FORM No. 94. acoownts of ovekseebs op the poor for moneys received from putativk Fathers and Paid Out for the Support of Bastards. (Poor Law, § 68, ante, p. 748.) Ta the Town Board of the town of The following is an account of moneys received and paid out by me on account of bastards during the year ending 19 . . Receipts. Jan. 10. Prom J. N., putative father of R. O., bastard $ Jan. 12. From J. A., putative father of K. L., bastard Expenditures. Jan. 15. To 0., for professional attendance and medicine to M. 0., Mother of R. R., bastard $. Jan. 16. To J. H., for groceries and fuel to M. O., mother of R. O., bastard Dated 19.. A. B., Overseer of the Poor of the town of County of ss.: A. B., overseer of the poor of the town of being duly sworn, deposes and says that the foregoing is a true and just account of all the FORMS. 117 1 moneys received and expended by him for the support of bastards and the maintenance of mothers of bastards during the year ending , 19 . . That the amounts therein stated to have been received by him were all the amounts actually received, and that the amounts therein stated to have been expended were actually and necsssarily expended by him for the purposes therein specified. A. B., Overseer of the Poor of the town of Subscribed and sworn to before me, this day of ,19.. FORM No. 95. AOBEEMENT UPON COMPBOMISB WITH PUTATIVE FATHEB OF BaSTABD. (Poor Law, § 74, ante, p.- 752.) Know all men by these presents, that whereas, complaint was made on the day of , 19. ., before Esq., a justice of the peace of the county of , by on oath, charging with being the reputed father of a child, of which the said is now pregnant, and which, when born, will l)e a bastard, and likely to become (or, the father of a bastard child, of which the said was on the day of 19 . . , delivered, and which said child is) chargeable to said county; and Whereas, the said was arrested on said charge, and brought before and justices of the peace of said county, and the father of said child (of which the said is now pregnant) (or, so born a bastard), as aforesaid; Now, therefore, of the poor of said county, for and in con- sideration of the sum of dollars, to paid, as such superintendent (or overseer), and by virtue of the statute in such case made and provided, do hereby compromise the said charge, and release and discharge the said from all liability to the or to the superintendent of the poor (or overseer of the poor) thereof, by reason of the liability of the said to support the said (or bastard) child, or from any other cause, by reason of the birth of said (or bastard) child. Given under hand and seal this day of 19. . Signed, delivered and duly acknowledeged in the presence of and before , Justice of the Peace. 1172 FORMS. FORM No. 96. Notice of Commandeb of Post of Grand Abmt of the Republic, as to Relief OF PooB Soldiers, etc. (Poor Law, §§ 80 and 81, ante, p. 767.) 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 do undertake the supervision of the relief of the following named veterans of the war of the rebellion, and their families: That the relief committee of such post is composed as follows: That the officers of such post are as follows : Dated , 19.. A. B., Commander of the Post, O. A. R. FORM No. 96-a. Requests of Officers of Grand Army Posts for the Relief op Vetebans. (Poor Law, §§ 80 and 81, ante, p. 767.) To Superintendent of the Poor of the county (or Overseer of the Poor of the town) of .• Whereas a veteran of the late war of the rebellion, is (state reasons for necessity of relief; i. e., disability, unable to work, etc.), and is in need of relief; Therefore, in pursuance of section 80 of the Poor Law, and the recommenda- tion of the relief committee of the post, G. A. R., of the town (or city) of which is hereto annexed, we hereby request that you grant the said relief to the amount of dollars per week. Dated 19.. A. B., Commander of Post, G. A. R. B. C. Quartermaster. (The recommendation of the relief committee of the post is to be attached, and may be in the following form): FORMS. 1173 Having examined the necessities of , a veteran of tlie late war of the rebellion, and it appearing that the said veteran is, because of sickness, unable to care for himself and is in actual need of assistance, we, the undersigned, members of the relief committee of the post of the Grand Army of the Republic in the town (or city) of do hereby respectfully recommend that relief be granted to the said to the amount of dollars per week. Dated ,19.. CD., D. E., E. F., Belief Committee of Post, O. A. R. FORM No. 97. Inventokt of Highway Machinery, Tools and Impuiments. (Highway Law, § 49, ante. p. 822.) To Supervisor of the Town of , County of : The following is an inventory of the machinery, tools and implements belong- ing to the town of in my control, indicating the value thereof, and the estimated cost of repairs thereto, which is submitted by me pursuant to the provisions of section 49 of the Highway Law: DESCRIPTION OF ARTICLE. Value. Cost of repairs. Steam roller (give description of kind) 3 Road machines. $2,500 00 450 00 60 00 $300 00 75 00 7 Plows 5 00 I recommend that there should be purchased for the use of the town the following machines, tools and implements, and append thereto the probable cost thereof: 1 road machine $250 00 3 road scrapers 225 00 Dated ,19.. JOHN SMITH, &%'perintenAent of Highways. 1174 FORMa FOEM No. 98. Notice to Remove Obsteuction. (Highway Law, § 52, ante, p. 824.)! To Simon Brown': The undersigned, town superintendent of highways of the town of , county of , hereby notifies you that the highway in such town, adjoining the premises owned (or occupied) by you is obstructed to the extent and in the manner following: (describe encroachment or obstruction), and you are hereby directed to remove such construction (or encroachment) within thirty days after the service of this notice upon you, and in case of your failure to so remove such obstruction, I shall cause the same to be removed as author- ized by section 52 of the Highway Law, and shall assess the cost thereof against you as authorized by section 55 of such law. Dated this day of 19.. JOHN SMITH, Town Superintendent of Highways, Tovm of FORM No. 99. Notice to Occupant to Cut Weeds, Brush and Bbiebs. (Highway Law, § 54, ante, p. 827.) To R. 8.. owner (or occupant) of Cbriefly describe the premises), abutting on the highway, (describe highway), in the town of county of -N. Y.: The undersigned, town superintendent of highways of the town of , hereby notifies and requires you to cut all weeds, briers and brush growing upon the above described lands within the bounds of said highway at some time during the month of June, 19. ., or (in August, as the case may be) as required by section 54 of the Highway Law; and if you fail to do so, I shall cause the same to be removed and assess the cost thereof against you as provided in section 55 of the Highway Law. Dated this day of 19. . L. M., Town Superintendent of Highways, Town of FORMS. 1175 FORM No. 100. Notice or Assessment. (Highway Law, § 55, ante, p. 828.) To R. 8. owner (or occupant) of {describe premises) abutting on the highway (describe highway) in the town of county of .• You are hereby notified that, I, L. M., town superintendent of highways of the town of , will assess the cost of removing the noxious weeds, briers and brush (or other obstructions, describing them) within the bounds of the highway above described abutting premises owned (or occupied) by you, on the day of 19.., at in the village of , as authorized by section 55 of the Highway Law, and you are hereby directed to attend at such time and place, where I will hear all parties interested and make an assessment of the cost of such removal as authorized by such section of the Highway Law. Dated 19.. L. M., Town Superintendent of Highways, Town of FORM No. 101. Assessment of C!ost of Removing Weeds, Etc. (Highway Law, § 55, ante, p. 828.) To A. S., town clerk of the town of .• The undersigned, town superintendent of highways of the town of hereby certifies that he caused to be removed the noxious weeds brush or briers (or other obstructions, describing them), in front of the lands owned (or occupied) by the person named in the following list, as authorized and required by section 54 of the Highway Law; that he caused due notice to be served upon each of the persons named in such, list, a copy of which with an endorsement of the date and manner of service is returned herewith; that at the time and place mentioned in such notice he heard such owners, (occupants) and all others interested, and assessed the cost of cutting and removing such noxious weeds, brush and briers (and of removing such obstructions) against the owner (occupant) whose duty it was, pursuant to section 54 of the Highway Law, to cut and remove the same; that such completed assessment is as follows: 'Name of owner or occupant. Premises described. Character of work. Cost. .John Wing Saw mill Farm ' Removing lumber $10 00 Allan Doe Cutting weeds, briers, etc.. 4 50 1176 :c:.;,:;. The above is a true statement of the actual cost of the work performed as above described. Dated , 19.. L. M., Town Superintendent of Highways, Town of To the Board of Supervisors, County of .• The foregoing assessment has been returned by L. M., town superintendent of highways for the town of , to the town clerk of such town and by him presented to us, as provided In section 55 of the Highway Law, and we hereby certify such assessment to you as required by such section. {Signed by majority of members of town board.) FORM No. 102. Application foe Permit to use Highways (Highway Law, § 60, ante, p. 832.) Form prescribed by State Highway Commission. To the Town Superintendent of the Town of , County of ; The undersigned (o) , hereby makes application to you for permission (6) within the portion of the highway in said town hereinafter described pursuant to the provisions of Section 60 of the Highway Law. The portion of such highway wherein such work is to be performed is de- Bcribed as follows (c) Dated this day of , 19 . . Applicant. P. 0. Address Note. — Blank places in the following application for permit must be filled in as follows: At the blank space Indicated by (a) state whether the applicant is a citizen a firm or a corporation and give the residence. If a corporation, state the location of the principal place where ofBce is located. At the blank space indicated by (6) describe the nature of the work for which permit is asked. Under Section 60 permits may be issued for drainage, or sewer and water pipes. At the space indicated by (c) describe the location of the highway where the work is to be performed and state whether or not it is a road which has been improved by state aid as a county road. This application to be attached to the copy of Permit to be filed in the Town Clerk's office. FORMS. 1177 FORM No. 103. PEBMIT FOB USE OF HIGHWAYS (Highway Law, § 60, ante, p. 832.) The undersigned, the Town Superintendent of Highways, of the town of County of upon the written application of dated on the day of , 19 . . , and filed with him, as provided by Section 60 of the Highway Law, hereby grants permission to said applicant to on the highway described as follows : : This permit is granted subject to the following conditions: 1. The work authorized by this permit shall be performed in a manner satis- factory to the town superintendent. 2. The applicant is to keep in good repair all pipes, hydrants or appurte- nances which may be placed within the bounds of the highway under terms of this permit and is to save the town harmless from all damages which may accrue by reason of their location in the highway, and upon notice by the town superintendent agrees to make any repairs required for the protection and preservation of the highway; and further agrees that upon the failure of the applicant to make such repairs they may be made by the town superintendent at the expense of the applicant and such expense shall be a prior lien upon the land benefited by the use of the highway for such pipes, hydrants or appurte- nances. 3. If the drainage, sewer or water pipes or appurtenances which are laid Tinder this permit are placed in a town road they shall be so placed as not to interrupt or interfere with public travel upon the highway; and the earth re- moved must be replaced, and the highway left in all respects in as good con- dition as before the work was performed. 4. If the work performed is on a road which has been improved by State aid, such drainage, sewer or water pipes must be placed at least four (4) feet below and in such a manner as in no way to interfere with the macadam, shoulders or drainage ditches of the highway and that portion of the trench which passes under the macadam shall be bored or pipe-driven and in no case shall the macadam be disturbed. Upon the completion of the work the highway shall be left in as good condition as before the work was performed and to the satisfaction of the county superintendent. 5. It is agreed by the applicant that any injury or disturbance of the maca- dam portion of the highway, its shoulders or drainage ditches which may occur hereafter by reason of the laying of said drainage, sewer or water pipes and their appurtenances shall be repaired by and at the expense of the applicant to the satisfaction of the county superintendent. 6. The said town superintendent may, upon the failure' of the applicant to comply with any of the conditions contained herein, revoke this permit ard remove any pipes, or hydrants, or other appurtenances which may have her-^ placed in the highway under this permit. 1178 FORMS. 7. If the road upon which this permit is issued is at the time of issuance a town highway, and should It be thereafter improved by State aid as a State or county highway, it is agreed that the applicant shall, before its improvement at the applicant's own expense remove drainage, sewer or water pipes or appur- tenances which may be placed under this permit and will relay the same in con- formity with the directions of the engineer in charge of such improvement and in accordance with the rules and regulations prescribed by the State Commis- sion of Highways. Dated this day of 19.. Town Superintendent. I hereby agree to conform to the conditions contained in the foregoing permit. ........a.. Applicant. The undersigned, members of the Town Board of the Town of r hereby consent to the grant of the foregoing permit. Dated this day of 19.. Supervisor. Town Cleric Justices of the Peace. Dated this day of , 19.. Approved. ' ' .y County Superintendent. FORM No. 104. Obdeb Authobizing Planting of Tbees. (Highway Law, ? 61, ante, p. 833.) '■] STATE OF NEW YORK, County of This is to certify that the undersigned, town superintendent of highways of the town of , county of has hereby authorized J. S., an owner of lands adjoining the highway (give general description of highway), at his own expense, to locate and plant trees along such highway adjoining premises owned by him, in conformity with the typography of such FORMS. 1179. highway, and in accordance with a map or diagram hereto attached and made a part thereof. Dated this day of 19 . . R. S. Town Superintendent of Highways, Town of The undersigned, a majority of the members of the town board of the town of hereby approve of the foregoing order. (.Signatures of majority of town hoard.) FORM No. 105. Cebtificate or Athhoritt to Constbuct and Maintaiw Watebinb Tbothih. (Highway Law, § 65, ante, p. 836.) COUNTY OF Town or . . This is to certify that J. D., residing in the town of -. , ie hereby authorized to construct and maintain on his own land in such town a watering trough, in accordance with section 65 of the Highway Law, at a place in such highway described as follows (describe place) and that it so constructed and maintained he is entitled to the sum of three (3) dollars, which amount is payable each year by the supervisor of such town on the order of the town superintendent of highways. In witness whereof I have this day of , 19. . , set my hand. (Signed) A. B., Town Superintendent of highways. Approved by the undersigned members of the town board of the town of this day of 19.. (Signed by members of town board.) FORM No. 106. Statement of Cbedit on Pbtvate Road. (Highway Law, § 66, ante, p. 837.) The undersigned, town superintendent of highways of the town of , hereby states that J. D. is a resident and taxpayer of said town; that he lives on a private road (give location of road) ; that the work necessary to be- 1180 FORMS. done on such private road during the year 19.. consists of (describe work which the superintendent deems necessary); that the value thereof is | and that the said J. D. is entitled to an order upon the supervisor of such town for such amount because of such work. Dated this day of , 19. .. R. S., Town Superintendent of Highways, Town of FORM No. 107. Appucation for Erection of Guide-Boaeds. (Highway Law, § 68, ante, p. 838.) To J. D., Town Superintendent of highways, town of .• The undersigned taxpayers of the town of (or twenty-five taxpayers of the county of ) hereby make application to you, as authorized by § 68 of the Highway Law, requesting the erection of guide boards at the following intersections of highways in such town, to wit: (de- scribe intersections where guide boards are requested). It is suggested that such guide boards be in the following form (state inscriptions to be placed thereon ) . Dated, this day of , 19. . {Signed by taxpayers.) FORM No. 108. Complaint that Toll-bridge is Unsafe. (Highway Law, § 72, ante, p. 840.) COUNTY OP \ S5 Town of L. M., being duly sworn, complains on oath to the town superintendent of highways of the town of in the county of that he believes the toll-bridge belonging to situated on the (give name of stream), at (describe place), has become and is unsafe for public use and travel; and that the reasons for his belief are as follows (set forth reasons). L. M. Subscribed and sworn to before me, this day of 19. . G. H., Justice of the Peace (or Notary Public). FORMS. 1181 FORM No. 109. Estimate of Expenditures for Highways and Bridges. (Highway Law, § 90, ante, p. 853.) Pursuant to the provisions of section 90 of the Highway Law, I, the under- signed, town superintendent of the town of in the county of hereby make the following estimate of the amount of money which should be raised by tax for the year beginning on the first day of November, 19.., for the purposes herein set forth. The amount set opposite each item jn the column which bears the heading, " Estimate of Town Super- intendent," is the amount which I determine should be raised by tax for the purposes specified. FIRST ITEM. „ Estimate of Amount Highway Fund. Town Super- approved by intendent. Town Board. For the repair and improvement of town highways, in- cluding sluices, culverts, and bridges having a span of less than five feet $ $ SECOND ITEM. Bridge Fund. For the repair and construction of the bridge on the. . road, crossing the stream known as and located on or near the property of $ f . For the repair and construction of the bridge on the road, crossing the stream known as and located on or near the property of $ $. For the repair and construction of the bridge on the road, crossing the stream known as and located on or near the property of $ ?. For the repair and construction of the bridge on the road, crossing the stream known as and located on or near the property of $ $ . For the repair and construction of the bridge on the road, crossing the stream known as and located on or near the property of % $ . For the general repair of all bridges having a span of five feet or more and not included above $ $ . Total for bridges $ $ . 1182 FORMS. THIRD ITEM. ., _ Estimate ot Amount MaCHINEBT Fund. Town Super- approved by Fiw the purchase and repair of machinery, tools and '"teBdent. To« n Board. implements $ I FOURTH ITEM. Miscellaneous Fund. TVir removal of obstructions caused by snow,, cutting weeds and brush, wire fencing, allowance for shade trees, allowance for watering troughs and other miscellaneous purposes $ $ Town Superintendent. Dated 19.. Approval of Town Board. We, the undersigned, constituting a majority of the members of the town board of the town of in the county of do hereby approve the foregoing estimate and declare the amounts set opposite each item in the column headed, " The amount approved by the Town Board," is the amount which shall be raised by tax for the specific purpose mentioned therein. The supervisor is hereby authorized to increase the amount of item one of this estimate to an amount which shall comply with the requirements of section 90, subdivision 1 of the Highway Law. (Signed by members of town board.) Note. — This form is prescribed by the State Commission of Highways, and blanks may be had on application. FORM No. 110. Application for Special Town Meeting to Vote an Additional Sum fob Hioh- wats and Bridges. (Highway Law, § 92, ante. p. 856.) To Simon Smith, Town Clerk of the Town of county of The undersigned, town superintendent of highways and members of the town board of the town of hereby make application requesting that you call a special town meeting of the qualified voters of such town in the manner provided by law, for the purpose of voting upon the following proposi- tion: Resolved, That there be raised by tax in the town of In the year 19 . . , the sum of: $ for the repairs and improvement of high- FORMS. 1183 ways (or state other purpose for which the additional sum is required) in addition to the sum estimated for such purpose in the statement presented to the board of supervisors of the county of , by the town board of such town, as provided by section 91 of the Highway Law, and that such additional sum be levied and collected in such town in the same manner as amounts are levied and collected for other highway and bridge purposes. Dated this day of , 19. . {Bignatures of town superintendent of highways and members of town board.) FORM No. 111. Application for Submission of Proposition as to Highways. (Highway Law, § 95, ante, p. 862.) To Simon Smith, Town Clerk, Town of .■ The undersigned, town superintendent of highways and members of the town board of the town of , hereby make application, pursuant to section 48 of the Town Law, for the submission of a proposition to be voted upon by ballot by the qualified voters of such town, as provided in section 95 of the Highway Law, at the biennial town meeting (or at a special town meeting duly called therefor) , to be held in the town of on- the day of , 19 . . , for the following purpose and in the following form; (Here state the proposition desired to be voted upon.) And such applicants hereby request that a vote be taken upon such propo- sition at such tow^n meeting. Dated this day of 19 . . (Signatures of town superintendent of highways and members of town board.) FORM No. 112. Town Cebtificates of Indebtedness in Anticipation of Highway Tax. (Highway Law, § 96, ante, p. 862.) Know all men by these presents, that the town of County of is indebted unto and hereby agrees and promises to pay or order dollars, on the 1184 FORMS. day of , nineteen hundred and with interest at six per cent per annum for Supervisor. Town Clerk. This certificate of indebtedness is given pursuant to a resolution adopted by the town board on the day of and now on file in the office of the town clerk. Town Clerk. Note. — This form is prescribed by the State Highway Commission. FORM No. 113. Application to Boabd of Supervisobs for Authority to Issue Bonds for Con- struction OR Repair of Highways and Bridges. (Highway Law, § 97, ante, p. 863.) To the Board of Supervisors of the countij of .• A proposition having been duly submitted at a special (or biennial) town meeting, held in the town of on the day of , 19. ., pursuant to the provisions of sections 48, 53, 57 and 60 of the Town Law, and § 97 of the Highway Law, providing for the construction (rebuilding, repair or discontinuance) of a highway in such town, as hereinafter described (or for construction, rebuilding or repair of certain bridges in such town), and for the borrowing of the sum of dollars and the issue of town bonds therefor for the purposes aforesaid, and such proposition having been adopted by a majority of the electors of such town voting at such town meeting, as will appear from the proceedings of such town meeting as to such proposition duly certified by the town clerk, annexed to this petition and made a part hereto ; Therefore, pursuant to the authority conferred upon us by section 97 of the Highway Law, we, the undersigned, members of the town board of the town of , state of New York, do respectfully petition your honorable board for authority to construct (rebuild, repair or discontinue) a highway in such town, described as foilows: (Insert a detailed description of the highway to be constructed, repaired or discontinued; if more than one highway is to be constructed, rebuilt, repaired or discontinued, describe each of them; if authority is desired to construct, rebuild or repair one or more bridges, give the location of each.) FORMS. 1185 We do further respectfully petition that your honorable board authorize the said town of to borrow the sum of dollars, aua to issue its bonds therefor, under such terms, conditions and restrictions as your said board may legally impose, which sum Is to be expended for the construction (rebuilding, repair or discontinuance) of such highway (or con- struction, rebuilding or repair of such bridges). The fair cost and expense of the construction (rebuilding, repair or dis- continuance) of the highway proposed to be constructed (rebuilt, etc.), is estimated as follows: (Insert in Items the estimated cost of the proposed improvement, or if bridges are to be constructed, rebuilt or repaired, the estimated cost of each bridge and all matters pertaining thereto.) Dated this day of 19 . . (Signed iy each member of the town hoard.) FORM No. 114. Ceetified Proceedings of Town Meeting in Respect to Stjch Proposition. (Highway Law, § 97, ante, p. 863.) V ss.: STATE OF NEW YORK, County of Town of I, town clerk of the town of county of state of New York, do hereby certify that at a special town meeting (or biennial town meeting) , held in the town of at , in the village of In said town, on the day of 19.., the following proposition was duly submitted thereat to the electors of such town: (Insert proposition submitted verbatim.) That there were 410 votes cast for and against such proposition. Upon a canvass of the votes so cast the following result appeared and was duly declared and entered: Votes for such proposition 340 Votes against such proposition 70 In witness whereof, I have hereunto set my hand and affixed the seal of said town of at such town, this day of , 19 . . (Signed by town clerk with seal of town affixed, if any.) 1186 FORMS. FORM No. 115. Resolution of Boabd of Supervisors Authorizing Issue of Bonds fob Con- struction OF Bridges and Highways. (Highway Law, § 97, ante, p. 863.) AN ACT authorizing the town of , in the county of , state of New York, to borrow money and issue its bonds therefor, for the purpose of paying the cost of the construction (rebuilding or repair) of a highway (or bridge) in such town (describe highway or bridge). Passed on the day of 19. ., two-thirds of all the supervisors elected to the board of supervisors of such county voting in favor thereof. The board of supervisors of the county of , in pursuance of authority conferred by section 97 of the Highway Law, and the acts amendatory thereof, and in pursuance of the provisions of sections 12 and 14 of the County Law and of sections 6, 7, 8, 9 and 10 of the General Municipal I^w, do enact as follows: Whereas, the town board and commissioners of highways of the town of have made application to this board for authority to borrow money in the sum of dollars upon the credit of said town and to issue town bonds therefor, to construct (repair, rebuild or discontinue) a high- way (or for the construction, repair or rebuilding of a bridge), which highway (or bridge) is located as follows: (Give location of bridge or highway), and Whereas, it appears that the said highways (or bridges) were destroyed (or damaged) by the elements to such an extent as to become unsafe for public use, and that the estimated cost and expense of such construction (repair or re- building) exceeds the sum of $500, and that such town should be authorized to borrow the sum of dollars upon the credit of such town and issue its bonds therefor; now, therefore, be it Resolved, That the town of , in the county of , state of New York, be and is hereby authorized and empowered to issue its bonds upon the credit of such town to an amount not to exceed the sum of dollars, and to sell or cause the same to be sold at not less than their par value to the highest bidder at a rate not exceeding 5 per cent, per annum for the purpose of paying the cost and expenses of the construction (repair or rebuilding) of such highway (or bridge); and Resolved, That such bonds shoU be signed by the supervisor and the town clerk of the said town of and that the supervisor of such town shall negotiate such bonds according to law and as above provided, and that he shall apply the proceeds of the sale thereof to the payment of the cost and expense of such construction (repair or rebuilding). That the said supervisor before issuing or negotiating any of said bonds shall make and execute to the town clerk of such town in behalf of and for the benefit of such town, a good and sufficient bond or obligation in the penal sum of dollars, con- ditioned for the faithful performance of his duties in issuing such bonds, and the lawful application of the funds which may be realized by the sale thereof, and of the funds that may be raised by tax or otherwise for the payment of the bonds issued in pursuance of this act, and the interest thereon, which may come into his hands. Such bond oj obligation so made by the said supervisor. FORMS 1197 shall be approved by the town hoard of such town and filed in the ofBce of the town clerk; and be it further Resolved, That such bonds shall be made payable at the Bank, in the city of and that the interest on such bonds shall be payable at such bank, semi-annually on July lat and January 1st of each year. That one thousand dollars of the principal sum of such bonds shall be made payable on the 1st day of January in the year 19.., and one thousand dollars thereof shall be made payable on.the 1st day of January of each and every year thereafter up to and including the 1st day of January in the year 19..; be it further Resolved, That before any of the bonds authorized by this act shall be issued, the supervisor of the town of , shall advertise for sealed proposals for the amounts or part thereof, of said bonds so authorized to be issued, but in amounts not less than five hundred dollars each, such advertise- ment to be published for two consecutive weeks prior to such issue, in two news- papers published in the state of New York, at least one of which shall be published in the county of ,; and be it further Resolved, That the form of such bonds shall be as follows: $1,000. No Bond of the town of , county of and state of New York, for constructing (repairing or rebuilding) roads and bridges in said town. Know all men by these presents, that the town of , county of , and state of New York, is held and firmly bound unto in the sum of one thousand dollars to be paid to the said his or their certain representatives, successors or assigns, on the 1st day of , 19. ., for which payment well and truly to be made the said town of binds itself firmly by these presents. Dated the day of , 19. . The condition of this obligation is such that if the above bounden town of shall well and truly pay or cause to be paid to the above named , his or their certain representatives, successors or as- signs, the sum of one thousand dollars, and annual interest upon all sums un- paid thereon to be paid on the 1st day of as the same shall occur, at the rate of -four per cent, from the date of the last payment thereof, then this obligation shall be void, otherwise to remain in full force and virtue. All payments of principaland interest to be made at the Bank in the city of state of New York. This bond is issued in pursuance of section 97 of the Highway Law, section 14 of the County Law, of the provisions of the General Municipal Law, and a reso- lution of the board of supervisors of , county, passed In witness whereof, the said town has caused these presents to be signed and sealed by the supervisor and town clerk of said town. Supervisor of town of Town Clerk of town of (Town seal.) There shall be attached to each of said bonds the proper number of interest coupons made payable in accordance with this act, and each of such interest 1188 FORMS. coupons shall be signed by the said supervisor and the said town clerk; be it further Resolved, That the board of supervisors of the said county of , shall assess and levy upon the taxable property of the said town of a sufficient sum to pay the principal and interest of said bonds from year lo year as the same shall mature, and the supervisor of said town of shall report the amount of said principal and interest to the said board of super- visors as required by law. Cebtificate of Chairman and Clerk or Board. STATE OF NEW YORK, ) County of ^ ss.: We, the undersigned, chairman and clerk of the board of supervisors of the county of for the year 19. ., do hereby certify that the foregoing ia a true copy of an act passed by the said board, by a two-thirds vote of all the members elected thereto, on the day of 19 . . (Signed by chairman and clerk of board.) FORM No. 116. Statement as to Assessed Valuations of Towns and Moneys Raised fob Highways. (Highway Law, § 100, ante, p. 866.) To the Comptroller of the State of New York, and to the State Commission of Highways : The following is a statement, submitted as required by section 100 of the Highway Law, of the amount of tax levied by the board of supervisors of the county of upon the several towns therein, at their annual session fn the month of 19.., for the repair and improvement of high- ways, including sluices, culverts and bridges having a span of less than five feet, pursuant to sections 90, 91, 92, 93, 94 and 95 of the Highway Law: Assessed Highway Tax. valuation of Real Assessed valuation of Assessed valuation of Name Property in Real Personal OP whole Kroperty ex- Property ex- Ordi- Arldi- Extraor- Town. town, in- clusive of all clusive of bU nary tional dinary H, L. cluding incorporated incorporated H. L. H, L, incorporated villages. villages. S90. S 92. $03. a villases. o Eh I certify that the preceding statement is correct. Chairman, Board of Supervisors. Clerk of Board of Supervisors. FORMS. 1189 STATE OF NEW YORK, ) County of \ **'' , being duly sworn deposes and says that he is the chairman of the Board of Supervisors of county, that he has read the fore- going statement and that the same is true, to his own knowledge. Subscribed and sworn to before me this day of , 19. . FORM No. 117. Undertaking of Supervisor for Highway Moneys. (Highway Law, § 104, ante, p. 869.) Know all men by these presents, that we , as supervisor ■of the town of in the county of , and state of New York, as principal and by occupation a of N. Y., and by occupation a of N. Y., and by occupation a of N. Y., as sureties are held and firmly bound unto the town of , county of and state of New York, in the penalty of dollars to be paid to the said town of , for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators and assigns jointly and severally, firmly by these presents. Sealed with our seals and dated this day of 19 . . The conditions of this obligation are such that whereas there was raised by tax in the year 19 . . upon the taxable property of the said town of the sum of dollars, for the purpose specified in section 90 of the Highway Law of the state of New York, and whereas the amount of money which the above bounden as such supervisor will receive as state aid in accordance with the provisions of sections 101 and 103 of the said Highway Law will aggregate the sum of dollars, making the total amount to be received by the above bounden as such super- Tisor for all purposes specified in section 104 of said Highway Law the sum of dollars. Now, Therefore, if the bounden as supervisor, as aforesaid, shall safely keep, faithfully disburse and fully and justly account for and pay over all highway moneys levied and collected as provided in article V of the Highway Law aforesaid, all moneys collected as penalties under said law, or received from any other source and available for highway, bridge and 1190 FORMS. miscellaneous purposes and all money received from the State, as provided in section 101 of said Highway Law, then this ohligatlon to be void, otherwise to remain in full force and effect. L. s. L. S. L. S. L. S> Acknowledgement. C ss. : STATE OF NEW YORK. County of Town of On this day of , 19.., before me the subscriber personally appeared , to me personally known and known to me to be the persons described in and who executed the within instrument, and they severally duly acknowledged to me that they executed the same. Justice of the Peace or Notary Public. Justification. (. ss. : STATE OF NEW YORK, County of Town of being severally and duly sworn each for himself deposes and says: That he is one of the sureties named in the fore- going bond or undertaking, that he is a freeholder or householder within the- state of New York, and is worth over and above all debts and liabilities which he owes or has incurred and exclusive of property exempt from levy and sale by virtue of execution. The said that he is worth the sum of ; the said , that he is worth the sum of ; the said that he is. worth (Signed by all sureties.) Subscribed and sworn to before me this day of , 19. . Justice of the Peace or Notary Public. Approval of Town Board. We, the undersigned members of the Town Board of the town of ^ do hereby approve the foregoing bond or undertaking as to its form, manner of execution and suflSciency of sureties therein. ■Dated , 19.. (10) Town Clerk Justice of the Peace. FORMS. Certificate or Town Clebk. 1191 STATE OP NEW YORK, County op Town of , I. Town Clerk of the town of do hereby certify that the foregoing is a true copy of a bond or undertaking filed in my office on the day of , 19. ., and the whole thereof, together with the approval of the Town Board of said town and all endorsements thereon. Town Cleric. Note.— This form is official. Blanks are obtained on application to the State Highway Commission. FORM No. 118. Agreement foe the Expenditure of Highway Moneys. (Highway Law, § 105, ante, p. 869.) This agreement entered into this day of , 19 . . , by and between Town Superintendent of the town of and the undersigned members of the Town Board of the Town of County of constituting a Board for the purpose of determining the places where, and the manner in which, the moneys levied and collected in said town and received from the State as State Aid shall be expended for the repair and improvements of highways, Witnesseth: That the said moneys shall be expended for the following pur- poses, and in the following manner: 1. It is agreed that we hereby set aside for the general primary work upon the highways in said town an average sum of dollars per mile, for miles, which Is the total mileage of highways within the town as determined under sections 69 and 102 of the Highway Law; said amount to be expended by the town superintendent in cleaning the ditches and culverts and opening the outlets thereof, removing stones from the beaten track of the highway, filling depressions and honing or rut scraping the highways as occasion and conditions may require. 2. It Is agreed that we set aside for the repair and construction of sluices, culverts and bridges, having a span of less than five feet, and for the removal of waterbreaks or so-called thank-you-ma'ams, the sum of dollars. 3. It is also agreed that we set aside the following sums for the t>6rmanent improvement of highways, exclusive of sluices, culverts and bridges having a span of less than five feet, but including tile draining at such points as may be directed by the county superintendent upon the following named roads: 1192 FORMS. On the road commencing at and leading to , a distance of miles there shall be expended the sum of dollars for the following kind of improve- ment (describe improvement). (Describe in same manner other places in town where improvements are to be made.) It is understood that the plans and specifications prepared or approved or directions given by the county superintendent shall be in accordance with the provisions of the highway law and the rules and regulations of the Commission, and that in case of any question or questions which may arise pertaining to such plans or specifications or directions furnished or given by the county super- intendent, that such questions may be submitted to the Commission for ad- justment. It is understood and agreed that permanent Improvement of highways shall mean the widening of the public highways to twenty-four feet when practicable, the establishment of new ditches, fall or early spring plowing, shaping and crowning roads by the use of the road machine, the reduction of grades, cutting and filling, blasting rock, eliminating sharp curves, tile draining, and such other class of improvement as may be performed in accordance with the plans and specifications furnished or approved by the county superintendent or directions as he may see fit to give; and It is also understood and agreed, that in the shaping and -crowning of the highways by the use of road machines for grading and scraping, all work of that character performed shall be completed prior to the first day of June excepting that a special permit is granted for certain pieces of work by the Commission upon the recommendation of the county superintendent. In order that the district or county superintendent may, under the rules and regulations prescribed by the Commission, exercise the supervision required by Section 33 of the Highway Law, it is understood and agreed that no moneys set aside for permanent improvements as hereinbefore specified shall be ex- pended nor shall any work be undertaken until the town superintendent has received a written permit from the district or county superintendent approving thereof and a copy of the same filed with the supervisor. 4. It is also agreed that there be reserved in the hands of the supervisor the sum of $ (This amount must not be less than ten per cent of the amount of money raised by tax, together with the amount of money paid as State Aid) as a contingent fund, to be paid out upon the order of the town superintendent In accordance with written directions of the county superin- tendent, a copy of which must be filed with the supervisor. This fund is for contingencies arising subsequent to October 31st, and to meet deficiencies which may occur in numbers 1, 2 and 3. Signed on this day of , 19 . . . Supervisor. .Totcn Clerk. > Justices of the Peace. Town Superintendent . FORMS. Ji93 The foregoing agreement is hereby approved. State Commission of Highways. By County Superintendent Deputy Commissioner. Note. — In making up this agreement the following amounts must be included, and the items of receipts and expenditures must balance. RECEIPTS. Balance, highway fund, from previous year $ Town highway tax levied | State aid to be received $ Total $ EXPENDITURES (as agreed upon). 1 — Average per mile, $ for miles $ . 2 — For repair and construction of culverts, sluices, and bridges having a span of less than five feet and removal of waterbreaks $. 3 — Total special appropriations $ . 4 — Reserve fund $ . Total $ . Note. — This form is official. Blanks are obtained on application to the State Highway Commission. FORM No. 119. Report of Supervisor as to Highway Moneys. (Highway Law, § 107, ante, p. 871.) To the Town Board of the Town of .• I, supervisor of the town of hereby sub- mit the following report of highway moneys, as required by § 107 of the High- way Law, for the year ending October 31, 19 . . HIGHWAY FUND. Receipts. Balance on hand from previous year $. Highway tax, collected pursuant to sections 90 and 91 Received from State as State aid pursuant to sec- tion 101 Received from certificates of indebtedness under section 92 1194 FORMS. Received from certificates of indebtedness under section 93 Received from certificates of indebtedness under section 95 Received from certificates of indebtedness under section 96 Received from the sale of bonds under sections 97 . and 98 Received from penalties recovered Received by transfer from fund . Received from other sources not mentioned above. Describe source Total receipts $ . EXPENDITUBES. For labor and team work for the repair and im- provement of highways $ . For rental of machinery, pursuant to section 50.. For materials for highways and bridges having a span of less than 5 feet . Total expenditures for the repair and im- provement of highways $. Balance on hand from previous year $ . Tax received from collector pursuant to sections 90 and 91 Received from certificates of indebtedness pur- suant to section 92 Received from certificates of indebtedness pur- suant to section 93 Received from certificates of indebtedness pur- suant to section 95 Received from certificates of indebtedness pur- suant to section 96 Received from sale of bonds under sections 97 and 98 Received by transfer from fund Received from other sources not mentioned above. Describe source Total receipts for repair and construction of bridges $ . Balance unexpended October 31, 19 $. BRIDGE FUND. Receipts. FORMS. iiys EXPENDITUKES. liabor and team work for repair and maintenance of bridges %. Materials for repair and maintenance of bridges. . . Construction of new bridges Transferred to fund . Total expenditures for repair and mainte- nance of bridges $ . Balance unexpended, October 31, 19 MACHINERY FUND. Receipts. Balance on hand from previous year $. Tax received from collector pursuant to sections 90 and 91 Received from certificates of indebtedness under section 92 Received from certificates of indebtedness under section 95 . Received from certificates of indebtedness under section 96 Received by transfer from fund . Received from other sources not mentioned above. Describe source Total receipts $ . BXPENDIT0KES. For purchase of machinery, tools and implements. $. For repair of machinery, tools and implements For storage of machinery, tools and implements . . Transferred to fund . Total expenditures $ Balance unexpended, October 31, 19 SNOW AND MISCELLANEOUS FUND. Receipts. Balance on hand from previous year $ . Tax collected pursuant to sections 90 and 91 Received from certificates of indebtedness under section 92 1196 FORMS. Received from certificates of indebtedness under section 93 Received from certificates of indebtedness under section 95 Received from certificates of indebtedness under section 96 , Received from sale of bonds under sections 97 and 98 Received from assessments for cutting and remov- ing weeds and brush Received by transfer from fund Received from other sources not mentioned above. Describe source Total receipts $. EXPENMTUBES. For removing obstructions caused by snow f. For cutting and removing noxious weeds and brush . For wire for fencing For allowances for shade trees For allowances for watering troughs For other miscellaneous purposes. Describe the purpose Transferred to fund $ . Total expenditures % Balance unexpended, October 31, 19 %. Compensation to Town Superintendent and Deputy Town Supbbintendent. days at $ per day equals $ Ansount allowed for expenses $ Deputy Town Superintendent. days at % per day equals $. Amount allowed for expenses | . Supervisor and Town Clerk's Allowance. How much is allowed the supervisor pursuant to section 110 of the Highway Law.? $ . How much is allowed the town clerk pursuant to section 110 of the Highway Law? $. Latino Out. Altering or Discontinuing Highways. How much was expended during the past year for the purpose of laying out, altering and discontinuing highways? $. How was this money obtained? FORMS. 1197 STATE OF NEW YORK, County of V , supervisor of the town of being duly sworn deposes and says that he is the person mentioned as sub- mitting the foregoing report; that the amounts stated therein to have been received by him as supervisor of such town are all that he has received as such officer for the purposes therein stated; that the expenditures specified therein have in fact been made for the purposes and to the persons indicated; that all of such expenditures were made in good faith, for value received and in the manner required by the Highway Law; that the balances therein specified are all the moneys remaining in his hands of the moneys received by him as pro- vided by law on account of the highways and bridges of such town. Subscribed and sworn to before me, this day of , 19. . Justice of the Peace. Note. — This form is official. Blanks are obtained upon application to the State Highway Commission. FORM No. 120. Obdeb Latino Out Highway on Release fbom Ownebs. (Highway Law, § 191, ante, p. 908.) Application having been made to me, town Superintendent of highways of the town of , by L. M., a person liable to be assessed for highway taxes In said town, and a release 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 same Is hereby laid out in said town as follows: Beginning (here insert the survey bill), and the line of survey shall be the center of the highway, which shall be rods in width. Dated this day of , 19. . A. B., Vown Superintendent of Highways. 1198 FORMS. FORM No. 121. Dedication of Land and Release of Damages. (Highway Law, § 191, ante, p. 908.) Know all men by these presents, that I, R. S., of the town of in the county of N. Y., for value received, hereby dedicate to the town of , aforesaid, a strip of land across my premises in said town, for the purpose of a highway, described as follows: (Here de- scribe 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 ,19.. R. S. FORM No. 122. Obdeb Laying Out ob Altebino a Highway With the Consent of Toww Boabd. (Highway Law, § 191, ante. p. 908.) Written application having been made to me, town Superintendent of high- ways for the town of by L. M., a person liable to be assessed for highway taxes 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 of the land through which the proposed highway is to be opened, copies of which are hereto annexed, the 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 bill.) And the line of survey shall be the center of the highway, which shall be rods in width. Dated this day of . , 19 . . A. B., Town Superintendent of Highways, Town of FORMS. 1199 FORM No. 123. Release of Damages by Owners or the Land. (Highway Law, § 191, ante, p. 908.) 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), hereby consent that a highway be laid out and opened (or altered) across my premises in the town of county of , N. Y., pursuant to the application of L. M., dated the day of , 19 . . , and release said town from all damages by reason of laying out and opening (or altering) such highway through my premises. In witness whereof, I have set my hand hereunto, on this day of 19.. R. S. STATE OF NEW YORK, ) L go . County of f On this day of , 19.., before me, the subscriber, personally appeared R. S., to me known to be the person described in, and who executed the foregoing agreement. G. H., Justice of the Peace. FORM No. 124. CJoNSENT OF Town Board to Lay Out or Alter a Hiokwat. (Highway Law, § 191, ante, p. 908.) The undersigned, the town board of the town of , In the county of hereby consent that the town superintendent 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 191 of the Highway Law. In witness whereof, we have hereunto set our hands on day of 19.. {.Signed ty each memter of town 'board.') l;i!00 FORMS. FORM No. 125. Application to Lay Out a Highway. (Highway Law, § 193, ante, p. 912.) To the Town Superintendent of Highways of the town of in the county of The undersigned, an inhabitant of said town of , liable to be assessed for highway taxes therein, hereby applies to you to lay out a high- way in said town, commencing (describe the proposed highway), which pro- posed highway will pass through the lands of R. S. and T. W. (who consent to the laying out of the highway, or as the case may be). Dated this day of , 19. . L. M. FORM No. 126. Application to Alteb a Highwat. (Highway Law, § 193, ante, p. 912.) To the Town Superintendent of Highways of the town of in the county of ; The undersigned, an inhabitant of said town of , liable to be assessed for highway taxes therein, hereby applies to you to alter the highway leading from to in said town as follows : (Insert particular description of the proposed alteration by courses and distances.) The proposed alteration passes through the lands of R. S. and T. W. (who consent to the proposed alteration, or as the case may be). Dated this day of 19.. I>. M. FORM No. 127. Application to Discontinue a Highway. (Highway Law, § 193, ante, p. 912.) To the Town Superintendent of Highways of the town of in the county of ." The undersigned, an inhabitant of said town of , liable to be assessed for highway taxes therein, hereby applies to you to discontinue the old highway beginning (insert description), on the ground that said highway has been abandoned. ■Dated this day of 19. . L. M. FORMS. 1201 FORM No. 128. Appooation for Appointment of Commissioners. (Highway Law, § 193, ante, p. 912.) 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 petitioner is a person liable to be assessed for highway taxes in the town of said county; that on the day of , 19.., he presented an application in writing to the com- missioners of highways of said town as follows: (Insert copy of application to the commissioners.) That said application was in good faith made; that the commissioners of highways have not laid out (altered or discontinued) said highway pursuant to section 191 of the Highway Law; that the lands have not been dedicated for the purpose of such highway by the owners thereof, nor have such lands been released by such owners for such purpose. Wherefore, your petitioner prays that three commissioners be appointed pursuant to section 194 of the Highway Law, to determine upon the necessity of the proposed highway (or altering or discontinuing the said highway), aiiii to assess the damages by reason of laying out and opening (or altering' or discontinuing) such highway. Dated this day of , 19. . ■li. M. STATE OP NEW YORK, ) County of f L. M., being duly sworn, says he has read the foregoing petition by him subscribed, and that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true. L. M. Subscribed and sworn to before me, this day of , 19.. G. H., Justice of the Peace. [Application to be accompanied by the written undertaking of the petitioner securing payment of compensation of commissioners and costs, if unsuccessful.! 1203 FORMS. FORM No. 129. Obdeb Appointing Commissioners. (Highway Law, § 194, ante, p. 915.) At a term of the County Court of the county of held at , In the .In and for said county. Present — Hon. E. E., County Judge. (Title as in Form No. 128.) On reading and filing the petition of L. M., of the town of , in said county, dated the day of 19 . . , praying for three conimiSBioners to be appointed, pursuant to section 194 of the Highway Law, to certify as to the necessity of laying out and opening (altering or discon- tinuing) a highway lieginning (insert the description) and to assess the damages by reason of laying out (altering or discontinuing) such highway. /( is hereby ordered that S. S., G. G. and J. J., of the town of said county, be, and they are hereby appointed as such commissioners. FORM No. 130. Notice to Commissioners of Theie Appointment. (Highway Law, § 194, ante, p. 915.) To S. 8., G. G. 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 an- nexed, and you are hereby required to fix a time and place at which you will all meet to hear the town superintendent of highways of the town of and all other persons interested in the highway mentioned in the said ■order. Dated this day of , 19. . L. M. FORM No. 131. Notice of Meeting of Commissionebs. (Highway Law, S 195, ante. p. 917.) Notice is hereby given that the undersigned has made application to the town superintendent of highways of the town of , in the county of for the laying out (altering or discontinuing) of a highway in «aid town, commencing (here insert description as in application), which FORMS. . 1203 proposed (or altered) highway will pass through the lands of (describe who), and by an order of the County Court dated the day of , 19.., S. S., G. G. and J, J. were appointed commissioners to examine as to the necessity of said proposed highway (alteration or discontinuance), and to assess the damages by reason of the laying out and opening (alteration or ■discontinuance) of such highway; and that said commissioners will all meet at in said town, on the day of 19 . . , at ...., o'clock in the noon, to examine the proposed highway (or the highway) and hear the town superintendent of highways of the town of , 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 , 19. . L. M. FORM No. 132. Affidavit of Posting and SsaivicE of Notice. (Highway Law, § 195, ante, p. 917.) STATE or NEW YORK, > COUNTT OF I" L. M., being duly sworn, says that he caused notices in writing, of which the within is a copy, to be posted up at , at and three public places in the town of , said county, on the day of , 19 . . , and that he served a like notice on (name all the owners and occupants of the lands through which the high- way is proposed to be laid out, altered or discontinued) on the day of , 19. ., by (state how served), and that said notices were posted at the respective places, and served on the respective persons herein named, at least eight days before the time specified therein for the meeting of said commissioners. L. M. Subscribed and sworn to before me, this day of 19 . . G. H., Justice of the Peace. FORM No. 133. Certificate of Commissionees in Favor of Applicant. (Highway Law, § 196, ante, p. 917.) (Title as in Form No. 128, ante.) The undersigned, by an order of the County Court of county, ■dated the day of 19... on the application of L. M., 1204 FORMS. having been appointed commissioners to determine as to the necessity of laying out and opening (altering or discontinuing) a highway in the town of , in said county, beginning (describe highway as in the appli- cation) which proposed highway (or highways) crosses the lands of (name the persons) and to assess and damages to be caused thereby; Now therefore, we, the said commissioners, having given due notice of the time and place at which we would meet, and all having met at in said town on the day of , 19 . . , pursuant to such notice, and having taken the constitutional oath of office, and on proof of the service and posting of the notices by the applicant, pursuant to section 195 of the Highway Law, having viewed the proposed highway (or highway proposed to be discontinued or altered) and the lands through which it is proposed to be laid out and opened (altered or discontinued) and having heard the town superintendent of highways of the town of and the parties Interested therein, and the evidence of all the witnesses produced; Now, therefore, we do hereby determine, and certify, that in our opinion it is necessary and proper that the highway be laid out and opened (altered or discontinued) pursuant to the said application of L. M., dated the day of , 19 . . ; and we have assessed the damages required to be assessed by reason of laying out and opening (altering or discontinuing) such highway, as follows: The damages of N. N. at f ; the damages of W. W. at $ Dated this day of , 19. . S. S., G. G., J. J„ Commissioners. FORM No. 134. Certificate Denying Application. (Highway Law, § 198, ante, p. 919.) (Title as in Form No. 128, ante.) The undersigned, by an order of the County Court of county, dated the day of , 19.., on the application of L. M., having been appointed commissioners to certify as to the necessity of laying out and opening (altering or discontinuing) a highway in the town of in said county, beginning (describe highway as in the appli- cation) which proposed highway (or highways) crosses the lands of (name the persons) and to assess the damages to be caused thereby; Now, therefore, we, the said commissioners, having given due notice of the time and place at which we would meet, and all having met at in said town, on the day of 19 . . , pursuant to such notice, and having taken the constitutional oath of office, and on proof of FORMS. 120& the service and posting of the notices by the applicant, pursuant to section 195 of the Highway Law, having viewed the proposed highway (or alteration or highway proposed to be discontinued) and the lands through which it is proposed to be laid out and opened (altered or discontinued), and having heard all the allegations of the town superintendent of highways and the parties interested therein, and the evidence of all the witnesses produced; Now, tnerefore, we do hereby determine and certify that in our opinion such highway, or alteration or discontinuance, is unnecessary and improper and should not be laid out (or should not be made, or such highway should not be discontinued). Dated this day of , 19. . S. S., G. G., J. J., Commissioners. FORM No. 135. Notice or Motion to Confirm, Vacate ok Modify Decision. (Highway Law, § 199, ante, p. 919.) (Title as in Form No. 128.) To N. M. 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 , 19.., for an order confirming (vacating or modifying, stating in what particulars) the decision of the commissioners in the above entitled matter, which decision is dated the day of , 19 . . , 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 affidavits and papers, with copies of which you are herewith served. Dated this day of , 19. . L. M. FORM No. 136. Order Confibminq Decision of Commissionbbs. (Highway Law, § 199, ante, p. 919.) At a term of the County Court, held at the , , in the of on the day of 19. . Present — Hon. E. E., County Judge. (Title as in Form No. 128.) 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 , 1206 FORMS. 19.., by which it appears (state substance of decision), with proof of due service upon N. N. and W. W. of notice of this application 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 favor of and against E. B.. County Judge. FORM No. 137. COMMISSIONEBS' CkBTITICATE TO THE COUNTT COTJRT TO LaT OuT A HIGHWAY Through an Orchard. (Highway Law, § 200, ante, p. 921.) (Title as in Form No. 128.) The undersigned, town superintendent of highways of the town of in said county, hereby certifies that on the day of 19. ., L. M., who is liable to be assessed for highway taxes in said town, made a written application to me as such superintendent 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 200 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- 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 , 19. . A. B., Town Superintendent of Highways. FORM No. 138. Obdeb of County Court to Lay Out Highway. (Highway Law, § 200, ante, p. 921.) At a term of the County Court, held at , in the of on the day of ]9. . Present — Hon. E. E., County Judge. (Title as in Form No. 128.) FORMS. 1207 Upon reading and filing the certificate of A. B., town superintendent of high- ways of the town of in the county of dated tlie day of , 19 . . , 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 hereiy ordered that said highway be laid out and opened pursuant to section 200 of the Highway Law, with ten dollars costs of this motion. B. E., County Judge. FORM No. 139. Ordeb of the Appellate Division. (Highway Law, § 200, ante, p. 921.) 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 19.. Present— Hon. H. R., P. J.; Hon. B. D., Hon. C. E., Hon. F. G., and Hon. A. J., Justices of the Supreme Court. (Title as in Form No. 128.) A. B., as town superintendent 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 , 19.., 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 200 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 hearing 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. FORM No. 140. Application fob a Pbivate Road. (Highway Law, § 211, ante, p. 931.) To the Town Superintendent of Highways of the town of in the county of .• The undersigned, an inhabitant of said town and liable to be assessed for highway taxes therein, hereby makes application to you to lay out a private 1208 FORMS. 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 , 19. . L. M. FORM No. 141. Desceiption of Highway Abandoned. (Highway Law, § 234, ante, p. 938.) I, the undersigned, town superintendent 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 as a public highway; and pursuant to section 234 of the Highway Law, the same is discontinued. Dated this day of , 19. . A. B., Town Superintendent of Highways. FORM No. 142. Statement to the Supeevisok of Expenses Ixcubeed in Repaib of Bbidgeb. (Highway Law, § 251, ante, p. 947.) I, A. B., supervisor of the town of in the county of , pursuant to section 251 of the Highway Law, hereby render to the board of supervisors of said county 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 19 . . A. B., Supervisor, town of STATE OF NEW YORK, COUNTT OF 1 A. B., supervisor of said town, being duly sworn, says the foregoing statement, which is subscribed by him, is true. A. B. Subscribed and sworn to before me, this day of , 19.. G. H., Justice of the Peace. FORMS. 1209 FORM No. 143. Notice to Town Board of Adjoining Towns to Repaie Bbidqe. (Highway Law, § 255, ante, p. 949.) To the Town Board of the town of in the 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 direct the town superintendent of highways of your town to join with the town superintendent of highways of the town of , in the county o* in rebuilding (or repairing) said bridge, and to give your consent in writing to the same within twenty days after the service of this notice, pursuant to section 255 of the Highway Law. Dated this day of , 19. . [Signed iy members of town board.'] FORM No. 144. Consent to Rebuild or Repair Bridge. (Highway Law, § 255, ante, p. 949.) To the Town Board of the town of in the county of ; Pursuant to your notice served on us, dated the day of , 19. ., and to section 255 of the Highway Law, we, the undersigned members of the town board of the town of in the county of hereby consent to join with you in rebuilding (or repairng) the (designate the bridge) it being the same bridge mentioned in your said notice, and have di- rected, J. D., the town superintendent of this town, to join with the town super- intendent of your town in rebuilding (or repairing) the said bridge. Dated this day of , 19.. [Signatures of members of town board.] FORM No. 145. Petition of Freeholders to Commissioners of Adjoining Towns. (Highway Law, § 256, ante, p. 950.) To the Town Board of the town of , in the county of , and the Town Board of the town of , in the county of .- We, the undersigned, L. M., N. 0. and R. S., do respectfully, pursuant to section 256 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 (name 1210 FORMS. the stream), a stream forming the boundary line between said towns of 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 town boards, to cause the said bridge to be rebuilt (or repaired) at said point Dated this day of , 19. . L. M. N. O. R. S. FORM No. 146. Notice of Motion for Ordeb Compelung Construction or Repair op Bridge. (Highway Law, S 256, ante, p. 950.) SUPREME COURT — County of In the Matter of the Application of L. M., N. O. and R. S. for an order requiring the commissioners of highways of the towns of and to rebuild the bridge known as To the Town Board of the town of ,in the county of , and the Town Board of the town 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 19 . . , at the opening of the court on that day or as soon thereafter as the parties may be heard, for an order re- quiring you, the said commissioners, to rebuild (or repair) the bridge men- tioned in the affidavit hereto attached, and requiring money to be appropriated or raised therefor, and for such other and further relief as to the court may seem just and proper. The application will be made on aflSdavit and papers, copies of which are herewith served on you. Dated this day of , 19. . L. M. N. O. R. S. FORMS. 1211 FORM No. 147. Affidavit on Motion foe an Obdeb to Build a Bbidoe. (Highway Law, § 256, ante, p. 950.) (Title as in preceding Form.) STATE OF NEW YORK, ) ?■ ss ' County of J L. M., N. 0. and R. S., being severally and duly sworn, say that they are freeholders 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 (de- scribe where) a free public bridge has been maintained at the joint expense of said towns, and said towns are jointly liable for the building, rebuilding, re- pair and maintenance 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 ifiore 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 , 19 . . , the above-named affiants united in a petition to the town board of said town of and the town board of the said town of , pursuant to section 256 of the Highway Law, which petition was duly served on the supervisor of each of said towns, and which requested them to rebuild (or repair) said bridge at said point; that thereafter and on the day of , 19. ., said town boards 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 any other (acts, deemed necessary). L. M. N. O. R. S. Subscribed and sworn to before me, this day of 19.. . G. H., Notary Puilic. FORM No. 148. Obdeb or Court to Rebuild Bbidoe. (Highway Law, § 257, ante, p. 951.) At a Special Term of the Supreme Court, held at the court house, in th& of , on the day of 19- Present — Hon Justice. (Title of case as In Form No. 146.) 1212 FORMS. On reading and filing the affidavit of L. M., N. 0. and R. S., dated the day of 19. ., setting forth that (here set forth the substantial facts of the affidavit), with proof of due service of a copy of said affidavit and notice of motion upon the supervisor of each of the towns of 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 town hoards in opposi- tion thereto. It is hereby ordered, pursuant to section 257 of the Highway Law, that said town boards cause to be built (or repaired) 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 charge- able to each of said towns, to be assessed, levied and collected thereon, as other town charges are assessed, levied and collected. FORM No. 149. AppucATiON TO Board of Supervisors for Laying out, etc.. Highway. (County Law, § 61, ante, p. 980.) To the Board of Supervisors o/ the county of .• We, the undersigned, being twenty-five resident taxpayers of the county of hereby make application, in pursuance of section 61 of the County Law, for the laying out (opening, alteration or discontinuance) of a county highway of the width of ( or the construction, repair or discontinuance of a bridge), describe as follows: (Insert a definite description of the proposed highway, or the location of the proposed bridge.) Dated this day of , 19. . A. B., C. D., etc. FORM No. 150. Notice or such Application. (County Law, § 61, ante, p. 980.) To the Town Superintendents o/ the several towns in the county of .• Notice is hereby given that on the day of 19 . . , the foregoing application will be presented to the board of supervisors of the county of Dated this day of 19. . A. B., C. D., etc. FORMS. 1213- FORM No. 151. Proof of Service of Application and Notice. (County Law, § 61, ante, p. 980.) STATE OP NEW YORK, County of C. C, being duly sworn, says that he is a resident of N. Y., and that he served the application and notice annexed hereto, personally, on each of the following town superintendents of highways at the times and places set opposite their names, respectively: B. C. at , N. Y., May 9, 19. ., at o'clock in the noon. C. D. at N. Y., May 10, 19. ., at o'clock in the noon. By delivering to and leaving with each of them true copies thereof; and he further says that he knew the persons so served to he the town superintend- ents of highways of the towns of , respectively. (Signed) C. C. Subscribed and sworn to before me, this day of 19 . . G. H., Notary PuWc. FORM No. 152. Resolution of Board Laying Out, etc.. Highway. (County Law, § 61, ante, p. 980.) Resolution for the laying out of a highway (or construction of a bridge) in the town of , between (describe generally location of highway or bridge), pursuant to section 61 of the County Law. At a meeting of the board of supervisors of the county of , held at on the day of , 19. . 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 thereas, 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 the town superintendent 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 l>e laid out in accordance with such application, the center of which is to commence at , and run thence (insert survey) . 1214: FORMS. [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? ] K. S., Chairman. _. D.. Clerk. Adopted. Ayes Noes FORM No. 153. BOITD or SUPEKVISOR ON ACCOUNT OF SCHOOL MONETS. (Education Law, § 363, ante, p. 1008.) Know all men by these presents, that we, A. B., supervisor of the town of in the county of and state of New York, as principal, and C. D. and D. E., as sureties, of the same town, are held and firmly bound unto E. F., as treasurer of the county of in the penalty of dollars (a sum at least double the amount of school moneys set apart or apportioned to the town), to be paid to the said E. F., as treasurer of said county, his successor in office, attorney or assigns, for which payment well and truly to be made we bind ourselves, our heirs, execu- tors, administrators and assigns jointly and severally, firmly by these presents. Sealed with our seals and dated the day of 19 . . The condition of this obligation is such that if the above bounden A. B., as supervisor, as aforesaid, shall safely keep, faithfully disburse and fully and justly account for and pay over all the school moneys set apart or apportioned to said town of and all other moneys that may come into his hands as such supervisor from any other source, then this obligation to be void, otherwise to remain in full force and effect. A. B. [ls s.] C. D. [l. s.] D. E. [L. 8.] (Acknowledgment and justification as in Form No. , ante.) Approvai, of County Trevsuber. County of , ss.: I hereby approve of the above (or within) bond as to its form and manner to render to comptroller statements of penalties 106 receipt and payment of state tax 106 special report as to investment of trust moneys 107, 108 to exhibit books and accounts to boards of supervisors 108 extension of time for making reports lOS 1300 IKDEX, County Treasurer— Continued. Page.. 'banks of deposit, designation by 108 interest on deposits 109 undertaking of depositary 109 designation docs not affect liability of 109 drafts upon, how drawn 110 books and funds to be delivered to successor 110 penalty for neglect to make report of stateonent Ill recovery of moneys after expiration of term Ill misappropriation of moneys and securities 114 duties in respect to cemetery trusts 112 failure to pay on order of court 113 duties under Liquor Tax Law 114 fees for collection of liquor tax 11& transfer tax, collection of 116 receipt upon payment 116 fees for collection 116 report of amount received to comptroller 116 accounts with, county comptroller to keep 123 official seal 225 not to be supervisor 300 collection of tax on banks 523, 524 payment of tax to, by railroad, telegraph, telephone and electric light companies 590 of school tax by railroad corporation. S91 by railroad^ where town was bonded 592 duties as to 592 to issue warrant for collection of tax on debts due nonresidents 596 soipplementary proceedings for collection of tax 598 dismissal of suits or proceedings 599 return of unpaid taxes to 601 collector's failure to pay over taxes, duties 604 extension of time for collection of tax. 605 satisfaction of collector's bond 607 payments to creditors of county 609 state tax, comptroller to charge 609 payment, how made 609 fees 609 accounts to be stated by comptroller 610' losses by default, chargeable to county 611 sales by, for unpaid taxes 613-620- in counties embracing no part of forest preserve 614 list of property and notice to be published 615 how conducted 61 .") sales by, redemption 610 redemption of real property stricken from tax rolls 617 conveyance to purchaser 617 effect 618 purchase money, when refunded 618 list of lands sold, transmitted to comptroller 618 expense of publishing. Hen on premises 619 duties as to taxation of mortgages, see Mortpar/rs, Taxation of 621-633 as to school moneys, see /School Taxes ; Krhonl Moneys. INDEX. 1301 Court Criers— Page. compensation county charge 39 Court Expenses— a county charge 44 Court Houses^ erection, alteration and acquisition of lands for 58 Courts- calendars, cost of printing, county charge 43 deputy county clerks to attend terms 131 furniture and supplies, county charge 43 moneys paid into, record to be kept by county clerk 134 sheriffs to attend upon terms 167 duties as to rooms of appellate division 167 Craig Colony for Epileptics- admission of patients 701 proceedings on commitment 702a support; clothing a county ciharge 702b apportionment of patients among counties 703 Criminal Proceedings- expenses, when county charge 37 accounts of district attorney 37 advance payment, supervisors may provide for 65a fees of justices and constables, when town or county charge 384b accounts of justices 384 salary of justice in lieu of fees 384 Cruelty, Prevention of. Corporations for^ appropriation of money by boards of supervisors to aid." 64, 65 Cmsbed Stone^ purchase, in certain towns 824 D Deaf and Dumb- appointment as state pupils to certain schools 705 list to be furnished to commissioner of education 709 indigent, admission to institutions 709 when expense chargeable against county 710 admission to Western New York Institution 710 to Northern New York Institution 710 clothing ciharge upon county 710 Deaths- registration; fees a town charge 448 duties of certain officers as to 462a Decoration Day- town board may vote money for 398 additional appropriations for 399a 1302 INDEX. Delivery of Books and Papers— Page. by outgoing officers 356 proceedings to compel 357 Department of HighT^ays— See Highways, Department of. Deputy County Clerks — appointment, qualification, term 129 duties 130 special, to attend upon courts 131 Deputy Sheriffs- appointment of 157 number 157 powers 158 undertaking 157 sheriff to notify to attend courts 159 Diseases — See Health. contagious and infectious, duties of board of health 450 report of cases, fee 451 vaccine virus to be supplied 452 carriers, quarantine ; expense of maintenance 452 District Attorney — See County Officers. election 137 governor to fill vacancy 137 undertaking 138 amount, supervisors to fix 55 report of moneys received 139 conduct prosecutions of criminal actions 138 assistant, board of supervisors may authorize appointment 140 powers of 140 appointment in Erie, Jlonroe, Onondaga, Rensselaer, Niagara and Westchester counties 1 40 salaries of 141 employment of counsel 143 special appointment by court 143 to recover moneys in hands of county officers 143 expense of transferred trial of indictment 144 of prosecution of criminal actions, advance payment 65a District Superintendent of Higliirays — See Hifjhaai/s, District or County Superintendent of. District Snperntendents of Schools^ not eligible to office of snpervisor 300 office created 1017 supervisory districts 1017 school directors, electors of 1019 to elect district superintendent 1019 vaeancic>s. how filled 1021 INDEX. 1303 District Superintendents of Schools — Continued. Page. salaries 1021 expenses, how paid 1021 supplies and furniture, supervisors may purchase 65b Division Engineers— appointedi by state commission of highways 797 powers and duties 797 Division Fences— ^ adjoining owners to maintain 637 owners 'may permit lands to lie open 638 on change of title of lands 639 disagreement, determination by fence viewers 639 disputes between owners 639 proceedings of fence viewers 639 witnesses, subpoena and examination 640 fence viewers, fees and compensation 640 damages for failure to erect or repair 640 appraisal by fence viewers 640 destroyed by accident 641 damages by animals, where not properly maintained 641 where person fails to rebuild or repair 642 use of barbedi wire 643 fence viewers to prescribe kind ; . . . 643 Dogs— ' licensing; former laws repealed 651 definitions ; owner ; kennel; dog 652 fees ; paid to town clerk 652 of officers and magistrates 658 disposition by town derk 662 lists of dogs ; assessors to prepare 653 licenses ; kennel 653 issuance by town clerk 654 registry 654 tags, how furnished and attached 654 killing unlicensed dog 655 dog attacking animals 656 on order of court or justice 658 report to town clerk 662 running at large; order 657 when to be killed 657 damages for injuries caused by 659 payment and assignment of claim 660 disposition of amount recovered 662 actions to recover 663 surplus moneys ; apportionment 663 pounds and dog catchers 664 1304 INDEX. Dogs — Continued. Page. registration, town clerk to comfpel 662 penalties for failure ; collection 66- special provisions for Monroe county 663 seizure, when not tagged 663 disposition of fees and penalties 665 unregistered may be killed 665 mad, persons bitten by, to be sent to Pasteur Institute 725 Drains— rigbt of town superintendent to dig, for free passage of water 829 E Election Notices — designation of newspapers to publish 69 Election Officers- designation, number, qualifications 293 compensation in certain counties 354 unless different rate is established 354a Elections — See Totcn Meetings. expenses incurred by county clerk, a county charge 43 canvass by board of supervisors 84-93 Electric Light Corporation — may pay tax to county treasurer 590 enforcement of tax, sale of instruments 594 Epileptics—' support at Craig Colony 701 a state expense 702 payment of expense of clothing by county 702d Equalization of Assessments — See Board of Supervisors ; Taxation. board of supervisors to examine assessment-rolls for 558 exclusion of parcels purchased by county at tax sale 559 shares of stock of banks 5S9 commissioners appointed by board of supervisors 550 eligibility 559 appointment of county judge in case of disagreement 559 examination of assessment-rolls 560 equalization of valuations 560 report of equalized valuations to board of supervisors 560 statement to be forwarded to comptroller by clerk of board 570 appeals from, by supervisor to state board 578 how and when brought 578a petitions for, prescribed by state board 578b rules respecting 578b time and place of hearing 578b determination of statp board 578d costs on^ to be fixed by state board 578* INDEX. 1305 Escape^ Page. of civil prisoner, what constitutes 196 liability of sheriff 197 actions for 197 Estimates of Expenditures — by town officers in certain towns 358e (See Toion Boards.) Executors and Administrators — assessment of personal property held by 495, 496 assessment of, generally 532 Exemptions from Taxation- property exempt 472 rule of construction 472 effect as to assessments for local improvements 473 powers of assessors , 474 property of state and United States 473, 474 of municipal corporations 475 lands for cemeteries 475 in Indian reservation 476 exempt from execution 476, 477 acquired by soldier's pension 477 application for exemption 478 ibands, state and municipal 478 of charitable, etc., corporations 479 what corporations entitled to 479 of volunteer firemen 482 of dwelling houses and property of religious corporations 482 of agricultural society 483 of ministers and priests 483 of vessels engaged in ocean commerce 483 securities of nonresidents 483, 484 deposits in savings'banks 485 life insurance corporation, accumulations 485 co-operative, moneys collected 485 mutual, personal property 480 medical societies 486 pharmaceutical societies 486 household furniture and personal effects 486 of corporate stock 486 of plank road and turnpike corporations 486 of soldiers monument association 487 lands planted with trees 488 maintained as wood lots 488b report of exempt property by assessors 506 of mortgages from local taxation '. . . 622 from mortgage tax 622 1306 ™nEX. F Fair Grounds— Page. exhibitions on, not to require license 409 Farm Bureaus — appropriation by board of supervisors for fl"> Farm Produce- peddling, no license required 403 Farm Schools- establishment by board of supervisors 1025a erection and management 1025b courses of instruction 1025c state aid; admissions 102Sd Federal Aid- improvement of highways 899a Feeble-minded Children- admission and support at Syracuse institution 700 commitments to Rome Custodial Asylum 701 Craig Colony for Epileptics 701 Fees— in criminal proceedings, when town or county charge 384 of officers in Ulster county 386 Fees of County and Toxm Officers- assessors 1091 auditors, town 1092 collectors 1092 constables 1092-1094 coroners 1095 county clerks 1095 book containing receipts 128 county treasurer 1098 court criers 1099 election officers 1099 fence viewers 1100 health officer 1100 jurors 1 100 jurors, commissioners of 1101 justices of the peace 1101-1104 overseers of the poor 1104 physicians 1 104 pound masters 1 104 printers 1105 railroad commissioner 1 105 sheriffs 1105-1107 supervisors 1 107 superintendents of highways 1108 town clerks 1108 United States loan commissioners 1109 Fences — See Division Fences. rules as to, town meeting may make 251 INDEX. 130T Tence Viewers — Page. assessors to act as 356 duties as to division fences, see Division Fences 037-643 as to strayed animals doing damage 644-650 as to sheep killed or injured by dogs 655 Ferries- County Court to license 958 undertaking of licensee 959 appendages for rope 959 superintendent of public works may lease right of passage 959 rates to be posted 959 Fines- remission of 183 prisoners to be discharged if unable to pay 183 received by county oflScerSj reports to board of supervisors 224 collected by justice, payment 349 Fire Companies^ real property exempt from taxation 482 town board to appoint members 411 organization 412 appropriations by vote of district 412 in incorporated villages 414 purchase of fire apparatus 412 assessments of expenses for maintaining 413 contracts with, for fire protection 414a ordinances of water commissioners 414a contracts with companies outside of district 413 Fire Districts- establishment of, by board of supervisors 74 flre commissioners, election of ' 75 powers and duties 76 expenditure of money without appropriation 76 fire department ; organization 76 appropriation of money for fire protection 77 meetings for, how conducted .• 77 discontinuance by board of supervisors 78 levy of tax upon inhabitants 78 effect of incorporation of village within limits of fire ditsrict 79, 80 annexation of territory, duties of board of supervisors 79 town, establishment 414b flre commissioners, appointment 414b powers and duties 414b flre towns, enumerated 1090g forest rangers, employment 1090g rebate of expenses 1090i Fire Wardem — supervisor as superintendent of fires 326 compensation a town charge 325 1308 INDEX. Forest Fires— PAGE. supervisor to act as superintendent of fires 325 duties 324 appointment of forest rangers , 324 compensation, town charge 325 compensation of forest rangers and others employed at 325 town board may borrow money to suppress 397 regulations for prevention 1090j damages on account of, liability 1090m Forest liands — acquisition and development by town or county 438 reforestation by town or county 1090f railroads, restrictions 10901 Forest Preserve^ assessment of state lands in 681 state lands, tax to be paid by state 601 Forms — resolution of board of supervisors, general form 1111 requesting action by state legislature 1111 subpoena by board of supervisors 1112 accounts against a county 1113 contracts with penitentiaries 1113 clerk of board, oath of office 1115 statement of county and town accounts. 1115 of county clerk 1117 district attorney, report of 1118 calendar of prisoners confined in county jail 1119 alteration of town boundaries, application 1119 resolution dividing a town and erecting a new town 1120 resolution providing for alteration of boundaries 1121 town meetings, application for special 1123 notice of special 1123 application for submission of proposition to be voted upon at 1123 notice of submission of proposition 1124 application for holding, in election districts 1124 justice of the peace, certificate of election 1125 undertaking of supervisor, general 1125 of justice of the peace 1127 of superintendent of highways 1127 of overseer of the poor 1128 of tovfn collector 1 129 of constable 1 129 resignation of town officers 1 130 appointment to fill vacancy in town office 1130 notice of appointment to town office 1131 oath of town officer on delivery of books 1131 accounts of justices against town in criminal matters 1132 of town officers 1133 certificate of examination of 1134 INDEX. 130& Forms — Continued. Page. affidavit to be annexed when presented for audit 1135 abstract of names of persons who liave presented 1135 appointment of board of auditors by town board 1136 application for exemption of pension from taxation 1136 report of bank to local assessors 1137 statement of levy of tax by board of supervisors upon bank stock 1138 warrant to county treasurer for collecting bank tax 1138 statement of individual banker to assessors 1139 notice to bank of assessment 1140 statement of corporations to assessors 1140 of county clerk as to corporations 1141 of agent of nonresident creditor 1142 notice of completion of assessment-roll 1142 affidavit on application to correct assessment 1143 notice of filing completed assessment- roll 1143 apportionment of valuations between school districts 1144 certificate of neglect of one of assessors 1145 correction of assessment-roll, petition of town assessors 1145 collector's warrant 1147 statement of taxes upon certain corporations 1148 abstract of tax rolls 1149 collector's notice of receipt of roll 1 149 notice of tax sale by collector 1 150 collector's affidavit attached to return of unpaid taxes 1150 extension of time for collection of tax, application of supervisor 1151 order of treasurer granting 1151 division fences, decision of fence viewers upon transfer of title 1151 notice to choose fence viewers 1152 certificate of apportionment of 1152 subpcEna by fence viewers 1153 appraisement of damages for neglect to build or repair 1154 notice to build or repair 1154 notice to build, when destroyed by accident 1155 strayed animals, notice to be filed in office of town clerk 1155 notice to owners 1156 notice of sale by fence viewers 1156 notice of fence viewers' meeting 1157 determination of fence viewers as to damages 1157 fi'heep killed or injured by dogs, application to fence viewers 1158 certificate as to damages 1158 poor persons, order of overseers for removal to alms-house 1158 superintendent's order to pay expenses incurred by overseers 1159 order of supervisor 1159 sanction of county superintendent for expenditure of more than ten dollars 1160 order for supplies, verification of accounts 1160 overseers' book showing statistics 1161 books of accounts of overseers 1162 accounts of overseers to be resdered to town boards 1 1 63- report of overseer of the poor 116.3^ report of supervisor as to support of 1164 1310 INDEX. Forms — Continued. Page. notice from one town to another requiring support of 1165 notice to appear before superintendent in contest as to settlement. . . 1165 subpoena in case of dispute concerning settlement 1 166 decision of superintendent concerning settlement 1166 notice of superintendent as to relief at expense of town 1167 decision of superintendent upon re-examination as to settlement 1168 notice of decision as to settlement 1 168 notice of appeal to County Court from decision as to settlement 1169 notice of improper removal 1 169 notice of dneial of removal 1170 bastards, accounts of overseers for moneys received 1170 agreement upon compromise of putative father 1171 soldiers, sailors and marines, notice of commander of post of G. A. R. as to relief 1172 requests for relief of 1172 highways, inventory of machinery, etc 1173 notice to remove obstructions 1174 to cut weeds, brush and briers 1 174 assessment of cost of removal 1175 assessment of cost 1175 permit to use, application 1176 form and contents 1177 trees, order authorizing planting 117S watering trough, certificate of authority 1170 private road, statement of credit 1 179 guide-boards, application for erection 1180 unsafe toll-bridge, complaint , 1180 estimate of expenditures 1181 additional tax, application for special town meeting 1182 application for submission of proposition 1183 town certificates of indebtedness 1183 authority to issue bonds, application 1184 certified proceeding's of town board 1185 resolution of board of supervisors 1186 statement as to assessed valuation 1188 supervisor, undertaking 1 189 report as to moneys 1193 agreement for expenditures 1191 laying out or altering highways, order upon consent of town board 1198 release of damages by owners of the land 1199 order, on release from owners 1198 dedication of land and release of damages 1198 consent of town board 1 199 applications by taxpayers 1200 application for appointment of commissioners 1201 order appointing commissioners 1202 notice to commissioners of their appointment 1202 notice of meeting of commissioners 1202 aflSdavit of posting and service of notice 1203 certiticate of commissioners in favor of applicant 1203 certificate denying application 1204 INDEX. 1311 Forms — Continued. Page. notice of motion to confirm, vacate or modify decision 1205 order confirming decision 1205 certificate of commissioners as to laying out highway through orchard 1206 order of County Court 1206 order of appellate division 1207 description of highway abandoned 1208 private road, application for 1207 statement of expenses incurred in repair of bridges 1208 notice to town board of adjoining towns to repair bridge 1209 consent to rebuild or repair bridge 1209 petition of freeliolders to commissioners of adjoining towns 1209 notice of motion for order compelling construction or repair of bridge. . . . 1210 affidavit on motion for an order to build a bridge 1211 order of court to rebuild bridge 1211 application to board of supervisors for laying out highway 1212 notice ; 1212 proof of service of application and notice 1213 resolution of board of supervisors laying out highway 1213 bond of supervisors on account of school moneys 1214 report of school moneys on hand 1215 annual report of town indebtedness 1215 G Crarbage — collection and destruction 437 ordinances relating to, penalty for violating 437 assessment for expense of disposition 437 Gardens- laying out highways through 921 Gospel and School Iiots — supervisor to report funds to commissioner of education 1011 duties of 1026, 1027 apportionment of fund among school distjicts 1027 Grand Army of Republic — appropriations in certain counties for rooms for use 399 lease of public buildings to 436 relief of poor veterans 767 Grand Jnry — list prepared by board of supervisors , 1029, 1030 number of jurors, increase , 1031 inserting new names in box 1031 Grape Basket — standard, prescribed 1090b 1312 INDEX. Grievance Day— See Assessors; Taxation, etc. Page. meeting of assessors to hear complaint 537 complaints to file statement 537" sufficiency of statement 538 examination of claima,nt 539 failure to appear and testify 540 Guide Boards — erection of, by town superintendent 838 application for 838 by turnpike companies 838 what to indicate 838 H Habeas Corpus — suapension of during term of court 182 Hacks- town board may license 405 rules and regulations respecting 406 Ha\rkiiig and Peddling- town board may prohibit, without a license 401 licenses issued by town clerk 402 indorsed by supervisor 402 by soldiers, sailors and marines 402 farm produce, no license required 403 penalty for, without license 404 for refusal to exihibit license 404 Health- local boardj town board as 442 health officer, appointment 443 term of office 443 removal for cause 443 compensfttion and allowances 443cl, 444 enforce health ordinances, etc 445 general powers and duties 448 orders and regulations 443d for suppression of nuisances 445 penalties for violation 44(5 subpoenas and warrants 446 sewers, powers and duties as to 447 health nurses, employment 450 contagious and infectious diseases 450 report to health officer 45) of cases of tuberculosis 45I fee for each case reported 45I vaccine virus to be supplied 452 carrier of typhoid bacilli, quarantine 452 maintenance at expense of municipality .' 452 INDEX. 1313 Health— Continued. Page. nuisances, complaints as to 453 powers and doities as to 453 removal; expense paid by owner 454 expense of abatement, a lien 456 Temoval of accumulation of water tending to breed mosquitoes.. 457 payment of expense 457 jurisdiction in combined sanitation and registration districts 459 expenses incurred, town charge 460 relief of indigent Indians in case of epidemic 461 consolidated districts, establishment 443 local board of health, members 443a organization 443a abolisihment of other boards 443a expenses, payment and assessment 443b estimate system may be adopted 443d mandamus by state department 461 diseases affecting animals, duties as to 461 duties as to vital statistics 462a health officer, duty as to insane 692, 693 Sightray Comiuissioner — See Highways, Town Superintendent of. office abolished 812 Highway Ijair— pending actions or proceedings under 975 saving clause 975 time of taking effect 977 laws repealed 978 Highirays— town may borrow money for 396 term defined 788 classification '. 789 constructed or maintained by aid of state, supervision of state commission. 795 rules and regulations, relative to 795 plans and specifications, commission to cause to be prepared 795 duties of district or county superintendent 803 town superintendent, duties of in respect to 818 repair and maintenance 816 employment of terms and implements 818 loose stones to be removed 819 noxious weeds to be cut and removed 819 inspection of when proposed to be constructed as state or county highway . 820 stone crushers, power rollers and traction engines, purchase of 822 road mach ines, purchase of 822 lease of stone crushers and fraction engines 823 gravel, stone, purchase of 824 obstructions, -what constitute 824 owner or occupant to remove 825 removal from ditches, culverts and waterways 827 temporary, when allowed 827 assessment of cost against owner or occupant 828 1314: INDEX. Highvays — Continued. Page. noxious weeds and brush, removal by oh ncr or occupant 827 assessment of cost against owner or occupant 828 wire fences to prevent snow blockades 829 entry upon lands by town superintendent 829 damages caused thereby 830 change of grade, damages for 830, 831 interest on award 832 drainage, sewer and water pipes in 832 crossings under or over 832 trees and sidewalks 833 expenditures for sidewalks 835 shade trees, allowances for 835 custody of 836 watering troughs, construction or miaintenauce 836 private road, credit for worlc on 837 .penalties, neglect of town superintendent to prosecute 837 guideboardis, erection of 838 measurement by town superintendent 839 prisoner, employment of on 839 approaches to private lands, construction and repair 839 injuries to, actions for 840 defective, liability of town for 842 action against superintendent 843 audit of damages for injuries 844 liability of county, when highway maintained by county 6 closing for repair and construction 844 snow, labor system adopted for removal 845 assessment of labor 845 lists of persons assessed 846 district foreman; unworked tax 847 appeals by nonresidents 847, 848 tenant may deduct assessment 848 expenditures for, estimate of town superintendent 853 approval or modification of 855 presented to board of supervisors 856 levy of taxes 856 additional tax, when authorized 856 extraordinary repairs, raising money for 857-861 limitation of amount to be raised 861 submission of proposition at town meeting to authorize tax 862 borrowing money in anticipation of tax 862, 863 for bridge and highway purposes generally 863 in certain towns in Adirondack park 865 town bonds, issue and sale 865 village property, assessment 866 state aid, statement of clerk of board of supervisors to secure 866 amount determined 867 based upon mileage and assessed valuation 867 determination as to mileage and asstssed valuation 868 payment and distribution of money 868 supervisor to give undertaking 868 moneys, custody of 869 undertaking of supervisor 869 INDEX. 1315 Highways— Continued. PAGE. expenditures for repair and improvemen 869 agreement between town board and town superintendent 870 order of town superintendent and audit of town board 870 audit, how made 871 repair of, on island 870 reports of supervisors as to higliway moneys 871, 872 accounts, forms and Wanks, commission to prescribe 873 duty of town cleric to furnish names of town officers 873 compensation of town clerk and supervisor 873 convicts, employment in construction 885 detours, maintenance ^ 899 federal aid for improvement 899a survey for the laying out of 907 dedication, what constitutes 908 laying out, altering or discontinuing ; 910 legislature may authorize supervisors to lay out 11 on release of damages 911 application 911 for appointment of commissioners 912 appointment of commissioners and their duties 915 notice of meeting 917 decision of commissioners in favor of application 917 damages, how ascertained 919 decision denying application 919 motion to confirm, vacate or modify 919 through orchards, gardens, vineyards, enclosures, etc 921 procedure 921-923 through burying grounds 924 costs, by whom paid 924 damages assessed and costs to be audited 925 differences between officers of adjoining towns 925-927 in two or more towns, notice to be served upon town superintendent of each 928 upon boundary line between towns 929 flna,l determination, how carried out 929 removal of fences 930 papers filed in office of town clerk 941 costs of motion 942 private road, laying out, etc, see Private Road 931-935 by use for a period of twenty years 930 widening, petition for 938 powers and duties of commissioners 937 notice of decision to supervisors 937 construction 938 action to compel 938 abandonment, what constitutes 938 in lands acquired by United States for fortification purposes 940 construction or improvement by county or town 961 county system, construction or improvement 963, 963a discontinuance in certain towns 940, 941 description to be recorded 941 damages caused, determination 941 1316 INDEX. Highways — Continued. Page. intemperate driver not to be engaged 963d when to be disoliarged 963d leaving liorses without being tied 963d owner's liability for acts of drivers 964 carriages, term defined 964 .bicycles, entitled' to free use of 964 depositing ashes, stones, etc., upon 965 steam traction engines on 965 lights on vehicles 966 injuries to, liability for 966 weight of load„when town not liable for injuries 967 law of road 967, 968 trees, to whom they belong 969 fruit or sKade trees, liability for injury 970 penalty for falling trees 970 fallen trees to be removed 970, 971 penalties, how recovered 971 Albany post road, railroad tracks on 973 lighting dangerous portions 973 county maps preserved 976 railroad crossings, see Railroads 991-1000 Highways, County- term defined 789 estimate of cost of maintenance 799 rules and regulations for protection 799 inspection by district or county superintendent 806 of highways to be constructed as 820 pipes in and crossings under or over 832 construction or improvement 877 apportionment by state commission 877, 878 preliminary resolution by board of supervisors 878 examination by commission ; approval or disapproval 878 maps, plans, specifications and estimates 879 submission to district or county superintendent 880 action of commission in respect to 880 final resolution of board of supervisors 881 order of construction 881 contracts for construction or improvement 882 award to board of supervisors or town board 885 suspension of work under 887 commissioner of highways, responsibility for work 887 reletting in case of suspension 887 convicts, use of, in construction 886 acceptance by commission 888 protest of board of supervisors 889 entry upon adjacent lands for drainage purposes 889 damages 890 in villages, construction ggo connecting highways through 892 in certain second and third class cities 892 additional width and increased cost in towns- 894 INDEX. "lolT Highways, County — Continued. Page. resolution of board to provide for raising money _. . 894a modification of method of payment 894a division of cost 894b payments by county treasurer 894b alternative method of apportioning cost 894d issuance of county bonds for payment 894d where highway extends into cities of second or third classes 894g borrowing of money for payment of county or town's share 894f abolition of railroad grade crossings 894h street surface railroad on, restrictions 894i right of way, acquisition of land for 894k proceedings to acquire 894k-8941 right of way, payment of awards 896 costs and commissioners' fees 897 application of provisions of labor law 898 on Indian reservations 898" detours during construction 899 maintenance and repair, commission to provide 900 appropriations; apportionment of moneys 901 cost to town 902 canal bridge approaches 902 disbursement of funds 903 reports of county treasurer 903 compensation of town superintendents 904 liability of state for damages 904 in villages, portion of expense paid by village 905 state to share expense in certain oases 905 sprinkling ; removal of filth and refuse 905 improved by state under special act 901 certain improved roads, by state 901 county system, establishment 962 use of convicts in construction 963 maps of former highways preserved 976 board of supervisors may lay out, alter or discontinue 979 Highways, Departmeiit of — See Hightoays, State Commission of. term defined 788 establishment 792 Highways, District or County Superintendent of — term defined 788 state commission to aid 795 appointment of county superintendent 802 of district superintendent 802 removal of county superintendent 802 general powers and duties 803 general charge of highways and bridges 804 visit and inspect highways 805 establishment of grades 806 public meetings to be called by 806 inspection of county highway 806 preliminary maps, plans, etc., to be submitted to 880 1318 iNDEX. Highways, State — Page. terni (Jelined 7S!( estimate of cost of maintenance 79!> rules and regulations for protection 799 inspection of highways to be constructed as 820 pipes in, anii crossings under and over 832 construction or imiprovement 877 apportionment by commission 877, 878 maps, plans, specifications and estimates 879 submission to district or county superintendent 880 commission to award contract upon return 880 contracts for construstion or improvement 882 award to board of supervisors or town board 884 reletting in case of failure 887 sus'pension of work under contract 887 acceptance, when completed 888 entry upon adjacent lands for drainage purposes 889 damages for 890 in villages, construction 800 connecting highways, cost of additional width 892 in certain cities of second and third classes 892 additional width, etc., in towns 894 payment of cost of 894h abolition of railroad grade crossings 894h street railroads, construction restricted 894i right of way, acquisition 894k purchase of lands by board of supervisors 894k proceedings to acquire 8941, 895 payment of awards 896 costs and commissioners' fees 897 sale of lands and disposition of proceeds 897 application of provisions of labor law 898 detours during construction, maintenance 899 maintenance and repair, commission to provide 900 appropriations ; apportionment of moneys 901 canal bridge approaches, state to provide 902 cost to town 902 disbursement of funds 903 reports of county treasurer 903 compensation of town superintendents 904 liability of state for damages 004 in villages, portion to I>e paid by village OO.'i Highway, State Commission of — term defined 788 consists of a single commissioner 702 appointment of commissioner 792 deputies, secretary and employees 792 commissioner, oath of office 793 undertaking . _ 793 salary 793 principal office ; seal ; stationery 793 salaries and expenses of deputies and employees 793 INDEX. 1^19 Higliiray, State Commission of— Continued. Faois. deputy commissioners, secretary and chief auditor 794 salaries; duties 794 general powers and duties 795 rules and regulations 79.5 annual report to legislature 796 statistics relative to public highways 796 public meetings to be held 796 division of state; appointment of ddvision engineers 797 daities of division engineers 798 appointment of officers, clerks and employees 799 blank forms, accounts, etc., to be furnished 798 condemnation of bridges 800 examination of accounts and records 798 cost of maintenance of state and county higliways, estimate 800a rules and regulations for state and county highways 800a patented materials or articles, use 800a federal aid for improvement of highways; duties 899a transfer of duties of state commission of 974 of records of employees 974 HigK-vrays, Tovm — See Highways. term defined 700 contracts for construction of ; 82 1 approval by town board 821 award by town superintendent 821 damages for change of grade 830, 831 additional expenditure for improvement and repair ■ 874 Highways, Town Superintendent of — See Highways. application for submission of proposition at town meeting 255 See Town Meetings. term defined 788 election 281, 289, 810 appointment, submission of proposition for 290, 811 term of office 290a, 812 vacancies, how filled 290a, 812 deputy, appointment 290b, 813 undertaking. 307 compensation 353, 814 of deputy 814 in towns in certain counties 814 delivery of books and papers to successors 356 proceedings to compel 357 removal by town board 814 on appeal to County Court 815 powers and duties 815 road machinery, tools and implements, purchase 822 contracts approved by county superintendent 823 custody and control 823- inventory 823 leasing machinery '. 824 purchase of gravel and stone 824a. 1320 INDEX. Highways, Town Superintendent of — Continued. Page. obstruetions, removal of 824b from ditches and culverts 827 temporarj', when allowed 827 snov^, removal from culverts and waterways 827 obstructions caused by, removal 827 noxious weeds and brush, removal of 827 assessment of costs of removal of obstructions and noxious weeds and brush 828 wire fences to be purchased 829 entry upon lands 829 damages caused thereby 830 pipes in highways and crossings under or over 832 trees and si-dewalk^ duties as to 833 expenditures for sidewalks 835 shade trees, allowances for 835 custody 835 watering troughs, authority to construct 83G credit of tax on private road b^i neglect or refusal to prosecute for penalty 837 guideboards, erection of 838 measurement of highways and report 839 prisoners, application for services of 839 approaches to private lands, construction or repair 830 unsafe toll bridge, duties as to 840 actions for injuries to highways 840 negligence of, liability of town 842 action by town against 843 closing highways for repair and construction 844 estimate of expenditures for highways and bridges 853 additional tax, determination as to 85(i repair of highways or bridges damaged by elements 857 expenditures for highways and bridges 869 determination as to places 870 payments on orders 87 1 sidewalk districts, supervision of sidewalks 434 Holidays and Half Holidays — enumerated 132 business in public offices on 132 Home Defense Committees — board of supervisors may appropriate money for 63 Hospital Corporations — exemption from taxation 479 Houses of Detention — board of supervisors may establish 183 I Idiots— unteachaible, support at Rome Custodial Asylum 701 duties of superintendents of poor 701 INDKX. 132J Indebtedness — FagB- of county, town and village, statement to comptroller 97 Indian Poor Persons — relief of 770 removal to alms-house 770 contracts for support 777 expenses of support paid by state 777 duties of superintendent of alien poor 778 relief of indigent Indians in case of epidemic 461 Indian Beservation — highways and bridges, supervision 898 superintendent, appointment 898 moneys for, custody and expenditure 898, 899 Indictment^ trial transferred to another county, expense 144 Individual Banker- taxation of 505, 524 Inquest, Coroner's— See Coroner's Inquest 199 Insane- commitment 689 costs a charge on county or town 690 poor and indigent, supported by state 691 relatives to support 692 proceedings to compel 756-760 duties of poor oflScers as to 692 poor officers to see that relief is granted 693 health officers, duties as to care 693 hospitals to which committed 694 dangerous, apprehension 965 duties of poor officers and health officer 695, 696 discharge from hospitals 698 duties of superintendent of hospital 698 state poor, removal to hospital 775 Inspectors of Election — designation, number, qualifications 293 term of office 293 in towns, appointment 294 Insurance'- of town or county property 1079 Intemperate Drivers— not to be employed 963 to be discharged upon notice 963 1.32? INDEX. Islands- town lines intersecting 23S repair of highways on 870 J Jails- erection, alteration and lands for 58 sheriffs to hare custody of 174 use of 175 number of rooms 178 either of several may be used 178 duties of prison commissioners as to 175-177 commitments to 181 prisoners in, custody and control 178 charged with crime, support or county charge 41 civil, to be kept separate 178 male and female to be kept separate 178 woman with child; disposition of child 179 communications with 179 liability of sheriff for injury to 180 to be furnished with wholesome food 180 employment 180 to be furnished with reading matter 181 record of commitments and discharges 181 of United States to be received 182 calendars of names to be presented to court 182 to be discharged if not indicted 182 if, unable to pay fine 183 remission of fines 183 communications with, prohibited 184 sale of liquors to 185 service of papers on 186 removal in case of emergency 186 who may visit 184 physician for, board of supervisors to appoint 185 designation of other place as 186 modification or revocation 187 effect on jail liberties 187 when revoked 188 civil prisoners, see Civil Prisoners 189 chamber rent in, sheriff not to charge for 192 prisoners confined for contempt 198 Jail Iiiberties— how long imprisoned in 189 in certain counties 193 powers of board of supervisors 193 boundaries, how designated 194 effect of designation of another place as jail 187 INDEX 1323 Jail Iiiberties — Continued. PAGE; civil prisoner, when entitled to 194 undertaking 194 execution and justification 195 effect 195 when insufficient 196 surrender by sureties 196 escape, what constitutes 196 liability of sheriff 197 actions for 197 Judgments— of county courts, upon division of county 5-7 against coumty, a county charge 46 against town or county, payment 1076 town board may borrow money to pay 398 board of supervisors may authorize town to borrow money to pay 64 Jnnk Business- licenses ; how regulated 407 Jurors- grand, list prepared by board of supervisors 1029, 1030 trial, list, how made 1032 qualifications 1032, 1033 fees 1041 exemptions 1033, 1034 duplicate lists 1035 proceedings, where lists not received 1035 commissioners of, office established 1036 appointment 1036 term of office, salary, rooms 1037 assistants and clerks 1038 selection of jurors; preparation of list 1038 lists to be filed 1039 of grand jurors 1040 drawing grand jurors 1041 allowance by board of supervisors to grand and trial 1042 Jury Districts^ establishment of, by board of supervisors 59 Justices of the Peace^ fees of, in certain criminal cases, a, county charge 43 fines, supervisors may direct as to payment 63 to hold inquest on dead body, when 203 preside at town meetings. , 258 acts ministerial 268 election of 281 vacancies, election to fill 282 number and terms 286 reduced, in Monroe county 289 ballots for full term and vacancies 287 1,']24 INDEX. Justices of the Peace^Continued. Page. constitutional provision as to 286 power of legislature as to office of 287 removal 288 in new towns 288 upon alteration of town boundaries 288 certificate of election ' 290 special constables, appointment 292 undertaking, form and condition 305 sufficiency and approval 306 certificate of filing .' 306 oath of office, filing 306 acts legalized 306 vacancy, town cleric to certify to county clerk 336 constitutional provisions 346 term of office 346 vacancy, how filled 347 removal by appellate division 347 deposit of books with town clerk 348 docket book 348 delivery of books and papers to successor 348 buying demands a misdemeanor 348 payment of fines and penalties 349 police justices in certain towns 349 jurisdiction and powers 349 compnsation 352 may order vicious dog to be killed 658 accounts, what to contain 383 fees in criminal proceedings, when town or county charge 384b accounts, what to contain 384 salary in lieu of fees 384 lease of buildings for use of 437 Juvenile Delinquents^ supervisors to fix compensation for conveyance 63 I. Ijaboratories, County- establishment by board of supervisors 81 Ijegalization— by board of supervisors of acts of town meeting or village election 66 municipal bonds, precedure 1081 Levy — See Taxation : Taxes, eic. of taxes by board of supervisors 667 liicenses— See Toien Board. issued by town boards 401 Iiife Insurance Corporations — accumulations exempt from taxation 485 on assessment plan, moneys collected exempt from taxation 485 mutual, personal property exempt from taxq-tion 486. INDEX. 1325 Xights— Page. on vehicles using highways 966 to be paid to and distributed by county treasurer 114 fees of county treasurer for collection of 116 XiquoT Tax Iianr— submission of propositions under, at town meeting 263 effect of insufficient notice 256 sufficiency of application i;57 Xoan Associations- accumulations exempt from taxation 485 Iioan Commissioiiers^ office abolished 211 reports to comptroller 211 audit of accounts 210 Jjooal Improvements— in towns ; assessment 369 form and notice of assessment 369 hearing on assessment 370 commissioners ; appointment 370 Xock-ups^ town meeting may direct erection 361 use ; detention of prisoners 362 H Mandamus— to compel audit of county claims 33 audit of town claims 380 gainst local board of health 461 Marines — See Soldiers, Sailors and Marines. Marriage Iiicenses— town clerk to issue 342 statements of parties ; oath 344 form and contents 342 duty of town clerk as to filing 343, 344 fees for issue and filing 344 false statements in application 345 records to be kept 345 fees for search 34r) JAarriages — records in county clerk's office 135 transmission of papers to state department of health 135 registration; fees a town charge 448 duties of certain officers as to _•..•■. 462a 132« ■ INDEX. Medical Societies — Pagb. in cities of first class, real property exempt from taxation 486 Memorial Day — town board may vote money for 398 additional appropriations for 399a Military Equipment — for local military organizations 437 Militia^ governor may order out, to assist sheriff. ..^ 16& Ministers- real property exempt from taxation 48S Mobs and Riots- injuries, liability of county 1076 Monroe Connty— reduction of number of justices; election of town trustees 289 Mortgages, Taxation of — definitions 621 exemption from local taxation 622 exemptions 623 recording tax 623 optional, on prior mortgage 624 supplemental mortgage 62.'> indefinite amounts; contract obligations 626 payment of taxes 627 effect of non-payment of taxes 627 trust mortgages 628 apportionment by state board of tax commissioners 62!> computation of tax 631 payment over and distribution of taxes 633 expenses of ofiicers 634 supervisory power of state board of tax commissioners and state comp- troller 634ii tax on prior advanced mortgages 634b Mosquitoes—' removal of accumulation of water tending to breed 457 payment of expense 457 Municipal Corporation— See Bonds. defined I county declared to be 1 effect 1 Nassau County- board of supervisors, constitutionality of special act 10 powers and duties of assessors 355 compenation of asses!;or^ 353 INDEX. 1327 Ne-nr York and Albany Post Road — Page. preservation 973 Nonresidents- restriction as to business not to discriminate against 408 securities exempt from taxation 484 real property of, designation in assessment-roll 527 surveys and maps to be made by supervisor 529 of United States, assessment of debts owing to 535 real property, description of, board of supervisors, may change 561 owners of rents reserved review of assessment by board of supervisors. . . 561 notice by collector of receipt of tax roll 584 addresses to be filed in office of town clerk 584 town clerk to furnish to collector 584 debts due to, collector to return unpaid tax 596 duties of county treasurer 596 warrant to sheriff for collection of tax 597 Nuisances^ orders and regulations of boards of health 445 complaints as to 453 suppression by board of health 454 expense paid by owner of property 456 abatement 456 expense a lien on property 456 O Official Oatht^— See County Officers; Town Officers. validation of official acts before taking „->-. . 314 Ontario County- payment for supplies in advance of audit 46 Orchards- laying out highways through.' 921 Orleans County- town boards may rent rooms for posts 398 Overseers of the Poor— See Bastards; Poor Persons. applications for special town meeting 253 election of 281 number, determination 290b appointment by town board, when 291 submission of question 291 undertaking 291 compensation 291 in certain towns, fixed by town board 354 not to hold any other town office 291 undertaking, when elected or appointed 291, 307 delivery of books and papers to successor ,356 proceedings to compel 357 removal of poor person to alms-house 714 expense to be paid by county treasurer. . 716 1328 moEX. Overseers of the Poor — Continued. PAGE. temporary relief, order of supervisor 717 where county has no alms-house 718 needs of poor persons, to examine monthly 710 settlement of accounts 719 books and accounts 720 contents ; how kept . . , 720 presentation to town board 721 statements to be made to town board 721 estimate of expenditures 722 abstract of accounts, supervisor to present to board of supervisors 724 duties as to person bit by mad dog 725 settlement of poor persons, duties as to proceedings 734 unlawful removal of poor persons, duties 738-741 to notify superintendent of cases of bastardy 747 to support bastards, until cared for by superintendent 747 whether chargeable or not 747 application of money received from father 748 order of supervisor 751 comipel relatives to support poor person 755 seizure of property of absconding parents 760, 761 sale of property seized 762 diistinction between town and' county poor abolished, duties as to town moneys 780 reports as to childiren placed in family homes 782 comjpensation 352 P Parks and Playgronnds^ in certain towns, establis^hment and maintenance 462q Fastenr Institute — persons bitten by mad dogs, sent to 725 Peace Offices — in towns adjoining cities of first class 356 Peddling — See Eawking and Peddling. Penalties- received by county officers, reports to board of supervisors 224 collectedi by justice, payment 349 Penitentiaries- board of supervisors may contract with 57 notice of contract to be published gg Pension Money- property purchased; exempt from taxation 477 application for exemption 478 INDEX. 1329 Personal Property— Page. includes what, for purpose of taxation 469 taxation of , 469 liable to taxation 470 assessment of, no deduction for certain indebtedness 488 place of taxation 489 of agents, trustees, guardians, executors, or administrators 492 rents reserved 493 residence, what constitutes 493 Physicians— for jail, board of supervisors may appoint 185 town, appointment by town board 358a Pipe Iiine Corporations — apportionment of valuation between school districts 544 Flank Road Corporations^See Turnpike and Plank Road Corporations. exemption from taxation 486 acquisition of rights by supervisors 971 borrowing money for 971 Playgrounds— in certain towns, creation and maintenance 462q Police Justices^ in certain towns, election, terms 349 jurisdiction and powers 350 creation of office 351 Poll Clerks- designation number, qualifications 293 in towns, appointment 294 Poor- support, special town meeting to raise money 252, 253 town may borrow money for 396 Poor House — See Alms-Bouse. acquisition of new site 70 change of location 71 Poor Persons— See Overseer of Poor ; Superintendent of Poor. support, at alms-house, accounts with towns 677 county, superintendent may ddrect overseers to care for 676 estimate for support 679 town, statement of amount expended 677 annual apportionment to towns 678 rules and regulations for temporary relief 680 failure to make reports as to 681 children, support in families or charitable institutions 682 alien, not to be admitted to certain institutions 703 laaO INDEX. ^oor Persons — Continued. Page. wihcn relieved in alms-house 714 care, not to be put up at auction 716 temporary relief prior to removal to alms-house 716 board of supervisors may make regulations as to temporary relief, . . . 680 ■when cannot be removed to alms-house 717 order of supervisor 717 where county has no alms-house 718 needs of, overseer to examine monthly 719 accounts, form and settlement 719 books to be kept 720 presentation of .bocks to town board 720 estimates as to expenditures for 722 accounts of town officers 724 abstracts of overseer's accounts 724 treatment in hospitals 725 settlement, how gained 729 of married women 731 when determined by that of parents 731 of children 730 of apprentices .' 731 once gained, unlawful removal 732 settlement, to be supported at place of 732, 733 proceedings to determine 734 county superintendents to condnict 734 notice to appear before 734 hearing; decision 734, 735 decisions to be entered in books 737 appeals from decisions 737 of mother of bastard 746 of bastards, disputes concerning 750 effect of failure to provide support, when overseer has been notified 735 board of supervisors to charge support to proper town 735 county, superintendent to determine who are 736 support in counties having no alms-house 736 unlawful removal, a misdemeanor 738 proceedings in case of 738 denial ; service 739 support a charge on town or county from which removed, unless denial served 740 741 action to recover for support 741 foreign, penalty for bringing into state 742 relatives to support 755 liability 755 insane poor 756 overseers to apply to court 756 ihearing; order of court 756 apportionment among relatives 7,57 order to specify time, etc 7.58 in effect a judgment 758 costs of proceedings 758 action on order 759 INDEX. 1331 Poor Persons — Continued. Page; state, who are 772 relief of, duties of state board of cliarities 772 location of alms-liouses for , 773 to be conveyed to state alms-houses ; , 773 punishment for leaving alms-house. ......;...:.... 774 expenses for support 774 duties of superintendent of state and alien poor 774, 776 visitation of state alms-houses '. ■. 775 transfer to other states or counties :... 776 insane, removal to state hospital 775 children, care and binding out 775 Indian, relief of 776-778 relief of, in case of epidemic 461 toton and county, distinction abolished or revived 779 resolution of board of supervisors 779 abolishing, duties of overseers -. . . 780 investment of town poor money 781 owning property, action to recover for support. 781 support, town board may borrow money for 396 Ponndmasters— number, town meeting to determine 296 election 296, 367 to care for pounds 296 duties and fees, as to strayed animals 649 fees 367 Ponnds— erection, town meeting may provide for 250, 367 under control of ponndmasters 296 erection and discontinuance 367 Priests^ real property exempt from taxation 483 Prisoners — See Jails; Civil Prisoners; Sheriffs. support of, in jails, a county charge 41 when unable to support themselves. 48 contracts for board of 59 in jails 175, 178 separation of 178 to be furnished with wholesome food 180 employment of 180 to be furnished with reading matter 181 record of commitments and discharges 181 of United States to be received 182 calendars or names of 182 discharge if not indicted 182 if unable to pay fine 1 83 communications with, prohibited ? 184 sale of liquors to 185 1332 INDEX. Prisoners — Continued. Page. service of papers on 186 removal in case of an emergency 186 L-ivil, see Ciml Prisoners 189 Prisons, State Commission of — duties as to jails 175-177 Private Road — credit for work on 837 application for 931 copy to be delivered to applicant 932 service of copy, on owners of lands 932 jury to determine necessity 932 list of jurors 932 how made up 933 place of meeting 933 damages ascertained by 933 to be paid before road is opened 933 verdict 933 to be filed 934 motion to confirm, vacate or modify 934 fees to be paid by applicant 934 new hearing, costs 935 for what purpose to be used) 935 damages, where laid out along division line 936 Propositions- submission at town meetings, see Town Meetings 255 Public Conveyances — intemperate drivers not to be employed 963d horses not to be left untied 963d owners liable for acts of drivers 964 Fnblic Improvements in Toimis — assessments, how made 369 form and notice 369 hearing 370 appointment of commissioners 370 Q Queens County — designation of newspapers for publication of session laws 67 B Railroad Conunissioner — board of supervisors may abolish 1071 supervisor may act as. . . 1071 county judge may appoint 1072 INDEX. 1333 Railroad Commissioner — Continued. Faqe. oath, and undertaking 1073 sale of stock and bonds 1074 disposition of proceeds 1074 manual report 1074 accounts and loans 1075 Kailroad Corporations- apportionment of valuation between school districts 544 may pay tax to county treasurer 590 school tax, payment to county treasurer 591 payment of tax to county treasurer, where town was bonded 592 disposition of tax paid 593 Railroads^ grade crossings on state and county highways 991 street surface, on state or county highway, restrictions 892 crossing highways, not to be at grade 991 manner, commission to determine 991 laying out new highways 992 crossing highways, changes in existing 994 proceedings before public service commission 994, 995 acquisition of land by town 996a powers of commission 760 cost of repair of bridges and subway 996b payment of cost of construction 996b-1000 proceeding to compel compliance with order of commission 1000a town bonds issued for 1000a Real Property — includes what, for purpose of taxation, see Taxation; Taxes 467 rule for determining 466 special franchise as 468, 469 liable to taxation 471 place of taxation 496 when owned by nonresident or unoccupied 496 when divided by line of tax district 497 of non-residents, designation in assessment-roll 527 surveys and maps to be made by supervisor 529 Re-assessment^ of unpaid taxes 608 Recording Tax on Mortgages — See Mortgages, Taxation of 621-633 Religions Corporations— dwelling houses and property exempt from taxation 482 Removal— of county officers by governor 229 proceedings, evidence 229 order, how made, where filed 230 1334 INDEX. Removal — Continued. PAGE. order how made, where filed 230 costs, a county charge 45 county comptroller 119 sheriif, nonpayment of money 161 of public officers, for seditious or treasonable utterances 231 of town ofiScers 315 application to appellate divisionj notice 315 of justice of the peace 315 Rents Reserved^ owned by nonresidents, review of assessment by board of supervisors 561 taxes on, collector may levy 595 Resignation^ of town officers 315 Richmond County — designation of newspapers for publication of session laws 67 Riots- liability of county for da,mage8 1076, 1077 Road Machine- purchase by town 822 contract for 823 town superintendent to make inventory 823 Rome State Custodial Asylum — idiots committed to 700 Rules— of procedure of board of supervisors 13 Sailors— See Soldiers, Sailors and Marines. Salaries — See Compensation ; County Officers; Town Officers. Savings Banks — deposits exempt from taxation 485 School Directors — town, election, compensation, etc 1010 election of district superintendent 1019 School Districts — See Schools; School Moneys. apportionment of valuation of railroad, telegraph or pipe line companies between 544 apportionment of special franchise tax among 55I registion and erection, duties of supervisor 1015 supervisor to be associated with district superintendent 1015 muEX. 1335 School Districts — Continued. Page. dissolved, duties of supervisor 1016 in two or more towns, equalization of taxes 1016 School Moneys — apportionment by commissioner of education 1002 for support of common schools 1002 conditions under which to be made 1003 academic funds, how made 1004 certificates to county treasurer 1006, 1007 annual report of county treasurer 1006 moneys, when payable 1007 duties of district superintendent 1007 when district not entitled to 1008 supervisor to receive 1008 undertaking to be given 1008, 1009 return to county treasurer of balance 1010, 1013 supervisor, disbursements; payments to collector or treasurer 1013 library moneys 1013 union free schools 1013 accounts, how kept and filed 1013 payments to successors 1014 ability of town ofiicers for loss of 1025 School Taxes- payment by railroad, telegraph, telephone and electric light company to county treasurer 591 unpaid, collector to return 1022 county treasurer to pay to collector 1023 accounts of, to be laid before supervisors 1024 School Tmstee^ not to be supervisor , 300 Schools^ apportionment of public moneys 1002 grant, devise or bequest to town for benefit 1010 fines and penalties for benefit, disposition 1011 district attorney to report as to 1012 duties of town clerk in respect to 1021 unpaid taxes, collector to return 1022 county treasurer to pay amount to collector 1023 account of, to be laid before supervisors 1024 district superintendents of, election, salaries and expenses 1017-1019 supplies, etc., supervisors may furnish 65b (See District Superintendent of Schools.) Scraper and Plow- purchase by town superintendent 822 Sealer of Weights and Measures — county, appointed by board of supervisors 1089 powers and duties 1089 1336 INDEX. Seals— Page. of counties, boards of supervisors, county treasurer 225 how impressed 225 Search— of records by county clerk 129 Seditions or Treasonable XTtteranoea- removal of public officer 231 Session Lavs- designation of newspapers for publication of 66a method of selection; votes of members of board 66a failure to make; effect 66b clerk of board of supervisors to forward name and address of newspapers to secretary of state 66e of a general nature published at expense of state 66d local, at expense of county 06, 68 secretary of state to transmit copies to county treasurer and to papers designated 66d slips to be forwarded to newspapers 67 Settlement — of poor persons, see Poor Persons 729-735 purification 438a contracts for disposal in municipalities 438b Sewer System — town board may establish 425f petition ; contents ; signatures 426 extension of district 426 direction to construct portions 420 commissioners, appointment 426b oath of office and undertaking 427 condemnation of real property 428 annual statement 431 map and plans 426a construction 427 portion may be constructed 426 extension, when constructed 426a assessment of expense 428 levy, for cost of construction 428-430 for cost of maintenance 43O water and sewer commission in certain towns 431 in municipalities generally 438b-438i Sheep^ killed or injured by dogs, procedure, see Dogs 655 658 Shelter for Unprotected Girls^ commitment of girls to ^85 Sheriff- See County Officers; Jails; Prisoners. fees as to criminals, county charge 39 for summoning constables 33 contracts with, for board of prisoners 59 election and terms jg^ INDEX. 1337 Sheriff — Continued. Page. appointment to fill vacancy by governor 154 undertaking 154 special acts making office salaried 155 under-sheriflFs, appointment 156 duties 156 deputies, appointment 157 appointment to be in writing 157 number 157 undertaking 157 powers 158 office, where kept , 158 notice of, to be filed in office of county clerk 159 hours to be kept open 160 fees for services for the state 160 removal for non-payment of moneys 161 coroner, when designated as 161 when to perform duties of 161 to execute duties until vacancy is filled 162, 163 undertaking required 162 failure to give; other coroner to be designated 162 when coroner refuses to act, county judge may appoint 162 mandates and process, duties in respect to service of 164 to deliver copy 164 execution and return 165 liability for neglect in serving 165 powers in case of resistance to service 166 attendance upon terms of courts 167 duties in respect to courts 167 claim of title to property seized, trial 168 certificate of new 169 powers of former sheriff to'terminate on filing 169 former, to deliver books and papers to new 170 duties of former, upon new sheriff taking office 170, 171 injury to records 172 permitting escapes or refusing to receive prisoners 172 jails, custody of. See Jails 174 civil prisoners, duties and liabilities as to, see Civil Prisoners 189 escape, liability for 197 indicted, when to produce 198 warrant for collection of taxes on debts due nonresidents 596 neglect to return • 596 when person taxed has removed from county 597 Sho-nrs — licenses required; regulations 405 Sidepaths— i expenditure of funde for, by county superintendent 65 Side-nralk District- establishment by town board 431 improvements ; construction 431 1338 IXDEX. Side\ralk District— Continued. Page. contracts ; payments 432 cost; apportionment bj- town bonnl 433 issue and sale of bonds to pay 433 supervision of town superintendent of highways 434 removal of obstructions, snow, etc 434 annual estimate of cost 435 construction of sidewalks outside of district 435a Sidewalks— > along highways, town superintendent may authorize construction 833 expenditure of money, town board may allow 835 Smallpox — duties of board of health 450, 451 Snoir — town superintendent to remove 816 employment of teams and implements 818 removal from culverts and waterways 827 obstruction caused by 827 sidewalks in sidewalk districts 434 labor system adopted for removal 845 assessment of labor 845 list of persons assessed 846 ditrict foreman ; unworked tax 847 appeals by nonresidents 847, 848 tenant may deduct assessment 848 Snoir Blockade—' wire fence to prevent, expenditure of money 829 how constructed 829 Soldiers — See Soldiers, Sailors and Marines. property purchased with pension, exemption from taxation 330, 331 Soldiers' Burial Plots- town board may purchase 365 removal of remains 365, 366 expense of maintenance a town charge 366 Soldiers' Monument — erection of by town or county 80 town board may acquire lands 436 Soldiers' Monument Association — exemption from taxation 487 Soldiers, Sailors and Marines — not to be sent to alms-hou.-es 7g7 relief of, duty of Grand Army of Republic 767 post commander to file notice 768 to give undertaking 768 when county charge §5^ INDJOX. 1339 Soldiers, Sailors and Marines — Continued. Page. to be sent to Soldiers' Home 770 burial, board of supervisors to designate persons to conduct 770 where to be made 770 headstones to be provided 771 may peddle without license 402 Special Francbise — Teal property for purpose of taxation 468 imhat taxed as 469 valuation in assessment-roll 516 tax commission to value 552 report of corporation or owner 549 affidavit of president annexed to 549 penalty for failure to make 552 assessment, hearing before state board' 553 determination of final valuation 563 certificate of valuation to be filed with town clerk 553 notice of determination to owner 554 certiorari to review 554a defense of certiorari proceedings 554b deduction from tax for local purposes 654b tax not to aflfect other tax 555 State Aid— for construction of highways, see Highways 866-868 State Commission of Highways— See High/ways, Btaie Commission. State Highways — See Highways, State. State Iiands — in forest preserve, tax to be paid by state 601 State Pooi^- relief of, see Poor Persons 772-775 Statement— to com.ptroller, of county, town and village indebtedness 97 of taxes upon railroad, telegraph, telephone and electric light corporations, 97 penalty for failure to make 98 Steam Traction Engines — use on highway regulated 965 Stenographers — of Supreme Court, salary and fees a county charge 48 apportionment among counties 48 of county court, supervisors may provide for 63 on coroner's inquest, employment authorized 164 1340 INDEX. Stone Crusher — Page. purchase of 822 custody and use of 822 town superintendent may hire 823 borrowing money to purohase 863, 864 Street liighting Districts — town board may establish 423 contracts for lighting 424 Streets and Avennes— plans ; board of supervisors may adopt 65c title to lands for, in certain counties 65d Suffolk County— tax warrant to direct payment of. school taxes to district treasurers 570 Superintendent of the Poor — ^See Alms-houses; County Officers; Poor Persons. not to be supervisor 300 election or appointment 668 number of, board of supervisors to determine 660 term of office 670 undertaking 67 1 amount, supervisors to fix 55 powers and duties 671 as to alms-houses 672 to decide disputes as to settlement of poor person 678 to direct prosecution of penalties by overseer 673 to draw on county treasurer 673 to settle accounts of overseers 673 to furnish relief to county poor 674 to account to board of supervisors 675 to administer oaths, etc 675 pay over to county treasurer moneys received by him 675 one may be appointed keeper of alms-house 675 direct overseer to take charge of county poor 676 provide for support of idiots and lunatics 676 removal of persons from alms-house in ease of pestilence 677 statement of amount charged to towns 677 amount apportioned against towns 678 to be added to tax levy 678 estimate for support of county poor 679 reports to state board of charities 679 failure to make report, punishment 681 insane poor, duties as to 689-698 idiots, commitment to Rome asylum 701 epileptics, admission to Craig Colony 701 proceedings before, to determine settlement 734, 735 decisions to be entered and filed .' 737 appeals from, to County Court 737 unlawful removal of poor persons, duties 738-741 to provide for bastard and mother 747 compromise with father of bastard 752 INDEX. -^^24,1 Supervisor— p^^g duties as to seizure of property of person abandoning wife or children. . . 763 reports as to children placed in family homes 782 member of board of supervisors, penalty for failure to perform duty as. . 17 liability for neglect of duty 17 compensation 18 special acts relating to 19 attending meetings of tax commission 21 allowance for copying assessment-roll 20b application for special town meeting 253 election of 281 term of office 282 in county of Erie 284 special constables, appointment 292 to provide badges far 292 eligibility 300 county treasurer, district superintendent of schools or trustee not eligible 300 undertaking, form and condition 304 sufficiency and approval 304 bond of surety company purchased at expense of town 305 (See Undertakings.) general duties 320 as to town moneys 321 as to actions for penalties 323 accounts of receipts and expenditures 323 publication in newspapers 324 to account to town boardi 323 certificate of bank to be attached to account 323 to receive accounts against the town 324 to attend meetings of board of supervisors 324 to sell town property 324 to act as superintendent of fires 325 to appoint forest rangers in case of forest fires 325 to cause town survey to be made 325 forest fires, to act as superintendent of fires 325 aippointment of forest rangers 324 compensation a town charge 325 delivery of books and papers to successor 35B proceedings to compel 357 incorporation of villages, proceedings for 331 notice of hearing 332 proceeding on hearing 332 notice of appeal from decision 332 hearing and decision of appeal 333 compensation 334 justice to pay fines and penalties to 349 ■clerks and assistants in certain towns 358 doities as to funds in certain towns 358g surveys and maps of nonresident real property 529 assessment-roll to be delivered to 544 appeal to state board from equalization of assessments 574= 1342 '-^'l^EX. Supervisor— Continued. Page. surplus on tax sale, payment to 588 conflicting claims, settlement 589 may institute supplementary proceedings for collection of tax 50S dismissal of suits or proceedings 599 to prosecute collector's bond 604 duties as to unpaid taxes; re-assessment 608 duties as to highways, see Highways. town board ; member of 374 preside at meetings of 375 special meeting, may call 375 compensation as town officers 352 while attending tax meetings 21 fees on money disbursed 354b payment of salaries m'Onthly 354b for services in resipect to highways 873 licenses for peddling, endorsement 402 for transient retail business 40r) for hackSj vendors, shows, etc 405 for junk business 407 school moneys, apportionment 1008 certificate, to be filedi in office of town clerk 1008 receipt on filing undertaking 1008, 1009 tmdertaking, sufliciency 1008 refusal to give, a misdemeanor 1009 gospel and school funds, report 1011 return to county treasurer of amount on hand kOlO, 1013 disbursement 1013 payments to successor 1014 erection or alteration of school districts 1015 dissolved school districts, duties 1016 duties as railroad commissioner 1071 report to board, of amount of town bonds 1080 duplicate to be presented to town meeting _. 1080 removal of dead bodies from one cemetery to another 1087 Supplementary Proceedings — for collection of unpaid tax 598 Surgeon — coroner may employ 164 Surrogates- election and term of 145 governor to fill vacancy 145 constitutional provisions as to 145 clerk of 140 temporary, who to act as 140 undertaking; approval' and filing 14" board of supervisors may appoint ijcrsoii to act as 147 may create office in certain counties 146 INDEX. 1343 Surrogates — Continued. Page. report of fees received to board of supervisors 148 compensation 147-151 how paid 151 Surveys, Town- supervisor to make 325 Syracuse State Institution for Feeble-Minded Children — children suported and received at 700 •discharge of pupils 700a expense of clothing pupils charge on county 700a T Taxation — See Assessment; Assessment-roll; Mortgages; Tasces. definitions 465 tax commission 465 assessors 465 tax district 466 county treasurer 467 land, real estate, real property 467 rule for determining 466 special franchise 468, 469 personal estate 469 property liable 471 exemptions, see Exemptions 472 lands sold or leased by the state 488d personal property, deduction for indebtedness 488d no deduction permitted because of purchase of non-taxable property, 488d place of, of property of nonresidents 489 of personal property of nonresidents 490 deduction of debts 491 of personal property of residents 492 residence at time of assessment 493, 495 what constitutes residence 492 real property 496 of nonresident and unoccupied lands 496 divided by line of tax district 497 corporations 499 of corporate stock of corporations 500 capital stock, includes what 500 of railroad corporation 501 market value ascertained 501 ■deduction on account of real property 503 income tax on manufacturing and mercantile corporations 502a disposition of revenues 602a of stockholders of bank 503 of individual banker 505 report of exempt property by assessors 506 of banks 522a^524 real property, subdivision of lots may be abandoned 546 false statements by person taxed 546 special franchise, see Special Franchises 549-555 1344 INDEX. Tax Commission, State — Page. forms to be prescribed by 545 assessment of special franohise by, see Si>crial Franchises 549-555 appointment, memibers, term of office, coiiipiiisation 572 general powers and duties 572 to visit counties and meet with assessors 573 compensation of assessors and supervi^ois 21 tax department, created 572 term and salaries 572 general powers and duties 573 conduct of hearings 575 conferences with assessors 575 counties to be visited 576 re-assessment of property 577 equalization of valuations of counties 578 review by commission ; hearing 578c appeals from equalization by board of supervisors 57Sa how brought 578a form of petition 578b time and place of hearing 578b determination of board 678d costs to be fixed by board'. 578e Tax District- defined 467 assessors may divide 512 tax map to be prepared 528 Taxes- assessment, see Assessment ; Assessment-roll; Assessors 512 levy by board of supervisors 567 warrant of collector for collection of 568 statement of, upon certain corporations by clerk of board of supervisors, 570 collection, notice of receipt of tax roll 583 notice to nonresidents 584 town clerk to file address of nonresident 584 to furnish transcript to collector 584 fee for filing 584 after expiration of thirty days 585 sale of personal property 585 liability of collector 586 notice of time and place 586 disposition of proceeds 58S claims to surplus, settlement 589 against stock in banks 589 ■railroad, telegraph, telephone and electric light corporations.. 590 payment of school taxes to county treasurer 591 payment by railroad company, where town was bonded 592 disposition of amount paid 598 against telegraph, etc., companies, enforcement 594 sale of instrument?, etc 594- on corporations, sequestration of property 595 IXDEX. 1345 Taxes— Continued. Page. on rents reserved ; levy by collector 595 on debts due nonresidents 596 collector to return unpaid, to county treasurer 596 duties of county treasurer 596 warrant to sheriff for collection 596 warrant to sheriff, when person taxed has removed from county. . . . 597 supplementary proceedings 598 dismissal of suits or proceedings 599 cancellation of personal tax for want of jurisdiction 600 of tenant, amount to be retained 600 on part of lot 600 state lands in forest preserve 601 fees of collector 601 unpaid, return of collector 601 contents of return 601 injunction to stay, effect 602 payments by collector 603 receipts to be given collector 603 failure of collector to make 604 sheriff to levy on property of collector 604 extension of time by county treasurer 605 new bond of collector 605 by sheriff, where collector fails to give bond 606 collector's bond, satisfaction of, by county treasvirer 607 form of satisfaction ; filing 607 collector to give receipts 611 obstructing officer in collection 612 unpaid, reassessment 608 county treasurer to reassess, when property imperfectly described 608 payments by county treasurer 609 state, payments to comptroller 609 fees of county treasurer 609 accounts of county treasurer 610 proceedings, where amount is not paid over 610 unpaid, sales of real property by county treasurer 613-620 in counties embracing no part of forest preserve 614 list of property and notice to be published 615 how conducted 615 new certificate on setting aside sale 616 redem;ption 616 redemption of real property stricken from tax rolls 617 conveyance to purchaser 617 effect 618 purchase money, when refunded 618 list of lands sold, to be transmitted to comptroller 618 expense of publishing notice to redeem 619 on mortgages, see Mortgages 621 Telegrapb Corporations- apportionment of valuation between school districts 544 may pay tax to county treasurer 590 1346 INDEX, Telegraph Corporations — Continued. Page. enforcement of tax, sale of instruments, etc 594 obstructions in highways ^ 824 Telephone Corporations — apportionment of valuation between school districts 544 may pay tax to county treasurer - 590 enforcement of tax, sale of instruments, etc 594 poles and wires in highways 824 Tenant- may retain amount of tax paid 600 Time Table— for town and county officers 1217 Toll Bridge- unsafe, duty to repair 840 abolition, resolution of board of supervisors 954 investigation by state commission 955 acquisition by attorney-general 955 payment of expense 956 by state commissioner, when part of state route 957 maintenance, when acquired by state 956 use 'by public service corporation 957 Toll Roads and Bridges — acquisition by board of supervisors 971 bonds to be issued for 971 payment of bonds and interest 971 roads acquired to be part of highway system 972 when in two or more counties 972 Town— a municipal corporation 233 powers of, as corporation 234 alteration and erection '. 235 application to board of supervisors 235 publication 236 resolution of board 236 proceedings generally 236 disposition of property 238 debts to be apportioned 239 unpaid taxes, apportioned ." 239 meetings of town boards 240 division into two towns, in certain counties 236a submission of proposition to electors ' 236b new, first town meeting 237 disputed lines, establishment 237 proceedings therefor 237 disposition of property 238 debts to be apportioned 239 boundaries, intersected by islands 238 survey of boundaries ; expense 326 bonds, surplus moneys applied in payment 355 cublic improvements, assessments for 3g9 form and notice of assessments 3g9 hearing on assessments 3>rQ commissioners, appointment 3j-q action by and against, in name of 393 INDEX. 134,7 Town— Contimxetl. Page. contracts in name of 393 may borrow money for highway purposes and support of poor 39li to pay judgments 398 for suppression of forest fires and other emergencies 397 for payment of claims against town 398 , parks and playgromids in certain towns 462q temporary loans 1058 power to borrow money 1058 funded debt, contracted for specific purpose 1058 new bonds for retirement of old 1061 bonds, how issued 1062 surplus money applied in payment 355 registration 1063 coupon converted into registered 1064 limitation of indebtedness 1065 resolutions of board of supervisors authorizing 1069 report of amount outstanding. 1080 duplicate to be presented to town meeting 1080 cancellation, town board to provide for 1080 credit not to be loaned 1066 railroad bonds, payment 1074 reissue of lost or destroyed 1075 limitation of indebtedness 1080 Town Auditors — See Accounts; Audit; Bonds, etc. when to be elected 391 number; term of office 391 audit of town accounts 392 temporary appointment by town board 392 compensation ; 393 vacancies, supervisor to fill 393 discontinuance 393 Toxpn Board — See Accounts; Audit; Bonds, etc. county attorney to perform services for 144 disposition of property and apportionment of debts where town is divided, 238 appointment of overseer of the poor 291 appointment to fill vacancies in town offices 318 clerics, assistants and stenographers to officers in certain towns 358a town physician in certain towns, appointment 358a to fill vacancy in office of collector 600 overseers of the poor to present books and accounts 721 estimate of expenditures, ajpproval 722 how constituted 374 meetings, regular, when heldi 374 supervisor to preside 375 special, how called 375 as governing board of town 374 special powers and duties 375 meetings for receiving town accounts 376 accounts of town oificers 376 statement as to 376 for audit of accounts ,. 377 1348 INDEX. Town Board — Continued. Page. audit of town accounts, see Audit; Accounts 377-382 of accounts of justices of tlie fwace and constables 383 certificates to be issued 382 abstract, town clerii to prepare 382 appeal to board of supervisors 382 form of accounts 386 verification 386 town charges 388 traveling fees for subpoenaing witnesses 390 abstract of names of claimants 390 temporary appointment of town auditors 392 borrow money for higihway purposes and support of poor 396 statement to be rendered to board of supervisors 397 for suppression of fires 397 for other emergencies 397 for payment of charges or claims against town. 398 judgments against town, to pay 398 Orleans county, appropriation for rooms for posts 398 memorial day, vote of money for 398 soldiers' burial plots, purchase 365 removal of remains 365 expense a town charge 366 hawking and peddling, may prohibit without license 401 licenses issued by town clerk 402 by soldiers and sailors 402 farm produce permitted 403 penalties, for refusal to produce license 404 unlawful, a misdemeanor 404 hacks, vendors, shows, etc., licenses in certain towns 405 rules and regulations respecting 406 licenes required 400 penalties paid to supervisor 406 offenders, where tried 406 injunction to restrain unlawful business 407 regulations not to discriminate against nonresidents 408 fire companies, appointment of members 411 town fire districts, establishment 414b water supply districts, establishment 414c contract with water works corporation 414d purchase of water works 415 vxiter districts, establishment 418 petition; map and plans 418 commissioners to construct works 418 contracts for construction 419 town bonds, issue and sale 420 payment ; assessment on property 420 control of water works 421 enlarging district, approval of town board 423 joint, action by joint town boards 425 contracts ; levy of taxes 425a street lighting districts, establishments 425b petition 425b notice of filing 425b INDEX. 134^ Town Board— Continued. Page. contract for lighting 425b consolidation by resolution 42.5d joint contract for lighting district and village 425e sewer system, establishment 42uf commissioners, appointment 426b map and plan 426a. construction 427 assessment of expense 428 on property benefited 430 levy by, and supervisors 428, 429 sidewalk districts, establishment 432 improvements directed '. 432 construction of improvements 433 sidewalks in town outside of district 435a soldiers' monument, may acquire lands for 436 Grand Army of Republic, lease of public buildings to 436 justices of the peace, lease of builddngs for 437 collection of garbage 437 purification of water and sewerage 438 appropriation for shade tree fund 438 forest lands, acquisition 438 levy of tax for purchase 438a as local board of health, see Health 442 parks and playgrounds, duties as to 462q cancellation of town bonds 1080 limitation of indebtedness 1080 special provisions as to transaction of business in certain towns 358b adoption of act at special meeting 358b fiscal year 358o estimates of expendtures by town officers 3o8c annual estimate, adoption 358c ■hearing on proposed expenditures 358d annual appropriations ; surplus 358e tax budget ; submission to board of supervisors 358f temporary loans; certificates of indebtedness 358f contracts and expenditures beyond amount available 358f payment of claims against town 3581i town clerk to prepare warrants, etc 358i supervisor, duties as to funds 358g Town Charges- board of supervisors to direct raising money to pay 54 bond of supervisor purchased of surety company 305 what are, generally 388 Town Clerk — See Town Board; Town Officers, etc. post notice of special town meeting 255 as clerk of town meeting 260 notice of propositions 256 election of 281 term of oflice 282 delivery of books and papers to successor 356 proceedings to compel 357 1350 i'^'l^^-^- Town Clerk — Continued'. Pa3E. custody of books, records and papers 336 to certify to county clerk names of town oflSeers 33ft to notify county clerk of vacancy in office of justice 336 to deliver to supervisor copies of entries of votes for raising money 336 furniture and blank books 338 sign 338 deputy, appointment 339 qualifications 339 filing and discharge of chattel mortgages 339 duties in respect to chattel mortgages 340 fees for 341 other liens on personal property 341 marriage licenses, issue 342 statement required of parties 343 oaths may be administered by town clerk 344 consent of parents of parties, w.hen required 344 fee for license 344 duty as to filing 345 copies of papers filed in office, evidence 345 in certain towns, preparation of warrants, etc 358 i duty as to data furnisihediby county clerk respecting corporations 526 duties as to tax notices to nonresidents 584 registration of dogs, duties as to 662 names of town officers to be transmitted to highway commission 873 compensation 352 in certain towns 3o4a for attending meetings of town board in certain towns 354b for duties in respect to highways 873 duties in respect to common schools 1021 expenses a town charge 1021 neglect to return names of constables 1087 Town Fire Districs— See Fire Districts. establishment 414b Town House — town meeting may vote money for 359 form of proposition 360 special, when and how called 360 issue and sale of bonds 360 purchase of site 361 erection and control 361 Toirn Iiands— ' town meeting to regulate use 250 actions for trespass on 396 Town Meetings^ legalization of informal acts of 66 first, in new 237 INDEX. 1351 Town Meetings— Continued. Page. biennial, time and place 244 board of supervisors may fix time 245 on general election day 245 special acts relating to 247 town may vote to hold 246 effect of change on terms of town officers 284 place, electors may determine 247 general powers 247 designate number of constables 248 election of officers 248 prosecution or defense of actions 248 noxious weeds and animals 249 establish pounds 250 abatement of nuisances 250 town lands • 250 fences, rules and regulations 251 support of poor 252 sale of property 252 public records, provide for recopying, etc 252 monuments, appropriation 252 special, for what purposes called 253 application therefor 253 notices to be posted 254 submission of proposition under Liquor Tax Law 263 presiding officers 258 maintenance of order 258 town clerk as clerk 260 proclamation of opening and closing 261 duration; hours during which to be kept open 260' adjournment 260 qualification of electors, when held at time of general election 261 to vote on propositions •^ 261 to vote on proposition for site of town house 261 women to vote on propositions 262 challenges of voters 264 Election Law to apply 265- minutes of proceedings 265 business not requiring ballot 263 submission of question 264 how voted 264 division of electors present 269 submission of result to canvassers 269 when held in separate districts 269' votes by ballot, if amount exceed $500 262 elector must be taxpayer 261 women may cast 262 propositions determined by ballot 255 application for submission 255 by town officers 255 notice to be posted 256 iballots and ballot boxes 256 Town Meetings — Continued. Page. under Liquor Tax Law 256 notice and application 257 qualilicatioa of electors 261 to vote for site for town house 261 electors in villages, when not to vote : . . 263 relating to highways, separate ballots 263 canvass of votes 265 result to be read 266 disposition of ballots 266 application of Election Law 266 in election districts, proposition therefor 266 canvass of votes , 267 vote upon propositions not requiring ballot 267 notice of submission 267, 268 at time of general election, how conducted 269 canvass of votes 269 ballots 270 ballot boxes 271 election expenses 272 filing certificates of nominations 273 time of 273, 274 form of ballots for questions submitted 275 numiber of ballots 276 officers providing ballots .• 277 sample ballots ; public inspection 278 TOting machines, use of 278 town officers elected at 281 vacancies to be filled 282 may vote money for town house 359 for maintenance of lock-up 361 trustees of town burial grounds 362 minutes, town clerk to transcribe : 336 ^own Moneys- investigation into expenditure 1043 Town OfiBoers'— elected at biennial town meetings 281 when held at time of general election 281 term of offiee 282 effect of change of time of holding town meeting 283 extension, by act of legislature 283 holding over after expiration 284 eligibility 29!) qualifications 301 oattiB of office 301 form 302 effect of failure or neglect to tako 303 filing, deemed acceptance of office 303 who may administer 303 INDEX. 1363 Town Officers— Continued. Page; undertaking, form and liability thereon (see titles of respective town officers 311, 312 expense of, a charge against town 313 not to perforin duties until given . : 313 resignation 315 notice of 315 removal, application to appellate division 316 notice 315 vacancies, how created 31G by neglect to file official oath 317 appointments to fill 318 election to fill 282 omissions to transmit returns or certificates, county clerk to report 318 town clerk to certify names of, to county clerk 336 compensation 352 supervisors, board of, may fix by resolution 352 in certain towns 354 per diem allowance 352, 354b payment of salaries monthly 354b expenditures of surplus moneys 355 delivery of books and papers to successors 356 liability for loss of school moneys 1 025 clerks, stenographers and assistants in certain towns 358a investigation into expenditure of town moneys 1044 nature and object of proceedings 1044 action to prevent illegal acts 1045 object of statute 1047 when maintained 1049 to restrain award of contracts 1051 audit of illegal claim 1052 to prevent waste 1048 by and against, in official capacities 1056 for malfeasance in executing town bonds 1053 acting without having qualified 1082 bribery 1082 prevention from performance of duties 1083 taking unlawful fees 1083 illegal acts as to appointments 1084 wrongful intrusion into office 1085 neglect to perform duties 1085 misappropriation and falsification of accounts 1085 not to be interested in contracts 1086 Town Superintendent of Highways — See Bighioays, Town Superintendent of. Tramp- defined 386 Transfer Tax— • collection by county treasurer 116 treasurer to give receipt 116 1354 INDEX. Transfer Tax— Continued. Page. fees for collection 116 reports to comptroller of amount received 116 Transient Retail Business — license for 405 taxation of persons engaged in jl_^ 40^ Trees^ along highways, commissioner may authorize 833 to whom belong 969 penaltj' for injuring 970 abatement of highway ta.\ 835 appropriation by town board for shade tree fund 438 lands planted with, exemption from taxation 488 custody 836 Trespass—' on town lands, actions for 396 Tmstees— assessment of personal property held by 495, 490 assessment of, generally 532 Tnbercnlosis— cases, report of, to health officer 451 Tuberculosis, County Hospital — establisihment by board of supervisors 216 by vote of people of county 216 board of supervisors, purchase of site 217 erection of; assessment; bonds 217 acceptance of gifts and trusts 217 condemnation of land 217 managers, board of, appointment 217 general powers and duties 218 employment of county nurses 218 compensation of officers and employees, supervisor.^' duties 54 superintendent, appointment 218a general powers and duties 218b patients, admission 220 maintenance, when from same county 220 when from another county 221 admission from' other counties 221 visitation and inspection , 222 establishment at alms-house 222 Turnpike and Plank Road Corporations — exemption from taxation 486 acquisition of property by county 971 borrowing money therefor; bonds 971 payment of bonds ' 971 roads acquired part of highway system 972 roads in two or more counties 972 INDEX. 1355 Ulster County— Page. fees of certain officers 386 Tinder-Sheriffs— duties of 156 powers of 156 Undertakers — board of supervisors in Erie county may contract with 65e Undertaking— of coun«f^ officers, board of supervisors to sue 58 amount of, for county cleric, district attorney and superintendent of poor, supervisors to fix 55 of county treasurer. . . . : 101 of deputy county treasurer 103 of county clerli ; amount ; ajpproval 126 of county officers, generally 227 of town officers generally (see titles of respective town officers) 311 conditions generally of official 312 form and manner of executing; justification 312 liabilities of sureties 312 expense of, a charge against town or county 313 officers not to perform duties until given 313 validation of official acts before executing 314 "United States Deposit Fund — what constitutes 206 loan commissioners, office abolished 211 comptroller to have charge of 206 discharge and cancellation of mortgages 207 bonds 207 boolcs and records 207 supervision of existing mortgages by comptroller 207 comptroller to receive principal and interest 207 investment by comptroller 208 release of part of mortgaged premises 208 comptroller to maintain actions 209 foreclosure ; redemption 209 disposition of surplus moneys 209 supervision of mortgaged lands 210 comptroller to audit accounts 210 office abolished 211 certified copy of mortgage 211 Upon Its Borders- definition 990 V Vacancies— in office of county treasurer ; governor to fill 101 county clerk ; governor to fill 120 in public offices generally, how created 31G 1356 I^'DEX. Vacancies — Continued. Page. for refusal to file oath or undertaking 317 in town offices, how filled 31S in office of supervisor 319 Vagrants^ defined 38i> Venders- licenses required ; regulations 405 Vessels- exemption from taxation 483 Village Elections — legalization of informal acts of 66 Villages — effect of incorporation within limits of fire district 79, 80 incorporation of 331 proceedings before supervisor 332 notice of hearing ">32 proceeding on hearing 332 decision of supervisor 332 notice of appeal from decision 333 'hearing and decision of appeal 333 compensation for services of supervisors and town clerks 334 jurisdiction of town, board of health 450 Vineyards — laying out highways through 921 Vital Statistics- state department to control registration 462a registration districts 462b registrar, health officer as 462b appointment in certain towns 462b still-born children, registration of birth 462d certificates of death 462p deaths, without medical attention 462f births, registration 462h certificates, contents 462i physicians, midwives and undertakers 462j Voting Machines- adoption for use of town 27S who to provide 278 payment of cost 279 number of voters in election district , 279 INDEX. 1357 'Warrant— Page. of collector for collection of taxes 568 "Water- purification 438 VTater and Server Commission- in certain towns, created 431 Water Supply Districts — in towns, establishment 414:C, 418 petition ; maps and plans 418 commissioners, town board to appoint 418 construction of works 419 issue and sale of town bonds , 419 acquisition of rights of water works company 419 refunding indebtedness 420 assessment of cost on property 421 control of water works 421 enlarging district 423 use of water outside of district 423 joint, town boards may establish . . .' 424 petition and map 425 contract for water supply 425a levy of taxes 425a Watering Trough — abatement of highway tax 836 Water "Works Corporation — contracts with town 414d town may acquire works 415 submission of proposition 415 purchase ; issue of bonds 416 consent of stockholders 417 town board to control 417 water district may acquire rights of 419 Weeds, NosionS'— bounties for destruction of, a county charge 43 board of supervisors may make regulations as to destruction of 56 town meeting to provide for destruction 249 destruction by town superintendent of highways 819 in highways, owners to cut 827 notice to owners 827 duty of town superintendents as to 828 Weights and Measures — duties of slate superintendent 1087 copies of standards 1088 county sealer, appointment 1089 to be sealed' 1090 Widening Highifays^ — narrowed by stream or river 936 Wide Tire- board of supervisors may regulate use 990 Wire Fence — purchase, to prevent snow blockade 829 1358 INDEX. Witnesses— Page. examination by board of supervisors 22 subpoena, how issued 22 administering oath 22 powers of committees of hoard 23 adjournment, discharge, when arrested 23 undertaking upon discharge 23 fees of, criminal cases, a county charge 41 traveling fees, for subpoenaing 390 Women- vote at town nieeting on propositions for raising money 262 W^oodlot— lands maintained, exemption from taxation 488b Work Houses — board of supervisors may establish and maintain 184 (Total number of pages, 1567.)